TITLE 27 ‑ THE NORTH CAROLINA STATE BAR

 

CHAPTER 1 ‑ RULES AND REGULATIONS OF THE NORTH CAROLINA STATE BAR

 

SUBCHAPTER 1A ‑ ORGANIZATION OF THE NORTH CAROLINA STATE BAR

 

SECTION .0100 ‑ FUNCTIONS

 

27 NCAC 01A .0101         PURPOSE

The North Carolina State Bar shall foster the following purposes, namely:

(1)           to cultivate and advance the science of jurisprudence;

(2)           to promote reform in the law and in judicial procedure;

(3)           to facilitate the administration of justice;

(4)           to uphold and elevate the standards of honor, integrity and courtesy in the legal profession;

(5)           to encourage higher and better education for membership in the profession;

(6)           to promote a spirit of cordiality and unity among the members of the Bar;

(7)           to perform all duties imposed by law.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01A .0102         DIVISION OF WORK

(a)  To facilitate the work for the accomplishment of the above enumerated purposes, the council may, from time to time, classify such work under appropriate sections and committees, either standing or special, of the North Carolina  State Bar.

(b)  The council shall determine the number of members, composition, method of appointment or election, functions, powers and duties, structure, authority to act, and other matters relating to each committee.

(c)  Any committee may, at the discretion of the appointing or electing authority, be composed of council members or members of the North Carolina State Bar who are not members of the council or of lay persons or of any combination.

 

History Note:        Authority G.S. 84‑22; 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01A .0103         COOPERATION WITH LOCAL BAR ASSOCIATION COMMITTEES

The sections and committees so appointed may secure the cooperation of like sections and committees of the North Carolina Bar Association and all local bar associations of the state.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01A .0104         ORGANIZATION OF LOCAL BAR ASSOCIATIONS

The council shall encourage and foster the organization of local bar associations.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01A .0105         ANNUAL PROGRAM

The council shall provide a suitable program for each annual meeting of the North Carolina State Bar.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01A .0106         Reports Made to Annual Meeting

The annual reports of the several committees and boards shall be delivered to the secretary of the North Carolina State Bar before the annual meeting.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. February 3, 2000.

 

SECTION .0200 ‑ MEMBERSHIP ‑ ANNUAL MEMBERSHIP FEES

 

27 NCAC 01A .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 members.

(b)  Active Member.  The active members shall be all persons who have obtained licenses entitling them to practice law in North Carolina, including persons serving as justices or judges of any state or federal court in this state, unless classified as inactive members by the council.  All active members must pay the annual membership fee.

(c)  Inactive Members

(1)           The inactive members shall include:

(A)          all persons who have been admitted to the practice of law in North 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, and

(B)          those persons granted emeritus pro bono status by the council and allowed to represent indigent clients on a pro bono basis under the supervision of active members working for nonprofit corporations organized pursuant to Chapter 55A of the General Statutes of North Carolina for the sole purpose of rendering legal services to indigents.

(2)           Inactive members of the North Carolina State Bar may not practice law, except as provided in this rule for persons granted emeritus pro bono status, and are exempt from payment of membership dues during the period in which they are inactive members.  For purposes of the State Bar's membership records, the category of inactive members shall be further divided into the following subcategories:

(A)          Nonpracticing.  This subcategory includes those members who are not engaged in the practice of law or holding themselves out as practicing attorneys and who hold positions unrelated to the practice of law, or practice law in other jurisdictions.

(B)          Retired.  This subcategory includes those members who are retired from the practice of law and who no longer hold themselves out as practicing attorneys. A retired member must hold himself or herself out as a "Retired Member of the North Carolina State Bar" or by some similar designation, provided such designation clearly indicates that the attorney is "retired."

(C)          Disability inactive status.  This subcategory includes members who suffer from a mental or physical condition which significantly impairs the professional judgment, performance, or competence of an attorney, as determined by the courts, the council, or the Disciplinary Hearing Commission.

(D)          Disciplinary suspensions/disbarments.  This subcategory includes those members who have been suspended from the practice of law or who have been disbarred by the courts, the council, or the Disciplinary Hearing Commission for one or more violations of the Rules of Professional Conduct.

(E)           Administrative suspensions.  This subcategory includes those members who have been suspended from the practice of law, pursuant to the procedure set forth in Rule .0903 of subchapter 01D, for failure to fulfill the obligations of membership.

(F)           Emeritus pro bono status.  This subcategory includes those members who are permitted by the council to represent indigent persons under the supervision of active members who are employed by nonprofit corporations duly authorized to provide legal services to such persons.  This status may be withdrawn by the council for good cause shown pursuant to the procedure set forth in Rule .0903 of subchapter 01D.

 

History Note:        Authority G.S. 84-16; 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. March 6, 2014; March 6, 2008.

 

27 NCAC 01A .0202         Register of Members

(a)  Initial Registration 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 North Carolina;

(5)           date and place of birth;

(6)           list of all other jurisdictions where the member has been admitted to the practice of law and date of admission;

(7)           whether suspended or disbarred from the practice of law in any jurisdiction or court, and if so, when and where, and when readmitted.

(b)  Membership Records of State Bar.  The secretary shall keep a permanent register for the enrollment of members 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 membership, date of transfer from one class to another, if any, date and period of suspension, if any, and such other useful data which the council may from time to time require.

(c)  Updating Membership Information.  Each year before July 1, every member shall provide or verify the member's current name, mailing address, and e-mail address.

 

History Note:        Authority G.S. 84-23; 84-34;

Readopted Eff. December 8, 1994;

Amended Eff. October 7, 2010; December 7, 1995;

 

27 NCAC 01A .0203         ANNUAL MEMBERSHIP FEES; WHEN DUE

(a)  Amount and Due Date.  The annual membership fee shall be in the amount as provided by law and shall be due and payable to the secretary of the North 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 Carolina Supreme Court on or before July 1 of each year shall also pay a late fee of thirty dollars ($30.00).

(c)  Waiver of All or Part of Dues.  No part of the annual membership fee or Client Security Fund assessment shall be prorated or 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 during the year in which the person is admitted;

(2)           A person licensed to practice law in North 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 petition for inactive status 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:        Authority G.S. 84‑23; 84‑34;

Readopted Eff. December 8, 1994;

Amended Eff. March 7, 1996; December 7, 1995; September 7, 1995.

 

27 NCAC 01A .0204         Good Standing Definition and Certificates

(a)  Definition.  A lawyer who is an active member of the North Carolina State Bar and who is not subject to a pending administrative or disciplinary suspension or disbarment order or an order of suspension that has been stayed is in good standing with the North Carolina State Bar.  An administrative or disciplinary suspension or disbarment order is "pending" if the order has been announced in open court by a state court of competent jurisdiction or by the Disciplinary Hearing Commission, or if the order has been entered by a state court of competent jurisdiction, by the Council or by the Disciplinary Hearing Commission but has not taken effect.  "Good standing" makes no reference to delinquent membership obligations, prior discipline, or any disciplinary charges or grievances that may be pending.

(b)  Certificate of Good Standing for Active Member.  Upon application and payment of the prescribed fee, the Secretary of the North Carolina State Bar shall issue a certificate of good standing to any active member of the State Bar who is in good standing and who is current on all payments owed to the North Carolina State Bar.  A certificate of good standing will not be issued unless the member pays any delinquency shown on the financial records of the North Carolina State Bar including outstanding judicial district bar dues.  If the member contends that there is good cause for non-payment of some or all of the amount owed, the member may subsequently demonstrate good cause to the Administrative Committee pursuant to the procedure set forth in Rule .0903(e)(1) of Subchapter 01D of these rules. If the member shows good cause, the contested amount shall be refunded to the member.

(c)  Certificate of Good Standing for Inactive Member.  Upon application, the Secretary of the North Carolina State Bar shall issue a certificate of good standing to any inactive member of the State Bar who was in good standing at the time that the member was granted inactive status and who is not subject to any disciplinary order or pending disciplinary order.  The certificate shall state that the member is inactive and is ineligible to practice law in North Carolina.

 

History Note:        Authority G.S. 84-23;

Eff. March 8, 2012.

 

Codifier's Note;  The content of Section .0300 Election and Succession of Officers was moved to Section .0400 September 24, 2015.

 

Section .0300 - Permanent Relinquishment of Membership in the State Bar

 

27 NCAC 01A .0301         Effect of Relinquishment

(a)  Order of Relinquishment. Pursuant to the authority of the council to resolve questions pertaining to membership status as specified in N.C. Gen. Stat. 84-23, the council may allow a member of the State Bar to relinquish his or her membership in the State Bar subject to the conditions set forth in this section. Upon the satisfaction of those conditions, the council may enter an order declaring that the individual is no longer a member of the State Bar and no longer has the privileges of membership set forth in N.C. Gen. Stat. 84-16 and in the rules of the State Bar.

(b)  Requirements to Return to Practice of Law. If an individual who has been granted relinquishment of membership desires to return to the practice of law in the state of North Carolina, he or she must apply to the North Carolina Board of Law Examiners and satisfy all of the requirements to obtain a license to practice law in the state of North Carolina as if for the first time.

(c)  Prohibition on Representations. Effective upon the date of the order of relinquishment, the former licensee is prohibited from representing that he or she is

(1)           a lawyer in North Carolina,

(2)           licensed to practice law in North Carolina,

(3)           able to provide legal services in North Carolina, or

(4)           a member of the North Carolina State Bar.

 

History Note:        Authority G.S. 84-23;

Adopted Eff. September 24, 2015.

 

27 NCAC 01a .0302         Conditions for Relinquishment

A member of the State Bar may petition the council to enter an order of relinquishment. An order of relinquishment shall be granted if the petition demonstrates that the following conditions have been satisfied:

(a)  Unresolved Complaints. No open, unresolved allegations of professional misconduct are pending against the petitioner in any jurisdiction.

(b)  No Financial Obligation to State Bar. The petitioner has paid all membership fees, Client Security Fund assessments, late fees, and costs assessed by the North Carolina State Bar or the Disciplinary Hearing Commission, and all fees, fines, and penalties owed to the Board of Continuing Legal Education.

(c)  Wind Down of Law Practice. The petitioner has completed the wind down of his or her law practice in compliance with the procedure for winding down the law practice of a suspended or disbarred lawyer set forth in paragraphs (a), (b), and (e) of Rule .0128 of Subchapter 1B and with any other condition on the wind down of a law practice imposed by state, federal, and administrative law. The petition must describe the wind down of the law practice with specificity.

(d)  Acknowledgment. The petitioner acknowledges the following: the State Bar’s authority to take the actions described in Rule .0303 of this section; that the sole mechanism for regaining active membership status with the State Bar is to apply to the North Carolina Board of Law Examiners for admission and to satisfy all of the requirements to obtain a license to practice law in the state of North Carolina as if for the first time; and that he or she is not entitled to confidentiality under Rule .0133 of Subchapter 1B of any information relating to professional misconduct received by the State Bar after the date of the entry of the order of relinquishment.

(e)  Address. The petition includes a physical address at which the State Bar can communicate with the petitioner.

(f)  Notarized Petition. The petition is signed in the presence of a notary and notarized.

 

History Note:        Authority G.S. 84-23;

Adopted by the Supreme Court September 24, 2015.

 

27 ncac 01A .0303         Allegations of Misconduct Received by the State Bar On or After the Date of Relinquishment

(a)  Post Relinquishment Action by State Bar. Relinquishment is not a bar to the initiation or investigation of allegations of professional misconduct and shall not prevent the State Bar from prosecuting a disciplinary action against the former licensee for any violation of the Rules of Professional Conduct that occurred prior to the date of the order of relinquishment.

(b)  Procedure for Investigation. Allegations of misconduct shall be investigated pursuant to the procedures set forth in Section .0100 of Subchapter 1B.

(c)  Release of Information from Investigation. Information from the investigation of allegations of misconduct shall be retained in the State Bar’s records and may be released by the State Bar as required by law or as necessary to protect the interests of the public. Release may be made to, but is not limited to, the North Carolina Board of Law Examiners, any professional licensing authority, or any law enforcement or regulatory body investigating the former licensee.

 

History Note:        Authority G.S. 84-23;

Adopted Eff. September 24, 2015.

 

27 NCAC 01A .0304         ELECTIONS

(a)  A president‑elect, vice‑president and secretary shall be elected annually by the council at an election to take place at the council meeting held during the annual meeting of the North Carolina State Bar.  All elections will be conducted by secret ballot.

(b)  If there are more than two candidates for an office, then any candidate receiving a majority of the votes shall be elected.  If no candidate receives a majority, then a run‑off shall be held between the two candidates receiving the highest number of votes.

 

History Note:        Authority G.S. 84‑22; 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01A .0305         NOMINATING COMMITTEE

(a)  There shall be a Nominating Committee appointed to nominate one or more candidates for each of the offices.  The Nominating Committee shall be composed of the immediate past president and the five most recent living past presidents who are in good standing with the North Carolina State Bar.  The Nominating Committee shall meet prior to the council meeting at which the election of officers will be held.  The Nominating Committee shall submit its nominations in writing to the secretary at least 45 days prior to the election, and the secretary shall transmit the report by mail to the members of the council at least 30 days prior to the election.

(b)  At the council meeting at which elections are held, the floor shall be open for additional nominations for each office at the time of the election.

 

History Note:        Authority G.S. 84‑22; 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01A .0306         VACANCIES AND SUCCESSION

(a)  If the office of president becomes vacant for any reason, including resignation, death, disqualification, or permanent inability, the president‑elect shall become president for the unexpired term and the next term.  If the office of the president‑elect becomes vacant because the president‑elect must assume the presidency under the foregoing provision of this section, then the vice‑president shall become the president‑elect for the unexpired term and at the end of the unexpired term to which the vice‑president ascended the office will become vacant and an election held in accordance with Rule .0304 of this Section; if the office of president‑elect becomes vacant for any other reason, the vice‑president shall become the president‑elect for the unexpired term following which said officer shall assume the presidency as if elected president‑elect.  If the office of vice‑president or secretary becomes vacant for any reason, including resignation, death, disqualification, or permanent inability, or if the office of president or president‑elect becomes vacant without an available successor under these provisions then the office will be filled by election by the council at a special meeting of the council with such notice as required by Rule .0602 of this Subchapter or at the next regularly scheduled meeting of the council.

(b)  If the president is absent or unable to preside at any meeting of the North Carolina State Bar or the council, the president‑elect shall preside, or if the president‑elect is unavailable, then the vice‑president shall preside.  If none are available, then the council shall elect a member to preside during the meeting.

(c)  If the president is absent from the state or for any reason is temporarily unable to perform the duties of office, the president‑elect shall assume those duties until the president returns or becomes able to resume the duties.  If the president‑elect is unable to perform the duties, then the council may select one of its members to assume the duties for the period of inability.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01A .0307         Removal from Office

The council may, upon giving due notice and an opportunity to be heard, remove from office any officer found by the council to have a disability or to have engaged in misconduct including misconduct not related to the office.

 

History Note:        Authority G.S. 84-21; 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. February 3, 2000.

 

Section .0400 - Election, Succession, and Duties of Officers

 

27 NCAC 01A .0401         Officers

(a)  The officers of the North Carolina State Bar and the council shall consist of a president, a president-elect, a vice-president, and an immediate past president.  These officers shall be deemed members of the council in a respects.

(b)  There shall be a secretary who shall also have the title of executive director.  The secretary shall not be a member of the council.

 

History Note:        Authority G.S. 84-22; 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. September 24, 2015.

 

27 NCAC 01A .0402         Eligibility for Office

The president, president-elect, and vice-president need not be members of the council at the time of their election.

 

History Note:        Authority G.S. 84-22; 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. September 24, 2015.

 

27 NCAC 01A .0403         Term of Office

(a)  The term of each office shall be one year beginning at the conclusion of the annual meeting.  Each officer will hold office until a successor is elected and qualified.

(b)  The president shall assume the office of immediate past president at the conclusion of the term as president.  The president-elect shall assume the office of president at the conclusion of the annual meeting following the term as president-elect.

 

History Note:        Authority G.S. 84-22; 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. September 24, 2015.

 

27 NCAC 01A .0404         Elections

(a)  A president-elect, vice-president and secretary shall be elected annually by the council at an election to take place at the council meeting held during the annual meeting of the North Carolina State Bar.  All elections will be conducted by secret ballot.

(b)  If there are more than two candidates for an office, then any candidate receiving a majority of the votes shall be elected.  If no candidate receives a majority, then a run-off shall be held between the two candidates receiving the highest number of votes.

 

History Note:        Authority G.S. 84-22; 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. September 24, 2015.

 

27 NCAC 01A .0405         Nominating Committee

(a)  There shall be a Nominating Committee appointed to nominate one or more candidates for each of the offices.  The Nominating Committee shall be composed of the immediate past president and the five most recent living past presidents who are in good standing with the North Carolina State Bar.  The Nominating Committee shall meet prior to the council meeting at which the election of officers will be held.  The Nominating Committee shall submit its nominations in writing to the secretary at least 45 days prior to the election, and the secretary shall transmit the report by mail to the members of the council at least 30 days prior to the election.

(b)  At the council meeting at which elections are held, the floor shall be open for additional nominations for each office at the time of the election.

 

History Note:        Authority G.S. 84-22; 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. September 24, 2015.

 

27 NCAC 01A .0406         Vacancies and Succession

(a)  If the office of president becomes vacant for any reason, including resignation, death, disqualification, or permanent inability, the president-elect shall become president for the unexpired term and the next term.  If the office of the president-elect becomes vacant because the president-elect must assume the presidency under the foregoing provision of this section, then the vice-resident shall become the president-elect for the unexpired term and at the end of the unexpired term to which the vice-president ascended the office oil become vacant and an election held in accordance with Rule .0304 of this Subchapter; if the office of president select becomes vacant for any other reason, the vice-president shall become the president-elect for the unexpired term following which said officer shall assume the presidency as if elected president-elect.  If the office of vice-president or secretary becomes vacant for any reason, including resignation, death, disqualification, or permanent inability, or if the office of president or president-elect becomes vacant without an available successor under these provisions then the office will be filled by election by the council at a special meeting of the council with such notice as required by Rule .0602 of this Subchapter or at the next regularly scheduled meeting of the council.

(b)  If the president is absent or unable to preside at any meeting for the North Carolina State Bar or the council, the president-elect shall preside, or if the president-elect is unavailable, then the vice-president shall preside.  If none are available, then the council shall elect a member to preside during the meeting.

(c)  If the president is absent from the state or for any reason is temporarily unable to perform the duties of office, the president-elect shall assume those duties until the president returns or becomes able to resume the duties.  If the president-elect is unable to perform the duties, then the council may select one of its members to assume the duties for the period of inability.

 

History Note:        Authority G.S. 84-22; 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. September 24, 2015.

 

27 NCAC 01A .0407         Removal from Office

The council may, upon giving due notice and an opportunity to be heard, remove from office any officer found by the council to have a disability or to have engaged in misconduct including misconduct not related to the office.

 

History Note:        Authority G.S. 84-22; 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. September 24, 2015.

 

27 NCAC 01A .0408         Compensation of Officers

The secretary shall receive a salary fixed by the council.  All other officers shall serve without compensation except the per diem allowances fixed by stature for members of the council.

 

History Note:        Authority G.S. 84-22; 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. September 24, 2015.

 

27 NCAC 01A .0409         President

The president shall preside over meetings of the North Carolina State Bar and the council. The president shall sign all resolutions and orders of the council in the capacity of president. The president shall execute, along with the secretary, all contracts ordered by the council. The president will perform all other duties prescribed for the office by the council.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. September 24, 2015.

 

27 NCAC 01A .0410         President-Elect, Vice-President, and Immediate Past President

The president-elect, vice-president, and immediate past president will perform all duties prescribed for the office by the council.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. September 24, 2015.

 

27 NCAC 01A .0411         Secretary

The secretary shall attend all meetings of the council and of the North Carolina State Bar, and shall record the proceedings of all such meetings. The secretary shall, with the president, president-elect or vice-president, execute all contracts ordered by the council. He or she shall have custody of the seal of the North Carolina State Bar, and shall affix it to all documents executed on behalf of the council or certified as emanating from the council. The secretary shall take charge of all funds paid into the North Carolina State Bar and deposit them in some bank selected by the council; he or she shall cause books of accounts to be kept, which shall be the property of the North Carolina State Bar and which shall be open to the inspection of any officer, committee or member of the North Carolina State Bar during usual business hours. At each January meeting of the council, the secretary shall make a full report of receipts and disbursements since the previous annual report, together with a list of all outstanding obligations of the North Carolina State Bar. The books of accounts shall be audited as of December 31 of each year and the secretary shall publish same in the annual reports as referred to above. He or she shall perform such other duties as may be imposed upon him or her, and shall give bond for the faithful performance of his or her duties in an amount to be fixed by the council with surety to be approved by the council.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. September 24, 2015.

 

SECTION .0500 – MEETINGS OF THE NORTH CAROLINA STATE BAR

 

27 NCAC 01A .0501         ANNUAL MEETINGS

The annual meeting of the North Carolina State Bar shall be held at such time and place within the state of North Carolina as the council may determine.

 

History Note:        Authority G.S. 84-23;

Readopted Effective December 8, 1994;

Amendments Approved by the Supreme Court: April 5, 2018.

 

27 NCAC 01A .0502         sPECIAL mEETINGS

(a)  A special meeting of the North Carolina State Bar may be called to address specific subjects as follows:

(1)           upon direction of the council; or

(2)           upon delivery to the secretary of a written request by no fewer than 25% of the active members of the North Carolina State Bar setting forth the subject(s) to be addressed.

(b)  At a special meeting , only subjects specified in the notice shall be addressed.

(c)  Any special meeting of the North Carolina State Bar will be held at such time and place within the state of North Carolina as the council or president may determine.

 

History Note:        Authority G.S. 84-23; 84-33;

Readopted Effective December 8, 1994;

Amendments Approved by the Supreme Court: April 5, 2018.

 

27 NCAC 01A .0503         NOTICE OF mEETINGS

(a)  Notice of any meeting of the North Carolina State Bar shall be given by the secretary by posting a notice at the State Bar headquarters and on the State Bar website or as otherwise directed by the council. Notice shall also be provided as required by N.C. Gen. Stat. § 143-318.12 and by any other statutory provision regulating notice of public meetings of agencies of the state.

(b)  Notice of the annual meeting will be given at least 30 days before the meeting. Notice of any special meeting will be given at least 48 hours before the meeting or as otherwise required by law.

 

History Note:        Authority G.S. 84-23; 84-33;

Readopted Effective December 8, 1994;

Amendments Approved by the Supreme Court: April 5, 2018.

 

27 NCAC 01A .0504         QUORUM

At any annual or special meetings of the North Carolina State Bar those active members of the North Carolina State Bar present shall constitute a quorum. There shall be no voting by proxy or by absentee ballot.

 

History Note:        Authority G.S. 84-23; 84-33;

Readopted Effective December 8, 1994;

Amendments Approved by the Supreme Court: April 5, 2018.

 

27 NCAC 01A .0505         PARLIAMENTARY RULES

Proceedings at any meeting of the North Carolina State Bar shall be governed by Roberts' Rules of Order.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

SECTION .0600 – MEETINGS OF THE COUNCIL

 

27 NCAC 01A .0601         REGULAR MEETINGS

Regular meetings of the council shall be held each year in January, April, and July, at such times and places as the council may determine. A regular meeting of the council shall also be held each year in conjunction with the annual meeting of the North Carolina State Bar at the location of the annual meeting. Any regular meeting may be adjourned from time to time as a majority of members of the council present may determine.

 

History Note:        Authority G.S. 84-23;

Readopted Effective December 8, 1994;

Amendments Approved by the Supreme Court: June 1, 1995; April 5, 2018.

 

27 NCAC 01A .0602         sPECIAL and emergency mEETINGS

(a)  A special meeting of the council may be called to address specified subjects as follows:

(1)           by the president in his or her discretion; or

(2)           by a written request, delivered to the secretary, by eight councilors setting forth the subject(s) to be addressed at the meeting. The secretary will schedule a special meeting to be held no more than 30 days after receipt of the request.

(b)  An emergency meeting of the council may be called by the president to address circumstances that require immediate consideration by the council.

(c)  In the event of incapacity or recusal of the president, the president elect or the vice president may call a special or emergency meeting. In the event of incapacity or recusal of the president elect or the vice president, the immediate past president or secretary may call a special or emergency meeting. In the event of incapacity or recusal of all officers, any member of the council who has served at least two terms may call a special or emergency meeting.

 

History Note:        Authority G.S. 84-23;

Readopted Effective December 8, 1994;

Amendments Approved by the Supreme Court: April 5, 2018.

 

27 NCAC 01A .0603         NOTICE OF mEETINGS

(a)  Notice of any regular meeting of the council will be given by the secretary by posting a notice at the State Bar headquarters and on the State Bar website or as otherwise directed by the council. Notice of any regular meeting will also be provided as required by N.C. Gen. Stat. § 143-318.12 and any other statutory provision regulating notice of public meetings of agencies of the state. Unless otherwise required by law, the secretary will issue notice of any regular meeting of the council at least 30 days before the meeting.

(b)  The secretary will issue notice of any special meeting of the council at least 48 hours before the meeting, or as otherwise required by law. Notices of any special meeting will be sent to each councilor by email, or other electronic means intended to be individually received by each councilor, to the most recent address of record provided to the State Bar by each councilor for such communications. Notice will be given to any councilor who has not provided an email address, or other electronic means to receive notices, by regular mail. Notice may be sent, but is not required to be sent, by any means authorized for service under the Rules of Civil Procedure.

(c)  The secretary will issue reasonable notice of any emergency meeting in a manner consistent with the purpose of the meeting. Such notice may be given through any appropriate means by which each councilor may receive notice on an expedited basis, including telephone, email, or other electronic means.

(d)  The notice for any council meeting shall set forth the day, hour, and location of the meeting.

 

History Note:        Authority G.S. 84-23;

Readopted Effective December 8, 1994;

Amendments Approved by the Supreme Court: April 5, 2018.

 

27 NCAC 01A .0604         QUORUM

At a meeting of the council the presence of 10 councilors shall constitute a quorum. There shall be no voting by proxy or by absentee ballot.

 

History Note:        Authority G.S. 84-23;

Readopted Effective December 8, 1994;

Amendments Approved by the Supreme Court: April 5, 2018.

 

27 NCAC 01A .0605         MANNER OF MEETING OF COUNCIL

The council will assemble at the time and place provided in the meeting notice. Attendance at a special or emergency council meeting may be by electronic means such as audio or video conferencing. Attendance at a regular council meeting by electronic means may be authorized for an individual councilor in the discretion of the president.

 

History Note:        Authority G.S. 84-23;

Adopted by the Supreme Court April 5, 2018.

 

27 NCAC 01A .0606         PARLIAMENTARY RULES

Proceedings at any meeting of the council shall be governed by Roberts' Rules of Order.

 

History Note:        Authority G.S. 84-23;

Adopted by the Supreme Court April 5, 2018.

 

SECTION .0700 – STANDING COMMITTEES OF THE COUNCIL

 

27 NCAC 01A .0701         Standing Committees and Boards

(a)  Standing Committees. Promptly after his or her election, the president shall appoint members to the standing committees identified below to serve for one year beginning January 1 of the year succeeding his or her election. Members of the committees need not be councilors, except to the extent expressly required by these rules, and may include non-lawyers. Unless otherwise directed by resolution of the council, all members of a standing committee, whether councilors or non-councilors, shall be entitled to vote as members of the standing committee or any subcommittee or panel thereof.

(1)           Executive Committee. It shall be the duty of the Executive Committee to receive reports and recommendations from standing committees, boards, and special committees; to nominate individuals for appointments made by the council; to make long range plans for the State Bar; and to perform such other duties and consider such other matters as the council or the president may designate.

(2)           Ethics Committee. It shall be the duty of the Ethics Committee to study the rules of professional responsibility currently in effect; to make recommendations to the council for such amendments to the rules as the committee deems necessary or appropriate; to study and respond to questions that arise concerning the meaning and application of the rules of professional conduct; to issue opinions in response to questions of legal ethics in accordance with the provisions of Section .0100 of Subchapter 1D of these rules; to consider issues concerning the regulation of lawyers' trust accounts; and to perform such other duties and consider such other matters as the council or the president may designate.

(3)           Grievance Committee. It shall be the duty of the Grievance Committee to exercise the disciplinary and disability functions and responsibilities set forth in Section .0100 of Subchapter 1B of these rules and to make recommendations to the council for such amendments to that section as the committee deems necessary or appropriate. The Grievance Committee shall sit in subcommittees as assigned by the president. Each subcommittee shall have at least ten members. Two members of each subcommittee shall be nonlawyers, one member may be a lawyer who is not a member of the council, and the remaining members of each subcommittee shall be councilors of the North Carolina State Bar. A quorum of a subcommittee shall be five members serving at a particular time. One subcommittee shall oversee the Attorney Client Assistance Program. It shall be the duty of the Attorney Client Assistance subcommittee to develop and oversee policies and programs to help clients and lawyers resolve difficulties or disputes, including fee disputes, using means other than the formal grievance or civil litigation processes; to establish and implement a disaster response plan, in accordance with the provisions of Section .0300 of Subchapter 1D of these rules, to assist victims of disasters in obtaining legal representation and to prevent the improper solicitation of victims by lawyers; and to perform such other duties and consider such other matters as the council or the president may designate. Each subcommittee shall exercise the powers and discharge the duties of the Grievance Committee with respect to the grievances, fee disputes, and other matters referred to it by the chairperson of the Grievance Committee. Each subcommittee member shall be furnished a brief description of all matters referred to other subcommittees (and such other available information as he or she may request) and be given a reasonable opportunity to provide comments to such other subcommittees. Each subcommittee's decision respecting the grievances, fee disputes, and other matters assigned to it will be deemed final action of the Grievance Committee, unless the full committee at its next meeting, by a majority vote of those present, elects to review a subcommittee decision and upon further consideration decides to reverse or modify that decision. There will be no other right of appeal to the committee as a whole or to another subcommittee. The president shall designate a vice-chairperson to preside over, and oversee the functions of each subcommittee. The vice-chairpersons shall have such other powers as may be delegated to them by the chairperson of the Grievance Committee. The Grievance Committee shall perform such other duties and consider such other matters as the council or the president may designate.

(4)           Authorized Practice Committee. It shall be the duty of the Authorized Practice Committee to respond to or investigate inquiries and complaints about conduct that may constitute the unauthorized practice of law in accordance with the provisions of Section .0200 of Subchapter 1D of these rules; to study and advise the council on the appropriate and lawful use and regulation of legal assistants, paralegals and other lay persons in connection with the provision of law-related services; to study and advise the council on the regulation of professional organizations; and to perform such other duties and consider such other matters as the council or the president may designate.

(5)           Administrative Committee. It shall be the duty of the Administrative Committee to study and make recommendations on policies concerning the administration of the State Bar, including the administration of the State Bar's facilities, automation, personnel, retirement plan, and district bars; to oversee the membership functions of the State Bar, including the collection of dues, the suspension of members for failure to pay dues and other fees, and the transfer of members to active or inactive status in accordance with the provisions of Sections .0900 and .1000 of Subchapter 1D of these rules; and to perform such other duties and consider such other matters as the council or the president may designate.

(6)           Legal Assistance for Military Personnel (LAMP) Committee. It shall be the duty of the LAMP Committee to serve as liaison for lawyers in the military service in this State; to improve legal services to military personnel and dependents stationed in this State; and to perform such other duties and consider such other matters as the council or the president may designate.

(7)           Finance and Audit Committee. It shall be the duty of the Finance and Audit Committee to superintend annually the preparation of the State Bar's operational budget and to make recommendations to the Executive Committee concerning that budget and the budgets for the boards listed in subsection (b) below; to make recommendations to the Executive Committee regarding the State Bar's financial policies; to examine the financial records of the State Bar at each regular meeting of the council and report its findings to the Executive Committee; to recommend to the Executive Committee annually the retention of an independent auditor; to direct the work of the independent auditor in accordance with the policies and procedures adopted by the council and the state auditor; and to review the results of the annual audit and make recommendations concerning the audit to the Executive Committee.

(8)           Communications Committee. It shall be the duty of the Communications Committee to develop and coordinate official North Carolina State Bar communications to its membership and to third parties, including the use of printed publications, emerging technology, and social media.

(b)  Boards. The council of the State Bar shall make appointments to the following boards upon the recommendation of the Executive Committee. The boards are constituents of the North Carolina State Bar and, as standing committees of the State Bar, are subject to the authority of the council.

(1)           Interest on Lawyers' Trust Accounts (IOLTA) Board of Trustees. The IOLTA Board shall be constituted in accordance with and shall carry out the provisions of the Plan for Disposition of Funds Received by the North Carolina State Bar from Interest on Trust Accounts set forth in Section .1300 of Subchapter 1D of these rules.

(2)           Board of Legal Specialization. The Board of Legal Specialization shall be constituted in accordance with and shall carry out the provisions of the Plan of Legal Specialization set forth in Section .1700 of Subchapter 1D of these rules.

(3)           Client Security Fund Board of Trustees. The Client Security Fund Board of Trustees shall be constituted in accordance with and shall carry out the provisions of the Rules Governing the Administration of the Client Security Fund of the North Carolina State Bar set forth in Section .1400 of Subchapter 1D of these rules.

(4)           Board of Continuing Legal Education (CLE). The Board of Continuing Legal Education shall be constituted in accordance with and shall carry out the provisions of the Continuing Legal Education Rules and Regulations of the North Carolina State Bar set forth in Sections .1500 and .1600 of Subchapter 1D of these rules.

(5)           Lawyer Assistance Program Board. The Lawyer Assistance Program Board shall be constituted in accordance with and shall carry out the provisions of the Rules Governing the Lawyer Assistance Program of the North Carolina State Bar set forth in Section .0600 of Subchapter 1D of these rules.

 

History Note:        Authority G.S. 84-22; 84-23;

Readopted Effective December 8, 1994;

Amendments Approved by the Supreme Court: June 12, 1996; February 3, 2000; October 6, 2004; November 16, 2006; March 8, 2007; March 11, 2010; October 7, 2010; September 22, 2016; April 5, 2018.

 

SECTION .0800 ‑ ELECTION AND APPOINTMENT OF STATE BAR COUNCILORS

 

27 NCAC 01A .0801         PURPOSE

The purpose of these Rules is to promulgate fair, open, and uniform procedures to elect and appoint North Carolina State Bar councilors in all judicial district bars.  These Rules should encourage a broader and more diverse participation and representation of all attorneys in the election and appointment of councilors.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01A .0802         Election - When Held; Notice; Nominations

(a)  Every judicial district bar, in any calendar year at the end of which the term of one or more of its councilors will expire, shall fill said vacancy or vacancies at an election to be held during that year.

(b)  The officers of the district bar shall fix the time and place of such election and shall give to each active member (as defined in G.S. 84-16) of the district bar a written notice thereof directed to him or her at his or her address on file with the North Carolina State Bar, which notice shall be placed in the United States Mail, postage prepaid, at least 30 days prior to the date of the election.

(c)  The district bar shall submit its written notice of the election to the North Carolina State Bar, at least six weeks before the date of the election.

(d)  The North Carolina State Bar will, at its expense, mail these notices.

(e)  The notice shall state the date, time and place of the election, give the number of vacancies to be filled, identify how and to whom nominations may be made before the election, and advise that all elections must be by a majority of the votes cast. If the election will be held at a meeting of the bar, the notice will also advise that additional nominations may be made from the floor at the meeting itself.  In judicial districts that permit elections by mail or early voting, the notice to members shall advise that nominations may be made in writing directed to the president of the district bar and received prior to a date set out in the notice.  Sufficient notice shall be provided to permit nominations received from district bar members to be included on the printed ballots.

 

History Note:        Authority G.S. 84-18; 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. August 27, 2013; November 5, 1999.

 

27 NCAC 01A .0803         Election - Voting Procedures

(a)  All nominations made either before or at the meeting shall be voted on by secret ballot.

(b)  Cumulative voting shall not be permitted.

(c)  Nominees receiving a majority of the votes cast shall be declared elected.

 

History Note:        Authority G.S. 84-18; 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. November 5, 1999.

 

27 NCAC 01A .0804         PROCEDURES GOVERNING ELECTIONS BY MAIL

(a)  Judicial district bars may adopt bylaws permitting elections by mail, in accordance with procedures approved by the N.C. State Bar Council and as set out in this Section.

(b)  Only active members of the judicial district bar may participate in elections conducted by mail.

(c)  In districts which permit elections by mail, the notice sent to members referred to in Rule .0802(e) of this Subchapter shall advise that the election will be held by mail.

(d)  The judicial district bar shall mail a ballot to each active member of the judicial district bar at the member's address of record on file with the North Carolina State Bar.  The ballot shall be accompanied by written instructions and shall state when and where the ballot should be returned.

(e)  Each ballot shall be sequentially numbered with a red identifying numeral in the upper right hand corner of the ballot.  The judicial district bar shall maintain appropriate records respecting how many ballots were mailed to prospective voters in each election, as well as how many ballots are returned.

(f)  Only original ballots will be accepted.  No photocopied or faxed ballots will be accepted.

 

History Note:        Authority G.S. 84-18; 84-23;

Eff. November 5, 1999;

Amended Eff. August 23, 2012.

 

27 NCAC 01A .0805         PROCEDURES GOVERNING ELECTIONS BY ELECTRONIC VOTE

(a)  Judicial district bars may adopt bylaws permitting elections by electronic vote in accordance with procedures approved by the N.C. State Bar Council and as set out in this Section.

(b)  Only active members of the judicial district bar may participate in elections conducted by electronic vote.

(c)  In districts which permit elections by electronic vote, the notice sent to members referred to in Rule .0802(e) of this Subchapter shall advise that the election will be held by electronic vote and shall identify how and to whom nominations may be made before the election.  The notice shall explain when the ballot will be available, how to access the ballot, and the method for voting online.  The notice shall also list locations where computers will be available for active members to access the online ballot in the event they do not have personal online access.

(d)  Write-in candidates shall be permitted and the instructions shall so state.

(e)  Online balloting procedures must ensure that only one vote is cast per active member of the judicial district bar and that all members have access to a ballot.

 

History Note:        Authority G.S. 84-18;

Eff. August 23, 2012.

 

27 NCAC 01A .0806         Procedures Governing Early Voting

(a)  Judicial district bars may adopt bylaws permitting early voting for up to 10 business days prior to a councilor election, in accordance with procedures approved by the NC State Bar Council and as set out in this subchapter.

(b)  Only active members of the judicial district bar may participate in early voting.

(c)  In districts that permit early voting, the notice sent to members referred to in Rule .0802(e) of this subchapter shall advise that early voting will be permitted, and shall identify the locations, dates, and hours for early voting.  The notice shall also advise that nominations may be made in writing directed to the president of the district bar and received prior to a date set out in the notice.  Sufficient notice shall be provided to permit nominations received from district bar members to be included on the printed ballots.

(d)  The notice sent to members referred to in Rule .0802(e) of this subchapter shall be placed in the United States Mail, postage prepaid, at least 30 days prior to the first day of the early voting period.

(e)  Write-in candidates shall be permitted during the early voting period and at the election, and the instructions shall so state.

(f)  Early voting locations and hours must be reasonably accessible to all active members of the judicial district.

 

History Note:        Authority G.S. 84-18;

Adopted Eff. August 27, 2013.

 

27 NCAC 01A .0807         Vacancies

The unexpired term of any councilor whose office has become vacant because of resignation, death, or any cause other than the expiration of a term, shall be filled within 90 days of the occurrence of the vacancy by an election conducted in the same manner as above provided.

 

History Note:        Authority G.S. 84-18; 84-23.

Readopted Eff. December 8, 1994;

Amended Eff. August 27, 2013; August 23, 2012; November 5, 1999.

 

SECTION .0900 ‑ ORGANIZATION OF THE JUDICIAL DISTRICT BARS

 

27 NCAC 01A .0901         BYLAWS

(a)  Each judicial district bar shall adopt bylaws for its governance subject to the approval of the council.

(b)  Each judicial district bar shall submit its current bylaws to the secretary of the North Carolina State Bar for review by the council on or before June 1, 1996.

(c)  Pending review by the council, any bylaws submitted to the secretary on behalf of a judicial district bar or which already exist in the files of the secretary shall be deemed official and authoritative.

(d)  All amendments to the bylaws of any judicial district bar must be filed with the secretary within 30 days of adoption and shall have no force and effect until approved by the council.

(e)  The secretary shall maintain an official record for each judicial district bar containing bylaws which have been approved by the council or for which approval is pending.

 

History Note:        Authority G.S. 84-4;

Eff. March 7, 1996.

 

27 NCAC 01A .0902         ANNUAL MEMBERSHIP FEE

If a judicial district bar elects to assess an annual membership fee from its active members pursuant to N.C.G.S. §84-18.1(b), the following procedures shall apply:

(a)  Notice to State Bar. The judicial district bar shall notify the North Carolina State Bar of its election to assess an annual membership fee each year at least thirty days prior to mailing to its members the first invoice therefore, specifying the amount of the annual membership fee, the date after which payment will be delinquent, and the amount of any late fee for delinquent payment.

(b)  Accounting to State Bar. No later than thirty days after the end of the judicial district bar's fiscal year, the judicial district bar shall provide the North Carolina State Bar with an accounting of the annual membership fees it collected during such judicial district bar's fiscal year.

(c)  Delinquency Date. The date upon which the annual membership fee shall be delinquent if not paid shall be not later than ninety days after, and not sooner than thirty days after, the date of the first invoice for the annual membership fee. The delinquency date shall be stated on the invoice and the invoice shall advise each member that failure to pay the annual membership fee must be reported to the North Carolina State Bar and may result in suspension of the member's license to practice law.

(d)  Late Fee. Each judicial district bar may impose, but shall not be required, to impose a late fee of any amount not to exceed fifteen dollars ($15.00) for non-payment of the annual membership fee on or before the stated delinquency date.

(e)  Members Subject to Assessment. Only those lawyers who are active members of a judicial district bar may be assessed an annual membership fee.

(f)  Members Exempt from Assessment.

(1)           A person licensed to practice law in North Carolina for the first time by examination is not liable for judicial district bar membership fees during the year in which the person is admitted;

(2)           A person licensed to practice law in North Carolina serving in the United States Armed Forces, whether in a legal or nonlegal capacity, is exempt from judicial district bar membership fees for any year in which the member serves some portion thereof on full-time active duty in military service;

(3)           A lawyer who joins a judicial district bar after the beginning of its fiscal year is exempt from the obligation to pay the annual membership fee for that fiscal year only if the lawyer can demonstrate that he or she previously paid an annual membership fee to another judicial district bar with a fiscal year that runs conterminously, for a period of three (3) months or more, with the fiscal year of the lawyer's new judicial district bar.

(g)  Hardship Waivers. A judicial district bar may not grant any waiver from the obligation to pay the judicial district bar's annual membership fee. A judicial district bar may waive the late fee upon a showing of good cause.

(h)  Reporting Delinquent Members to State Bar. Three to six months after the delinquency date for the annual membership fee, the judicial district bar shall report to the North Carolina State Bar all of its members who have not paid the annual membership fee or any late fee.

 

History Note:        Authority G.S. 84-18.1; 84-23;

Adopted by the Supreme Court December 20, 2000;

Amendments Approved by the Supreme Court: March 6, 2008; April 10, 2014; March 16, 2017.

 

27 NCAC 01A .0903         Fiscal Period

To avoid conflict with the assessment of the membership fees for the North Carolina State Bar, each judicial district bar that assesses a membership fee shall adopt a fiscal year that is not a calendar year.  Any judicial district bar that assesses a mandatory membership fee for the first time after December 31, 2013, must adopt a fiscal year that begins July 1 and ends June 30.

 

History Note:        Authority G.S. 84-18.1; 84-23;

Adopted Eff. December 20, 2000;

Amended Eff. April 10, 2014.

 

SECTION .1000 ‑ MODEL BYLAWS FOR USE BY JUDICIAL DISTRICT BARS

 

27 NCAC 01A .1001         NAME

The name of this District Bar shall be THE DISTRICT BAR OF THE ___________________________JUDICIAL DISTRICT, and shall be hereinafter referred to as the "District Bar".

 

History Note:        Authority G.S. 84-4;

Eff. March 7, 1996.

 

27 NCAC 01A .1002         AUTHORITY AND PURPOSE

The District Bar is formed pursuant to the provisions of G.S. 84 to promote the purposes therein set forth and to comply with the duties and obligations therein or thereunder imposed upon the Bar of this judicial district.

 

History Note:        Authority G.S. 84-4;

Eff. March 7, 1996.

 

27 NCAC 01A .1003         MEMBERSHIP

The members of the District Bar shall consist of two classes:  active and inactive.

(1)           Active members:  The active members shall be all persons who, at the time of the adoption of these bylaws or any time thereafter:

(a)           are active members in good standing with the North Carolina State Bar; and

(b)           reside in the judicial district; or

(c)           practice in the judicial district and elect to belong to the District Bar as provided in G.S. 84-16.

(2)           Inactive members:  The inactive members shall be all persons, who, at the time of the adoption of these bylaws or at any time thereafter:

(a)           have been granted voluntary inactive status by the North Carolina State Bar; and

(b)           reside in the judicial district; and

(c)           elect to participate, but not vote or hold office, in the District Bar by giving written notice to the Secretary of the District Bar.

 

History Note:        Authority G.S. 84-4;

Eff. March 7, 1996.

 

27 NCAC 01A .1004         OFFICERS

The officers of the District Bar shall be a President, a Vice President, and Secretary and/or Treasurer who shall be selected and shall serve for the terms set out herein.

(1)           President:  The President serving at the time these bylaws are effective shall continue to serve for a term ending at the next annual meeting following the adoption or effective date of these bylaws.  The President for the following term shall be the then current Vice President.  Thereafter, the duly elected Vice President shall automatically succeed to the office of the President for a term of one, two, or three years.

(2)           Vice President:  The Vice President serving at the time these bylaws are effective shall continue to serve for a term ending at the next annual meeting following the adoption or effective date of these bylaws, at which time said Vice President shall succeed to the office of the President.  Thereafter, the Vice President shall be elected at the annual meeting as hereinafter provided for a term of one, two, or three years.

(3)           Secretary and/or Treasurer:  The Secretary and/or the Treasurer serving at the time these bylaws are effective shall each continue to serve in their respective offices until the expiration of the term of that office or until successors are appointed by the President (or be elected by the active members of the District Bar), whichever occurs later.  In all other years, the Secretary and/or Treasurer shall be appointed by the President (or be elected by the active members of the District Bar) to serve for a term of one, two, or three years.

(4)           Election:  Before (or at) the annual meeting at which officers are to be elected, the Nominating Committee shall submit the names of its nominees for the office of Vice President to the Secretary.  Nominations from the floor shall be permitted.  If no candidate receives a majority of the votes cast, the candidate with the lowest number of votes shall be eliminated and a run-off election shall immediately be held among the remaining candidates.  This procedure shall be repeated until a candidate receives a majority of the votes.

(5)           Duties: The duties of the officers shall be those usual and customary for such officers, including such duties as may from time to time designated by resolutions of the District Bar, the North Carolina State Bar Council or the laws of the State of North Carolina.

(6)           Vacancies:  If a vacancy in the office of the Vice President, Secretary-Treasurer occurs, the vacancy will be filled by the Board of Directors, if any, and if there is no Board of Directors, then by the vote of the active members at a special meeting of such members.  The successor shall serve until the next annual meeting of the District Bar.  If the office of the President becomes vacant, the Vice President shall succeed to the office of the President and the Board of Directors, if any, and if there is no Board of Directors, then by the vote of the active members at a special meeting of such members, will select a new Vice President, who shall serve until the next annual meeting.

(7)           Notification:  Within 10 days following the annual meeting, or the filling of a vacancy in any office, the President shall notify the Executive Director of the North Carolina State Bar of the names, addresses and telephone numbers of all officers of the District Bar.

(8)           Record of Bylaws:  The President shall ensure that a current copy of these bylaws is filed with the office of the Senior Resident Superior Court Judge with the _________________________ Judicial District and with the Executive Director of the North Carolina State Bar.

(9)           Removal from Office:  The District Bar, by a two-thirds vote of its active members present at a duly called meeting, may, after due notice and an opportunity to be heard, remove from office any officer who has engaged in conduct which renders the officer unfit to serve, or who has become disabled, or for other good cause.  The office of any officer who, during his or her term of office ceases to be an active member of the North Carolina State Bar shall immediately be deemed vacant and shall be filled as provided in Item (6) of this Rule.

 

History Note:        Authority G.S. 84-4;

Eff. March 7, 1996.

 

27 NCAC 01A .1005         Councilor

The district bar shall be represented in the State Bar council by one or more duly elected councilors, the number of councilors being determined pursuant to G.S. 84-17.  Any councilor serving at the time of the adoption of these bylaws shall complete the term of office to which he or she was previously elected.  Thereafter, elections shall be held as necessary.  Nominations shall be made and the election held as provided in G.S. 84-18 and in Section .0800 et seq. of Subchapter 01A of the Rules of the North Carolina State Bar (27 NCAC 01A .0800 et seq.).  If more than one council seat is to be filled, separate elections shall be held for each vacant seat.  A vacancy in the office of councilor shall be filled as provided by 27 NCAC 01A .0804 of Subchapter 01A of the Rules of the North Carolina State Bar (27 NCAC 01A .0804).

 

History Note:        Authority G.S. 84-18.1; 84-23;

Adopted Eff. March 7, 1996;

Amended Eff. November 5, 1999.

 

27 NCAC 01A .1006         ANNUAL MEMBERSHIP FEE

(a)  Each active member of the District Bar shall:

(1)           Pay such annual membership fee, if any, as is prescribed by a majority vote of the active members of the District Bar present and voting at a duly called meeting of the District Bar, provided, however, that such fee may never exceed the amount of the annual membership fee currently imposed by the North Carolina State Bar.  Each member shall pay the annual District Bar membership fee at the time and place set forth in the notice thereof mailed to the member by the Secretary-Treasurer; and

(2)           Keep the Secretary-Treasurer notified of the member's current mailing address and telephone number.

(b)  The annual membership fee shall be used to promote and maintain the administration, activities and programs of the District Bar.

 

History Note:        Authority G.S. 84-4;

Eff. March 7, 1996.

 

27 NCAC 01A .1007         MEETINGS

(a)  Annual meetings: The district bar shall meet each _____________ at a time and place designated by the president. The president, secretary or other officer shall mail or deliver written notice of the annual meeting to each active member of the district bar at the member's last known mailing address on file with the district bar at least ten days before the date of the annual meeting and shall so certify in the official minutes of the meeting. Notice of the meeting mailed by the executive director of the North Carolina State Bar shall also satisfy the notice requirement. Failure to mail or deliver the notice as herein provided shall invalidate any action at the annual meeting.

(b)  Special meetings: Special meetings, if any, may be called at any time by the president or the vice-president. The president, secretary or other officer shall mail or deliver written notice of the special meeting to each active member of the district bar at the member's last known mailing address on file with the district bar at least ten days before the date of any special meeting. Such notice shall set forth the time and place for the special meeting and the purpose(s) thereof. Failure to mail or deliver the notice shall invalidate any action taken at a special meeting.

(c)  Notice for meeting to vote on annual membership fee: Notwithstanding the notice periods set forth in paragraphs (a) and (b) of this Rule, the written notice for any meeting at which the active members will vote on whether to impose or increase an annual membership fee shall be mailed or delivered to each active member of the district bar at the member's last known mailing address on file with the North Carolina State Bar at least 30 days before the date of the meeting.

(d)  Quorum: Twenty percent of the active members of the district bar shall constitute a quorum, and a quorum shall be required to take official action on behalf of the district bar.

 

History Note:        Authority G.S. 84-18.1; 84-23;

Adopted Eff. March 7, 1996;

Amended Eff. October 7, 2010.

 

27 NCAC 01A .1008         District Bar Finances

(a)  Fiscal Year: The district bar's fiscal year shall begin on____________ and shall end on ____________.

(b)  Duties of treasurer: The treasurer shall maintain the funds of the district bar on deposit, initiate any necessary disbursements and keep appropriate financial records.

(c)  Annual financial report: Each ________________ before the annual meeting, the treasurer shall prepare the district bar's annual financial report for review by the board of directors, if any, and submission to the district bar's annual meeting and the North Carolina State Bar.

(d)  District bar checks: All checks written on district bar accounts (arising from the collection of mandatory dues) that exceed five hundred dollars ($500.00) must be signed by two of the following: (1) the treasurer, (2) any other officer, (3) another member of the board of directors, or (4) the executive secretary/director, if any.

(e)  Fidelity bond: If it is anticipated that receipts from membership fees will exceed twenty thousand dollars ($20,000.00) for any fiscal year, the district bar shall purchase a fidelity bond at least equal in amount to the anticipated annual receipts to indemnify the district bar for losses attributable to the malfeasance of the treasurer or any other member having access to district bar funds.

(f)  Taxpayer identification number: The treasurer shall be responsible for obtaining a federal taxpayer identification number for the district bar.

 

History Note:        Authority G.S. 84-18.1; 84-23;

Adopted Eff. March 7, 1996;

Amended Eff. July 22, 1999.

 

27 NCAC 01A .1009         PROHIBITED ACTIVITIES

(a)  Prohibited Expenditures:  Mandatory District Bar dues, if any, shall not be used for the purchase of alcoholic beverages, gifts to public officials, including judges, charitable contributions, recreational activities or expenses of spouses of District Bar members or officers.  However, such expenditures may be made from funds derived entirely from the voluntary contributions of District Bar members.

(b)  Political Expenditures:  The District Bar shall not make any expenditures to fund political and ideological activities.

(c)  Political Activities:  The District Bar shall not engage in any political or ideological conduct or activity, including the endorsement of candidates and the taking or advocation of positions on political issues, referendums, bond elections, and the like, however, the District Bar, and persons speaking on its behalf, may take positions on, or comment upon, issues relating to the regulation of the legal profession and issues or matters relating to the improvement of the quality and availability of legal services to the general public.

 

History Note:        Authority G.S. 84-4;

Eff. March 7, 1996.

 

27 NCAC 01A .1010         Committees

(a)  Standing committee(s): The standing committees shall be the Nominating Committee, Pro Bono Committee, Fee Dispute Resolution Committee, Grievance Committee, and Professionalism Committee provided that, with respect to the Fee Dispute Resolution Committee and the Grievance Committee, the district meets the State Bar guidelines relating thereto.

(b)  Fee Dispute Resolution Committee:

(1)           The Fee Dispute Resolution Committee shall consist of at least six but not more than eighteen persons appointed by the president to staggered three-year terms as provided in the district bar's Fee Dispute Resolution Plan.

(2)           The Fee Dispute Resolution Committee shall be responsible for implementing a Fee Dispute Resolution Plan approved by the Council of the North Carolina State Bar to resolve fee disputes efficiently, economically, and expeditiously without litigation.

(c ) Grievance Committee:

(1)           The Grievance Committee shall consist of at least five but not more than thirteen persons appointed by the president to staggered three year terms as provided by the Rules and Regulations of the North Carolina State Bar governing Judicial District Grievance Committees.

(2)           The Grievance Committee shall assist the Grievance Committee of the North Carolina State Bar by receiving grievances, investigating grievances, evaluating grievances, informally mediating disputes, facilitating communication between lawyers and clients and referring members of the public to other appropriate committees or agencies for assistance.

(3)           The Grievance Committee shall operate in strict accordance with the rules and policies of the North Carolina State Bar with respect to district bar grievance committees.

(d)  Special Committees: Special committees may be created and appointed by the president.

(e)  Nominating Committee:

(1)           The Nominating Committee shall be appointed by the officers (or the board of directors) of the district bar and shall consist of at least three active members of the district bar who are not officers or directors of the district bar.

(2)           The Nominating Committee shall meet as necessary for the purpose of nominating active members of the district bar as candidates for officers and councilor(s) and the board of directors, if any.

(3)           The Nominating Committee members shall serve one-year terms beginning on ___________________ and ending on _________________.

(4)           Any active member whose name is submitted for consideration for nomination to any office or as a councilor must have indicated his or her willingness to serve if selected.

(f)  Pro Bono Committee: 

(1)           The Pro Bono Committee shall consist of at least five active members of the district bar appointed by the president.

(2)           The Pro Bono Committee shall meet at least once each quarter and shall have the duty of encouraging members of the district bar to provide pro bono legal services. The committee shall also develop programs whereby attorneys not involved in other volunteer legal service programs may provide pro bono legal service in their areas of concentration and practice.

(3)           The members of the Pro Bono Committee shall serve one-year terms commencing on __________________.

(g)  Professionalism Committee:

(1)           The Professionalism Committee shall consist of the three immediate past presidents of the district bar or such other members of the district bar as shall be appointed by the president.

(2)           The purpose of the Professionalism Committee shall be the promotion of professionalism and thereby the bolstering of public confidence in the legal profession. The committee may further enhance professionalism through CLE programs and, when appropriate, through confidential peer intervention in association with the Professionalism Support Initiative (PSI) which is sponsored and supported by the Chief Justice’s Commission on Professionalism. The PSI effort is to investigate and informally assist with client-lawyer, lawyer-lawyer, and lawyer-judge relationships to ameliorate disputes, improve communications, and repair relationships. The Professionalism Committee shall have no authority to discipline any lawyer or judge, or to force any lawyer or judge to take any action. The committee shall not investigate or attempt to resolve complaints of professional misconduct cognizable under the Rules of Professional Conduct and shall act in accordance with Rules 1.6(c) and 8.3 of the Rules of Professional Conduct. The committee shall consult and work with the Chief Justice’s Commission on Professionalism when appropriate.

 

History Note:        Authority G.S. 84-4; 84-18.1; 84-23

Eff. March 7, 1996;

Amended Eff. March 6, 2002.

 

27 NCAC 01A .1011         BOARD OF DIRECTORS OR EXECUTIVE COMMITTEE

(a)  Membership of Board:  A Board of Directors consisting of at least _______ active members of the District Bar shall be elected.  At all times, the Board of Directors shall include at least one director from each county in the Judicial District.  The Board of Directors serving when these bylaws become effective shall continue to serve until the following annual meeting.  Beginning on ______________________ immediately after the effective date of these bylaws, the President shall appoint an initial Board of Directors who shall serve three-year terms commencing on ______________, except that the terms of the initial members of the Board shall be staggered at one-year intervals to ensure continuity and experience.  To effect the staggered initial terms, the President will determine which of the initial members shall serve terms of less than three years.

The State Bar Councilor (or Councilors) from the judicial district shall be an ex officio member (or members) of the District Bar Board of Directors or Executive Committee.

(b)  Terms of Directors:  After the initial staggered terms of the Board of Directors expire, successors shall be elected by the active members at the annual District Bar meeting, as set out in Rule .1004 (d) of this Section, and Paragraphs (c ) and (d) of this Rule.  Following the completion of the initial staggered terms, the directors shall serve three-year terms beginning on ____________________ following their election.

(c)  Designated and At-Large Seats in Multi-County Districts:  In multi-county districts, one seat on the Board of Directors shall be set aside and designated for each county in the district.  Only active members of the District Bar who reside or work in the designated county may be elected to a designated county seat.  All other seats on the Board of Directors shall be at-large seats which may be filled by any active member of the District Bar.

(d)  Elections:  When one or more seats on the Board of Directors become vacant, an election shall be held at the annual meeting of the District Bar.  Except as otherwise provided herein, the election shall be conducted as provided for in Rule .1004(d) of this Section.  The candidates receiving the highest number of votes cast will be elected, regardless of whether any of the candidates received a majority of the votes cast, provided that designated seats will be filled by the candidates receiving the highest number of votes who live or work in the designated county, regardless of whether any of the candidates received a majority of the votes cast.

(e)  Vacancies:  If a vacancy occurs on the Board of Directors, the President (or the Board of Directors) shall appoint a successor who shall serve until the next annual meeting of the District Bar.  If the vacancy occurs in a designated seat for a particular county within the district, the successor will be selected from among the active members of the District Bar who live or work in the designated county.

(f)  Duties of Board of Directors:  The Board of Directors shall have the responsibilities described Rules .1004(f) and .1007(c) of this Section.  The Board of Directors shall also consult with the officers regarding any matters of District Bar business or policy arising between meetings and may act for the District Bar on an emergency basis if necessary, provided that any such action shall be provisional pending its consideration by the District Bar at its next duly called meeting.  The Board of Directors may not impose on its own authority any sort of fee upon the membership.

 

History Note:        Authority G.S. 84-4;

Eff. March 7, 1996.

 

27 NCAC 01A .1012         AMENDMENT OF THE BYLAWS

The membership of the District Bar, by a _________________________ (majority, two-thirds, etc.) vote of the active members present at any duly called meeting at which there is a quorum present and voting throughout, may amend these bylaws in ways not inconsistent with the constitution of the United States, the policies and rules of the North Carolina State Bar and the laws of the United States and North Carolina.

 

History Note:        Authority G.S. 84-4;

Eff. March 7, 1996.

 

27 NCAC 01A .1013         Selection of Nominees for District Court Judge

Unless otherwise required by law, the following procedures shall be used to determine the nominees to be recommended to the Governor pursuant to G.S. 7A-142 for vacant district court judgeships in the judicial district.

(a)  Meeting for Nominations:  The nominees shall be selected by secret, written ballot of those members present at a meeting of the district bar called for this purpose.  Fifteen (15) days notice of the meeting shall be given, by mail, to the last known address of each district bar member.  Alternatively, if a bylaw permitting elections by mail is adopted by the district bar, the procedures set forth in the bylaw and in Rule .0804 of Subchapter 01A of the Rules of the North Carolina State Bar (27 NCAC 01A .0804), shall be followed.

(b)  Candidates:  Persons who want to be considered for the vacancy shall notify the President in writing five (5) days prior to the meeting at which the election will be conducted or, if the election is by mail, five days prior to the mailing of the ballots.

(c)  Voting:  Each district bar member eligible to vote pursuant to G.S. 7A-142 may vote for up to five (5) candidates. Cumulative voting is prohibited.  Proxy voting is prohibited.

(d)  Submission to Governor:  The five candidates receiving the highest number of votes shall be the nominees to fill the vacancy on the district court and their names, and vote totals, shall be transmitted to the governor.  In the event of a tie for fifth place, the names of those candidates involved in the tie shall be transmitted to the governor together with the names of the four candidates receiving the highest number of votes.

 

History Note:        Authority G.S. 7A-142; 84-18.1; 84-23;

Adopted Eff. February 27, 2003;

Amended Eff. March 6, 2014.

 

SECTION .1100 ‑ OFFICE OF THE NORTH CAROLINA STATE BAR

 

27 NCAC 01A .1101         OFFICE

Until otherwise ordered by the council, the office of the North Carolina State Bar shall be maintained in the city of Raleigh at such place as may be designated by the council.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

SECTION .1200 ‑ FILING PAPERS WITH AND SERVING THE NORTH CAROLINA STATE BAR

 

27 NCAC 01A .1201         WHEN PAPERS ARE FILED UNDER THESE RULES AND REGULATIONS

Whenever in these rules and regulation there is a requirement that petitions, notices or other documents be filed with or served on the North Carolina State Bar, or the council, the same shall be filed with or served on the secretary of the North Carolina State Bar.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

SECTION .1300 ‑ SEAL

 

27 NCAC 01A .1301         FORM AND CUSTODY OF SEAL

The North Carolina State Bar shall have a seal round in shape and having the words and figures, "The North Carolina State Bar July 1, 1933," with the word "Seal" in the center.  The seal shall remain in the custody of the secretary at the office of the North Carolina State Bar, unless otherwise ordered by the council.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

Section .1400 - Rulemaking Procedures

 

27 NCAC 01A .1401         Publication for Comment

(a)  As a condition precedent to adoption, a proposed rule or amendment to a rule must be published for comment as provided in Paragraph (c).

(b)  A proposed rule or amendment to a rule must be presented to the Executive Committee and the council prior to publication for comment, and specifically approved for publication by both.

(c)  A proposed rule or amendment to a rule must be published for comment in an official printed publication of the North Carolina State Bar that is mailed to the membership at least 30 days in advance of its final consideration by the council. The publication of any such proposal must be accompanied by a prominent statement inviting all interested parties to submit comment to the North Carolina State Bar at a specified postal or e-mail address prior to the next meeting of the Executive Committee, the date of which shall be set forth.

 

History Note:        Authority G.S. 84-23;

Eff. August 23, 2007.

 

27 NCAC 01A .1402         Review by the Executive Committee

At its next meeting following the publication or republication of any proposed rule or amendment to a rule, the Executive Committee shall review the proposal and any comment that has been received concerning the proposal. The Executive Committee shall then:

(1)           recommend the proposal's adoption by the council;

(2)           recommend the proposal's adoption by the council with nonsubstantive modification;

(3)           recommend to the council that the proposal be republished with substantive modification;

(4)           defer consideration of the matter to its next regular business meeting;

(5)           table the matter; or

(6)           reject the proposal.

 

History Note:        Authority G.S. 84-23;

Eff. August 23, 2007.

 

27 NCAC 01A .1403         Action by the Council and Review by the North Carolina Supreme Court

(a)  Whenever the Executive Committee recommends adoption of any proposed rule or amendment to a rule in accordance with the procedure set forth in Rule .1402 of this Section, the council at its next regular business meeting shall consider the proposal, the Executive Committee's recommendation, and any comment received from interested parties, and:

(1)           decide whether to adopt the proposed rule or amendment, subject to the approval of the North Carolina Supreme Court as described in G.S. 84-21;

(2)           reject the proposed rule or amendment; or

(3)           refer the matter back to the Executive Committee for reconsideration.

(b)  Any proposed rule or amendment to a rule adopted by the council shall be transmitted by the secretary to the North Carolina Supreme Court for its review on a schedule approved by the Court, but in no event later than 120 days following the council's adoption of the proposed rule or amendment.

(c)  No proposed rule or amendment to a rule adopted by the council shall take effect unless and until it is approved by order of the North Carolina Supreme Court.

(d)  The secretary shall promptly transmit the official text of any proposed rule or amendment to a rule adopted by the council and approved by the North Carolina Supreme Court to the Office of Administrative Hearings for publication in the North Carolina Administrative Code.

(e)  Any action taken by the council or the North Carolina Supreme Court in regard to any proposed rule or amendment to a rule shall be reported in the next issue of the printed publication referenced in Rule .1401 of this Section.

 

History Note:        Authority G.S. 84-23;

Eff. August 23, 2007.

 

 

SUBCHAPTER 1B ‑ DISCIPLINE AND DISABILITY RULES

 

SECTION .0100 ‑ DISCIPLINE AND DISABILITY OF ATTORNEYS

 

27 NCAC 01B .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 earlier disciplinary proceedings, will not be a defense to any charge of misconduct by a member.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01B .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 members 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 restoration 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 discipline 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 proceeding with a pending civil or criminal court proceeding involving attorney 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 initiated an inquiry or proceeding regarding alleged improper or unethical conduct of an attorney, the North 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 disciplinary proceedings against an attorney for conduct which subsequently 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 complaints filed against an attorney before the court takes disciplinary action against the attorney.

 

History Note:        Authority G.S. 84‑23; 84‑36;

Readopted Eff. December 8, 1994.

 

27 NCAC 01B .0103          Definitions

Subject to additional definitions contained in other provisions of this subchapter, 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 written 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 continuing 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 significant 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 wherein 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 complained 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 panel of multiple charges, whether related or unrelated in substance, brought against one defendant.

(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.

(16)         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 significantly impairs the professional judgment, performance, or competence of an 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 Committee respecting the grievances and other matters referred to it by the chairperson of the Grievance Committee.

(22)         Hearing panel - a hearing panel designated under Rule .0108(a)(2), .0114(d), .0114(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 prescription or in violation of the laws of this state or the United States.

(24)         Incapacity or incapacitated - condition determined in a judicial proceeding under the laws of this or any other jurisdiction that an attorney is mentally 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 facts 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 practice.

(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 technical 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 staff maintained by the counsel of the North Carolina State Bar.

(33)         Office of the secretary - the office and staff maintained by the secretary-treasurer of the North Carolina State Bar.

(34)         Party - after a complaint has been filed, the North Carolina State 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 determine 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 State Bar is guilty of misconduct justifying disciplinary action.

(38)         Reprimand - a written form of discipline more serious than an admonition 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)         Revised Rules of Professional Conduct - the Rules of Professional Conduct adopted by the Council of the North Carolina State Bar and approved by the North Carolina Supreme Court effective July 24, 1997.

(41)         Rules of Professional Conduct - the Rules of Professional Conduct adopted by the Council of the North Carolina State Bar and approved by the North Carolina Supreme Court and which were in effect from October 7, 1985 through July 23, 1997.

(42)         Secretary - the secretary-treasurer of the North Carolina State Bar.

(43)         Supreme Court - the Supreme Court of North Carolina.

(44)         Will - when used in these rules, means a direction or order which is mandatory or obligatory.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. October 8, 2009; February 3, 2000; December 30, 1998.

 

27 NCAC 01B .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 council.  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 reject 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 panel upon a petition for reinstatement of a disbarred attorney and to make final determination as to whether the license will be restored.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. October 8, 2009; September 7, 1995.

 

27 NCAC 01B .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 activities of the counsel;

(2)           to recommend to the Grievance Committee that an investigation be initiated;

(3)           to recommend to the Grievance Committee that a grievance be dismissed;

(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 chairperson 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 reprimand, 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;

(11)         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 Committee, 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 against whom the Grievance Committee imposes discipline, including a minimum administrative cost of fifty dollars ($50.00);

(16)         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;

(17)         to dismiss a grievance where it appears that the grievance has not been filed within the time period set out in Rule .0111(e);

(18)         to dismiss a grievance where it appears that the complaint, even if true, fails to state a violation of the Revised Rules of Professional Conduct and where counsel consents to the dismissal;

(19)         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;

(20)         to appoint a subcommittee to make recommendations to the council for such amendments to the Discipline and Disability Rules as the subcommittee deems necessary or appropriate.

(b)  Absence of Chairperson and Delegation of Duties.  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)  Delegation of Authority.  The chairperson may delegate his or her authority to the president, the vice-chairperson of the committee, or a member of the Grievance Committee.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. August 23, 2012; March 10, 2011; February 3, 2000; March 3, 1999; December 30, 1998; October 2, 1997; March 6, 1997; February 20, 1995.

 

27 NCAC 01B .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 complaints 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 recommend 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 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 Conduct.  The letter of warning will advise the attorney 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 practice for which the respondent is being warned.  A copy of the letter of warning will be maintained in the office of the counsel for three years subject to the confidentiality 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 Professional 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 or more provisions of the Rules of Professional Conduct and has caused significant harm or potential significant 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;

(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 provision requiring the defendant to complete a reasonable amount of continuing legal education in addition to the minimum amount required by the North Carolina Supreme Court;

(11)         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 Bar in accordance with Rule .0112(i) of this Subchapter;

(12)         in its discretion, to refer grievances primarily attributable to the respondent's substance abuse or mental health problem to the Lawyer Assistance Program in accordance with Rule .0112(j) of this Subchapter;

(13)         in its discretion, to refer grievances primarily attributable to the respondent's failure to employ sound trust accounting techniques to the trust account supervisory program in accordance with Rule .0112(k) of this Subchapter.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. August 23, 2012; December 20, 2000; March 3, 1999.

 

27 NCAC 01B .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 chairperson of the Grievance Committee;

(3)           to investigate all matters involving alleged misconduct whether initiated 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 prosecute all disciplinary proceedings before the Grievance Committee, hearing panels, and the courts;

(6)           to represent the North Carolina State Bar in any trial, hearing, or other proceeding concerning the alleged disability of a member;

(7)           to appear on behalf of the North Carolina State Bar at hearings conducted by the Grievance Committee, hearing panels, 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 reinstatement 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 disposition of such matters;

(11)         to perform such other duties as the council may direct;

(12)         after a finding of probable cause by the Grievance Committee, to designate the particular violations of the Rules of Professional 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 petitions, 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 discipline to the hearing panel.

 

History Note:        Authority G.S. 84-23; 84-31;

Readopted Eff. December 8, 1994;

Amended Eff. October 8, 2009; March 3, 1999.

 

27 NCAC 01B .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 reinstatement of license by members who have been involuntarily transferred to disability inactive status, suspended, or 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 members of the North Carolina State Bar and one nonlawyer to hear complaints, petitions, motions, and post-hearing motions pursuant to Rule .0114(z)(2) of this subchapter.  The chairperson will designate one of the attorney members as chairperson of the hearing panel.  No panel member who hears a disciplinary matter may serve on the panel which hears the attorney's reinstatement petition.  The chairperson of the commission may designate himself or herself to serve as one of the attorney members of any hearing panel and will be chairperson of any hearing panel on which he or she serves.  Post-hearing motions filed pursuant to Rule .0114(z)(2) of this subchapter will be considered by the same hearing panel assigned to the original trial proceeding.  Hearing panel members who are ineligible or unable to serve for any reason will be replaced with members selected by the commission chairperson;

(3)           to set the time and place for the hearing on each complaint or petition;

(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 preceding complaint;

(6)           to enter orders disbarring members by consent;

(7)           to enter an order suspending a member pending disposition of a disciplinary proceeding when the member has been convicted of a serious crime or has pled no contest to a serious crime and the court has accepted the plea.

(b)  The vice-chairperson of the Disciplinary Hearing Commission may perform the function of the chairperson in any matter when the chairperson is absent or disqualified.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. October 8, 2009; September 7, 1995.

 

27 NCAC 01B .0109          Hearing Panel: Powers and Duties

Hearing panels 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 seeking a determination of disability or reinstatement, or motions seeking the activation 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. 84-28.1(b1);

(2)           to enter orders regarding discovery and other procedures in connection with such hearings, including, in disability matters, the examination of a member by such qualified medical experts as the panel will designate;

(3)           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.  Subpoenas will be issued by the chairperson of the hearing panel in the name of the commission.  The chairperson may direct the secretary 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 enter orders dismissing complaints in matters before the panel;

(7)           to enter orders of discipline against or letters of warning to defendants in matters before the panel;

(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, panels, or agencies 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 inactive status to active status;

(12)         to enter orders reinstating suspended attorneys or denying reinstatement.  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 continuing the stays of such suspensions.

(14)         to enter orders holding persons and corporations in contempt pursuant to G.S. 84-28.1(b1) and imposing such sanctions allowed by law.

 

History Note:        Authority G.S. 84-23; 84-28; 84-28.1;

Readopted Eff. December 8, 1994;

Amended Eff. October 8, 2009; March 3, 1999.

 

27 NCAC 01B .0110          Secretary: Powers and Duties in Discipline and Disability Matters

The secretary will have the following powers and duties in regard to discipline 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 affidavits of surrender of license for transmittal to the council;

(2)           to issue summonses and subpoenas when so directed by the president, the chairperson of the Grievance Committee, the chairperson of the commission, or the chairperson of any hearing panel;

(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 complaints 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:        Authority G.S. 84-22; 84-23; 84-32(c);

Readopted Eff. December 8, 1994;

Amended Eff. October 8, 2009.

 

27 NCAC 01B .0111          Grievances: Form 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 unverified, 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 distribute 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 matter coming to the attention of the counsel involving alleged misconduct of a member upon receiving authorization 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 attorney or judge who reports alleged misconduct of another attorney pursuant to Rule 8.3 of the Revised Rules of Professional Conduct and who requests to remain anonymous.  Notwithstanding the foregoing, the North Carolina State Bar will reveal the identity of a reporting attorney 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 attorney's defense to the grievance and/or a formal disciplinary complaint.

(e)  The counsel may decline to investigate the following allegations:

(1)           that a member provided ineffective assistance of counsel in a criminal case, unless a court has granted a motion for appropriate relief based upon the member's conduct;

(2)           that a plea entered in a criminal case was not made voluntarily and knowingly, unless a court granted a motion for appropriate relief based upon the member's conduct;

(3)           that a member's advice or strategy in a civil or criminal matter was inadequate or ineffective.

(f)  Limitation of Grievances.

(1)           There is no time limitation for initiation of any grievance based upon a plea of guilty to a felony or upon conviction of a felony.

(2)           There is no time limitation for initiation of any grievance based upon allegations of conduct that constitutes a felony, without regard to whether the lawyer is charged, prosecuted, or convicted of a crime for the conduct.

(3)           There is no time limitation for initiation of any grievance based upon conduct that violates the Rules of Professional Conduct and has been found by a court to be intentional conduct by the lawyer.  As used in this Rule, "court" means a state court of general jurisdiction of any state or of the District of Columbia or a federal court.

(4)           All other grievances must be initiated within six years after the last act giving rise to the grievance.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. October 8, 2009; October 1, 2003; December 30, 1998; February 20, 1995.

 

Section .0100 - Discipline and Disability of Attorneys

 

27 NCAC 01B .0112          Investigations: Initial Determination; Notice and Response; Committee Referrals

(a)  Investigation Authority - Subject to the policy supervision of the council and the control of the chair of the Grievance Committee, the counsel, or other personnel under the authority of the counsel, will investigate the grievance and submit to the chair a report detailing the findings of the investigation.

(b)  Grievance Committee Action on Initial or Interim Reports - As soon as practicable after the receipt of the initial or any interim report of the counsel concerning any grievance, the chair of the Grievance Committee may

(1)           treat the report as a final report;

(2)           direct the counsel to conduct further investigation, including contacting the respondent in writing or otherwise; or

(3)           direct the counsel to send a letter of notice to the respondent.

(c)  Letter of Notice, Respondent’s Response, and Request for Copy of Grievance - If the counsel serves a letter of notice upon the respondent, it will be served by certified mail and will direct that a response be provided within 15 days of service of the letter of notice upon the respondent. The response to the letter of notice shall include a full and fair disclosure of all facts and circumstances pertaining to the alleged misconduct. The response must be in writing and signed by the respondent. If the respondent requests it, the counsel will provide the respondent with a copy of the written grievance unless the complainant requests anonymity pursuant to Rule .0111(d) of this subchapter.

(d)  Request for Copy of Respondent's Response - The counsel may provide to the complainant a copy of the respondent’s response to the letter of notice unless the respondent objects thereto in writing.

(e)  Termination of Further Investigation - After the Grievance Committee receives the response to a letter of notice, the counsel may conduct further investigation or terminate the investigation, subject to the control of the chair of the Grievance Committee.

(f)  Subpoenas - For reasonable cause, the chair of the Grievance Committee may issue subpoenas to compel the attendance of witnesses, including the respondent, for examination concerning the grievance and may compel the production of books, papers, and other documents or writings which the chair deems necessary or material to the inquiry. Each subpoena will be issued by the chair or by the secretary at the direction of the chair. The counsel, deputy counsel, investigator, or any members of the Grievance Committee designated by the chair may examine any such witness under oath or otherwise.

(g)  Grievance Committee Action on Final Reports – The Grievance Committee will consider the grievance as soon as practicable after it receives the final report of the counsel, except as otherwise provided in these rules.

(h)  Failure of Complainant to Sign and Dismissal Upon Request of Complainant - The investigation into alleged misconduct of the respondent will not be abated by failure of the complainant to sign a grievance, by settlement or compromise of a dispute between the complainant and the respondent, or by the respondent's payment of restitution. The chair of the Grievance Committee may dismiss a grievance upon request of the complainant and with consent of the counsel where it appears that there is no probable cause to believe that the respondent violated the Rules of Professional Conduct.

(i)  Referral to Law Office Management Training

(1)           If, at any time before a finding of probable cause, the Grievance Committee determines that the alleged misconduct is primarily attributable to the respondent's failure to employ sound law office management techniques and procedures, the committee may offer the respondent an opportunity to voluntarily participate in a law office management training program approved by the State Bar before the committee considers discipline.

If the respondent accepts the committee's offer to participate in the program, the respondent will then be required to complete a course of training in law office management prescribed by the chair which may include a comprehensive site audit of the respondent's records and procedures as well as attendance at continuing legal education seminars. If the respondent does not accept the committee's offer, the grievance will be returned to the committee's agenda for consideration of imposition of discipline.

(2)           Completion of Law Office Management Training Program – If the respondent successfully completes the law office management training program, the committee may consider the respondent's successful completion of the law office management training program as a mitigating circumstance and may, but is not required to, dismiss the grievance for good cause shown. If the respondent fails to successfully complete the law office management training program as agreed, the grievance will be returned to the committee's agenda for consideration of imposition of discipline. The requirement that a respondent complete law office management training pursuant to this rule shall be in addition to the respondent's obligation to satisfy the minimum continuing legal education requirements contained in 27 NCAC 01D .1517.

(j)  Referral to Lawyer Assistance Program

(1)           If, at any time before a finding of probable cause, the Grievance Committee determines that the alleged misconduct is primarily attributable to the respondent’s substance abuse or mental health problem, the committee may offer the respondent an opportunity to voluntarily participate in a rehabilitation program under the supervision of the Lawyer Assistance Program Board before the committee considers discipline.

If the respondent accepts the committee's offer to participate in a rehabilitation program, the respondent must provide the committee with a written acknowledgement of the referral on a form approved by the chair. The acknowledgement of the referral must include the respondent's waiver of any right of confidentiality that might otherwise exist to permit the Lawyer Assistance Program to provide the committee with the information necessary for the committee to determine whether the respondent is in compliance with the rehabilitation program. If the respondent does not accept the committee's offer, the grievance will be returned to the committee’s agenda for consideration of imposition of discipline.

(2)           Completion of Rehabilitation Program – If the respondent successfully completes the rehabilitation program, the committee may consider successful completion of the program as a mitigating circumstance and may, but is not required to, dismiss the grievance for good cause shown. If the respondent fails to complete the rehabilitation program or fails to cooperate with the Lawyer Assistance Program Board, the Lawyer Assistance Program will report that failure to the counsel and the grievance will be returned to the committee’s agenda for consideration of imposition of discipline.

(k)  Referral to Trust Accounting Compliance Program

(1)           If, at any time before a finding of probable cause, the Grievance Committee determines that the alleged misconduct is primarily attributable to the respondent’s failure to employ sound trust accounting techniques, the committee may offer the respondent an opportunity to voluntarily participate in the State Bar’s Trust Account Compliance Program for up to two years before the committee considers discipline.

If the respondent accepts the committee's offer to participate in the compliance program, the respondent must fully cooperate with the Trust Account Compliance Counsel and must provide to the Office of Counsel quarterly proof of compliance with all provisions of Rule 1.15 of the Rules of Professional Conduct. Such proof shall be in a form satisfactory to the Office of Counsel. If the respondent does not accept the committee’s offer, the grievance will be returned to the committee’s agenda for consideration of imposition of discipline.

(2)           Completion of Trust Account Compliance Program - If the respondent successfully completes the program, the committee may consider successful completion of the program as a mitigating circumstance and may, but is not required to, dismiss the grievance for good cause shown. If the respondent does not fully cooperate with the Trust Account Compliance Counsel and/or does not successfully complete the program, the grievance will be returned to the committee’s agenda for consideration of imposition of discipline.

(3)           The committee will not refer to the program any case involving possible misappropriation of entrusted funds, criminal conduct, dishonesty, fraud, misrepresentation, or deceit, or any other case the committee deems inappropriate for referral. The committee will not refer to the program any respondent who has not cooperated fully and timely with the committee's investigation. If the Office of Counsel or the committee discovers evidence that a respondent who is participating in the program may have misappropriated entrusted funds, engaged in criminal conduct, or engaged in conduct involving dishonesty, fraud, misrepresentation, or deceit, the chair will terminate the respondent's participation in the program and the disciplinary process will proceed. Referral to the Trust Accounting Compliance Program is not a defense to allegations that a lawyer misappropriated entrusted funds, engaged in criminal conduct, or engaged in conduct involving dishonesty, fraud, misrepresentation, or deceit, and it does not immunize a lawyer from the disciplinary consequences of such conduct.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. March 5, 2015; August 23, 2012; August 25, 2011; March 10, 2011; March 6, 2002; December 20, 2000; December 30, 1998; March 6, 1997; February 20, 1995.

 

27 NCAC 01B .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 Grievance Committee will determine whether there is probable cause to believe that a respondent is guilty of misconduct justifying disciplinary action.  In its discretion, the Grievance Committee or a panel thereof may find probable cause regardless of whether the respondent has been served with a written letter 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. 1A, .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 Committee's determination 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 documents deemed necessary or material to any preliminary hearing.  The chairperson may designate the secretary to issue such subpoenas.

(e)  The counsel and deputy counsel, the witness under examination, interpreters when needed, and, if deemed necessary, a stenographer or operator of a recording device may be present while the committee is in session and deliberating, but no persons other than members may be present while the committee is voting.

(f)  The results of any deliberation by the Grievance Committee will be disclosed to the counsel and the secretary 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 or a court of record.

(g)  At any preliminary hearing held by the Grievance Committee, a quorum of one-half of the members will be required to conduct any business.  Affirmative vote of a majority of members present will be necessary to find that probable cause exists.  The chairperson will not be counted for quorum purposes 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 complaint against the respondent.  If the committee finds probable cause but determines that no hearing is necessary, it will direct the counsel to prepare 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 professional 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 Conduct, the committee may issue a letter of warning to the respondent.  The letter of warning will advise the respondent that he or she may be subject to discipline if such conduct is continued or repeated.  The letter 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 may be 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 the 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 respondent within three years after the letter of warning is issued to the respondent.

(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 mailing of a copy of the letter 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 exclusive 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 refused.  If a refusal and request are not served within 15 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 refuses the letter of warning, the counsel will prepare and file a complaint against the respondent for a hearing pursuant to Rule .0114 of this Subchapter.

(k)  Admonitions, Reprimands, and Censures

(1)           If probable cause is found but it is determined by the Grievance Committee that a complaint and hearing are not warranted, the committee shall issue an admonition in cases in which the respondent has committed a minor violation of the Rules of Professional Conduct, a reprimand in cases in which the respondent's conduct has violated one or more provisions of the Rules of Professional Conduct and caused harm or potential harm to a client, the administration of justice, the profession, or members of the public, or a censure in cases in which the respondent has violated one or more provisions of the Rules of Professional Conduct and the harm or potential harm caused by the respondent is significant and protection of the public requires more serious discipline.  To determine whether more serious discipline is necessary to protect the public or whether the violation is minor and less serious discipline is sufficient to protect the public, the committee shall consider the factors delineated in Subparagraphs (2) and (3) below.

(2)           Factors that shall be considered in determining whether protection of the public requires a censure include, but are not limited to, the following:

(A)          prior discipline for the same or similar conduct;

(B)          prior notification by the North Carolina State Bar of the wrongfulness of the conduct;

(C)          refusal to acknowledge wrongful nature of conduct;

(D)          lack of indication of reformation;

(E)           likelihood of repetition of misconduct;

(F)           uncooperative attitude toward disciplinary process;

(G)          pattern of similar conduct;

(H)          violation of the Rules of Professional Conduct in more than one unrelated matter;

(I)            lack of efforts to rectify consequences of conduct;

(J)            imposition of lesser discipline would fail to acknowledge the seriousness of the misconduct and would send the wrong message to members of the Bar and the public regarding the conduct expected of members of the Bar;

(K)          notification contemporaneous with the conduct at issue of the wrongful nature of the conduct and failure to take remedial action.

(3)           factors that shall be considered in determining whether the violation of the Rules is minor and warrants issuance of an admonition include, but are not limited to, the following:

(A)          lack of prior discipline for same or similar conduct;

(B)          recognition of wrongful nature of conduct;

(C)          indication of reformation;

(D)          indication that repetition of misconduct not likely;

(E)           isolated incident;

(F)           violation of the Rules of Professional Conduct in only one matter;

(G)          lack of harm or potential harm to client, administration of justice, profession, or members of the public;

(H)          efforts to rectify consequences of conduct;

(I)            inexperience in the practice of law;

(J)            imposition of admonition appropriately acknowledges the minor nature of the violation(s) of the Revised Rules of Professional Conduct;

(K)          notification contemporaneous with the conduct at issue of the wrongful nature of the conduct resulting in efforts to take remedial action;

(L)           personal or emotional problems contributing to the conduct at issue;

(M)         successful participation in and completion of contract with Lawyer's Assistance Program where mental health or substance abuse issues contributed to the conduct at issue.

(l)  Procedures for Admonitions and Reprimands

(1)           A record of any admonition or reprimand issued by the Grievance Committee will be maintained in the office of the secretary.

(2)           A copy of the admonition or reprimand 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 mailing of a copy of the admonition or reprimand to the respondent's last known address on file with the NC State Bar.  Service shall be deemed complete upon deposit of the admonition or reprimand 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.

(3)           Within 15 days after service the respondent 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 respondent refuses an admonition or reprimand, the counsel will prepare and file a complaint against the respondent pursuant to Rule .0114 of this Subchapter.  If a refusal and request are not served upon the secretary within 15 days after service upon the respondent of the admonition or reprimand, the admonition or reprimand 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.

(m)  Procedure for Censures

(1)           If the Grievance Committee determines that the imposition of a censure is appropriate, the committee will issue a notice of proposed censure and a proposed censure to the respondent.

(2)           A copy of the notice and the proposed censure 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 mailing of a copy of the notice and proposed censure to the respondent's last known address on file with the NC State Bar.  Service shall be deemed complete upon deposit of the notice and proposed 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 respondent must be advised that he or she may accept the censure within 15 days after service upon him or her or a formal complaint will be filed before the commission.

(3)           The respondent'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 respondent, the discipline becomes public and must be filed as provided by Rule .0123(a)(3) of this Subchapter.

(4)           If the respondent does not accept the censure, the counsel will file a complaint against the defendant pursuant to Rule .0114 of this Subchapter.

(n)  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:        Authority G.S. 84-23; 84-28;

Readopted Eff. December 8, 1994;

Amended Eff. October 8, 2009; February 3, 2000; March 3, 1999.

 

27 NCAC 01B .0114          Proceedings Before the Disciplinary Hearing Commission: General Rules Applicable to All Proceedings

(a)  Applicable Procedure - Except where specific procedures are provided by these rules, pleadings and proceedings before a hearing panel will conform as nearly as practicable with the requirements of the North Carolina Rules of Civil Procedure and for trial of nonjury civil cases in the superior courts. Any specific procedure set out in these rules controls, and where specific procedures are set out in these rules, the Rules of Civil Procedure will be supplemental only.

(b)  Continuances - The chairperson of the hearing panel may continue any hearing for good cause shown. After a hearing has commenced, continuances will only be granted pursuant to Rule .0116(b).

(c)  Appearance By or For the Defendant - The defendant may appear pro se or may be represented by counsel. The defendant may not act pro se if he or she is represented by counsel.

(1)           Pro Se Defendant's Address - When a defendant appears in his or her own behalf in a proceeding, the defendant will file with the clerk, 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 the address on record with the State Bar's membership department.

(2)           Notice of Appearance - When a defendant is represented by an attorney in a proceeding, the attorney will file with the clerk a written notice of such appearance which will state his or her name, address and telephone number, the name and address of the defendant on whose behalf he or she appears, and the caption and docket number of the proceeding. Any additional notice or other written communication required to be served on or furnished to a defendant during the pendency of the hearing will be sent to defendant's attorney of record in lieu of transmission to the defendant.

(d)  Filing Time Limits - Pleadings or other documents in formal proceedings required or permitted to be filed under these rules must be received for filing by the clerk of the commission within the time limits, if any, for such filing. The date of the receipt by the clerk, and not the date of deposit in the mail, is determinative.

(e)  Form of Papers - All papers presented to the commission for filing will be on letter size paper (8 1/2 x 11 inches) with the exception of exhibits. The clerk will require a party to refile any paper that does not conform to this size.

(f)  Subpoenas - The hearing panel 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 as permitted in civil cases under the North Carolina Rules of Civil Procedure. Such process will be issued in the name of the hearing panel by its chairperson, or the chairperson may designate the secretary of the North Carolina State Bar to issue such process. The plaintiff and the defendant have the right to invoke the powers of the panel with respect to compulsory process for witnesses and for the production of books, papers, and other writings and documents.

(g)  Admissibility of Evidence - In any hearing, admissibility of evidence will be governed by the rules of evidence applicable in the superior court of North Carolina at the time of the hearing. The chairperson of the hearing panel will rule on the admissibility of evidence, subject to the right of any member of the panel to question the ruling. If a member of the panel challenges a ruling relating to admissibility of evidence, the question will be decided by a majority vote of the hearing panel.

(h)  Defendant as Witness – The defendant will, except as otherwise provided by law, be competent and compellable to give evidence for either party.

 

History Note:        Authority G.S. 84-23; 84-28; 84-28.1; 84-29; 84-30; 84-32(a);

Readopted Eff. December 8, 1994;

Amendments Approved by the Supreme Court: September 22, 2016; October 8, 2009; March 2, 2006; December 30, 1998; October 2, 1997.

 

27 NCAC 01B .0115          Proceedings Before the Disciplinary Hearing Commission: Pleadings and Prehearing Procedure

(a)  Complaint and Service - The counsel will file the complaint with the clerk of the commission. The counsel will cause a summons and a copy of the complaint to be served upon the defendant and will inform the clerk of the date of service. The clerk will deliver a copy of the complaint to the chairperson of the commission and will inform the chairperson of the date that service on the defendant was effected. Service of complaints and summonses and other documents or papers will be accomplished as set forth in the North Carolina Rules of Civil Procedure.

(b)  Notice Pleading - Complaints in disciplinary actions will allege the charges with sufficient precision to clearly apprise the defendant of the conduct which is the subject of the complaint.

(c)  Answer - Within 20 days after the service of the complaint, unless further time is allowed by the chairperson of the commission or of the hearing panel upon good cause shown, the defendant will file an answer to the complaint with the clerk of the commission and will serve a copy on the counsel.

(d)  Designation of Hearing Panel - Within 20 days after service of the complaint upon the defendant, the chairperson of the commission will designate a hearing panel from among the commission members. The chairperson will notify the counsel and the defendant of the composition of the hearing panel.

(e)  Scheduling Conference - The chairperson of the hearing panel will hold a scheduling conference with the parties within 20 days after the filing of the answer by the defendant unless another time is set by the chairperson of the commission. The chairperson of the hearing panel will notify the counsel and the defendant of the date, time, and venue (e.g., in person, telephone, video conference) of the scheduling conference. At the scheduling conference, the parties will discuss anticipated issues, amendments, motions, any settlement conference, and discovery. The chairperson of the hearing panel will set dates for the completion of discovery and depositions, for the filing of motions, for the pre-hearing conference, for the filing of the stipulation on the pre-hearing conference, and for the hearing, and may order a settlement conference. The hearing date shall not be less than 60 days from the final date for discovery and depositions unless otherwise consented to by the parties. The chairperson of the hearing panel may impose sanctions against any party who willfully fails to participate in good faith in the scheduling conference or willfully fails to comply with a scheduling order issued pursuant to this section. The sanctions which may be imposed include but are not limited to those enumerated in Rule 37(b) of the NC Rules of Civil Procedure.

(f)  Failure to File an Answer - Failure to file an answer admitting or denying the allegations of the complaint or asserting the grounds for failing to do so within the time specified by this rule will be grounds for entry of the defendant's default. If the defendant fails to file an answer to the complaint, the allegations contained in the complaint will be deemed admitted.

(g)  Default

(1)           The clerk will enter the defendant's default when the fact of default is made to appear by motion of the counsel or otherwise.

(2)           The counsel may thereupon apply to the hearing panel for default orders as follows:

(A)          For an order making findings of fact and conclusions of law. Upon such motion, the hearing panel shall enter an order making findings of fact and conclusions of law as established by the facts deemed admitted by the default. The hearing panel shall then set a date for hearing at which the sole issue shall be the discipline to be imposed.

(B)          For an order of discipline. Upon such motion, the hearing panel shall enter an order making findings of fact and conclusions of law as established by the facts deemed admitted by the default. If such facts provide sufficient basis, the hearing panel shall enter an order imposing the discipline deemed to be appropriate. The hearing panel may, in its discretion, set a hearing date and hear such additional evidence as it deems necessary to determine appropriate discipline prior to entering the order of discipline.

(3)           For good cause shown, the hearing panel may set aside the entry of default.

(4)           After an order imposing discipline has been entered by the hearing panel upon the defendant's default, the hearing panel may set aside the order in accordance with Rule 60(b) of the North Carolina Rules of Civil Procedure.

(h)  Discovery - Discovery will be available to the parties in accordance with the North Carolina Rules of Civil Procedure. Any discovery undertaken must be completed by the date set in the scheduling order unless the time for discovery is extended by the chairperson of the hearing panel for good cause shown. Upon a showing of good cause, the chairperson of the hearing panel may reschedule the hearing to accommodate completion of reasonable discovery.

(i)  Settlement - The parties may meet by mutual consent prior to the hearing 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 panel. The hearing panel may reject a proposed settlement agreement but only after conducting a conference with the parties. The chairperson of the hearing panel will notify the counsel and the defendant of the date, time, and venue (e.g., in person, telephone, videoconference) of the conference. If, after the conference, the first hearing panel rejects a proposed settlement, another hearing panel must be empanelled to try the case, unless all parties consent to proceed with the original hearing panel. The parties may submit a proposed settlement to a second hearing panel and may, upon the agreement of both parties, request a conference with the panel, but the parties shall not have the right to request a third hearing panel if the proposed settlement is rejected by the second hearing panel. The second hearing panel shall either accept the settlement proposal or hold a hearing upon the allegations of the complaint.

(j)  Settlement Conference - Either party may request, or the chair of the hearing panel may order, appointment of a commission member to conduct a settlement conference.

(1)           Such request shall be filed with the clerk of the commission and must be made no later than 60 days prior to the date set for hearing.

(2)           Upon such request, the chairperson of the commission shall select and assign a commission member not assigned to the hearing panel in the case to conduct a settlement conference and shall notify the parties of the commission member assigned and the date by which the settlement conference must be held. The settlement conference must be no later than 30 days prior to the date set for hearing.

(3)           The commission member conducting the settlement conference will set the date, time, and manner.

(4)           At the settlement conference, the parties will discuss their positions and desired resolution and the commission member will provide input regarding the case and resolution.

(5)           The commission member's evaluation and input shall be advisory only and not binding.

(6)           All statements and/or admissions made at the settlement conference shall be for settlement purposes only and shall not be admissible at any hearing in the case. Evidence that is otherwise discoverable, however, shall not be excluded from admission at hearing merely because it is presented in the course of the settlement conference.

(k)  Prehearing Conference and Order

(1)           Unless default has been entered by the clerk, the parties shall hold a prehearing conference. The prehearing conference shall be arranged and held by the dates established in the scheduling order.

(2)           Prior to or during the prehearing conference, the parties shall: exchange witness and exhibit lists; discuss stipulations of undisputed facts; discuss the issues for determination by the hearing panel; and exchange contested issues if the parties identify differing contested issues.

(3)           Within five days after the date of the prehearing conference, each party shall provide the other with any documents or items identified as exhibits but not previously provided to the other party.

(4)           The parties shall memorialize the prehearing conference in a document titled "Stipulation on Prehearing Conference" that shall address the items and utilize the format in the sample provided to the parties by the clerk. By the date set in the scheduling order, the parties shall submit the Stipulation on Prehearing Conference to the clerk to provide to the hearing panel.

(5)           Upon five days' notice to the parties, at the discretion of the chairperson of the hearing panel, the chairperson may order the parties to meet with the chairperson or any designated member of the hearing panel for the purpose of promoting the efficiency of the hearing. The participating member of the panel shall have the power to issue such orders as may be appropriate. The venue (e.g., telephone, videoconference, in person) shall be set by the hearing panel member.

(6)           The chairperson of the hearing panel may impose sanctions against any party who willfully fails to participate in good faith in a prehearing conference or hearing or who willfully fails to comply with a prehearing order issued pursuant to this section. The sanctions which may be imposed include but are not limited to those enumerated in Rule 37(b) of the NC Rules of Procedure.

(7)           Evidence or witnesses not included in the Stipulation on Prehearing Conference may be excluded from admission or consideration at the hearing.

(l)  Prehearing Motions - The chairperson of the hearing panel, without consulting the other panel members, may hear and dispose of all prehearing 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 panel. The following procedures shall apply to all prehearing motions, including motions which could result in dismissal of all or any of the allegations or could result in final judgment for either party on all or any claims:

(1)           Parties shall file motions with the clerk of the commission. Parties may submit motions by regular mail, overnight mail, or in person. Motions transmitted by facsimile or by email will not be accepted for filing except with the advance written permission of the chairperson of the hearing panel. Parties shall not deliver motions or other communications directly to members of the hearing panel unless expressly directed in writing to do so by the chairperson of the hearing panel.

(2)           Motions shall be served as provided in the NC Rules of Civil Procedure.

(3)           The non-moving party shall have ten days from the filing of the motion to respond. If the motion is served upon the non-moving party by regular mail only, then the non-moving party shall have 13 days from the filing of the motion to respond. Upon good cause shown, the chairperson of the hearing panel may shorten or extend the time period for response.

(4)           Any prehearing 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 panel. The chairperson shall set the time, date, and manner of oral argument. The chairperson may order that argument on any prehearing motion may be heard in person or by telephone or electronic means of communication.

(5)           Any motion included in or with a defendant's answer will not be acted upon, and no response from the non-moving party will be due, unless and until a party files a notice requesting action by the deadline for filing motions set in the scheduling order. The due date for response by the non-moving party will run from the date of the filing of the notice.

 

History Note:        Authority G.S. 84-23;

Adopted: September 22, 2016;

Amendments Approved by the Supreme Court: September 28, 2017.

 

27 NCAC 01B .0116          Proceedings Before the Disciplinary Hearing Commission: Formal Hearing

(a)  Public Hearing

(1)           The defendant will appear in person before the hearing panel 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 panel may exclude from the hearing room all persons except the parties, counsel, and those engaged in the hearing. No hearing will be closed to the public over the objection of the defendant.

(2)           Media Coverage - Absent a showing of good cause, the chairperson of the hearing panel shall permit television, motion picture and still photography cameras, broadcast microphones and recorders (electronic media) to record and broadcast formal hearings. A media outlet shall file a motion with the clerk of the commission seeking permission to utilize electronic media to record or broadcast a hearing no less than 48 hours before the hearing is scheduled to begin. The chairperson will rule on the motion no less than 24 hours before the hearing is scheduled to begin. Any order denying a motion to permit the use of electronic media to record or broadcast a formal hearing shall contain written findings of fact setting forth the facts constituting good cause to support that decision. Except as otherwise provided in this paragraph, the provisions of Rule 15 of the General Rules of Practice for the Superior and District Courts (Electronic Media and Still Photography Coverage of Public Judicial Proceedings) shall apply to electronic media coverage of hearings before the commission.

(b)  Continuance After a Hearing Has Commenced - After a hearing has commenced, no continuances other than an adjournment from day to day will be granted, except to await the filing of a controlling decision of an appellate court, by consent of all parties, or where extreme hardship would result in the absence of a continuance.

(c)  Burden of Proof

(1)           Unless otherwise provided in these rules, the State Bar shall have the burden of proving by clear, cogent, and convincing evidence that the defendant violated the Rules of Professional Conduct.

(2)           In any complaint or other pleading or in any trial, hearing, or other proceeding, the State Bar is not required to prove the nonexistence of any exemption or exception contained in the Rules of Professional Conduct. The burden of proving any exemption or exception shall be upon the person claiming its benefit.

(d)  Orders - At the conclusion of any disciplinary case, the hearing panel will file an order which will include the panel's findings of fact and conclusions of law. When one or more rule violations has been established by summary judgment, the order of discipline will set out the undisputed material facts and conclusions of law established by virtue of summary judgment, any additional facts and conclusions of law pertaining to discipline, and the disposition. All final orders will be signed by the members of the panel, or by the chairperson of the panel on behalf of the panel, and will be filed with the clerk.

(e)  Preservation of the Record - The clerk 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 trials in the superior court. The clerk will preserve the record and the pleadings, exhibits, and briefs of the parties.

(f)  Discipline - If the charges of misconduct are established, the hearing panel will consider any evidence relevant to the discipline to be imposed.

(1)           Suspension or disbarment is appropriate where there is evidence that the defendant's actions resulted in significant harm or potential significant harm to the clients, the public, the administration of justice, or the legal profession, and lesser discipline is insufficient to adequately protect the public. The following factors shall be considered in imposing suspension or disbarment:

(A)          intent of the defendant to cause the resulting harm or potential harm;

(B)          intent of the defendant to commit acts where the harm or potential harm is foreseeable;

(C)          circumstances reflecting the defendant's lack of honesty, trustworthiness, or integrity;

(D)          elevation of the defendant's own interest above that of the client;

(E)           negative impact of defendant's actions on client's or public's perception of the profession;

(F)           negative impact of the defendant's actions on the administration of justice;

(G)          impairment of the client's ability to achieve the goals of the representation;

(H)          effect of defendant's conduct on third parties;

(I)            acts of dishonesty, misrepresentation, deceit, or fabrication;

(J)            multiple instances of failure to participate in the legal profession's self-regulation process.

(2)           Disbarment shall be considered where the defendant is found to engage in:

(A)          acts of dishonesty, misrepresentation, deceit, or fabrication;

(B)          impulsive acts of dishonesty, misrepresentation, deceit, or fabrication without timely remedial efforts;

(C)          misappropriation or conversion of assets of any kind to which the defendant or recipient is not entitled, whether from a client or any other source; or

(D)          commission of a felony.

(3)           In all cases, any or all of the following factors shall be considered in imposing the appropriate discipline:

(A)          prior disciplinary offenses in this state or any other jurisdiction, or the absence thereof;

(B)          remoteness of prior offenses;

(C)          dishonest or selfish motive, or the absence thereof;

(D)          timely good faith efforts to make restitution or to rectify consequences of misconduct;

(E)           indifference to making restitution;

(F)           a pattern of misconduct;

(G)          multiple offenses;

(H)          effect of any personal or emotional problems on the conduct in question;

(I)            effect of any physical or mental disability or impairment on the conduct in question;

(J)            interim rehabilitation;

(K)          full and free disclosure to the hearing panel or cooperative attitude toward the proceedings;

(L)           delay in disciplinary proceedings through no fault of the defendant attorney;

(M)         bad faith obstruction of the disciplinary proceedings by intentionally failing to comply with rules or orders of the disciplinary agency;

(N)          submission of false evidence, false statements, or other deceptive practices during the disciplinary process;

(O)          refusal to acknowledge wrongful nature of conduct;

(P)           remorse;

(Q)          character or reputation;

(R)          vulnerability of victim;

(S)           degree of experience in the practice of law;

(T)           issuance of a letter of warning to the defendant within the three years immediately preceding the filing of the complaint;

(U)          imposition of other penalties or sanctions;

(V)          any other factors found to be pertinent to the consideration of the discipline to be imposed.

(g)  Service of Final Orders - The clerk will serve the defendant with the final order of the hearing panel by certified mail, return receipt requested, or by personal service. A defendant who cannot, with reasonable diligence, be served by certified mail or personal service shall be deemed served when the clerk deposits a copy of the order enclosed 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 addressed to the defendant's last known address on file with the NC State Bar.

 

History Note:        Authority G.S. 84-23;

Eff. September 22, 2016;

Amendments Approved by the Supreme Court: March 16, 2017.

 

27 NCAC 01B .0117          Proceedings Before the Disciplinary Hearing Commission: Posttrial Motions

(a)  New Trials and Amendments of Judgments (N.C. R. Civ. 59)

(1)           Either party may request a new trial or amendment of the hearing panel's final order, based on any of the grounds set out in Rule 59 of the North Carolina Rules of Civil Procedure.

(2)           A motion for a new trial or amendment of judgment will be filed with the clerk 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 authorities, will be filed with the motion.

(3)           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.

(4)           The hearing panel may rule on the motion based on the parties' written submissions or may, in its discretion, order oral argument.

(b)  Relief from Judgment or Order (N.C. R. Civ. 60)

(1)           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.

(2)           A motion for relief from the final judgment or order will be filed with the clerk no later than one year 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 authorities, will be filed with the motion.

(3)           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.

(4)           The clerk will promptly transmit the motion and any response to the chairperson of the commission, who will appoint a hearing panel. The chairperson will appoint the members of the hearing panel that originally heard the matter wherever practicable.

(5)           The hearing panel may rule on the motion based on the parties' written submissions or may, in its discretion, order oral argument.

(c)  Effect of Filing Motion - The filing of a motion requesting a new trial, amendment of the judgment, or relief from the final judgment or order under this section will not automatically stay or otherwise affect the effective date of an order of the commission.

 

History Note:        Authority G.S. 84-23;

Eff. September 22, 2016.

 

27 NCAC 01B .0118          Proceedings Before the Disciplinary Hearing Commission: Stayed Suspension

(a)  Procedures: Non-compliance with Conditions - 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. The following procedures apply during a stayed suspension:

(1)           If, during the period 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 clerk of the commission specifying the violation and seeking an order lifting the stay and activating the suspension. The counsel will serve a copy of the motion upon the defendant.

(2)           The clerk will promptly transmit the motion to the chairperson of the commission. The chairperson will appoint a hearing panel to hold a hearing, appointing the members of the hearing panel that originally heard the matter wherever practicable. The chairperson of the commission will notify the counsel and the defendant of the composition of the hearing panel and the time and place for the hearing.

(3)           At the hearing, the State Bar will have the burden of proving by the greater weight of the evidence that the defendant violated a condition of the stay.

(4)           If the hearing panel finds by the greater weight of the evidence that the defendant violated a condition of the stay, the panel may enter an order lifting the stay and activating the suspension, or any portion thereof. Alternatively, the panel may allow the stay to remain in effect for the original term of the stay, may extend the term of the stay, and/or may include modified or additional conditions for the suspension to remain stayed. If the panel finds that the defendant violated a condition of the stay, the panel may tax the defendant with administrative fees and costs.

(A)          In any order lifting a stay and activating a suspension in whole or in part, the panel may include a provision allowing the defendant to apply for a stay of the activated suspension on such terms and conditions as the panel concludes are appropriate.

(B)          The panel may impose modified or additional conditions: (a) which the defendant must satisfy to obtain a stay of an activated suspension; (b) with which the defendant must comply during the stay of an activated suspension; and/or (c) which the defendant must satisfy to be reinstated to active status at the end of the activated suspension period.

(C)          If the panel activated the entire period of suspension, in order to be reinstated at the end of the activated suspension, the defendant must comply with the requirements of Rule .0129(b) of this Subchapter and with any requirements imposed in previous orders entered by the commission.

(D)          If the panel activated only a portion of the suspension, in order to be returned to active status at the end of the period of activated suspension the defendant must file a motion with the commission seeking a stay of the remainder of the original term of suspension. If the defendant is granted a stay of the remainder of the original term of suspension, the panel may impose modified and/or additional conditions with which the defendant must comply during the stayed suspension.

(5)           If the panel finds that the greater weight of the evidence does not establish that the defendant violated a condition of the stay, it will enter an order continuing the stay.

(6)           In any event, the panel will include in its order findings of fact and conclusions of law in support of its decision.

(b)  Completion of Stayed Suspension; Continuation of Stay if Motion Alleging Lack of Compliance is Pending

(1)           Unless there is pending a motion or proceeding in which it is alleged that the defendant failed to comply with the conditions of the stay, the defendant's obligations under an order of discipline end upon expiration of the period of the stay.

(2)           When the period of the stay of the suspension would otherwise have terminated, if a motion or proceeding is pending in which it is alleged that the defendant failed to comply with the conditions of the stay, the commission retains jurisdiction to lift the stay and activate all or any part of the suspension. The defendant's obligation to comply with the conditions of the existing stay remains in effect until any such pending motion or proceeding is resolved.

(c)  Applying for Stay of Suspension - The following procedures apply to a motion to stay a suspension:

(1)           The defendant shall file a motion for stay with the clerk and serve a copy of the motion and all attachments upon the counsel. Such motion shall be filed no earlier than 60 days before the first date of eligibility to apply for a stay. The commission will not consider any motion filed earlier than 60 days before the first date of eligibility to apply for a stay. The commission will not consider any motion unless it is delivered to the clerk and served upon the counsel contemporaneously.

(2)           The motion must identify each condition for stay and state how the defendant has met each condition. The defendant shall attach supporting documentation establishing compliance with each condition. The defendant has the burden of proving compliance with each condition by clear, cogent, and convincing evidence.

(3)           The counsel shall have 30 days after the motion is filed to file a response.

(4)           The clerk shall transmit the motion and the counsel's response to the chairperson of the commission. Within 14 days of transmittal of the motion and the response, the chairperson shall issue an order appointing a hearing panel and setting the date, time, and location for the hearing. Wherever practicable, the chairperson shall appoint the members of the hearing panel that entered the order of discipline.

(d)  Hearing on Motion for Stay

(1)           The defendant bears the burden of proving compliance with all conditions for a stay by clear, cogent, and convincing evidence.

(2)           Any hearing on a motion for stay will conform as nearly as practicable with the requirements of the North Carolina Rules of Civil Procedure and for trials of nonjury civil causes in the superior courts.

(3)           The decision to grant or deny a defendant's motion to stay a suspension is discretionary. The panel should consider whether the defendant has complied with Rule .0128 and Rule .0129 of this Subchapter, and any conditions in the order of discipline, as well as whether reinstatement of the defendant will cause harm or potential harm to clients, the profession, the public, or the administration of justice.

(e)  Order on the Motion for Stay - The hearing panel will determine whether the defendant has established compliance with all conditions for a stay by clear, cogent, and convincing evidence. The panel must enter an order including findings of fact and conclusions of law. The panel may impose modified and/or additional conditions: (a) for the suspension to remain stayed; (b) for eligibility for a stay during the suspension; and/or (c) for reinstatement to active status at the end of the suspension period. The panel may tax costs and administrative fees in connection with the motion.

 

History Note:        Authority G.S. 84-23;

Eff. September 22, 2016.

 

27 NCAC 01B .0119          Effect of a Finding of Guilt in Any Criminal Case

(a)  Conclusive Evidence of Guilt - A certified copy of the conviction of an attorney for any crime or a certified copy of a judgment entered against an attorney where a plea of guilty, nolo contendre, 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 member. For purposes of any disciplinary proceeding against a member, such conviction or judgment shall conclusively establish all elements of the criminal offense and shall conclusively establish all facts set out in the document charging the member with the criminal offense.

(b)  Interim Suspension - Any member who has been convicted of, pleads guilty to, pleads no contest to, or is found guilty by a jury of a criminal offense showing professional unfitness in any state or federal court may be suspended from the practice of law as set out below.

(1)           The counsel shall file with the clerk of the commission and serve upon the member a motion for interim suspension accompanied by proof of the conviction, plea, or verdict.

(2)           The member shall have ten days in which to file a response.

(3)           The chairperson of the commission may hold a hearing to determine whether the criminal offense is one showing professional unfitness and whether, in the chairperson's discretion, interim suspension is warranted. In determining whether interim suspension is warranted, the chairperson may consider harm or potential harm to a client, the administration of justice, the profession, or members of the public, and impact on the public's perception of the profession. The parties may present additional evidence pertaining to harm or to the circumstances surrounding the offense, but the member may not collaterally attack the conviction, plea or verdict.

(4)           The chairperson shall issue an order containing findings of fact and conclusions of law addressing whether there is a qualifying conviction, plea, or verdict, and whether interim suspension is warranted, and either granting or denying the motion.

(5)           If the member consents to entry of an order of interim suspension, the parties may submit a consent order of interim suspension to the chairperson of the commission.

(6)           The provisions of Rule .0128(c) of this Subchapter will apply to the interim suspension.

 

History Note:        Authority G.S. 84-23; 84-28;

Readopted Eff. December 8, 1994;

Amendments Approved by the Supreme Court: September 22, 2016; February 3, 2000; December 30, 1998; March 6, 1997; November 7, 1996.

 

27 NCAC 01B .0120          RECIPROCAL DISCIPLINE AND DISABILITY PROCEEDINGS

(a)  Notice to Secretary - 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 federal court or who have been transferred to disability inactive status or its equivalent by any state of federal court 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 paragraph may subject the member to professional discipline as set out in Rule 8.3 of the Revised Rules of Professional Conduct.

(b)  Administration of Reciprocal Discipline - Except as provided in Paragraph (c) of this Rule which applies to disciplinary proceedings in certain federal courts, reciprocal discipline and disability proceedings will be administered as follows:

(1)           Notice and Challenge - 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 containing 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 identical 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)           Effect of Stay - If the discipline or transfer order imposed in the other jurisdiction has been stayed, any reciprocal discipline or transfer to disability inactive status imposed in this state will be deferred until such stay expires.

(3)           Imposition of Discipline - Upon the expiration of 30 days from service of the notice issued pursuant to the provisions of Rule .0120(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)          there was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Grievance Committee could not, consistent with its duty, accept as final the conclusion on that subject; or

(C)          that the imposition of the same discipline would result in grave injustice; or

(D)          that the misconduct established warrants substantially different discipline in this state; or

(E)           that the reason for the original transfer to disability inactive status no longer exists.

(4)           Dismissal - Where the Grievance Committee determines that any of the elements listed in Rule .0120(b)(3) above exist, the committee will dismiss the case or direct that a complaint be filed.

(5)           Effect of Final Adjudication in Another Jurisdiction - If the elements listed in Rule .0120(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 discipline or disability proceedings in this state.

(c)  Reciprocal Discipline in the District of North Carolina, Fourth Circuit, or US Supreme Court - Reciprocal discipline with certain federal courts will be administered as follows:

(1)           Notice and Challenge - 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 directing 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 committee 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 .0120(c)(2) below and will run concurrently with the discipline ordered by the federal court.

(2)           Acceptance of Reciprocal Discipline - If the member notifies the North Carolina State Bar of his or her acceptance of reciprocal discipline as provided in Rule .0120(c)(1) above the chairperson of the Grievance Committee will execute an order of discipline which is of a type permitted by these rules and which is substantially similar to that ordered by the federal court and will cause said order to be served upon the member.

(3)           Effect of Stay - 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)           Imposition of Discipline - Upon the expiration of 30 days from service of the notice issued pursuant to the provisions of Rule .0120(c)(1) above, the chairperson of the Grievance Committee will enter an order of reciprocal discipline imposing substantially similar discipline of a type permitted by these Rules to be effective throughout North Carolina unless the member requests a hearing before the Grievance Committee and at such hearing:

(A)          the member demonstrates that the facts found in the federal disciplinary 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 .0127(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)           Federal Findings of Fact - All findings of fact in the federal disciplinary proceeding will be binding upon the North Carolina State Bar and the member.

(6)           Discipline Imposed by Other Federal Courts - Discipline imposed by any other federal court will be administered as provided in Rule .0120(b) above.

(d)  Imposition of Discipline - If the member fails to accept reciprocal discipline as provided in Rule .0120(c) above or if a hearing is held before the Grievance Committee under either Rule .0120(b) above or Rule .0120(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:        Authority G.S. 84‑23; 84‑28;

Readopted Eff. December 8, 1994;

Amendments Approved by the Supreme Court: September 22, 2016; December 30, 1998; March 7, 1996.

 

27 NCAC 01B .0121          Surrender of License While Under Investigation

(a)  Surrender of License to the Council - A member who is the subject of an investigation into allegations of misconduct, but against whom no formal complaint has been filed before the commission may tender his or her license to practice by delivering to the secretary for transmittal to the council an affidavit stating 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;

(2)           the member is aware that there is presently pending an investigation or other proceedings regarding allegations that the member has been guilty 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)  Acceptance of Resignation - The council may accept a member's resignation only if the affidavit required under Rule .0121(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 resignation, 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)  Public Record - The order disbarring the member and the affidavit required under Rule .0121(a) above are matters of public record.

(d) Consent to Disbarment Before the Commission - If a defendant against whom a formal complaint has been filed before the commission 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 affidavit meets the requirements set out in .0121(a)(1), (2), (3), and (4) above, the chairperson will accept the surrender and issue an order of disbarment. The order of disbarment becomes effective upon entry of the order with the secretary. 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 .0114 to Rule .0118 of this subchapter.

(e)  Wind-Down Period - 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 of the tender or consent. 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 .0128 of this subchapter.

 

History Note:        Authority G.S. 84-23; 84-28; 84-32(b);

Readopted Eff. December 8, 1994;

Amendments Approved by the Supreme Court: September 22, 2016; March 2, 2006.

 

27 NCAC 01B .0122          DISABILITY

(a)  Transfer by Secretary where Member Judicially Declared Incompetent.  Where a member of the North Carolina State Bar has been judicially declared incapacitated, incompetent, or mentally ill by a North Carolina court or by a court of any other jurisdiction, the secretary, upon proper proof of such declaration, will enter an order transferring the member to disability inactive status effective immediately and for an indefinite period until further order of the Disciplinary Hearing Commission.  A copy of the order transferring the member to disability inactive status will be served upon the member, the member's guardian, or the director of any institution to which the member is committed.

(b)  Transfer to Disability Inactive Status by Consent.  The chairperson of the Grievance Committee may transfer a member to disability inactive status upon consent of the member and the counsel.

(c)  Initiation of Disability Proceeding

(1)           Disability Proceeding Initiated by the North Carolina State Bar

(A)          Evidence a Member has Become Disabled.  When the North Carolina State Bar obtains evidence that a member has become disabled, the Grievance Committee will conduct an inquiry which substantially complies with the procedures set forth in Rule .0113 (a)-(h) 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(19) of this subchapter. If the Grievance Committee finds probable cause, the counsel will file with the commission a complaint in the name of the North Carolina State Bar, signed by the chairperson of the Grievance Committee, alleging disability.  The chairperson of the commission shall appoint a hearing panel to determine whether the member is disabled.

(B)          Disability Proceeding Initiated While Disciplinary Proceeding is Pending.  If, during the pendency of a disciplinary proceeding, the counsel receives evidence constituting probable cause to believe the defendant is disabled within the meaning of Rule .0103(19) of this subchapter, the chairperson of the Grievance Committee may authorize the counsel to file a motion seeking a determination that the defendant is disabled and seeking the defendant's transfer to disability inactive status.  The hearing panel appointed to hear the disciplinary proceeding will hear the disability proceeding.

(C)          Pleading in the Alternative.  When the Grievance Committee has found probable cause to believe a member has committed professional misconduct and the Grievance Committee or the chairperson of the Grievance Committee has found probable cause to believe the member is disabled, the State Bar may file a complaint seeking, in the alternative, the imposition of professional discipline for professional misconduct or a determination that the defendant is disabled.

(2)           Initiated by Hearing Panel During Disciplinary Proceeding.  If, during the pendency of a disciplinary proceeding, a majority of the members of the hearing panel find probable cause to believe that the defendant is disabled, the panel will, on its own motion, enter an order staying the disciplinary proceeding until the question of disability can be determined.  The hearing panel will instruct the Office of Counsel of the State Bar to file a complaint alleging disability.  The chairperson of the commission will appoint a new hearing panel to hear the disability proceeding. If the new panel does not find the defendant disabled, the disciplinary proceeding will resume before the original hearing panel.

(3)           Disability Proceeding where Defendant Alleges Disability in Disciplinary Proceeding.  If, during the course of a disciplinary proceeding, the defendant contends that he or she is disabled within the meaning of Rule .0103(19) of this subchapter, the defendant will be immediately transferred to disability inactive status pending conclusion of a disability hearing. The disciplinary proceeding will be stayed pending conclusion of the disability hearing.  The hearing panel appointed to hear the disciplinary proceeding will hear the disability proceeding.

(d)  Disability Hearings

(1)           Burden of Proof

(A)          In any disability proceeding initiated by the State Bar or by the commission, the State Bar bears the burden of proving the defendant's disability by clear, cogent, and convincing evidence.

(B)          In any disability proceeding initiated by the defendant, the defendant bears the burden of proving the defendant's disability by clear, cogent, and convincing evidence.

(2)           Procedure.  The disability hearing will be conducted in the same manner as a disciplinary proceeding under Rule .0114 to .0118 of this subchapter.  The North Carolina Rules of Civil Procedure and the North Carolina Rules of Evidence apply, unless a different or more specific procedure is specified in these rules.  The hearing will be open to the public.

(3)           Medical Examination.  The hearing panel may require the member to undergo psychiatric, physical, or other medical examination or testing by qualified medical experts selected or approved by the hearing panel.

(4)           Appointment of Counsel.  The hearing panel may appoint a lawyer to represent the defendant in a disability proceeding if the hearing panel concludes that justice so requires.

(5)           Order

(A)          When Disability is Proven.  If the hearing panel finds that the defendant is disabled, the panel will enter an order continuing the defendant's disability inactive status or transferring the defendant to disability inactive status.  An order transferring the defendant to disability inactive status is effective when it is entered.  A copy of the order shall be served upon the defendant or the defendant's guardian or lawyer of record.

(B)          When Disability is Not Proven.  When the hearing panel finds that it has not been proven by clear, cogent, and convincing evidence that the defendant is disabled, the hearing panel shall enter an order so finding. If the defendant had been transferred to disability inactive status pursuant to paragraph (c)(3) of this rule, the order shall also terminate the defendant's disability inactive status.

(e)  Stay/Resumption of Pending Disciplinary Matters

(1)           Stay or Abatement.  When a member is transferred to disability inactive status, any proceeding then pending before the Grievance Committee or the commission against the member shall be stayed or abated unless and until the member's disability inactive status is terminated.

(2)           Preservation of Evidence.  When a disciplinary proceeding against a member has been stayed because the member has been transferred to disability inactive status, the counsel may continue to investigate allegations of misconduct.  The counsel may seek orders from the chairperson of the commission, or the chairperson of a hearing panel if one has been appointed, to preserve evidence of any alleged professional misconduct by the member, including orders which permit the taking of depositions. The chairperson of the commission, or the chairperson of a hearing panel if one has been appointed, may appoint counsel to represent the member when necessary to protect the interests of the member during the preservation of evidence.

(3)           Termination of Disability Inactive Status.  Upon termination of disability inactive status, all disciplinary proceedings pending against the member shall resume. The State Bar may immediately pursue any disciplinary proceedings that were pending when the member was transferred to disability inactive status and any allegations of professional misconduct that came to the State Bar's attention while the member was in disability inactive status. Any disciplinary proceeding pending before the commission that had been stayed shall be set for hearing by the chairperson of the commission.

(f)  Fees and Costs.  The hearing panel may direct the member to pay the costs of the disability proceeding, including the cost of any medical examination and the fees of any lawyer appointed to represent the member.

 

History Note:        Authority G.S. 84-23; 84-28(g); 84-28.1; 84-29; 84-30;

Readopted Eff. December 8, 1994;

Amendments Approved by the Supreme Court: September 22, 2016; March 8, 2013; October 8, 2009; March 6, 2002; March 5, 1998.

 

27 NCAC 01B .0123          Enforcement of Powers

In addition to the other powers contained herein, in proceedings before any subcommittee or panel of the Grievance Committee or the commission, if any person refuses to respond to a subpoena, refuses to take the oath or affirmation 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 panel 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 requisite action.

 

History Note:        Authority G.S. 84-23; 84-28(i);

Readopted Eff. December 8, 1994;

Amendments Approved by the Supreme Court: September 22, 2016; October 8, 2009.

 

27 NCAC 01B .0124          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 notified 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:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994;

Amendments Approved by the Supreme Court: September 22, 2016.

 

27 NCAC 01B .0125          NOTICE TO COMPLAINANT

(a)  Notice of Discipline - If the Grievance Committee finds probable cause and imposes discipline, the chairperson of the Grievance Committee will notify the complainant of the action of the committee.

(b)  Referral for Disciplinary Commission Hearing - 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)  Notice of Dismissal - If the Grievance Committee finds that there is no probable cause to believe that misconduct occurred and votes to dismiss a grievance, the chairperson of the Grievance Committee will advise the complainant that the committee did not find probable cause to justify imposing discipline and dismissed the grievance.

(d)  Notice of Letter of Caution or Letter of Warning - 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 letter of warning is not a form of discipline.

(e)  Referral to Board of Continuing Legal Education - If a grievance is referred to the Board of Continuing Legal Education, the 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:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994;

Amendments Approved by the Supreme Court: September 22, 2016; March 7, 1996.

 

27 NCAC 01B .0126          APPOINTMENT OF COUNSEL TO PROTECT CLIENTS' INTERESTS WHEN ATTORNEY DISAPPEARS, DIES, OR IS TRANSFERRED TO DISABILITY INACTIVE STATUS

(a)  Appointment by Senior Resident Judge - Whenever a member of the North Carolina State Bar has been transferred to disability inactive status, disappears, or dies and no partner or other member of the North Carolina State Bar capable of protecting the interests of the attorney's clients is known to exist, the senior resident judge of the superior 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)  Disclosure of Client Information - Any member so appointed will not be permitted to disclose any information 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 attorney to make such inventory.

 

History Note:        Authority G.S. 84‑23; 84‑28(j);

Readopted Eff. December 8, 1994;

Amendments Approved by the Supreme Court: September 22, 2016.

 

27 NCAC 01B .0127          Imposition of Discipline; Findings of Incapacity or Disability; Notice to Courts

(a)  Imposition of Discipline - Upon the final determination of a disciplinary proceeding wherein discipline 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 panel 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 chairperson of the hearing panel 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 panel 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 disbarment 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 panel 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)  Notification of Incapacity or Disability and Transfer to Disability Inactive Status - Upon the final determination of incapacity or disability, the chairperson of the hearing panel or the secretary, depending upon the agency entering 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 .0127(a)(3) above.

 

History Note:        Authority G.S. 84-23; 84-32(a);

Readopted Eff. December 8, 1994;

Amendments Approved by the Supreme Court: September 22, 2016; October 8, 2009; November 7, 1996.

 

27 NCAC 01B .0128          OBLIGATIONS OF DISBARRED OR SUSPENDED ATTORNEYS

(a)  Client Notification - A disbarred or suspended member of the North Carolina State Bar will promptly notify by certified mail, return receipt requested, all clients being represented 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 promptly 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)  Withdrawal - The disbarred or suspended member will withdraw from all pending administrative or litigation matters before the effective date of the suspension or disbarment and will follow all applicable laws and disciplinary rules regarding the manner of withdrawal.

(c)  Effective Date - In cases not governed by Rule .0121 of this subchapter, orders imposing 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 attorney 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)  Affidavit Showing Compliance with Order - Within 10 days after the effective date of the disbarment or suspension order, the disbarred or suspended attorney will file with the secretary an affidavit 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 administrative jurisdictions to which he or she is admitted to practice.  The affidavit will also set forth the residence or other address of the disbarred or suspended member to which communications may thereafter be directed.

(e)  Records of Compliance - The disbarred or suspended member will keep and maintain records of the various steps taken under this Section so that, upon any subsequent proceeding, proof of compliance with this Section and with the disbarment or suspension order will be available.  Proof of compliance with this section will be a condition precedent to consideration of any petition for reinstatement.

(f)  Contempt - A suspended or disbarred attorney who fails to comply with Rules .0128(a) ‑ (e) above may be subject to an action for contempt instituted by the appropriate authority.  Failure to comply with the requirements of Rule .0128(a) above will be grounds for appointment of counsel pursuant to Rule .0126 of this subchapter.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994;

Amendments Approved by the Supreme Court: September 22, 2016; March 6, 1997.

 

27 NCAC 01B .0129          Reinstatement

(a)  After Disbarment

(1)           Reinstatement Procedure and Costs - 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 reinstatement and the holding of a hearing before a hearing panel 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)           Time Limits -No disbarred attorney may petition for reinstatement until the expiration of at least five years from the effective date of the disbarment.

(3)           Burden of Proof and Elements to be Proved - The petitioner 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 petition for reinstatement, a notice of intent to seek reinstatement has been published by the petitioner in an official publication of the North Carolina State Bar. The notice will inform members of the Bar about the application for reinstatement and will request that all interested individuals file notice of their opposition or concurrence with the secretary within 60 days after the date of publication;

(B)          not more than six months or less than 60 days before filing the petition for reinstatement, the petitioner has notified the complainant(s) in the disciplinary proceeding which led to the lawyer's disbarment of the notice of intent to seek reinstatement. The notice will specify that each complainant has 60 days from the date of publication in which to raise objections or support the lawyer's petition;

(C)          the petitioner has reformed and presently possesses the moral qualifications required for admission to practice law in this state taking into account the gravity of the misconduct which resulted in the order of disbarment;

(D)          permitting the petitioner to resume the practice of law within the state will not be detrimental to the integrity and standing of the bar, to the administration of justice, or to the public interest, taking into account the gravity of the misconduct which resulted in the order of disbarment;

(E)           the petitioner's citizenship has been restored if the petitioner has been convicted of or sentenced for the commission of a felony;

(F)           the petitioner has complied with Rule .0128 of this subchapter;

(G)          the petitioner has complied with all applicable orders of the commission and the council;

(H)          the petitioner has complied with the orders and judgments of any court relating to the matters resulting in the disbarment;

(I)            the petitioner has not engaged in the unauthorized practice of law during the period of disbarment;

(J)            the petitioner has not engaged in any conduct during the period of disbarment constituting grounds for discipline under G.S. 84-28(b);

(K)          the petitioner understands the current Rules of Professional Conduct. Participation in continuing legal education programs in ethics and professional responsibility for each of the three years preceding the petition date may be considered on the issue of the petitioner's understanding of the Rules of Professional Conduct. Such evidence creates no presumption that the petitioner has met the burden of proof established by this section;

(L)           the petitioner has reimbursed the Client Security Fund of the North Carolina State Bar for all sums, including costs other than overhead expenses, disbursed by the Client Security Fund as a result of the petitioner's misconduct. This section shall not be deemed to permit the 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 misappropriated by the petitioner and which have not been reimbursed by the Client Security Fund;

(N)          the petitioner paid all dues, Client Security Fund assessments, and late fees owed to the North Carolina State Bar as well as all attendee fees and late penalties due and owing to the Board of Continuing Legal Education at the time of disbarment.

(4)  Petitions Filed Less than Seven Years After Disbarment

(A)          Proof of Competency and Learning - If less than seven years have elapsed between 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 learning in the law required to practice law in this state.

(B)          Factors which may be considered in deciding the issue of competency 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 petitioner's present knowledge of the law that the petitioner is competent to engage in the practice of law.

(C)          The factors listed in Rule .0129(a)(4)(B) above are provided by way of example only. The petitioner's satisfaction of one or all of these factors creates no presumption that the petitioner has met the burden of proof established by this section.

(D)          Passing Bar Exam as Conclusive Evidence - The attainment of a passing grade on a regularly scheduled written 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 competence to practice law.

(5)           Bar Exam Required for Petitions Filed More than Seven Years After Disbarment - If seven years or more have elapsed between the effective date of disbarment 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 North Carolina Board of Law Examiners.

(6)           Petition, Service, and Hearing - Verified petitions for reinstatement of disbarred attorneys will be filed with the secretary. Upon receipt of the petition, the secretary will transmit the petition to the chairperson of the commission and serve a copy on the counsel. The chairperson will within 14 days appoint a hearing panel as provided in Rule .0108(a)(2) of this Subchapter and schedule a time and place for a hearing to take place within 60 to 90 days after the filing of the petition with the secretary. The chairperson will notify the counsel and the petitioner of the composition of the hearing panel and the time and place of the hearing, which will be conducted in accordance with the North Carolina Rules of Civil Procedure for nonjury trials insofar as possible and the rules of evidence applicable in superior court.

(7)           Report of Findings - As soon as possible after the conclusion of the hearing, the hearing panel will file a report containing its findings, conclusions, and recommendations with the secretary.

(8)           Appeal - A petitioner in whose case the hearing panel recommends that reinstatement be denied may file notice of appeal to the council. Appeal from the report of the hearing panel must be taken within 30 days after service of the panel report upon the petitioner and shall be filed with the secretary. If no appeal is timely filed, the recommendation of the hearing panel to deny reinstatement will be deemed final. All cases in which the hearing panel recommends reinstatement of a disbarred attorney's license shall be heard by the council and no notice of appeal need be filed by the N.C. State Bar.

(9)           Transcript of Hearing Committee Proceedings - The petitioner will have 60 days following the filing of the notice of appeal in which to produce a transcript of the trial proceedings before the hearing panel. The chairperson of the hearing panel, may, for good cause shown, extend the time to produce the record.

(10)         Record to the Council

(A)          Composition of the Record- The petitioner will provide a record of the proceedings before the hearing panel, including a legible copy of the complete transcript, all exhibits introduced into evidence, and all pleadings, motions, and orders, unless the petitioner and the counsel agree in writing to shorten the record. The petitioner will provide the proposed record to the counsel not later than 90 days after the hearing before the hearing panel, unless an extension of time is granted by the secretary for good cause shown. Any agreement regarding the record will be in writing and will be included in the record transmitted to the council.

(B)          Settlement of the Record

(i)            By Agreement - At any time following service of the proposed record upon the counsel, the parties may by agreement entered in the record settle the record to the council.

(ii)           By Counsel's Failure to Object to the Proposed Record - Within 20 days after service of the proposed record, the counsel may serve a written objection or a proposed alternative record upon the petitioner. If the counsel fails to serve a notice of approval or an objection or a proposed alternative record, the petitioner's proposed record will constitute the record to the council.

(iii)          By Judicial Settlement - If the counsel raises a timely objection to the proposed record or serves a proposed alternative record upon the petitioner, either party may request the chairperson of the hearing panel which heard the reinstatement petition to settle the record. Such request shall be filed in writing with the hearing panel chairperson no later than 15 days after the counsel files an objection or proposed alternative record. Each party shall promptly provide to the chairperson a reference copy of the proposed record, amendments and objections filed by that party in the case. The chairperson of the hearing panel shall settle the record on appeal by order not more than 20 days after service of the request for judicial settlement upon the chairperson. The chairperson may allow oral argument by the parties or may settle the record based upon written submissions by the parties.

(C)          Copy of Settled Record to Each Member - The petitioner will transmit a copy of the settled record to each member of the council and to the counsel no later than 30 days before the council meeting at which the petition is to be considered.

(D)          Costs - The petitioner will bear the costs of transcribing, copying, and transmitting the record to the council.

(E)           Failure to Comply with Rule .0129(a)(10) - If the petitioner fails to comply with any of the subsections of Rule .0129(a)(10) above, the counsel may petition the secretary to dismiss the petition.

(11)         Review by Council - The council will review the report of the hearing panel and the record and determine whether, and upon what conditions, the petitioner will be reinstated.

(12)         Reapplication - No person who has been disbarred and has unsuccessfully petitioned for reinstatement may reapply until the expiration of one year from the date of the last order denying reinstatement.

(b)  After suspension

(1)           Restoration - No attorney who has been suspended may have his or her license restored but upon order of the commission or the secretary after the filing of a verified petition as provided herein.

(2)           Suspension of 120 Days or Less - No attorney who has been suspended for a period of 120 days or less is eligible for reinstatement until the expiration of the period of suspension and, in no event, until 10 days have elapsed from the date of filing the petition for reinstatement. No attorney whose license has been suspended for a period of more than 120 days is eligible for reinstatement until the expiration of the period of suspension and, in no event, until 30 days have elapsed from the date of the filing of the petition for reinstatement.

(3)           Reinstatement Requirements - Any suspended attorney seeking reinstatement must file a verified petition with the secretary, a copy of which the secretary will transmit to the counsel. The petitioner will have the burden of proving the following by clear, cogent, and convincing evidence:

(A)          compliance with Rule .0128 of this subchapter;

(B)          compliance with all applicable orders of the commission and the council;

(C)          abstention from the unauthorized practice of law during the period of suspension;

(D)          attainment of a passing grade on a regularly scheduled North Carolina bar examination, if the suspended attorney applies for reinstatement of his or her license more than seven years after the effective date of the suspension;

(E)           abstention from conduct during the period of suspension constituting grounds for discipline under G.S. 84-28(b);

(F)           Reimbursement of the Client Security Fund - reimbursement of the Client Security Fund of the North Carolina State Bar for all sums, including costs other than overhead expenses, disbursed by the Client Security Fund as a result of the petitioner's misconduct. This section shall not be deemed to permit the 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;

(G)          Reimbursement of Funds in DHC Order - reimbursement of all sums which the Disciplinary Hearing Commission found in the order of suspension were misappropriated by the petitioner and which have not been reimbursed by the Client Security Fund;

(H)          Satisfaction of Pre-Suspension CLE Requirements - satisfaction of the minimum continuing legal education requirements, as set forth in Rule .1517 of Subchapter 1D of these rules, for the two calendar years immediately preceding the year in which the petitioner was suspended, which shall include the satisfaction of any deficit recorded in the petitioner's State Bar CLE transcript for such period; provided that the petitioner may attend CLE programs after the effective date of the suspension to make up any unsatisfied requirement. These requirements shall be in addition to any continuing legal education requirements imposed by the Disciplinary Hearing Commission;

(I)            Satisfaction of Post-Suspension CLE Requirements - [effective for petitioners suspended on or after January 1, 1997] if two or more years have elapsed between the effective date of the suspension order and the date on which the reinstatement petition is filed with the secretary, the petitioner must, within one year prior to filing the petition, complete 15 hours of CLE approved by the Board of Continuing Legal Education pursuant to Subchapter 1D, Rule .1519 of these rules. Three hours of the 15 hours must be earned by attending courses of instruction devoted exclusively to professional responsibility and/or professionalism. These requirements shall be in addition to any continuing legal education requirements imposed by the Disciplinary Hearing Commission;

(J)            Payment of Fees and Assessments - payment of all membership fees, Client Security Fund assessments, and late fees due and owing to the North Carolina State Bar, including any reinstatement fee due under Rule .0904 or Rule .1524 of Subchapter 1D of these rules, as well as all attendee fees and late penalties due and owing to the Board of Continuing Legal Education at the time of suspension.

(4)           Investigation and Response - The counsel will conduct any necessary investigation regarding the compliance of the petitioner with the requirements set forth in Rule .0129(b)(3) above, and the counsel may file a response to the petition with the secretary prior to the date the petitioner is first eligible for reinstatement. The counsel will serve a copy of any response filed upon the petitioner.

(5)           Failure of Counsel to File Response - If the counsel does not file a response to the petition before the date the petitioner is first eligible for reinstatement, then the secretary will issue an order of reinstatement.

(6)           Specific Objections in Response - If the counsel files a timely response to the petition, such response must set forth specific objections supported by factual allegations sufficient to put the petitioner on notice of the events at issue.

(7)           Reinstatement Hearing - The secretary will, upon the filing of a response to the petition, refer the matter to the chairperson of the commission. The chairperson will within 14 days appoint a hearing panel as provided in Rule .0108(a)(2) of this Subchapter, schedule a time and place for a hearing, and notify the counsel and the petitioner of the composition of the hearing panel and the time and place of the hearing. The hearing will be conducted in accordance with the North Carolina Rules of Civil Procedure for nonjury trials insofar as possible and the rules of evidence applicable in superior court.

(8)           Reinstatement Order - The hearing panel will determine whether the petitioner's license should be reinstated and enter an appropriate order which may include additional sanctions in the event violations of the petitioner's order of suspension are found. In any event, the hearing panel must include in its order findings of fact and conclusions of law in support of its decision and tax such costs as it deems appropriate for the necessary expenses attributable to the investigation and processing of the petition against the petitioner.

(c)  Transfer to Disability Inactive Status

(1)           Reinstatement - No member of the North Carolina State Bar transferred to disability inactive status may resume active status until reinstated by order of the commission. Any member transferred to disability inactive status will be entitled to apply to the commission for reinstatement to active status once a year or at such shorter intervals as are stated in the order transferring the member to disability inactive status or any modification thereof.

(2)           Reinstatement Petition - Petitions for reinstatement by members transferred to disability inactive status will be filed with the secretary. Upon receipt of the petition the secretary will refer the petition to the commission chairperson. The chairperson will appoint a hearing panel as provided in Rule .0108(a)(2) of this subchapter. A hearing will be conducted pursuant to the procedures set out in Rules .0114 to .0118 of this subchapter.

(3)           Burden of Proof - The member will have the burden of proving by clear, cogent, and convincing evidence that he or she is no longer disabled within the meaning of Rule .0103(19) of this subchapter and that he or she is fit to resume the practice of law.

(4)           Medical Records - Within 10 days of filing the petition for reinstatement, the member will provide the secretary with a list of the name and address of every psychiatrist, psychologist, physician, hospital, and other health care provider by whom or in which the member has been examined or treated or sought treatment while disabled. At the same time, the member will also furnish to the secretary a written consent to release all information and records relating to the disability.

(5)           Judical Findings - Where a member has been transferred to disability inactive status based solely upon a judicial finding of incapacity, and thereafter a court of competent jurisdiction enters an order adjudicating that the member's incapacity has ended, the chairperson of the commission will enter an order returning the member to active status upon receipt of a certified copy of the court's order. Entry of the order will not preclude the North Carolina State Bar from bringing an action pursuant to Rule .0122 of this subchapter to determine whether the member is disabled.

(6)           Costs - The hearing panel may direct the member to pay the costs of the reinstatement hearing, including the cost of any medical examination ordered by the panel.

(d)  Conditions of Reinstatement - The hearing panel may impose reasonable conditions on a lawyer's reinstatement from disbarment, suspension, or disability inactive status in any case in which the hearing panel concludes that such conditions are necessary for the protection of the public.

(e)  After Entry of a Reciprocal Order of Suspension or Disbarment - No member whose license to practice law has been suspended or who has been disbarred by any state or federal court and who is the subject of a reciprocal discipline order in North Carolina may seek reinstatement of his or her North Carolina law license until the member provides to the secretary a certified copy of an order reinstating the member to the active practice of law in the state or federal court which entered the original order of discipline.

 

History Note:        Authority G.S. 84-23; 84-28.1; 84-29; 84-30;

Readopted Eff. December 8, 1994;

Amendments Approved by the Supreme Court: September 22, 2016; March 10, 2011; October 8, 2009; February 27, 2003; March 6, 2002; August 24, 2000; July 22, 1999; December 30, 1998; October 2, 1997; March 6, 1997; February 20, 1995.

 

27 NCAC 01B .0130          ADDRESS OF RECORD

Except where otherwise specified, any provision herein for notice to a respondent, member, petitioner, or a defendant will be deemed satisfied by appropriate correspondence addressed to that attorney by mail to the last address maintained by the North Carolina State Bar.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994;

Amendments Approved by the Supreme Court: September 22, 2016.

 

27 NCAC 01B .0131          DISQUALIFICATION DUE TO INTEREST

No member of the council or hearing commission will participate in any disciplinary matter involving the member, any partner, or associate in the practice of law of the member, or in which the member has a personal interest.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994;

Amendments Approved by the Supreme Court: September 22, 2016.

 

27 NCAC 01B .0132          Trust Accounts; Audit

(a)  Investigative Subpoena for Reasonable Cause - For reasonable cause, the chairperson of the Grievance Committee is empowered to issue an investigative subpoena to a member compelling the production of any records required to be kept relative to the handling of client funds and property by the Rules of Professional Conduct for inspection, copying, or audit by the counsel or any auditor appointed by the counsel. For the purposes of this rule, circumstances that constitute reasonable cause, include, but are not limited to:

(1)           any sworn statement of grievance received by the North Carolina State Bar alleging facts which, if true, would constitute misconduct in the handling of a client's funds or property;

(2)           any facts coming to the attention of the North Carolina State Bar, whether through random review as contemplated by Rule .0132(b) below or otherwise, which if true, would constitute a probable violation of any provision of the Rules of Professional Conduct concerning the handling of client funds or property;

(3)           two or more grievances received by the North Carolina State Bar over a twelve month period alleging facts which, if true, would indicate misconduct for neglect of a client matter or failure to communicate with a client;

(4)           any failure to respond to any notices issued by the North Carolina State Bar with regard to a grievance or a fee dispute;

(5)           any information received by the North Carolina State Bar which, if true, would constitute a failure to file any federal, state, or local tax return or pay an federal, state, or local tax obligation; or

(6)           any finding of probable cause, indictment, or conviction relative to a criminal charge involving moral turpitude. The grounds supporting the issuance of any such subpoena will be set forth upon the face of the subpoena.

(b)  Random Investigative Subpoenas - The chairperson of the Grievance Committee may randomly issue investigative subpoenas to members compelling the production of any records required to be kept relative to the handling of client funds or property by the Rules of Professional Conduct for inspection by the counsel or any auditor appointed by the counsel to determine compliance with the Rules of Professional Conduct. Any such subpoena will disclose upon its face its random character and contain a verification of the secretary that it was randomly issued. No member will be subject to random selection under this section more than once in three years. The auditor may report any violation of the Rules of Professional Conduct discovered during the random audit to the Grievance Committee for investigation. The auditor may allow the attorney a reasonable amount of time to correct any procedural violation in lieu of reporting the matter to the Grievance Committee. The auditor shall have authority under the original subpoena for random audit to compel the production of any documents necessary to determine whether the attorney has corrected any violation identified during the audit.

(c)  Time Limit - No subpoena issued pursuant to this rule may compel production within five days of service.

(d) Evidence - The rules of evidence applicable in the superior courts of the state will govern the use of any material subpoenaed pursuant to this rule in any hearing before the commission.

(e)  Attorney-Client Privilege/Confidentiality - No assertion of attorney-client privilege or confidentiality will prevent an inspection or audit of a trust account as provided in this rule.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994;

Amendments Approved by the Supreme Court: September 22, 2016; November 16, 2006.

 

27 NCAC 01B .0133          Confidentiality

(a)  Allegations of Misconduct or Alleged Disability - Except as otherwise provided in this rule and G.S. 84-28(f), all proceedings involving allegations of misconduct by or alleged disability of a member will remain confidential until

(1)           a complaint against a member has been filed with the secretary after a finding by the Grievance Committee that there is probable cause to believe that the member is guilty of misconduct justifying disciplinary action or is disabled;

(2)           the member requests that the matter be made public prior to the filing of a complaint;

(3)           the investigation is predicated upon conviction of the member of or sentencing for a crime;

(4)           a petition or action is filed in the general courts of justice;

(5)           the member files an affidavit of surrender of license; or

(6)           a member is transferred to disability inactive status pursuant to Rule .0122(g). In such an instance, the order transferring the member shall be public. Any other materials, including the medical evidence supporting the order, shall be kept confidential unless and until the member petitions for reinstatement pursuant to Rule .0122(c), unless provided otherwise in the order.

(b)  Disciplinary Complaints Filed Pursuant to Rule .0113(j)(4), .0113(l)(4) or .0113(m)(4)- The State Bar may disclose that it filed the complaint before the Disciplinary Hearing Commission pursuant to Rule .0113(j)(4), .0113(l)(4) or .0113(m)(4):

(1)           after proceedings before the Disciplinary Hearing Commission have concluded; or

(2)           while proceedings are pending before the Disciplinary Hearing Commission, in order to address

(c) Letter of Warning or Admonition - The previous issuance of a letter of warning, formerly known as a letter of admonition, or an admonition to a member may be revealed in any subsequent disciplinary proceeding.

(d) Attorney’s Response to a Grievance - This provision will not be construed to prohibit the North Carolina State Bar from providing a copy of an attorney's response to a grievance to the complaining party where such attorney has not objected thereto in writing.

(e) Law Enforcement or Regulatory Agency - This provision will not be construed to prohibit the North Carolina State Bar from providing information or evidence to any law enforcement or regulatory agency.

(f)  Chief Justice’s Commission on Professionalism - This provision will not be construed to prevent the North Carolina State Bar, with the approval of the chairperson of the Grievance Committee, from notifying the Chief Justice's Commission on Professionalism of any allegation of unprofessional conduct by any member.

(g) Lawyer Assistance Program -  This provision will not be construed to prevent the North Carolina State Bar from notifying the Lawyer Assistance Program of any circumstances that indicate a member may have a substance abuse or mental health issue.

(h) Other Jurisdictions - This provision will not be construed to prohibit the North Carolina State Bar, with the approval of the chairperson of the Grievance Committee, from providing information concerning the existence of a letter of caution, letter of warning, or admonition to any agency that regulates the legal profession in any other jurisdiction so long as the inquiring jurisdiction maintains the same level of confidentiality respecting the information as does the North Carolina State Bar.

(i) National Discipline Data Bank - The secretary will transmit notice of all public discipline imposed and transfers to disability inactive status to the National Discipline Data Bank maintained by the American Bar Association.

(j) Client Security Fund Board of Trustees - The secretary may also transmit any relevant information to the Client Security Fund Board of Trustees to assist the Client Security Fund Board in determining losses caused by dishonest conduct of members of the North Carolina State Bar.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amendments Approved by the Supreme Court: September 22, 2016; October 9, 2008; March 6, 2002; November 7, 1996; February 20, 1996.

 

27 NCAC 01B .0134          Disciplinary Amnesty in Illicit Drug Use Cases

(a)  Information Concerning Illicit Drug Use - The North Carolina State Bar will not treat as a grievance information that a member has used or is using illicit drugs except as provided in Rules.0134(c), (d) and (e) below.  The information will be provided to director of the lawyer assistance program of the North Carolina State Bar.

(b)  Lawyer Assistance Program - If the director of the lawyer assistance program concludes after investigation that a member has used or is using an illicit drug and the member participates and successfully complies with any course of treatment prescribed by the lawyer assistance program, the member will not be disciplined by the North Carolina State Bar for illicit drug use occurring prior to the prescribed course of treatment.

(c)  Failure to Complete Treatment - If a member under Rule .0134(b) above fails to cooperate with the Lawyer Assistance Program Board or fails to successfully complete any treatment prescribed for the member's illicit drug use, the director of the lawyer assistance program will report such failure to participate in or complete the prescribed treatment to the chairperson of the Grievance Committee.  The chairperson of the Grievance Committee will then treat the information originally received as a grievance.

(d)  Crime Relating to Use or Possession of Illicit Drugs - A member charged with a crime relating to the use or possession of illicit drugs will not be entitled to amnesty from discipline by the North Carolina State Bar relating to the illicit drug use or possession.

(e)  Additional Misconduct - If the North Carolina State Bar receives information that a member has used or is using illicit drugs and that the member has violated some other provision of the Revised Rules of Professional Conduct, the information regarding the member's alleged illicit drug use will be referred to the director of lawyer assistance program pursuant to Rule .0134(a) above.  The information regarding the member's alleged additional misconduct will be reported to the chairperson of the Grievance Committee.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amendments Approved by the Supreme Court: September 22, 2016: February 3, 2000; February 20, 1995.

 

SECTION .0200 ‑ RULES GOVERNING JUDICIAL DISTRICT GRIEVANCE COMMITTEES

 

27 NCAC 01B .0201          Organization of Judicial District Grievance Committees

(a)  Judicial Districts Eligible to Form District Grievance Committees

(1)           Membership Requirements for Establishing a District Grievance Committee - Any judicial district which has more than 100 licensed attorneys as determined by the North Carolina State Bar's records may establish a judicial district grievance committee (hereafter, "district grievance committee") pursuant to the rules and regulations set out herein. A judicial district with fewer than 100 licensed attorneys may establish a district grievance committee with consent of the Council of the North Carolina State Bar.

(2)           Multi-District Grievance Committees - One or more judicial districts, including those with fewer than 100 licensed attorneys, may also establish a multi-district grievance committee, as set out in Rule .0201(b)(2) below. Such multi-district grievance committees shall be subject to all of the rules and regulations set out herein and all references to district grievance committees in these rules shall also apply to multi-district grievance committees.

(b)  Creation of District Grievance Committees

(1)           Meeting Establishing a District Grievance Committee and Certification - A judicial district may establish a district grievance committee at a duly called meeting of the judicial district bar, at which a quorum is present, upon the affirmative vote of a majority of the active members present. Within 30 days of the election, the president of the judicial district bar shall certify in writing the establishment of the district grievance committee to the secretary of the North Carolina State Bar.

(2)           Meeting Establishing a Multi-District Grievance Committee and Certification - A multi-district grievance committee may be established by affirmative vote of a majority of the active members of each participating judicial district present at a duly called meeting of each participating judicial district bar, at which a quorum is present. Within 30 days of the election, the chairperson of the multi-district grievance committee shall certify in writing the establishment of the district grievance committee to the secretary of the North Carolina State Bar. The active members of each participating judicial district may adopt a set of bylaws not inconsistent with these rules by majority vote of the active members of each participating judicial district present at a duly called meeting of each participating judicial district bar, at which a quorum is present. The chairperson of the multi-district grievance committee shall promptly provide a copy of any such bylaws to the secretary of the North Carolina State Bar.

(c)  Appointment of District Grievance Committee Members

(1)           Members of District Committees - Each district grievance committee shall be composed of not fewer than five nor more than 21 members, all of whom shall be active members in good standing both of the judicial district bar to which they belong and of the North Carolina State Bar. In addition to the attorney members, each district grievance committee may also include one to five public members who have never been licensed to practice law in any jurisdiction. Public members shall not perform investigative functions regarding grievances but in all other respects shall have the same authority as the attorney members of the district grievance committee.

(2)           Chairperson - The chairperson of the district grievance committee shall be selected by the president of the judicial district and shall serve at his or her pleasure. Alternatively, the chairperson may be selected and removed as provided in the district bar bylaws.

(3)           Selection of Attorney and Public Members - The attorney and public members of the district grievance committee shall be selected by and serve at the pleasure of the president of the judicial district bar and the chairperson of the district grievance committee. Alternatively, the district grievance committee members may be selected and removed as provided in the district bar bylaws.

(4)           Term and Replacement of Members - The members of the district grievance committee, including the chairperson, shall be appointed for staggered three-year terms, except that the president and chairperson shall appoint some of the initial committee members to terms of less than three years, to effectuate the staggered terms. No member shall serve more than one term, without first having rotated off the committee for a period of at least one year between three-year terms. Any member who resigns or otherwise becomes ineligible to continue serving as a member shall be replaced by appointment by the president of the judicial district bar and the chairperson of the committee or as provided in the district bar bylaws as soon as practicable.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. October 7, 2010.

 

27 NCAC 01B .0202          Jurisdiction & Authority of District Grievance Committees

(a)  District Grievance Committees Are Subject to the Rules of the North Carolina State Bar - The district grievance committee shall be subject to the rules and regulations adopted by the Council of the North Carolina State Bar.

(b)  Grievances Filed With District Grievance Committee - A district grievance committee may investigate and consider grievances filed against attorneys who live or maintain offices within the judicial district and which are filed in the first instance with the chairperson of the district grievance committee. The chairperson of the district grievance committee will immediately refer to the State Bar any grievance filed locally in the first instance which

(1)           alleges misconduct against a member of the district grievance committee;

(2)           alleges that any attorney has embezzled or misapplied client funds; or

(3)           alleges any other serious violation of the Rules of Professional Conduct which may be beyond the capacity of the district grievance committee to investigate.

(c)  Grievances Referred to District Grievance Committee - The district grievance committee shall also investigate and consider such grievances as are referred to it for investigation by the counsel of the North Carolina State Bar.

(d)  Grievances Involving Fee Disputes

(1)           Notice to Complainant of Fee Dispute Resolution Program. If a grievance filed initially with the district bar consists solely or in part of a fee dispute, the chairperson of the district grievance committee shall notify the complainant in writing within 10 working days of receipt of the grievance that the complainant may elect to participate in the North Carolina State Bar Fee Dispute Resolution Program. If the grievance consists solely of a fee dispute, the letter to the complainant shall follow the format set out in Rule .0208 of this subchapter. If the grievance consists in part of matters other than a fee dispute, the letter to the complainant shall follow the format set out in Rule .0209 of this subchapter. A respondent attorney shall not have the right to elect to participate in fee arbitration.

(2)           Handling Claims Not Involving Fee Dispute - Where a grievance alleges multiple claims, the allegations not involving a fee dispute will be handled in the same manner as any other grievance filed with the district grievance committee.

(3)           Handling Claims Not Submitted to Fee Dispute Resolution by Complainant - If the complainant elects not to participate in the State Bar's Fee Dispute Resolution Program, or fails to notify the chairperson that he or she elects to participate within 20 days following mailing of the notice referred to in Rule .0202(d)(1) above, the grievance will be handled in the same manner as any other grievance filed with the district grievance committee.

(4)           Referral to Fee Dispute Resolution Program - Where a complainant timely elects to participate in fee dispute resolution, and the judicial district in which the respondent attorney maintains his or her principal office has a fee dispute resolution committee, the chairperson of the district grievance committee shall refer the portion of the grievance involving a fee dispute to the judicial district fee dispute resolution committee. If the judicial district in which the respondent attorney maintains his or her principal office does not have a fee dispute resolution committee, the chairperson of the district grievance committee shall refer the portion of the grievance involving a fee dispute to the State Bar Fee Dispute Resolution Program for resolution. If the grievance consists entirely of a fee dispute, and the complainant timely elects to participate in fee dispute resolution, no grievance file will be established.

(e)  Authority of District Grievance Committees - The district grievance committee shall have authority to

(1)           assist a complainant who requests assistance to reduce a grievance to writing;

(2)           investigate complaints described in Rule .0202(b) and(c) above by interviewing the complainant, the attorney against whom the grievance was filed and any other persons who may have relevant information regarding the grievance and by requesting written materials from the complainant, respondent attorney, and other individuals;

(3)           explain the procedures of the district grievance committee to complainants and respondent attorneys;

(4)           find facts and recommend whether or not the State Bar's Grievance Committee should find that there is probable cause to believe that the respondent has violated one or more provisions of the Revised Rules of Professional Conduct. The district grievance committee may also make a recommendation to the State Bar regarding the appropriate disposition of the case, including referral to the Lawyer Assistance Program pursuant to Rule .0112(j) or to a program of law office management training approved by the State Bar;

(5)           draft a written report stating the grounds for the recommended disposition of a grievance assigned to the district grievance committee;

(6)           notify the complainant and the respondent attorney where the district grievance committee recommends that the State Bar find that there is no probable cause to believe that the respondent has violated the Rules of Professional Conduct. Where the district grievance committee recommends that the State Bar find that there is probable cause to believe that the respondent has violated one or more provisions of the Rules of Professional Conduct, the committee shall notify the respondent attorney of its recommendation and shall notify the complainant that the district grievance committee has concluded its investigation and has referred the matter to the State Bar for final resolution. Where the district grievance committee recommends a finding of no probable cause, the letter of notification to the respondent attorney and to the complainant shall follow the format set out in Rule .0210 of this subchapter. Where the district grievance committee recommends a finding of probable cause, the letter of notification to the respondent attorney shall follow the format set out in Rule .0211 of this subchapter. The letter of notification to the complainant shall follow the format set out in Rule .0212 of this subchapter;

(7)           maintain records of grievances investigated by the district grievance committee for at least one year from the date on which the district grievance committee makes its final recommendation regarding a grievance to the State Bar.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. August 23, 2007; December 20, 2000; March 3, 1999.

 

27 NCAC 01B .0203          MEETINGS OF THE DISTRICT GRIEVANCE COMMITTEES

(a)  Notice of Meeting ‑ The district grievance committee shall meet at the call of the chairperson upon reasonable notice, as often as is necessary to dispatch its business and not less than once every 60 days, provided the committee has grievances pending.

(b)  Confidentiality ‑ The district grievance committee shall meet in private.  Discussions of the committee, its records and its actions shall be confidential.  The names of the members of the committee shall not be confidential.

(c)  Quorum ‑ A simple majority of the district grievance committee must be present at any meeting in order to constitute a quorum.  The committee may take no action unless a quorum is present.  A majority vote in favor of a motion or any proposed action shall be required for the motion to pass or the action to be taken.

(d)  Appearances by Complainants and Respondents ‑ No complainant nor any attorney against whom a grievance has been filed may appear before the district grievance committee, present argument to or be present at the committee's deliberations.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01B .0204          PROCEDURE UPON INSTITUTION OF A GRIEVANCE

(a)  Receipt of Grievance ‑ A grievance may be filed by any person against a member of the North Carolina State Bar.  Such grievance must be in writing and signed by the complaining person.  A district grievance committee may, however, investigate matters which come to its attention during the investigation of a grievance, whether or not such matters are included in the original written grievance.

(b)  Acknowledgment of Receipt of Grievance from State Bar ‑ The chairperson of the district grievance committee shall send a letter to the complainant within 10 working days of receipt of the grievance from the State Bar, acknowledging that a grievance file has been set up.  The acknowledgment letter shall include the name of the district grievance committee member assigned to investigate the matter and shall follow the format set out in Rule .0213 of this subchapter.  A copy of the letter shall be sent contemporaneously to the office of counsel of the State Bar.

(c)  Notice to State Bar of Locally Filed Grievances

(1)           Where a grievance is filed in the first instance with the district grievance committee, the chairperson of the district grievance committee shall notify the office of counsel of the State Bar of the name of the complainant, respondent attorney, file number and nature of the grievance within 10 working days of receipt of the grievance.

(2)           The chairperson of the district grievance committee shall send a letter to the complainant within 10 working days of receipt of the grievance, acknowledging that a grievance file has been set up.  The acknowledgment letter shall include the name of the district grievance committee member assigned to investigate the matter and shall follow the format set out in Rule .0213 of this subchapter.

(3)           Grievances filed initially with the district grievance committee shall be assigned a local file number which shall be used to refer to the grievance.  The first two digits of the file number shall indicate the year in which the grievance was filed, followed by the number of the judicial district, the letters GR, and ending with the number of the file.  File numbers shall be assigned sequentially during the calendar year, beginning with the number 1.  For example, the first locally filed grievance set up in the 10th judicial district in 1994 would bear the following number:  9410GR001.

(d)  Assignment to Investigating Member ‑ Within 10 working days after receipt of a grievance, the chairperson shall appoint a member of the district grievance committee to investigate the grievance and shall forward the relevant materials to the investigating member.  The letter to the investigating member shall follow the format set out in Rule .0214 of this subchapter.

(e)  Investigation of the Grievance

(1)           The investigating member shall attempt to contact the complainant as soon as possible but no later than 15 working days after receiving notice of the assignment.  If the initial contact with the complainant is made in writing, the letter shall follow the format set out in Rule .0215 of this subchapter.

(2)           The investigating member shall have the authority to contact other witnesses or individuals who may have information about the subject of the grievance, including the respondent.

(3)           The failure of the complainant to cooperate shall not cause a grievance to be dismissed or abated.  Once filed, grievances shall not be dismissed or abated upon the request of the complainant.

(f)  Letter of Notice to Respondent Attorney and Responses

(1)           Within 10 working days after receipt of a grievance, the chairperson of the district grievance committee shall send a copy of the  grievance and a letter of notice to the respondent attorney.  The letter to the respondent attorney shall follow the form set out in Rule .0216 of this subchapter and shall be sent by U.S. Mail to the attorney's last known address on file with the State Bar.  The letter of notice shall request the respondent to reply to the investigating attorney in writing within 15 days after receipt of the letter of notice.

(2)           A substance of grievance will be provided to the district grievance committee by the State Bar at the time the file is assigned to the committee.  The substance of grievance will summarize the nature of the complaint against the respondent attorney and cite the applicable provisions of the Rules of Professional Conduct, if any.

(3)           The respondent attorney shall respond in writing to the letter of notice from the district grievance committee within 15 days of receipt of the letter.  The chairperson of the district grievance committee may allow a longer period for response, for good cause shown.

(4)           If the respondent attorney fails to respond in a timely manner to the letter of notice, the chairperson of the district grievance committee may seek the assistance of the State Bar to issue a subpoena or take other appropriate steps to ensure a proper and complete investigation of the grievance.  District grievance committees do not have authority to issue a subpoena to a witness or respondent attorney.

(5)           Unless necessary to complete its investigation, the district grievance committee should not release copies of the respondent attorney's response to the grievance to the complainant.  The investigating attorney may summarize the response for the complainant orally or in writing.

(g)  District Grievance Committee Deliberations

(1)           Upon completion of the investigation, the investigating member shall promptly report his or her findings and recommendations to the district grievance committee in writing.

(2)           The district grievance committee shall consider the submissions of the parties, the information gathered by the investigating attorney and such other material as it deems relevant in reaching a recommendation.  The district grievance committee may also make further inquiry as it deems appropriate, including investigating other facts and possible violations of the Rules of Professional Conduct discovered during its investigation.

(3)           The district grievance committee shall make a determination as to whether or not it finds that there is probable cause to believe that the respondent violated one or more provisions of the Rules of Professional Conduct.

(h)  Report of Committee's Decision

(1)           Upon making a decision in a case, the district grievance committee shall submit a written report to the office of counsel, including its recommendation and the basis for its decision.  The original file and grievance materials of the investigating attorney shall be sent to the State Bar along with the report.  The letter from the district bar grievance committee enclosing the report shall follow the format set out in Rule .0217 of this subchapter.

(2)           The district grievance committee shall submit its written report to the office of counsel no later than 180 days after the grievance is initiated or received by the district committee.  The State Bar may recall any grievance file which has not been investigated and considered by a district grievance committee within 180 days after the matter is assigned to the committee.  The State Bar may also recall any grievance file for any reason.

(3)           Within 10 working days of submitting the written report and returning the file to the office of counsel, the chairperson of the district grievance committee shall notify the respondent attorney and the complainant in writing of the district grievance committee's recommendation, as provided in Rule .0202(d)(6) of this subchapter.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01B .0205          RECORD KEEPING

The district grievance committee shall maintain records of all grievances referred to it by the State Bar and all grievances initially filed with the district grievance committee for at least one year.  The district grievance committee shall provide such reports and information as are requested of it from time to time by the State Bar.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01B .0206          MISCELLANEOUS

(a)  Assistance and Questions ‑ The office of counsel, including the staff attorneys and the grievance coordinator, are available to answer questions and provide assistance regarding any matters before the district grievance committee.

(b)  Missing Attorneys ‑ Where a respondent attorney is missing or cannot be located, the district grievance committee shall promptly return the grievance file to the office of counsel for appropriate action.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01B .0207          CONFLICTS OF INTEREST

(a)  No district grievance committee shall investigate or consider a grievance which alleges misconduct by any current member of the committee.  If a file is referred to the committee by the State Bar or is initiated locally which alleges misconduct by a member of the district grievance committee, the file will be sent to the State Bar for investigation and handling within 10 working days after receipt of the grievance.

(b)  A member of a district grievance committee shall not investigate or participate in deliberations concerning any of the following matters:

(1)           alleged misconduct of an attorney who works in the same law firm or office with the committee member;

(2)           alleged misconduct of a relative of the committee member;

(3)           a grievance involving facts concerning which the committee member or a partner or associate in the committee member's law firm acted as an attorney.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01B .0208          Letter to Complainant Where Local Grievance Alleges Fee Dispute Only

 

John Smith

Anywhere, N.C.

 

Re: Your complaint against Jane Doe

 

Dear Mr. Smith:

 

The district grievance committee has received your complaint against the above-listed attorney. Based upon our initial review of the materials which you submitted, it appears that your complaint involves a fee dispute. Accordingly, I would like to take this opportunity to notify you of the North Carolina State Bar Fee Dispute Resolution Program. The program is designed to provide citizens with a means of resolving disputes over attorney fees at no cost to them and without going to court. A pamphlet which describes the program in greater detail is enclosed, along with an application form.

 

If you would like to participate in the fee dispute resolution program, please complete and return the form to me within 20 days of the date of this letter. If you decide to participate, no grievance file will be opened and the district bar grievance committee will take no other action against the attorney.

 

If you do not wish to participate in the fee dispute resolution program, you may elect to have your complaint investigated by the district grievance committee. If we do not hear from you within 20 days of the date of this letter, we will assume that you do not wish to participate in fee dispute resolution, and we will handle your complaint like any other grievance. However, the district grievance committee has no authority to attempt to resolve a fee dispute between an attorney and his or her client. Its sole function is to investigate your complaint and make a recommendation to the North Carolina State Bar regarding whether there is probable cause to believe that the attorney has violated one or more provisions of the Rules of Professional Conduct which govern attorneys in this state.

 

Thank you for your cooperation.

 

                                                                                                Sincerely yours,

 

 

                                                                                                Chairperson

                                                                                                District Bar Grievance Committee

 

cc:           PERSONAL & CONFIDENTIAL

                Director of Investigations,

                The N.C. State Bar

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994;

Amended Eff. August 23, 2007.

 

27 NCAC 01B .0209          Letter to Complainant Where Local Grievance Alleges Fee Dispute and Other Violations

 

John Smith

Anywhere, N.C.

 

Re: Your complaint against Jane Doe

 

Dear Mr. Smith:

 

The district grievance committee has received your complaint against the above-listed attorney. Based upon our initial review of the materials which you submitted, it appears that your complaint involves a fee dispute as well as other possible violations of the rules of ethics. Accordingly, I would like to take this opportunity to notify you of the North Carolina State Bar Fee Dispute Resolution Program.  The program is designed to provide citizens with a means of resolving disputes over attorney fees at no cost to them and without going to court. A pamphlet which describes the program in greater detail is enclosed, along with an application form.

 

If you would like to participate in the fee dispute resolution program, please complete and return the form to me within 20 days of the date of this letter. If you decide to participate, the fee dispute resolution committee will handle those portions of your complaint which involve an apparent fee dispute.

 

If you do not wish to participate in the fee dispute resolution program, you may elect to have your entire complaint investigated by the district grievance committee. If we do not hear from you within 20 days of the date of this letter, we will assume that you do not wish to participate in fee dispute resolution, and we will handle your entire complaint like any other grievance. However, the district grievance committee has no authority to attempt to resolve a fee dispute between an attorney and his or her client. Its sole function is to investigate your complaint and make a recommendation to the North Carolina State Bar regarding whether there is probable cause to believe that the attorney has violated one or more provisions of the Rules of Professional Conduct which govern attorneys in this state.

 

Thank you for your cooperation.

 

                                                                                                Sincerely yours,

 

 

                                                                                                Chairperson

                                                                                                District Bar Grievance Committee

 

cc:           PERSONAL & CONFIDENTIAL

                Director of Investigations

                The N.C. State Bar

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994;

Amended Eff. August 23, 2007.

 

27 NCAC 01B .0210          LETTER TO COMPLAINANT/RESPONDENT WHERE DISTRICT COMMITTEE RECOMMENDS FINDING OF NO PROBABLE CAUSE

 

John Smith

Anywhere, N.C.

 

Re:          Your complaint against Jane Doe

Our File No.

 

Dear Mr. Smith:

 

The district grievance committee has completed its investigation of your grievance.  Based upon its investigation, the committee does not believe that there is probable cause to find that the attorney has violated any provisions of the Rules of Professional Conduct.  The committee will forward a report with its recommendation to the North Carolina State Bar Grievance Committee.  The final decision regarding your grievance will be made by the North Carolina State Bar Grievance Committee.  You will be notified in writing of the State Bar's decision.

 

If you have any questions or wish to communicate further regarding your grievance, you may contact the North Carolina State Bar at the following address:

 

The North Carolina State Bar

Grievance Committee

P.O. Box 25908

Raleigh, N.C. 27611

 

Neither I nor any member of the district grievance committee can give you any advice regarding any legal rights you may have regarding the matters set out in your grievance.  You may pursue any questions you have regarding your legal rights with an attorney of your choice.

 

Thank you very much for your cooperation.

 

Sincerely yours,

 

 

Chairperson

District Grievance Committee

 

 

cc:           PERSONAL AND CONFIDENTIAL

Respondent Attorney

 

PERSONAL AND CONFIDENTIAL

Director of Investigations

The N.C. State Bar

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01B .0211          LETTER TO RESPONDENT WHERE DISTRICT COMMITTEE RECOMMENDS FINDING OF PROBABLE CAUSE

 

Ms. Jane Doe

Anywhere, N.C.

 

Re:          Grievance of John Smith

Our File No.

 

Dear Ms. Doe:

 

The district grievance committee has completed its investigation of Mr. Smith's grievance and has voted to recommend that the North Carolina State Bar Grievance Committee find probable cause to believe that you violated one or more provisions of the Rules of Professional Conduct.  Specifically, the [] district grievance committee found that there is probable cause to believe that you may have violated [set out brief description of rule allegedly violated and pertinent facts].

 

The final decision in this matter will be made by the North Carolina State Bar Grievance Committee and you will be notified in writing of the State Bar's decision.  The complainant has been notified that the district grievance committee has concluded its investigation and that the grievance has been sent to the North Carolina State Bar for final resolution, but has not been informed of the district committee's specific recommendation.

 

If you have any questions or wish to communicate further regarding this grievance, you may contact the North Carolina State Bar at the following address:

 

The North Carolina State Bar

Grievance Committee

P.O. Box 25908

Raleigh, N.C. 27611

Tel. 919‑828‑4620

 

Thank you very much for your cooperation.

 

Sincerely yours,

 

 

Chairperson

District Grievance Committee

 

 

cc:           PERSONAL AND CONFIDENTIAL

Director of Investigations

The N.C. State Bar

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01B .0212          LETTER TO COMPLAINANT WHERE DISTRICT COMMITTEE RECOMMENDS FINDING OF PROBABLE CAUSE

 

John Smith

Anywhere, N.C.

 

Re:          Your complaint against Jane Doe

Our File No.

 

Dear Mr. Smith:

 

The district grievance committee has completed its investigation of your grievance and has forwarded its file to the North Carolina State Bar Grievance Committee in Raleigh for final resolution.  The final decision in this matter will be made by the North Carolina State Bar Grievance Committee and you will be notified in writing of the State Bar's decision.

 

If you have any questions or wish to communicate further regarding your grievance, you may contact the North Carolina State Bar at the following address:

 

The North Carolina State Bar

Grievance Committee

P.O. Box 25908

Raleigh, N.C. 27611

 

Neither I nor any member of the district grievance committee can give you any advice regarding any legal rights you may have regarding the matters set out in your grievance.  You may pursue any questions you  have regarding your legal rights with an attorney of your choice.

 

Thank you very much for your cooperation.

 

Sincerely yours,

 

 

Chairperson

District Grievance Committee

 

 

cc:           PERSONAL AND CONFIDENTIAL

Respondent Attorney

 

PERSONAL AND CONFIDENTIAL

Director of Investigations

The N.C. State Bar

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01B .0213          LETTER TO COMPLAINANT ACKNOWLEDGING GRIEVANCE

 

John Smith

Anywhere, N.C.

 

Re:          Your complaint against Jane Doe

Our File No. []

 

Dear Mr. Smith:

 

I am the chairperson of the [] district grievance committee.  Your grievance against [respondent attorney] [was received in my office]\[has been forwarded to my office by the North Carolina State Bar] on [date].  I have assigned [investigator's name], a member of the [] district grievance committee, to investigate your grievance.  []'s name, address and telephone number are as follows: [].

 

Please be sure that you have provided all information and materials which relate to or support your complaint to the [] district grievance committee.  If you have other information which you would like our committee to consider, or if you wish to discuss your complaint, please contact the investigating attorney by telephone or in writing as soon as possible.

 

After []'s investigation is complete, the [] district grievance committee will make a recommendation to the North Carolina State Bar Grievance Committee regarding whether or not there is probable cause to believe that [respondent attorney] violated one or more provisions of the Rules of Professional Conduct.  Your complaint and the results of our investigation will be sent to the North Carolina State Bar at that time.  The [] district grievance committee's recommendation is not binding upon the North Carolina State Bar Grievance Committee, which will make the final determination.  You will be notified in writing when the [] district grievance committee's investigation is concluded.

 

Neither the investigating attorney nor any member of the [] district grievance committee can give you any legal advice or represent you regarding any underlying legal matter in which you may be involved.  You may pursue any questions you have about your legal rights with an attorney of your own choice.

 

Thank you very much for your cooperation.

 

Sincerely yours,

 

 

[] Chairperson

[] District Grievance Committee

 

 

cc:           PERSONAL AND CONFIDENTIAL

Director of Investigations

The N.C. State Bar

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01B .0214          LETTER TO INVESTIGATING ATTORNEY ASSIGNING GRIEVANCE

 

James Roe

[] District Grievance Committee Member

Anywhere, N.C.

 

 

Re:          Grievance of John Smith against Jane Doe

Our File No. []

 

Dear Mr. Roe:

 

Enclosed you will find a copy of the grievance which I recently received regarding the above‑captioned matter.  Please investigate the complaint and provide a written report with your recommendations by [deadline].

 

Thank you very much.

 

Sincerely yours,

 

 

[] Chairperson

[] District Grievance Committee

 

 

cc:           PERSONAL AND CONFIDENTIAL

Director of Investigations

The N.C. State Bar

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01B .0215          LETTER TO COMPLAINANT FROM INVESTIGATING ATTORNEY

 

John Smith

Anywhere, N.C.

 

Re:          Your complaint against Jane Doe

Our File No. []

 

Dear Mr. Smith:

 

I am the member of the [] district grievance committee assigned to investigate your grievance against [respondent attorney].  It is part of my job to ensure that you have had a chance to explain your complaint and that the [] district grievance committee has copies of all of the documents which you believe relate to your complaint.

 

If you have other information or materials which you would like the [] district grievance committee to consider, or if you would like to discuss this matter, please contact me as soon as possible.

 

If you have already fully explained your complaint, you do not need to take any additional action regarding your grievance.  The [] district grievance committee will notify you in writing when its investigation is complete.  At that time, the matter will be forwarded to the North Carolina State Bar Grievance Committee in Raleigh for its final decision.  You will be notified in writing of the North Carolina State Bar's decision.

 

Thank you very much for your cooperation.

 

Sincerely yours,

 

[] Investigating Member

[] District Grievance Committee

 

 

cc:           PERSONAL AND CONFIDENTIAL

Chairperson, [] District Grievance Committee

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01B .0216          LETTER OF NOTICE TO RESPONDENT ATTORNEY

 

Ms. Jane Doe

Anywhere, N.C.

 

Re:          Grievance of John Smith

Our File No. []

 

Dear Ms. Doe:

 

Enclosed you will find a copy of a grievance which has been filed against you by [complainant] and which was received in my office on [date].  As chairperson of the [] district grievance committee, I have asked [investigating attorney], a member of the committee, to investigate this grievance.

 

Please file a written response with [investigating attorney] within 15 days from receipt of this letter.  Your response should provide a full and fair disclosure of all of the facts and circumstances relating to the matters set out in the grievance.

 

Thank you.

 

 

Sincerely yours,

 

 

[] Chairperson

[] District Grievance Committee

 

cc:           PERSONAL AND CONFIDENTIAL

[] Investigating member

[] District Grievance Committee

 

PERSONAL AND CONFIDENTIAL

Director of Investigations

N.C. State Bar

 

PERSONAL AND CONFIDENTIAL

[] Complainant

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01B .0217          LETTER TRANSMITTING COMPLETED FILE TO NORTH CAROLINA STATE BAR

 

Director of Investigations

N.C. State Bar

P.O. Box 25908

Raleigh, N.C. 27611

 

Re:          Grievance of John Smith

File No. []

 

Dear Director:

 

The [] district grievance committee has completed its investigation in the above‑listed matter.  Based upon our investigation, the committee determined in its opinion that there is/is not probable cause to believe that the respondent violated one or more provisions of the Rules of Professional Conduct for the reasons set out in the enclosed report.

 

We are forwarding this matter for final determination by the North Carolina State Bar Grievance Committee along with the following materials:

 

1.  The original grievance of [complainant].

 

2.  A copy of the file of the investigating attorney.

 

3.  The investigating attorney's report, which includes a summary of the facts and the reason(s) for the committee's decision.

 

Please let me know if you have any questions or if you need any additional information.  Thank you.

 

Sincerely yours,

 

 

[] Chairperson

[] District Grievance Committee

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

 

 

SUBCHAPTER 01C ‑ RULES GOVERNING THE BOARD OF LAW EXAMINERS AND THE TRAINING OF LAW STUDENTS

 

SECTION .0100 ‑ BOARD OF LAW EXAMINERS

 

27 NCAC 01C .0101         Election

(a)  The Board of Law Examiners shall consist of 11 members. The members are appointed for three-year terms to serve until expiration of the term, resignation, death, or other cause for termination of members' service.

(b)  The council, in making appointments to the Board of Law Examiners, shall make appointments for no more than four consecutive three-year terms, not counting any partial term which may have previously been served.

(c)  The council shall appoint board members for three-year terms at its annual meeting in October, with the term of service to begin on the following January 1. Appointment of a board member to complete an unexpired term shall be conducted at the next meeting of the council following the termination of service by the member and the giving of notice of the vacancy.

(d)  When vacancies occur for the Board of Law Examiners, notice shall be published in the official publication of the North Carolina State Bar giving the date by which any person desiring to make a suggestion for someone to be considered as a possible member of the Board of Law Examiners must submit the name to the North Carolina State Bar.

(e)  In considering an appointment to the Board of Law Examiners, the council may consult with current members of the Board of Law Examiners and consider factors such as geography, practice area, gender, and racial diversity.

(f)  No member of the council shall be a member of the Board of Law Examiners.

(g)  Any former Board of Law Examiners member being considered for appointment as emeritus member shall have served on the Board of Law Examiners for not less than five years.

 

History Note:        Authority G.S. 84-24;

Readopted Eff. December 8, 1994;

Amended Eff. June 9, 2016.

 

27 NCAC 01C .0102         EXAMINATION OF APPLICANTS FOR LICENSE

All applicants for admission to the Bar shall first obtain a certificate or license from the Board of Law Examiners in accordance with the rules and regulations of that board.

 

History Note:        Authority G.S. 84‑24;

Readopted Eff. December 8, 1994.

 

27 NCAC 01C .0103         ADMISSION TO PRACTICE

Upon receiving license to practice law from the Board of Law Examiners, the applicant shall be admitted to the practice thereof by taking the oath in the manner and form now provided by law.

 

History Note:        Authority G.S. 84‑24;

Readopted Eff. December 8, 1994.

 

27 NCAC 01C .0104         APPROVAL OF RULES AND REGULATIONS OF BOARD OF LAW EXAMINERS

The council shall, as soon as possible, after the presentation to it of rules and regulations for admission to the Bar, approve or disapprove such rules and regulations.  The rules and regulations approved shall immediately be certified to the Supreme Court.  Such rules and regulations as may not be approved by the council shall be the subject of further study and action, and for the purpose of study, the council and Board of Law Examiners may sit in joint session.  No action, however, shall be taken by the joint meeting, but each shall act separately, and no rule or regulation shall be certified to the Supreme Court until approved by the council.

 

History Note:        Authority G.S. 84‑24;

Readopted Eff. December 8, 1994.

 

27 NCAC 01C .0105         Approval Of Law Schools

Every applicant for admission to the North Carolina State Bar must meet the requirements set out in at least one of the numbered paragraphs below:

(1)           The applicant holds an LL.B or J.D. degree from a law school that was approved by the American Bar Association at the time the degree was conferred; or

(2)           Prior to August 1995, the applicant received an LL.B., J.D., LL.M., or S.J.D. degree from a law school that was approved by the council of the N.C. State Bar at the time the degree was conferred;

(3)           Prior to August 2005, the applicant received an LL.M or S.J.D. degree from a law school that was approved by the American Bar Association at the time the degree was conferred.

(4)           The applicant holds an LL.B. or J.D. degree from a law school that was approved for licensure purposes in another state of the United States or the District of Columbia and was licensed in such state or district.

 

History Note:        Authority G.S. 84-24;

Adopted March 3, 1999;

Amendments Approved by the Supreme Court: September 22, 2016;  March 5, 2015; February 27, 2003.

 

Section .0200 - Rules Governing Practical Training of Law Students

 

27 NCAC 01C .0201         Purpose

The following rules are adopted to encourage law schools to provide their students with supervised practical training of varying kinds during the period of their formal legal education and to enable law students to obtain supervised practical training while serving as legal interns for government agencies.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. March 6, 2008; June 7, 2001.

 

27 NCAC 01C .0202         Definitions

The following definitions shall apply to the terms used in this section:

(1)           Eligible persons - Persons who are unable financially to pay for the legal services of an attorney, as determined by a standard established by a judge of the General Court of Justice, a legal services corporation, or a law school legal aid clinic providing representation.  "Eligible persons" includes non-profit organizations serving low-income communities.

(2)           Government agencies - The federal or state government, any local government, or any agency, department, unit, or other entity of federal, state, or local government, specifically including a public defender's office or a district attorney's office.

(3)           Law school - An ABA accredited law school or a law school actively seeking accreditation from the ABA and licensed by the Board of Governors of the University of North Carolina.  If ABA accreditation is not obtained by a law school so licensed within three years of the commencement of classes, legal interns may not practice, pursuant to these rules, with any legal aid clinic of the law school.

(4)           Legal aid clinic - A department, division, program, or course in a law school that operates under the supervision of an active member of the State Bar and renders legal services to eligible persons.

(5)           Legal intern - A law student who is certified to provide supervised representation to clients under the provisions of the rules of this Subchapter.

(6)           Legal services corporation - A nonprofit North Carolina corporation organized exclusively to provide representation to eligible persons.

(7)           Supervising attorney - An active member of the North Carolina State Bar who satisfies the requirements of Rule .0205 of this Subchapter and who supervises one or more legal interns.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. March 6, 2008; March 6, 2002; June 7, 2001.

 

27 NCAC 01C .0203         Eligibility

To engage in activities permitted by these rules, a law student must satisfy the following requirements:

(1)           be enrolled in a law school approved by the Council of the North Carolina State Bar;

(2)           have completed at least three semesters of the requirements for a professional degree in law (J.D. or its equivalent);

(3)           be certified in writing by a representative of his or her law school, authorized by the dean of the law school to provide such certification, as being of good character with requisite legal ability and training to perform as a legal intern;

(4)           be introduced to the court in which he or she is appearing by an attorney admitted to practice in that court;

(5)           neither ask for nor receive any compensation or remuneration of any kind from any client for whom he or she renders services, but this shall not prevent an attorney, legal services corporation, law school, or government agency from paying compensation to the law student or charging or collecting a fee for legal services performed by such law student;

(6)           certify in writing that he or she has read and is familiar with the North Carolina Revised Rules of Professional Conduct and the opinions interpretive thereof.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. March 6, 2008;  June 7, 2001.

 

27 NCAC 01C .0204         Certification as Legal Intern

Upon receipt of the written materials required by Rule .0203(3), (6) and Rule .0205(6), the North Carolina State Bar shall certify that the law student may serve as a legal intern.  The certification shall be subject to the following limitations:

(1)           Duration.  The certification shall be effective for 18 months or until the announcement of the results of the first bar examination following the legal intern's graduation whichever is earlier.  If the legal intern passes the bar examination, the certification shall remain in effect until the legal intern is sworn-in by a court and admitted to the bar.

(2)           Withdrawal of Certification.  The certification shall be withdrawn by the State Bar, without hearing or a showing of cause, upon receipt of:

(i)            notice from a representative of the legal intern's law school, authorized to act by the dean of the law school, that the legal intern has not graduated but is no longer enrolled;

(ii)           notice from a representative of the legal intern's law school, authorized to act by the dean of the law school, that the legal intern is no longer in good standing at the law school;

(iii)          notice from a supervising attorney that the supervising attorney is no longer supervising the legal intern and that no other qualified attorney has assumed the supervision of the legal intern; or

(iv)          notice from a judge before whom the legal intern has appeared that the certification should be withdrawn.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. June 7, 2001.

 

27 NCAC .01c 0205         Supervision

(a) A supervising attorney shall

(1)           be an active member of the North Carolina State Bar who has practiced law as a full-time occupation for at least two years;

(2)           supervise no more than two legal interns concurrently, provided, however, there is no limit on the number of legal interns who may be supervised concurrently by an attorney who is a full or part-time member of a law school's faculty or staff whose primary responsibility as a faculty member is supervising legal interns in a legal aid clinic and, further provided, that an attorney who supervises legal interns through an externship or out-placement program of a law school legal aid clinic may supervise up to five legal interns;

(3)           assume personal professional responsibility for any work undertaken by a legal intern while under his or her supervision;

(4)           assist and counsel with a legal intern in the activities permitted by these rules and review such activities with the legal intern, all to the extent required for the proper practical training of the legal intern and the protection of the client;

(5)           read, approve and personally sign any pleadings or other papers prepared by a legal intern prior to the filing thereof, and read and approve any documents prepared by a legal intern for execution by a client or third party prior to the execution thereof,

(6)           prior to commencing the supervision, assume responsibility for supervising a legal intern by filing with the North Carolina State Bar a signed notice setting forth the period during which supervising attorney expects to supervise the activities of an identified legal intern, and that the supervising attorney will adequately supervise the legal internin accordance with these rules; and

(7)           notify the North Carolina State Bar in writing promptly whenever the supervision of a legal intern ceases.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. September 24, 2015; March 6, 2008; March 6, 2002; June 7, 2001.

 

27 NCAC 01C .0206         Activities

(a)  A properly certified legal intern may engage in the activities provided in this rule under the supervision of an attorney qualified and acting in accordance with the provisions of Rule .0205 of this subchapter.

(b)  Without the presence of the supervising attorney, a legal intern may give advice to a client, including a government agency, on legal matters provided that the legal intern gives a clear prior explanation that the legal intern is not an attorney and the supervising attorney has given the legal intern permission to render legal advice in the subject area involved.

(c)  A legal intern may represent an eligible person, the state in criminal prosecutions, a criminal defendant who is represented by the public defender, or a government agency in any proceeding before a federal, state, or local tribunal, including an administrative agency, if prior consent is obtained from the tribunal or agency upon application of the supervising attorney. Each appearance before the tribunal or agency shall be subject to any limitations imposed by the tribunal or agency including, but not limited to, the requirement that the supervising attorney physically accompany the legal intern.

(d)  In all cases under this rule in which a legal intern makes an appearance before a tribunal or agency on behalf of a client who is an individual, the legal intern shall have the written consent in advance of the client. The client shall be given a clear explanation, prior to the giving of his or her consent, that the legal intern is not an attorney. This consent shall be filed with the tribunal and made a part of the record in the case. In all cases in which a legal intern makes an appearance before a tribunal or agency on behalf a government agency, the consent of the government agency shall be presumed if the legal intern is participating in an internship program of the government agency. A statement advising the court of the legal intern’s participation in an internship program of the government agency shall be filed with the tribunal and made a part of the record in the case.

(e)  In all cases under this rule in which a legal intern is permitted to make an appearance before a tribunal or agency, subject to any limitations imposed by the tribunal, the legal intern may engage in all activities appropriate to the representation of the client, including, without limitation, selection of and argument to the jury, examination and cross-examination of witnesses, motions and arguments thereon, and giving notice of appeal.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. March 6, 2008; March 6, 2002; June 7, 2001.

 

27 NCAC 01C .0207         Use of Student's Name

(a)  A legal intern's name may properly

(1)           be printed or typed on briefs, pleadings, and other similar documents on which the legal intern has worked with or under the direction of the supervising attorney, provided the legal intern is clearly identified as a legal intern certified under these rules, and provided further that the legal intern shall not sign his or her name to such briefs, pleadings, or other similar documents;

(2)           be signed to letters written on the letterhead of the supervising attorney, legal aid clinic, or government agency, provided there appears below the legal intern's signature a clear identification that the legal intern is certified under these rules. An appropriate designation is "Certified Legal Intern under the Supervision of [supervising attorney]", and

(3)           be printed on a business card, provided the name of the supervising attorney also appears on the business card and there appears below the legal intern's name a clear statement that the legal intern is certified under these rules. An appropriate designation is "Certified Legal Intern under the Supervision of [supervising attorney]."

(b)  A student's name may not appear on the letterhead of a supervising attorney, legal aid clinic, or government agency.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. October 7, 2010; March 6, 2008; June 7, 2001.

 

27 NCAC 01C .0208         MISCELLANEOUS

27 NCAC 01C .0209         DEAN'S CERTIFICATE

27 NCAC 01C .0210         WITHDRAWAL OF DEAN’S CERTIFICATE

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Repealed Eff. June 7, 2001.

 

 

 

subchapter 01D – Rules of the standing committees of the north carolina state bar

 

section .0100 – PROCEDURES for ruling on questions of legal ethics

 

27 NCAC 01D .0101         DEFINITIONS

(a)  "Assistant executive director" shall mean the assistant executive director of the Bar.

(b)  "Attorney" shall mean any active member of the Bar.

(c)  "Bar" shall mean the North Carolina State Bar.

(d)  "Chairperson" shall mean the chairperson, or in his or her absence, the vice‑chairperson of the Ethics Committee of the Bar.

(e)  "Committee" shall mean the Ethics Committee of the Bar.

(f)  "Council" shall mean the council of the Bar.

(g)  "Ethics advisory" shall mean legal ethics opinion issued in writing by the executive director, the assistant executive director, or a designated member of the Bar's staff counsel.  All ethics advisories shall be subsequently reviewed and approved, withdrawn or modified by the committee.  Ethics advisories shall be designated by the letters "EA", numbered by year and order of issuance, and kept on file at the Bar.

(h)  "Ethics decision" shall mean a written ethics opinion issued by the council in response to a request for an ethics opinion which, because of its special facts or for other reasons, does not warrant issuance of a formal ethics opinion.  Ethics decisions shall be designated by the letters "ED," numbered by year and order of issuance, and kept on file at the Bar.

(i)  "Executive director" shall mean the executive director of the Bar.

(j)  "Formal ethics opinion" shall mean a published opinion issued by the council to provide ethical guidance for attorneys and to establish a principle of ethical conduct.  A formal ethics opinion adopted under the Revised Rules of Professional Conduct (effective July 24, 1997, and as comprehensively revised in 2003) shall be designated as a "Formal Ethics Opinion" and numbers by year and order of issuance. Formal ethics opinions adopted under the repealed Rules of Professional Conduct (effective October 7, 1985 to July 23, 1997) are designated by the letters "RPC" numbered serially.  Formal ethics opinions adopted under the repealed Code of Professional Conduct (effective January 1, 1974 to October 6, 1985) are designated by the letters "CPR" and numbered serially.  Formal ethics opinion adopted under the repealed Rules of Professional Conduct and the repealed Code of Professional Conduct are binding unless overruled by a provision of the Bar's current code of ethics, a revision of the rule of ethics upon which the opinion is based, or a subsequent formal ethics opinion on point.

(k)  "Grievance Committee" shall mean the Grievance Committee of the Bar.

(l)  "Informal ethics advisory" shall mean an informal ethics opinion communicated orally or via electronic mail by the executive director, the assistant executive director, or a designated member of the Bar's Legal staff counsel.  A written record documenting the name of the inquiring attorney, the date of the informal ethics advisory, and the substance of the advice given shall be kept on file at the Bar.  An informal ethics advisory is not binding upon the Bar in a subsequent disciplinary proceeding.

(m)  "President" shall mean the president of the Bar, or, in his or her absence, the presiding officer of the council.

(n)  "Published" shall mean published for comment in the North Carolina State Bar Newsletter (prior to fall 1996), the North Carolina State Bar Journal (fall of 1996 and thereafter) or other appropriate publications of the North Carolina State Bar.

(o)  "Revised Rules of Professional Conduct" shall mean the code of ethics of the Bar effective July 24, 1997, and as comprehensively revised in 2003.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. February 5, 2004; March 5, 1998.

 

27 NCAC 01D .0102         REQUESTS FOR LEGAL ETHICS OPINIONS AND ETHICS ADVISORIES (GENERAL PROVISIONS)

(a)  Any attorney or citizen may request the Bar to rule on actual or contemplated professional conduct of an attorney in the form and manner provided hereinafter. The grant or denial of the request rests with the discretion of the executive director, assistant executive director, committee, or the council.

(b)  Attorneys may initiate a request for an ethics advisory either in writing, by telephone, or in person regarding conduct which they contemplate and in good faith believe is either a routine matter or requires urgent action in order to protect some legal right, privilege, or interest. If the request is initiated verbally, the requesting attorney must promptly confirm the request in writing.

(c)  A request for an ethics advisory, ethics decision, or legal ethics opinion shall present in detail to the executive director or assistant executive director all operative facts upon which the request is based. All requests for either a legal ethics opinion or an ethics decision shall be made in writing.

(d)  Any citizen may request either a legal ethics opinion or an ethics decision through any councilor of the judicial district of his or her residence or principal place of business except when the request is regarding the propriety of said councilor's conduct, in which case the citizen may make the request through another councilor in the district or a councilor in an adjoining judicial district.

(e)  Any attorney, including a councilor acting pursuant to Paragraph (d) hereinabove, who requests either a legal ethics opinion or an ethics decision concerning acts or contemplated professional conduct of another attorney, shall state the name of that attorney and identify all persons who the requesting attorney has reason to believe would be substantially affected by the question or questions advanced. The councilor shall exercise good faith in preparing the request on behalf of the citizen.

(f)  If an attorney willfully fails to identify an attorney who the requesting attorney has reason to believe would be substantially affected by the requested ethics advisory, legal ethics opinion, or ethics decision, his or her willful failure may be treated as misconduct. The requesting attorney shall receive no right, benefit, or immunity under any opinion which has been issued under such circumstances, and the opinion shall be reexamined de novo under the procedures delineated in Rule .0104 of this Subchapter.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .0103         ETHICS ADVISORIES

(a)  The executive director, assistant executive director, or designated staff counsel may honor or deny a request for an informal ethics advisory. Except as provided in Rule .0102(b), an attorney requesting an opinion concerning another attorney's professional conduct, past conduct, or matters of first impression shall be asked to submit a written inquiry for referral to the committee. An attorney requesting an opinion involving matters of widespread interest to the Bar or particularly complex factual circumstances may also be asked to submit a written inquiry for referral to the committee.

(b)  The Bar's program for providing informal ethics advisories to inquiring attorneys is a designated lawyer's assistance program approved by the Bar and information received by the executive director, assistant executive director, or designated staff counsel from an attorney seeking an informal ethics advisory shall be confidential information pursuant to Rule 1.6(c) of the Revised Rules of Professional Conduct (2003); provided, however, such confidential information may be disclosed as allowed by Rule 1.6(b) and as necessary to respond to a false or misleading statement made about an informal ethics advisory. Further, if and attorney's response to a grievance proceeding relies in whole or in part upon the receipt of an informal ethics advisory, confidential information may be disclosed to Bar counsel, the Grievance Committee or other appropriate disciplinary authority.

(c)  An ethics advisory issued by the executive director or assistant executive director shall be promulgated under the authority of the committee and in accordance with such guidelines as the committee may establish and prescribe from time to time.

(d)  An ethics advisory shall sanction or disapprove only the matter in issue, not otherwise serve as precedent and not be published.

(e)  Ethics advisories shall be reviewed periodically by the committee. If, upon review, a majority of the committee present and voting decides that an ethics advisory should be withdrawn, the requesting attorney shall be notified in writing of the committee's decision by the executive director or assistant executive director. Until such notification, the attorney shall be deemed to have acted ethically and in good faith if he or she acts pursuant to the ethics advisory which is later withdrawn or modified.

(f)  If an inquiring attorney disagrees with the ethics advisory issued to him or her, the attorney may request reconsideration of the ethics advisory by writing to the committee prior to the next regularly scheduled meeting of the committee.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. February 5, 2004; March 5, 1998.

 

27 NCAC 01D .0104         LEGAL ETHICS OPINIONS AND DECISIONS

(a)  Requests for legal ethics opinions or ethics decisions shall be made in writing and submitted to the executive director or assistant executive director who, after determining that a request is in compliance with Rule .0102 of this Subchapter, shall transmit the request to the chairperson of the committee.

(b)  If a legal ethics opinion or ethics decision is requested concerning contemplated or actual conduct of another attorney, the chairperson shall notify that attorney and provide him or her with the opportunity to be heard, along with the person who requested the opinion, under such guidelines as may be established by the committee. The chairperson shall notify any additional person or group he or she deems appropriate and provide them an opportunity to be heard.

(c)  Upon initial consideration of the request, by vote of a majority of the members of the committee present at the meeting, the committee shall prepare a written proposed response to the inquiry and shall determine whether to issue the response as a proposed ethics decision or a proposed formal ethics opinion. Prior to the next regularly scheduled meeting of the committee, all proposed formal ethics opinions shall be published and all proposed ethics decisions shall be circulated to the members of the council.

(d)  Prior to the next regularly scheduled meeting of the committee, any interested person or group may submit a written request to reconsider a proposed formal ethics opinion or a proposed ethics decision and may ask to be heard by the committee. The committee, under such guidelines as it may adopt, may allow or deny such request.

(e)  Upon reconsideration of a proposed formal ethics opinion or proposed ethics decision, the committee may, by vote of not less than a majority of the duly appointed members of the committee, revise the proposed formal ethics opinion or proposed ethics decision.  Prior to the next regularly scheduled meeting of the committee, all revised proposed formal ethics opinions shall be published and all revised proposed ethics decisions shall be circulated to the members of the council.

(f)  Upon completion of the process, the committee shall determine, by a vote of not less than a majority of the duly appointed members of the committee, whether to transmit a proposed formal ethics opinion or proposed ethics decision to the council with a recommendation to adopt.

(g)  Any interested person or group may request to be heard by the council prior to a vote on the adoption of a proposed formal ethics opinion or ethics decision. Whether permitted to appear before the council or not, the person or group has the right to file a written brief with the council under such rules as may be established by the council.

(h)  The council's action on a proposed formal ethics opinion or ethics decision shall be determined by a vote of the majority of the council present and voting. Notice of such action shall be provided to interested persons by the method deemed most appropriate by the chairperson.

(i)  A formal ethics opinion or ethics decision may be reconsidered or withdrawn by the council pursuant to rules which it may establish from time to time.

(j)  To vote, a member of the committee must be physically present at a meeting.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. February 5, 2004; March 8, 1998.

 

27 NCAC 01D .0105         Procedures for Meetings of the Ethics Committee

(a)  Consent Agenda.  The agenda for a meeting of the committee shall include a consent agenda consisting of those proposed formal ethics opinions, proposed ethics decisions, and ethics advisories (collectively "proposed opinions") published, circulated, or mailed during the preceding quarter that the chairperson, vice-chair, and staff counsel agree do not warrant discussion by the full committee.

(b)  Vote on Consent Agenda.  The consent agenda shall be considered at the beginning of the meeting of the committee following the consideration of administrative matters.  Any committee member may make a non-debatable motion to remove an item from the consent agenda for separate discussion and vote.  The motion must receive an affirmative vote of one-third of all of the duly appointed members of the committee in order for an item to be removed from the consent agenda.  The items remaining upon the consent agenda shall be considered together upon a non-debatable motion to approve the remaining items on the consent agenda.  The motion must pass by a vote of not less than a majority of the duly appointed members of the committee pursuant to Rule .0104(f) of this Subchapter.  All items on a consent agenda so approved shall be transmitted to the council with a recommendation to adopt.

 

History Note:        Authority G.S. 84-23;

Adopted Eff. March 11, 2010.

 

Section .0200 - Procedures for the Authorized Practice Committee

 

27 NCAC 01D .0201         General Provisions

The purpose of the committee on the authorized practice of law is to protect the public from being unlawfully advised and represented in legal matters by unqualified persons.

 

History Note:        Authority G.S. 84-37;

Readopted Eff. December 8, 1994;

Amended Eff. February 3, 2000.

 

27 NCAC 01D .0202         PROCEDURE

(a)  The procedure to prevent and restrain the unauthorized practice of law shall be in accordance with the provisions hereinafter set forth.

(b)  District bars shall not conduct separate proceedings into unauthorized practice of law matters but shall assist and cooperate with the North Carolina State Bar in reporting and investigating matters of alleged unauthorized practice of law.

 

History Note:        Authority G.S. 84‑37;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .0203         Definitions

Subject to additional definitions contained in other provisions of this subchapter, the following words and phrases, when used in this subchapter, have the meanings set forth in this Rule, unless the context clearly indicates otherwise.

 

(1)           Appellate division - the appellate division of the General Court of Justice.

(2)           Chairperson of the Authorized Practice Committee - the councilor appointed to serve as chairperson of the Authorized Practice Committee of the State Bar.

(3)           Complainant or the complaining witness - any person who has complained of the conduct of any person, firm or corporation as relates to alleged unauthorized practice of law.

(4)           Complaint - a formal pleading filed in the name of the North Carolina State Bar in the superior court against a person, firm or corporation after a finding of probable cause.

(5)           Council - the Council of the North Carolina State Bar.

(6)           Councilor - a member of the Council of the North Carolina State Bar.

(7)           Counsel - the counsel of the North Carolina State Bar appointed by the council.

(8)           Court or courts of this state - a court authorized and established by the Constitution or laws of the state of North Carolina.

(9)           Defendant - any person, firm or corporation against whom a complaint is filed after a finding of probable cause.

(10)         Investigation - the gathering of information with respect to alleged unauthorized practice of law.

(11)         Investigator - any person designated to assist in investigation of alleged unauthorized practice of law.

(12)         Letter of notice - a communication to an accused individual or corporation setting forth the substance of alleged conduct involving unauthorized practice of law.

(13)         Office of the counsel - the office and staff maintained by the counsel of the North Carolina State Bar.

(14)         Office of the secretary - the office and staff maintained by the secretary of the North Carolina State Bar.

(15)         Party - after a complaint has been filed, the North Carolina State Bar as plaintiff and the accused individual or corporation as defendant.

(16)         Plaintiff - after a complaint has been filed, the North Carolina State Bar.

(17)         Preliminary Hearing - hearing by the Authorized Practice Committee to determine whether probable cause exists.

(18)         Probable Cause - a finding by the Authorized Practice Committee that there is reasonable cause to believe that a person or corporation has engaged in the unauthorized practice of law justifying legal action against such person or corporation.

(19)         Secretary - the secretary of the North Carolina State Bar.

(20)         Supreme Court - the Supreme Court of North Carolina.

 

History Note:        Authority G.S. 84-37;

Readopted Eff. December 8, 1994;

Amended October 6, 2004; February 3, 2000.

 

 

27 NCAC 01D .0204         State Bar Council - Powers and Duties

The Council of the North Carolina State Bar shall have the power and duty:

(1)           to supervise the administration of the Authorized Practice Committee in accordance with the provisions of this Subchapter;

(2)           to appoint a counsel. The counsel shall serve at the pleasure of the council.  The counsel shall be a member of the North Carolina State Bar but shall not be permitted to engage in the private practice of law.

 

History Note:        Authority G.S. 84-37;

Readopted Eff. December 8, 1994;

Amended Eff. February 3, 2000.

 

27 NCAC 01D .0205         Chairperson of the Authorized Practice Committee - Powers and Duties

(a)  The chairperson of the Authorized Practice Committee shall have the power and duty:

(1)           to supervise the activities of the counsel;

(2)           to recommend to the Authorized Practice Committee that an investigation be initiated;

(3)           to recommend to the Authorized Practice Committee that a complaint be dismissed;

(4)           to direct a letter of notice to an accused person or corporation or direct the counsel to issue letters of notice in such cases or under such circumstances as the chairperson deems appropriate;

(5)           to notify the accused and any complainant that a complaint has been dismissed;

(6)           to call meetings of the Authorized Practice Committee for the purpose of holding preliminary hearings;

(7)           to issue subpoenas in the name of the North Carolina State Bar or direct the secretary to issue such subpoenas;

(8)           to administer oaths or affirmations to witnesses;

(9)           to file and verify complaints and petitions in the name of the North Carolina State Bar.

(b)  The president, vice-chairperson or senior council member of Authorized Practice Committee shall perform the functions of the chairperson of the committee in any matter when the chairperson or vice-chairperson is absent or disqualified.

 

History Note:        Authority G.S. 84-37;

Readopted Eff. December 8, 1994;

Amended Eff. February 3, 2000.

 

27 NCAC 01D .0206         Authorized Practice Committee - Powers and Duties

The Authorized Practice Committee shall have the power and duty

(1)           to direct the counsel to investigate any alleged unauthorized practice of law by any person, firm, or corporation in this State;

(2)           to hold preliminary hearings, find probable cause, and recommend to the Executive Committee that a complaint for injunction be filed in the name of the State Bar against the respondent;

(3)           to dismiss allegations of the unauthorized practice of law upon a finding of no probable cause;

(4)           to issue letters of caution, which may include a demand to cease and desist, to respondents in cases where the Committee concludes either that:

(a)           there is probable cause established to believe respondent has engaged in the unauthorized practice of law in North Carolina, but

(i)            respondent has agreed to refrain from engaging in the conduct in the future;

(ii)           respondent is unlikely to engage in the conduct again; or

(iii)          either referral to a district attorney or complaint for injunction is not warranted under the circumstances; or

(b)           there is no probable cause established to believe respondent has engaged in the unauthorized practice of law in North Carolina, but

(i)            the conduct of the respondent may be improper and may become the basis for injunctive relief if continued or repeated; or

(ii)           the Committee otherwise finds it appropriate to caution the respondent.

(5)           to direct counsel to stop an investigation and take no action;

(6)           to refer a matter to another agency, including the district attorney for criminal prosecution and to other committees of the North Carolina State Bar; and

(7)           to issue advisory opinions in accordance with procedures adopted by the council as to whether the actual or contemplated conduct of nonlawyers would constitute the unauthorized practice of law in North Carolina.

 

History Note:        Authority G.S. 84-37;

Readopted Eff. December 8, 1994;

Amended Eff. October 6, 2004; February 3, 2000, February 20, 1995.

 

 

27 NCAC 01D .0207         Counsel - Powers and Duties

The counsel shall have the power and duty:

(1)           to initiate an investigation concerning the alleged unauthorized practice of law;

(2)           to direct a letter of notice to a respondent when authorized by the chairperson of the Authorized Practice Committee;

(3)           to investigate all matters involving alleged unauthorized practice of law whether initiated by the filing of a complaint or otherwise;

(4)           to recommend to the chairperson of the Authorized Practice Committee that a matter be dismissed because the complaint is frivolous or falls outside the council's jurisdiction; that a letter of notice be issued; or that the matter be considered by the Authorized Practice Committee to determine whether probable cause exists;

(5)           to prosecute all unauthorized practice of law proceedings before the Authorized Practice Committee and the courts;

(6)           to represent the State Bar in any trial or other proceedings concerned with the alleged unauthorized practice of law;

(7)           to employ assistant counsel, investigators, and other administrative personnel in such numbers as the council may from time to time authorize;

(8)           to maintain permanent records of all matters processed and the disposition of such matters;

(9)           to perform such other duties as the council may from time to time direct.

 

History Note:        Authority G.S. 84-37;

Readopted Eff. December 8, 1994;

Amended Eff. February 3, 2000.

 

27 NCAC 01D .0208         Suing for Injunctive Relief

(a)  Upon receiving a recommendation from the Authorized Practice Committee that a complaint seeking injunctive relief be filed, the Executive Committee shall review the matter at the same quarterly meeting and determine whether the recommended action is necessary to protect the public interest and ought to be prosecuted.

(b)  If the Executive Committee decides to follow the Authorized Practice Committee's recommendation, it shall direct the counsel to prepare the necessary pleadings as soon as practical for signature by the chairperson and filing with the appropriate tribunal.

(c)  If the Executive Committee decides not to follow the Authorized Practice Committee's recommendation, the matter shall go before the council at the same quarterly meeting to determine whether the recommended action is necessary to protect the public interest and ought to be prosecuted.

(d)  If the council decides not to follow the Authorized Practice Committee's recommendation, the matter shall be referred back to the Authorized Practice Committee for alternative disposition.

(e)  If probable cause exists to believe that a respondent is engaged in the unauthorized practice of law and action is needed to protect the public interest before the next quarterly meeting of the Authorized Practice Committee, the chairperson, with the approval of the president, may file and verify a complaint or petition in the name of the North Carolina State Bar.

 

History Note:        Authority G.S. 84-37;

Adopted Eff. February 3, 2000.

 

Section .0300 - Disaster Response Plan

 

27 NCAC 01D .0301         The Disaster Response Team

(a)  The disaster response team should be composed of the following:

(1)           the president of the State Bar, or if the president is unavailable, another officer of the State Bar;

(2)           the counsel or his or her designee;

(3)           the director of communications or his or her designee;

(4)           the president of the Young Lawyers Division of the North Carolina Bar Association ("YLD") or his or her designee;

(5)           the chairperson of the Client Assistance Committee; and

(6)           other persons, such as the applicable local bar president(s), appointed by the president as necessary or appropriate for response in each individual situation.

(b)  Implementation of the disaster response plan shall be the decision of the president or, if he or she is unavailable, the president-elect, vice-president, or immediate past-president.

(c)  The counsel, or his or her designee, shall be the coordinator of the disaster response team ("coordinator").  If the president or other officer is unavailable to decide whether to implement the disaster response plan for a particular event, then and only then shall the coordinator be authorized to make the decision to implement the disaster response plan.

(d)  It shall be the responsibility of the coordinator to conduct periodic educational programs regarding the disaster response plan and to report regularly to the Client Assistance Committee.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. February 3, 2000.

 

27 NCAC 01D .0302         GENERAL POLICY AND OBJECTIVES

(a)  Rapid Response

(1)           It is essential that the State Bar establish an awareness and sensitivity to disaster situations.

(2)           The disaster response plan will be disseminated through the publications of the State Bar and continuing legal education programs.

(3)           The disaster response team shall be properly trained to respond to initial inquiries and appear at the site.

(4)           The disaster response team will provide victims and/or their families with written materials when requested.

(b)  Effective Mobilization of Resources

(1)           An appropriate press release shall be prepared and disseminated.

(2)           The coordinator shall confirm the individuals who will make up the disaster response team.

(3)           Individual assignments of responsibilities shall be made to members of the team by the coordinator.

(4)           The coordinator shall arrange for the State Bar to be represented at any victims' assistance center established at the disaster site.  The coordinator will request the YLD to assist the State Bar by providing additional staffing.

(5)           The coordinator shall contact the local district attorney(s) and request that he or she prosecute any persons engaging in the unauthorized practice of law (N.C.G.S. 84‑2.1, 84‑4, 84‑7 and 84‑8); improper solicitation (N.C.G.S. 84‑38); division of fees (N.C.G.S. 84‑38); and/or the common law crime of barratry (frequently stirring up suits and quarrels between persons).

(c)  Publicity

(1)           It is important to focus on the fact that disaster response is a public service effort.

(2)           The disaster response team shall ensure approval and dissemination of an even‑handed press release.

(3)           The director of communications will be utilized for press contacts.

(4)           It is important to ensure that the press release indicates that the State Bar is a resource designed to assist victims, if requested.

(d)  On‑site Representation

(1)           It is normally desirable for the disaster response team to arrive at the site of the disaster as soon as possible.

(2)           Only the president or president‑elect or their designee will conduct press interviews on behalf of the State Bar.

(3)           The availability of the State Bar at the site of the disaster should be made known to victims.

(4)           The disaster response team shall establish a liaison with the State Emergency Management Division, Red Cross, Salvation Army, and other such organizations to provide assistance to victims and furnish written materials to these organizations.

(5)           It is crucial that the State Bar not become identified with either side of any potential controversy.

(6)           All members of the disaster response team must avoid making comments on the merits of claims that my arise from the disaster.

(e)  Dissemination of Information to Affected Individuals

(1)           The team shall emphasize in all public statements that the State Bar's major and only legitimate concern is for those persons affected by the disaster and the public interest.

(2)           The State Bar's role is limited to monitoring compliance with its disciplinary rules, to requesting reports of any violation needing investigation, and to informing victims of rules concerning client solicitation.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .0303         Report on Results

(a)  The coordinator will promptly convene a meeting of groups involved in the disaster to review the effectiveness of the plan in that particular disaster.

(b)  The coordinator shall prepare a written report concerning significant matters relating to the disaster.

(c)  The written report shall be submitted to the Client Assistance Committee as well as other involved organizations.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. February 3, 2000.

 

SECTION .0400 ‑ RULES AND REGULATIONS RELATING TO THE APPOINTMENT OF COUNSEL FOR INDIGENT DEFENDANTS IN CERTAIN CRIMINAL CASES

 

27 NCAC 01D .0401         Authority

27 NCAC 01D .0402         Determination of indigency

27 NCAC 01D .0403         Waiver of Counsel

27 NCAC 01D .0404         Appointment of Counsel

27 NCAC 01D .0405         Withdrawal by Counsel

27 NCAC 01D .0406         Procedure for Payment of Compensation

 

History Note:        Authority G.S. 7A-459;

Readopted Eff. December 8, 1994;

Amended Eff. May 4, 2000;

Repealed Eff. October 6, 2004.

 

SECTION .0500 - MODEL PLAN FOR APPOINTMENT OF COUNSEL FOR INDIGENT DEFENDANTS IN CERTAIN CRIMINAL CASES

 

27 NCAC 01D .0501         purpose

27 NCAC 01D .0502         Applicability

27 NCAC 01D .0503         Lists of Attorneys

27 NCAC 01D .0504         Committee on indigent appointments

27 NCAC 01D .0505         Placement of Attorneys on List

27 NCAC 01D .0506         Appointment Procedure (Noncapital Cases)

27 NCAC 01D .0507         Appointments in Capital Cases

27 NCAC 01D .0508         Appellate Appointments

27 NCAC 01D .0509         Administration

27 NCAC 01D .0510         Miscellaneous

 

History Note:        Authority G.S. 7A-459;

Readopted Eff. December 8, 1994;

Repealed Eff. October 6, 2004.

 

Section .0600 - Rules Governing the Lawyer Assistance Program

 

27 NCAC 01D .0601         Purpose

The purpose of the lawyer assistance program is to: (1) protect the public by assisting lawyers and judges who are professionally impaired by reason of substance abuse, addiction, or debilitating mental condition; (2) assist impaired lawyers and judges in recovery; and (3) educate lawyers and judges concerning the causes of and remedies for such impairment.

 

History Note:        Authority G.S. 84-22; 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. February 3, 2000.

 

27 NCAC 01D .0602         Authority

The council of the North Carolina State Bar hereby establishes the Lawyer Assistance Program Board (the board) as a standing committee of the council.  The board has the authority to establish policies governing the State Bar's lawyer assistance program as needed to implement the purposes of this program.  The authority conveyed is not limited by, but is fully coextensive with, the authority previously vested in the State Bar's predecessor program, the Positive Action for Lawyers (PALS) program.

 

History Note:        Authority G.S. 84-22; 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. February 3, 2000.

 

27 NCAC 01D .0603         Operational Responsibility

The board shall be responsible for operating the lawyer assistance program subject to the statutes governing the practice of law, the authority of the council, and the rules of the board.

 

History Note:        Authority G.S. 84-22; 84-23;

Adopted Eff. February 3, 2000.

 

27 NCAC 01D .0604         Size of Board

The board shall have nine members. Three of the members shall be councilors of the North Carolina State Bar at the time of appointment; three of the members shall be non-lawyers or lawyers with experience and training in the fields of mental health, substance abuse or addiction; and three of the members shall be lawyers who are currently volunteers to the lawyer assistance program. In addition, the board may have the dean of a law school in North Carolina, or the dean's designee, appointed by the council as an ex officio member.  No member of the Grievance Committee shall be a member of the board.

 

History Note:        Authority G.S. 84-22; 84-23;

Adopted Eff. February 3, 2000;

Amended Eff. November 16, 2006.

 

27 NCAC 01D .0605         Appointment of Members; When; Removal

The initial members of the board shall be appointed at the next meeting of the council following the creation of the board.  Thereafter, members shall be appointed or reappointed, as the case may be, at the first quarterly meeting of the council each calendar year, provided that a vacancy occurring by reason of death, resignation, or removal shall be filled by appointment of the council at the next quarterly meeting following the event giving rise to the vacancy, and the person so appointed shall serve for the balance of the vacated term.  Any member of the board may be removed at any time by an affirmative vote of a majority of the members of the council in session at a regularly called meeting.

 

History Note:        Authority G.S. 84-22; 84-23;

Adopted Eff. February 3, 2000.

 

27 NCAC 01D .0606         Term of Office and Succession

The members of the board shall be divided into three classes of equal size to serve in the first instance for terms expiring one, two and three years, respectively, after the first quarterly meeting of the council following creation of the board. Of the initial board, three members (one councilor, one mental health, substance abuse or addiction professional, and one lawyer-volunteer to the lawyer assistance program) shall be appointed to terms of one year; three members (one councilor, one mental health, substance abuse or addiction professional, and one lawyer-volunteer) shall be appointed to terms of two years; and three members (one councilor, one mental health, substance abuse or addiction professional, and one lawyer-volunteer) shall be appointed to terms of three years. Thereafter, the successors in each class of board members shall be appointed to serve for terms of three years. No member shall serve more than two consecutive three-year terms, in addition to service prior to the beginning of a full three-year term, without having been off the board for at least three years. Members of the board serving ex officio shall serve one-year terms and may serve up to three consecutive terms.

 

History Note:        Authority G.S. 84-22; 84-23;

Adopted Eff. February 3, 2000;

Amended Eff. November 16, 2006.

 

27 NCAC 01D .0607         Appointment of Chairperson

The chairperson of the board shall be appointed by the council annually at the time of its appointment of board members.  The chairperson may be re-appointed for an unlimited number of one-year terms.  The chairperson shall preside at all meetings of the board, shall prepare and present to the council the annual report of the board, and shall represent the board in its dealings with the public.  A vacancy occurring by reason of death, resignation, or removal shall be filled by appointment of the council at the next quarterly meeting following the event giving rise to the vacancy, and the person so appointed shall serve for the balance of the vacated term.

 

History Note:        Authority G.S. 84-22; 84-23;

Adopted Eff. February 3, 2000.

 

27 NCAC 01D .0608         Appointment of Vice-Chairperson

The vice-chairperson of the board shall be appointed by the council annually at the time of its appointment of board members.  The vice-chairperson may be re-appointed for an unlimited number of one-year terms.  The vice-chairperson shall preside at and represent the board in the absence of the chairperson and shall perform such other duties as may be assigned to him or her by the chairperson or by the board.  A vacancy occurring by reason of death, resignation, or removal shall be filled by appointment of the council at the next quarterly meeting following the event giving rise to the vacancy, and the person so appointed shall serve for the balance of the vacated term.

 

History Note:        Authority G.S. 84-22; 84-23;

Adopted Eff. February 3, 2000.

 

27 NCAC 01D .0609         Source of Funds

Funding for the program shall be provided from the general and appropriate special funds of the North Carolina State Bar and such other funds as may become available by grant or otherwise.

 

History Note:        Authority G.S. 84-22; 84-23;

Adopted Eff. February 3, 2000.

 

27 NCAC 01D .0610         Meetings

The annual meeting of the board shall be held in October of each year in connection with the annual meeting of the North Carolina State Bar.  The board by resolution may set regular meeting dates and places.  Special meetings of the board may be called at any time upon notice given by the chairperson, the vice-chairperson, or any two members of the board.  Notice of meeting shall be given at least two days prior to the meeting by mail, telegram, facsimile transmission, electronic mail or telephone.  A quorum of the board for conducting its official business shall be a majority of the members serving at a particular time.

 

History Note:        Authority G.S. 84-22; 84-23;

Adopted Eff. February 3, 2000.

 

27 NCAC 01D .0611         Annual Report

The board shall prepare at least annually a report of its activities and shall present the same at the annual meeting of the council.

 

History Note:        Authority G.S. 84-22; 84-23;

Adopted Eff. February 3, 2000.

 

27 NCAC 01D .0612         Powers and Duties of the Board

In addition to the powers and duties set forth elsewhere in these rules, the board shall have the following powers and duties:

(1)           to exercise general supervisory authority over the administration of the lawyer assistance program consistent with these rules;

(2)           to implement programs to investigate and evaluate reports that a lawyer's ability to practice law is impaired because of substance abuse, depression, or other debilitating mental condition; to confer with any lawyer who is the subject of such a report; and, if the report is verified, to provide referrals and assistance to the impaired lawyer;

(3)           to adopt and amend regulations consistent with these rules with the approval of the council;

(4)           to delegate authority to the staff of the lawyer assistance program subject to the review of the council;

(5)           to delegate authority to investigate, evaluate, and intervene with impaired lawyers to committees composed of qualified volunteer lawyers and non-lawyers;

(6)           to submit an annual budget for the lawyer assistance program to the council for approval and to ensure that expenses of the board do not exceed the annual budget approved by the council;

(7)           to report annually on the activities and operations of the board to the council and make any recommendations for changes in the rules or methods of operation of the lawyer assistance program;

(8)           to implement programs to investigate, evaluate, and intervene in cases referred to it by a disciplinary body, and to report the results of the investigation and evaluation to the referring body;

(9)           to promote programs of education and awareness for lawyers, law students, and judges about the causes and remedies of lawyer impairment;

(10)         to train volunteer lawyers to provide peer support, assistance and monitoring for impaired lawyers; and

(11)         to administer the PALS revolving loan fund or other similar fund that may be established for the board's program to assist lawyers who are impaired because of a debilitating mental condition.

 

History Note:        Authority G.S. 84-22; 84-23;

Adopted Eff. February 3, 2000.

 

27 NCAC 01D .0613         Confidentiality

The lawyer assistance program is an approved lawyers' assistance program in accordance with the requirements of Rule 1.6(c) of the Revised Rules of Professional Conduct.  Except as noted herein and otherwise required by law, information received during the course of investigating, evaluating, and assisting an impaired lawyer shall be privileged and held in the strictest confidence by the staff of the lawyer assistance program, the members of the board, and the members of any committee of the board.  If a report of impaired condition is made by members of a lawyer's family, and there is good cause shown, the board may, in its discretion, release information to appropriate members of the lawyer's family if the board or its duly authorized committee determines that such disclosure is in the best interest of the impaired lawyer.

 

History Note:        Authority G.S. 84-22; 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. February 3, 2000.

 

27 NCAC 01D .0614         Reserved

 

History Note:        Authority G.S. 84-22; 84-23; 84-28;

Readopted Eff. December 8, 1994;

Amended Eff. February 3, 2000;

Repealed Eff. November 16, 2006.

 

27 NCAC 01D .0615         Regional Chapters

A committee may, under appropriate rules and regulations promulgated by the board, establish regional chapters, composed of qualified volunteer lawyers and non-lawyers.  A regional chapter may perform any or all of the duties and functions set forth in Section .0600 of this Subchapter to the extent provided by the rules of the board.

 

History Note:        Authority G.S. 84-22; 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. February 3, 2000.

 

27 NCAC 01D .0616         Suspension for Impairment, Reinstatement

If it appears that a lawyer's ability to practice law is impaired by substance abuse and/or chemical addiction, the board, or its duly authorized committee, may petition any superior court judge to issue an order, pursuant to the court's inherent authority, suspending the lawyer's license to practice law in this state for up to 180 days.

(a)           The petition shall be supported by affidavits of at least two persons setting out the evidence of the lawyer's impairment.

(b)           The petition shall be signed by the executive director of the lawyer assistance program and the executive director of the State Bar.

(c)           The petition shall contain a request for a protective order sealing the petition and all proceedings respecting it.

(d)           Except as set out in 27 NCAC 01D .0606(j) of this Rule, the petition shall request the court to issue an order requiring the attorney to appear in not less than 10 days and show cause why the attorney should not be suspended from the practice of law.  No order suspending an attorney's license shall be entered without notice and a hearing, except as provided in 27 NCAC 01D .0606(j) of this Rule.

(e)           The order to show cause shall be served upon the attorney, along with the State Bar's petition and supporting affidavits, as provided in Rule 4 of the North Carolina Rules of Civil Procedure.

(f)            At the show cause hearing, the State Bar shall have the burden of proving by clear, cogent, and convincing evidence that the lawyer's ability to practice law is impaired.

(g)           If the court finds that the attorney is impaired, the court may enter an order suspending the attorney from the practice of law for up to 180 days.  The order shall specifically set forth the reasons for its issuance.

(h)           At any time following entry of an order suspending an attorney, the attorney may petition the court for an order reinstating the attorney to the practice of law.

(i)            A hearing on the reinstatement petition will be held no later than 10 days from the filing of the petition, unless the suspended lawyer agrees to a continuance. At the hearing, the suspended lawyer will have the burden of establishing by clear, cogent, and convincing evidence the following: (1) the lawyer's ability to practice law is no longer impaired; (2) the lawyer's debilitating condition is being treated and/or managed; (3) it is unlikely that the inability to practice law due to the impairment will recur; and (4) it is unlikely that the interest of the public will be unduly threatened by the reinstatement of the lawyer.

(j)            No suspension of an attorney's license shall be allowed without notice and a hearing unless:

(1)           the State Bar files a petition with supporting affidavits, as provided in 27 NCAC 01D .0606(a)-(c) of this Rule.

(2)           the State Bar's petition and supporting affidavits demonstrate by clear, cogent, and convincing evidence that immediate and irreparable harm, injury, loss, or damage will result to the public, to the lawyer who is the subject of the petition, or to the administration of justice before notice can be given and a hearing had on the petition.

(3)           the State Bar's petition specifically seeks the temporary emergency relief of suspending ex parte the attorney's license for up to 10 days or until notice be given and a hearing held, whichever is shorter, and the State Bar's petition requests the court to endorse an emergency order entered hereunder with the hour and date of its entry.

(4)           the State Bar's petition requests that the emergency suspension order expire by its own terms 10 days from the date of entry, unless, prior to the expiration of the initial 10-day period, the court agrees to extend the order for an additional 10-day period for good cause shown or the respondent attorney agrees to an extension of the suspension period.

(k)           The respondent attorney may apply to the court at any time for an order dissolving the emergency suspension order.  The court may dissolve the emergency suspension order without notice to the State Bar or hearing, or may order a hearing on such notice as the court deems proper.

(l)            The North Carolina State Bar shall not be required to provide security for payment of costs or damages prior to entry of a suspension order with or without notice to the respondent attorney.

(m)          No damages shall be awarded against the State Bar in the event that a restraining order entered with or without notice and a hearing is dissolved.

 

History Note:        Authority G.S. 84-23; 84-28(i);

Readopted Eff. December 8, 1994;

Amended Eff. February 3, 2000; September 7, 1995.

 

27 NCAC 01D .0617         CONSENSUAL INACTIVE STATUS

Notwithstanding the provisions of Rule .0616 of this subchapter, the court may enter an order transferring the lawyer to inactive status if the lawyer consents. The order may contain such other terms and provisions as the parties agree to and which are necessary for the protection of the public.  A lawyer transferred to inactive status pursuant to this rule may not petition for reinstatement pursuant to Rule .0902 of this subchapter.  The lawyer may apply to the court at any time for an order reinstating the lawyer to active status.

 

History Note:        Authority G.S. 84-23; 84-28(i);

Readopted Eff. December 8, 1994;

Amended Eff. March 8, 2013; February 3, 2000.

 

27 NCAC 01D .0618         Agents of the State Bar

All members of the board and its duly appointed committees shall be deemed to be acting as agents of the State Bar when performing the functions and duties set forth in this subchapter.

 

History Note:        Authority G.S. 84-22; 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. February 3, 2000.

 

27 NCAC 01D .0619         Judicial Committee

The Judicial Committee of the Lawyer Assistance Program Board shall implement a program of intervention for members of the judiciary with substance abuse problems affecting their professional conduct.  The committee shall consist of at least two members of the state's judiciary.  The committee will be governed by the rules of the Lawyer Assistance Program Board where applicable. 27 NCAC 01D .0616 and .0617 of this Subchapter are not applicable to the committee.

 

History Note:        Authority G.S. 84-22; 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. February 3, 2000.

 

27 NCAC 01D .0620         Rehabilitation Contracts for Lawyers Impaired by Substance Abuse

The board, or its duly authorized committee, has the authority to enter into rehabilitation contracts with lawyers suffering from substance abuse including contracts that provide for alcohol and/or drug testing.  Such contracts may include the following conditions among others:

(a)           that upon receipt of a report of a positive alcohol or drug test for a substance prohibited under the contract, the contract may be amended to include additional provisions considered to be in the best rehabilitative interest of the lawyer and the public; and

(b)           that the lawyer stipulates to the admission of any alcohol and/or drug-testing results into evidence in any in camera proceeding brought under this Section without the necessity of further authentication.

 

History Note:        Authority G.S. 84-22; 84-23;

Adopted Eff. March 7, 1996;

Amended Eff. February 3, 2000.

 

27 NCAC 01D .0621         Evaluations for Substance Abuse, Alcoholism, and/or other Chemical Addictions

(a)  Notice of Need for Evaluation.  The Lawyer Assistance Program Board, or its duly authorized committee, may demand that a lawyer obtain a comprehensive evaluation of his or her condition by an approved addiction specialist if the lawyer's ability to practice law is apparently being impaired by substance abuse, alcoholism and/or other chemical addictions.  This authority may be exercised upon recommendation of the director of the lawyer assistance program and the approval of at least three members of the board or appropriate committee, which shall include at least one person with professional expertise in chemical addiction.  Written notice shall be provided to the lawyer informing the lawyer that the board has determined that an evaluation is necessary and demanding that the lawyer obtain the evaluation by a date set forth in the written notice.

(b)  Failure to Comply.  If the lawyer does not obtain an evaluation, the director of the lawyer assistance program shall obtain the approval of the chairperson of the board, or the chairperson of the appropriate committee of the board, to file a motion to compel an evaluation pursuant to the authority set forth in G.S.  84-28(i) and (j) and in accordance with the procedure set forth in Rule 35 of the North Carolina Rules of Civil Procedure.  All pleadings in such a proceeding shall be filed under seal and all hearings shall be held in camera. Written notice of the motion to compel an examination shall be served upon the lawyer in accordance with the North Carolina Rules of Civil Procedure at least ten days before the hearing on the matter.

 

History Note:        Authority G.S. 84-22; 84-23;

Adopted Eff. February 3, 2000.

 

27 NCAC 01D .0622         Grounds for Compelling an Evaluation

An order compelling the lawyer to obtain a comprehensive evaluation by an addiction specialist may be issued if the board establishes that the evaluation will assist the lawyer and the lawyer assistance program to assess the lawyer's condition and any risk that the condition may present to the public, and to determine an appropriate treatment for the lawyer.

 

History Note:        Authority G.S. 84-22; 84-23;

Adopted Eff. February 3, 2000.

 

27 NCAC 01D .0623         Failure to Comply with an Order Compelling an Evaluation

If a lawyer fails to comply with an order compelling a comprehensive evaluation by an addiction specialist, the board, or its duly authorized committee, may file a contempt proceeding to be held in camera.  If the lawyer fails to comply with a contempt order, the lawyer shall be deemed to have waived confidentiality respecting communications made by the lawyer to the board or its committee.  The board, or its duly authorized committee, may seek further relief and may file motions or proceedings in open court.

 

History Note:        Authority G.S. 84-22; 84-23;

Adopted Eff. February 3, 2000.

 

Section .0700 - Procedures for Fee Dispute Resolution

 

27 NCAC 01D .0701         Purpose and Implementation

The purpose of the Fee Dispute Resolution Program is to help clients and lawyers settle disputes over fees.  In doing so, the Fee Dispute Resolution Program shall assist the lawyers and clients in determining the appropriate fee for legal services rendered.  The State Bar shall implement the Fee Dispute Resolution Program under the auspices of the Grievance Committee (the committee) as part of the Attorney Client Assistance Program (ACAP).  It will be offered to clients and their lawyers at no cost.  A person other than the client who pays the lawyer's legal fee or expenses may file a fee dispute petition.  The person who paid the fees or expenses will not be permitted to participate in the fee dispute resolution process.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. March 11, 2010; March 8, 2007; May 4, 2000; February 3, 2000.

 

27 NCAC 01D .0702         JURISDICTION

(a)  The committee has jurisdiction over a disagreement arising out of a client-lawyer relationship concerning the fees and expenses charged or incurred for legal services provided by a lawyer licensed to practice law in North Carolina.

(b)  The committee does not have jurisdiction over the following:

(1)           a dispute concerning fees or expenses established by a court, federal or state administrative agency, or federal or state official, or private arbitrator panel;

(2)           a dispute involving services that are the subject of a pending grievance complaint alleging violation of the Rules of Professional Conduct;

(3)           a dispute over fees or expenses that are or were the subject of litigation or arbitration unless

(i)            a court, arbitrator, or arbitration panel directs the matter to the State Bar for resolution, or

(ii)           both parties to the dispute agree to dismiss the litigation or arbitration without prejudice and pursue resolution through the State Bar's Fee Dispute Resolution program;

(4)           a dispute between a lawyer and a service provider, such as a court reporter or an expert witness;

(5)           a dispute between a lawyer and a person or entity with whom the lawyer had no client-lawyer relationship, except that the committee has jurisdiction over a dispute between a lawyer and a person other than the lawyer's client who paid fees or expenses to the lawyer for the benefit of the client; and

(6)           a dispute concerning a fee charged for services provided by the lawyer that do not constitute the practice of law.

The committee will encourage settlement of fee disputes falling within its jurisdiction pursuant to Rule .0708 of this Subchapter.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. August 23, 2012; March 11, 2010; May 4, 2000.

 

27 NCAC 01D .0703         Coordinator of Fee Dispute Resolution

The secretary-treasurer of the North Carolina State Bar will designate a member of the staff to serve as coordinator of the Fee Dispute Resolution Program.  The coordinator will develop forms, maintain records, and provide statistics on the Fee Dispute Resolution Program.  The coordinator will also develop an annual report to the council.  The coordinator may also serve as a facilitator.

 

History Note:        Authority G.S. 84-23;

Readopted Effective December 8, 1994;

Amended Eff. March 11, 2010; March 8, 2007; May 4, 2000.

 

27 NCAC 01D .0704         Confidentiality

The existence of and content of any petition for resolution of a disputed fee and of any lawyer's response to a petition for resolution of a disputed fee are confidential.

 

History Note:        Authority G.S. 84-23;

Adopted Eff. March 11, 2010.

 

27 NCAC 01D .0705         Selection of Facilitators

The secretary-treasurer of the North Carolina State Bar will designate members of the State Bar staff to serve as facilitators.

 

History Note:        Authority G.S. 84-23;

Adopted Eff. May 4, 2000;

Amended Eff. March 11, 2010.

 

27 NCAC 01D .0706         Powers and Duties of the Vice-Chairperson

The vice-chairperson of the Grievance Subcommittee overseeing ACAP, or his/her designee, who must be a councilor, will:

(1)           approve or disapprove any recommendation that a petition for resolution of a disputed fee be dismissed;

(2)           call and preside over meetings of the committee; and

(3)           refer to the Grievance Committee all cases in which it appears to the vice chairperson that:

(a)           a lawyer might have charged, contracted to receive or received an illegal or clearly excessive fee or a clearly excessive amount for expenses; or

(b)           a lawyer might have failed to refund an unearned portion of a fee in violation of Rule 1.5 the Rules of Professional Conduct; or

(c)           a lawyer might have violated one or more Rules of Professional Conduct other than or in addition to Rule 1.5.

 

History Note:        Authority G.S. 84-23;

Adopted Eff. May 4, 2000;

Amended Eff. March 11, 2010; March 8, 2007; February 5, 2002.

 

27 NCAC 01D .0707         Processing Requests for Fee Dispute Resolution

(a)  Requests for resolution of a disputed fee must be submitted in writing to the coordinator of the Fee Dispute Resolution Program addressed to the North Carolina State Bar, PO Box 25908, Raleigh, NC 27611.  A lawyer is required by Rule 1.5 of the Rules of Professional Conduct to notify in writing a client with whom the lawyer has a dispute over a fee of the existence of the Fee Dispute Resolution Program and to wait at least 30 days after the client receives such notification before filing a lawsuit to collect a disputed fee.  A lawyer may file a lawsuit prior to expiration of the required 30-day notice period or after the petition is filed by the client only if such filing is necessary to preserve a claim. If a lawyer does file a lawsuit pursuant to the preceding sentence, the lawyer must not take steps to pursue the litigation until the fee dispute resolution process is completed.  A client may request fee dispute resolution at any time before either party files a lawsuit.  The petition for resolution of a disputed fee must contain:

(1)           the names and addresses of the parties to the dispute;

(2)           a clear and brief statement of the facts giving rise to the dispute;

(3)           a statement that, prior to requesting fee dispute resolution, a reasonable attempt was made to resolve the dispute by agreement; and

(4)           a statement that the subject matter of the dispute has not been adjudicated and is not presently the subject of litigation.

(b)  All petitions for resolution of a disputed fee must be filed:

(1)           before the expiration of the statute of limitation applicable in the General Court of Justice for collection of the funds in issue; or

(2)           within three years of the termination of the client-lawyer relationship, whichever is later.

(c)  The coordinator of the Fee Dispute Resolution Program or a facilitator will investigate the petition to determine its suitability for fee dispute resolution.  If it is determined that the dispute is not suitable for fee dispute resolution, the coordinator and/or the facilitator will prepare a dismissal letter setting forth the facts and a recommendation for dismissal. The coordinator and/or the facilitator will forward the dismissal letter to the vice-chairperson.  If the vice chairperson agrees with the recommendation, the petition will be dismissed.  The coordinator and/or facilitator will notify the parties in writing of the dismissal.  Grounds for dismissal include, but are not limited to, the following:

(1)           the petition is frivolous or moot;

(2)           the committee lacks jurisdiction over one or more of the parties or over the subject matter of the dispute;

(3)           the fee has been earned; or

(4)           the expenses were properly incurred.

(d)  If the vice-chairperson disagrees with the recommendation for dismissal, the coordinator will schedule a settlement conference.

 

History Note:        Authority G.S. 84-23;

Adopted Eff. May 4, 2000;

Amended Eff. March 11, 2010; March 8, 2007.

 

27 NCAC 01D .0708         Settlement Conference Proceedings

(a)  The coordinator will assign the case to a facilitator.

(b)  The facilitator will send a Letter of Notice to the lawyer by certified mail.  The Letter of Notice will include a copy of the petition and any documents the petitioner included with the petition.

(c)  Within 15 days after the Letter of Notice is served upon the lawyer, the lawyer must provide a written response to the petition.  The facilitator is authorized to grant requests for extensions of time to respond.  The lawyer's response must be a full and fair disclosure of all the facts and circumstances pertaining to the dispute.  The facilitator will provide a copy of the lawyer's response to the client unless the lawyer objects in writing.

(d)  The facilitator will conduct an investigation.

(e)  The facilitator will conduct a telephone settlement conference between the parties.  The facilitator is authorized to carry out the settlement conference by separate telephone calls with each of the parties or by conference calls, depending upon which method the facilitator believes has the greater likelihood of success.

(f)  The facilitator will define and describe the following to the parties:

(1)           the procedure that will be followed;

(2)           the differences between a facilitated settlement conference and other forms of conflict resolution;

(3)           that the settlement conference is not a trial;

(4)           that the facilitator is not a judge;

(5)           that participation in the settlement conference does not deprive the parties of any right they would otherwise have to pursue resolution of the dispute through the court system if they do not reach a settlement;

(6)           the circumstances under which the facilitator may communicate privately with any of the parties or with any other person;

(7)           whether and under what conditions private communications with the facilitator will be shared with the other party or held in confidence during the conference; and

(8)           that any agreement reached will be reached by mutual consent.

(g)  The facilitator has a duty to be impartial and to advise all participants of any circumstance that might cause either party to conclude that the facilitator has a possible bias, prejudice, or partiality.

(h)  It is the duty of the facilitator to timely determine when the dispute cannot be resolved by settlement and to declare that an impasse exists and that the settlement conference should end.

(i)  Upon completion of the settlement conference, the facilitator will prepare a disposition letter to be sent to the parties detailing:

(1)           that the settlement conference resulted in a settlement and the terms of settlement; or

(2)           that the settlement conference resulted in an impasse.

 

History Note:        Authority G.S. 84-23;

Adopted Eff. May 4, 2000;

Amended Eff. March 11, 2010.

 

27 NCAC 01D .0709         Record Keeping

The coordinator of fee dispute resolution will keep a record of each request for fee dispute resolution.  The record must contain the following information:

(1)           the client's name;

(2)           the date the petition was received;

(3)           the lawyer's name;

(4)           the district in which the lawyer resides or maintains a place of business;

(5)           what action was taken on the petition and, if applicable, how the dispute was resolved; and

(6)           the date the file was closed.

 

History Note:        Authority G.S. 84-23;

Adopted Eff. May 4, 2000;

Amended Eff. March 11, 2010.

 

27 NCAC 01D .0710         District Bar Fee Dispute Resolution

Subject to the approval of the council, any judicial district bar may adopt a fee dispute resolution program for the purpose of resolving disputes involving lawyers residing or doing business in the district.  The State Bar does not offer arbitration as a form of dispute resolution.  The judicial district bar may offer arbitration to resolve a disputed fee.  A judicial district bar fee dispute resolution program shall have jurisdiction over disputes that would otherwise be addressed by the State Bar's ACAP department.  Such programs may be tailored to accommodate local conditions but they must be offered without cost and must comply with the jurisdictional restrictions set forth in Rule .0702 of this Subchapter.

 

History Note:        Authority G.S. 84-23;

Adopted Eff. May 4, 2000;

Amended Eff. March 11, 2010.

 

27 NCAC 01D .0711         District Bar Settlement Conference Proceedings

(a)  The chairperson of the judicial district bar fee dispute committee will assign the case to a facilitator who will conduct a settlement conference.  The facilitator is responsible for arranging the settlement conference at a time and place convenient to all parties.

(b)  The lawyer who is named in the petition must attend the settlement conference in person and may not send a representative in his or her place.  If a party fails to attend a settlement conference without good cause, the facilitator may either reschedule the settlement conference or recommend dismissal of the petition.

(c)  The facilitator must at all times be in control of the settlement conference and the procedures to be followed.  The facilitator may communicate privately with any participant prior to and during the settlement conference.  Any private communication with a participant will be disclosed to all other participants at the beginning of the settlement conference or, if the private communication occurs during the settlement conference, immediately after the private communication occurs.  The facilitator will explain the following at the beginning of the settlement conference:

(1)           the procedure that will be followed;

(2)           the differences between a facilitated settlement conference and other forms of conflict resolution;

(3)           that the settlement conference is not a trial;

(4)           that the facilitator is not a judge;

(5)           that participation in the settlement conference does not deprive the parties of any right they would otherwise have to pursue resolution of the dispute through the court system if they do not reach a settlement;

(6)           the circumstances under which the facilitator may meet and communicate privately with any of the parties or with any other person;

(7)           whether and under what conditions communications with the facilitator will be held in confidence during the settlement conference;

(8)           that any agreement reached will be reached by mutual consent; and

(9)           that, if the parties reach an agreement, that agreement will be reduced to writing and signed by the parties and their counsel, if any, before the parties leave the settlement conference.

(d)  The facilitator has a duty to be impartial and to advise all participants of any circumstance that might cause either party to conclude that the facilitator has a possible bias, prejudice, or partiality.

(e)  It is the duty of the facilitator to timely determine when the dispute cannot be resolved by settlement and to declare that an impasse exists and that the settlement conference should end.

 

History Note:        Authority G.S. 84-23;

Adopted Eff. March 11, 2010.

 

Section .0800 - Reserved

 

section .0900 – Procedures for THE Administrative Committee

 

27 NCAC 01D .0901         Transfer to Inactive Status

(a)  Petition for Transfer to Inactive Status

Any member who desires to be transferred to inactive status shall file a petition with the secretary addressed to the council setting forth fully

(1)           the member's name and current address;

(2)           the date of the member's admission to the North Carolina State Bar;

(3)           the reasons why the member desires transfer to inactive status;

(4)           that at the time of filing the petition the member is in good standing having paid all membership fees, Client Security Fund assessments, late fees and costs assessed by the North Carolina State Bar, as well as all past due fees, fines and penalties owed to the Board of Continuing Legal Education and without any grievances or disciplinary complaints pending against him or her;

(5)           any other matters pertinent to the petition.

(b)  Conditions Upon Transfer.  No member may be voluntarily transferred to disability-inactive status, retired/nonpracticing status, or emeritus pro bono status until:

(1)           the member has paid all membership fees, Client Security Fund assessments, late fees, and costs assessed by the North Carolina State Bar or the Disciplinary Hearing Commission, as well as all past due fees, fines and penalties owed to the Board of Continuing Legal Education;

(2)           the member acknowledges that the member continues to be subject to the Rules of Professional Conduct and to the disciplinary jurisdiction of the State Bar including jurisdiction in any pending matter before the Grievance Committee or the Disciplinary Hearing Commission; and,

(3)           in the case of a member seeking emeritus pro bono status, it is determined by the Administrative Committee that the member is in good standing, is not the subject of any matter pending before the Grievance Committee or the Disciplinary Hearing Commission, and will be supervised by an active member employed by a nonprofit corporation qualified to render legal services pursuant to G.S. 84-5.1.

(c)  Order Transferring Member to Inactive Status.  Upon receipt of a petition which satisfies the provisions of Rule .0901(a) above, the council may, in its discretion, enter an order transferring the member to inactive status and, where appropriate, granting emeritus pro bono status.  The order shall become effective immediately upon entry by the council. A copy of the order shall be mailed to the member.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. March 6, 2014; March 6, 2008; February 3, 2000; March 7, 1996.

 

27 NCAC 01D .0902         Reinstatement from Inactive Status

(a)  Eligibility to Apply for Reinstatement

Any member who has been transferred to inactive status may petition the council for an order reinstating the member as an active member of the North Carolina State Bar.

(b)  Definition of "Year"

As used in this Rule, a year is a 365 day period of time unless a calendar year is specified.

(c)  Requirements for Reinstatement

(1)           Completion of Petition. The member must provide the information requested on a petition form prescribed by the council and must sign the petition under oath.

(2)           CLE Requirements for Calendar Year Before Inactive.  Unless the member was exempt from such requirements pursuant to Rule .1517 of this Subchapter or is subject to the requirements in Paragraph (c)(5) of this Rule, the member must satisfy the minimum continuing legal education requirements, as set forth in Rule .1518 of this Subchapter, for the calendar year immediately preceding the calendar year in which the member was transferred to inactive status, (the "subject year"), including any deficit from a prior calendar year that was carried forward and recorded in the member's CLE record for the subject year.

(3)           Character and Fitness to Practice.  The member must have the moral qualifications, competency and learning in the law required for admission to practice law in the state of North Carolina, and must show that the member's resumption of the practice of law within this state will be neither detrimental to the integrity and standing of the Bar or the administration of justice nor subversive of the public interest.

(4)           Additional CLE Requirements.  If more than 1 year has elapsed between the date of the entry of the order transferring the member to inactive status and the date that the petition is filed, the member must complete 12 hours of approved CLE for each year that the member was inactive up to a maximum of 7 years. The CLE hours must be completed within 2 years prior to filing the petition. For each 12-hour increment, 6 hours may be taken online and 2 hours must be earned by attending courses in the areas of professional responsibility and/or professionalism. If during the period of inactivity the member complied with mandatory CLE requirements of another state where the member is licensed, those CLE credit hours may be applied to the requirements under this provision without regard to whether they were taken during the 2 years prior to filing the petition.

(5)           Bar Exam Requirement If Inactive 7 or More Years.  [Effective for all members who are transferred to inactive status on or after March 10, 2011.] If 7 years or more have elapsed between the date of the entry of the order transferring the member to inactive status and the date that the petition is filed, the member must obtain a passing grade on a regularly scheduled North Carolina bar examination. A member subject to this requirement does not have to satisfy the CLE requirements in Paragraphs (c)(2) and (c)(4).

(A)          Active Licensure in Another State. Each year of active licensure in another state during the period of inactive status shall offset one year of inactive status for the purpose of calculating the 7 years necessary to actuate this provision. If the member is not required to pass the bar examination as a consequence of offsetting, the member shall satisfy the CLE requirements set forth in Paragraph (c)(4) for each year that the member was inactive up to a maximum of 7 years.

(B)          Military Service. Each calendar year in which an inactive member served on full-time, active military duty, whether for the entire calendar year or some portion thereof, shall offset one year of inactive status for the purpose of calculating the 7 years necessary to actuate the requirement of this Paragraph. If the member is not required to pass the bar examination as a consequence of offsetting, the member shall satisfy the CLE requirements set forth in Paragraph (c)(4) for each year that the member was inactive up to a maximum of 7 years.

(6)           Payment of Fees, Assessments and Costs. The member must pay all of the following:

(A)          a $125.00 reinstatement fee;

(B)          the membership fee and the Client Security Fund assessment for the year in which the application is filed;

(C)          the annual membership fee, if any, of the member's district bar for the year in which the application is filed and any past due annual membership fees for any district bar with which the member was affiliated prior to transferring to inactive status;

(D)          all attendee fees owed the Board of Continuing Legal Education for CLE courses taken to satisfy the requirements of Paragraphs (c)(2), (4), and (5);

(E)           any costs previously assessed against the member by the chairperson of the Grievance Committee, the Disciplinary Hearing Commission; and/or the secretary or council of the North Carolina State Bar; and

(F)           all costs incurred by the North Carolina State Bar in investigating and processing the application for reinstatement.

(d)  Service of Reinstatement Petition

The petitioner shall serve the petition on the secretary. The secretary shall transmit a copy of the petition to the members of the Administrative Committee and to the counsel.

(e)  Investigation by Counsel

The counsel may conduct any necessary investigation regarding the petition and shall advise the members of the Administrative Committee of any findings from such investigation.

(f)  Recommendation of Administrative Committee

After any investigation of the petition by the counsel is complete, the Administrative Committee will consider the petition at its next meeting and shall make a recommendation to the council regarding whether the petition should be granted. The chair of the Administrative Committee may appoint a panel composed of at least three members of the committee to consider any petition for reinstatement and, on behalf of the Administrative Committee, to make a recommendation to the council regarding whether the petition should be granted.

(1)           Conditions Precedent to Reinstatement. Upon a determination that the petitioner has failed to demonstrate competence to return to the practice of law, the committee may require the petitioner to complete a specified number of hours of continuing legal education, which shall be in addition to the requirements set forth in Rule .0902(b)(2) and (4) above, as a condition precedent to the committee's recommendation that the petition be granted,

(2)           Conditions Subsequent to Reinstatement. Upon a determination that the petitioner is fit to return to the practice of law pursuant to the reasonable management of his or her substance abuse, addiction, or debilitating mental condition, the committee may recommend to the council that the reinstatement petition be granted with reasonable conditions to which the petitioner consents. Such conditions may include, but are not limited to, an evaluation by a mental health professional approved by the Lawyer Assistance Program (LAP), compliance with the treatment recommendations of the mental health professional, periodic submission of progress reports by the mental health professional to LAP, and waiver of confidentiality relative to diagnosis and treatment by the mental health professional.

(3)           Failure of Conditions Subsequent to Reinstatement. In the event the petitioner fails to satisfy the conditions of the reinstatement order, the committee shall issue a notice directing the petitioner to show cause, in writing, why the petitioner should not be suspended from the practice of law. Notice shall be served and the right to request a hearing shall be as provided in Rule .0902(f) below. The hearing shall be conducted as provided in Section .1000 of this Subchapter provided, however, the burden of proof shall be upon the petitioner to show by clear, cogent, and convincing evidence that he or she has satisfied the conditions of the reinstatement order.

(g)  Hearing Upon Denial of Petition for Reinstatement

(1)           Notice of Council Action and Request for Hearing

If the council denies a petition for reinstatement, the petitioner shall be notified in writing within 14 days after such action. The notice shall be served upon the petitioner pursuant to Rule 4 of the N.C. Rules of Civil Procedure and may be served by a State Bar investigator or any other person authorized by Rule 4 of the N.C. Rules of Civil Procedure to serve process.

(2)           The petitioner shall have 30 days from the date of service of the notice to file a written request for hearing upon the secretary. The request shall be served upon the secretary pursuant to Rule 4 of the N.C. Rules of Civil Procedure.

(3)           Hearing Procedure

The procedure for the hearing shall be as provided in Section .1000 of this Subchapter.

(h)  Reinstatement by Secretary of the State Bar

Notwithstanding Paragraph (e) of this Rule, an inactive member may petition for reinstatement pursuant to Paragraphs (a) and (b) of this Rule and may be reinstated by the secretary of the State Bar upon a finding that the inactive member has complied with or fulfilled the conditions for reinstatement set forth in this Rule; there are no issues relating to the inactive member's character or fitness; and the inactive member has paid all fees owed to the State Bar including the reinstatement fee. Reinstatement by the secretary is discretionary. If the secretary declines to reinstate a member, the member's petition shall be submitted to the Administrative Committee at its next meeting and the procedure for review of the reinstatement petition shall be as set forth in Paragraph (e) of this Rule.

(i)  Denial of Petition

When a petition for reinstatement is denied by the council in a given calendar year, the member may not petition again until the following calendar year. The reinstatement fee, costs, and any fees paid pursuant to Paragraph (c)(7) shall be retained. However, the State Bar membership fee, Client Security Fund assessment, and district bar membership fee assessed for the year in which the application is filed shall be refunded.

 

History Note:        Statutory Authority G.S. 84-23;

Readopted Effective December 8, 1994;

Amendments Approved by the Supreme Court: September 22, 2016; October 2, 2014; March 6, 2014; March 8, 2013; March 8, 2012; August 25, 2011; March 10, 2011; March 3, 2005; February 27, 2003; March 6, 2002; February 3, 2000; March 3, 1999; March 5, 1998; March 7, 1996; September 7, 1995.

 

27 NCAC 01D .0903         Suspension for Failure to Fulfill Obligations of Membership

(a)  Procedure for Enforcement of Obligations of Membership.  Whenever a member of the North Carolina State Bar fails to fulfill an obligation of membership in the State Bar, whether established by the administrative rules of the State Bar or by statute, the member shall be subject to administrative suspension from membership pursuant to the procedure set forth in this rule; provided, however, that the procedures for the investigation of and action upon alleged violations of the Rules of Professional Conduct by a member are set forth in subchapter 01B of these rules and that no aspect of any procedure set forth in this rule shall be applicable to the State Bar's investigation of or action upon alleged violations of the Rules of Professional Conduct by a member.

(1)           The following are examples of obligations of membership that will be enforced by administrative suspension.  This list is illustrative and not exclusive:

(A)          Payment of the annual membership fee, including any associated late fee as set forth in G.S. 84-34;

(B)          Payment of the annual Client Security Fund assessment;

(C)          Payment of the costs of a disciplinary, disability, reinstatement, show cause, or other proceeding of the State Bar as ordered by the chair of the Grievance Committee, the Disciplinary Hearing Commission, the secretary, or the council;

(D)          Filing of a pro hac vice registration statement as required in Rule .0101 of subchapter 01H of these rules; and

(E)           Filing of an annual report form and attending continuing legal education activities as required by Sections .1500 and .1600 of subchapter 01D of these rules.

(b)  Notice.  Whenever it appears that a member has failed to comply, in a timely fashion, with an obligation of membership in the State Bar as established by the administrative rules of the State Bar or by statute, the secretary shall prepare a written notice directing the member to show cause, in writing, within 30 days of the date of service of the notice why he or she should not be suspended from the practice of law.

(c) Service of the Notice.  The notice shall be served on the member by mailing a copy thereof by registered or certified mail or designated delivery service (such as Federal Express or UPS), return receipt requested, to the last known address of the member contained in the records of the North Carolina State Bar or such later address as may be known to the person attempting service. Service of the notice may also be accomplished by (i) personal service by a State Bar investigator or by any person authorized by Rule 4 of the North Carolina Rules of Civil Procedure to serve process, or (ii) email sent to the email address of the member contained in the records of the North Carolina State Bar if the member sends an email from that same email address to the State Bar acknowledging such service.

(d)  Entry of Order of Suspension upon Failure to Respond to Notice to Show Cause.  Whenever a member fails to show cause in writing within 30 days of the service of the notice to show cause upon the member, and it appears that the member has failed to comply with an obligation of membership in the State Bar as established by the administrative rules of the State Bar or by statute, the council may enter an order suspending the member from the practice of law. The order shall be effective 30 days after proof of service on the member. The order shall be served on the member by mailing a copy thereof by registered or certified mail or designated delivery service, return receipt requested, to the last-known address of the member contained in the records of the North Carolina State Bar or such later address as may be known to the person attempting service. Service of the order may also be accomplished by (i) personal service by a State Bar investigator or by any person authorized by Rule 4 of the North Carolina Rules of Civil Procedure to serve process, or (ii) email sent to the email address of the member contained in the records of the North Carolina State Bar if the member sends an email from that same email address to the State Bar acknowledging such service. A member who cannot, with due diligence, be served by registered or certified mail, designated delivery service, personal service, or email shall be deemed served by the mailing of a copy of the order to the member's last known address contained in the records of the North Carolina State Bar.

(e)  Procedure upon Submission of a Timely Response to a Notice to Show Cause

(1)           Consideration by Administrative Committee. If a member submits a written response to a notice to show cause within 30 days of the service of the notice upon the member, the Administrative Committee shall consider the matter at its next regularly scheduled meeting.  The member may personally appear at the meeting and be heard, may be represented by counsel, and may offer witnesses and documents. The counsel may appear at the meeting on behalf of the State Bar and be heard, and may offer witnesses and documents.  The burden of proof shall be upon the member to show cause by clear, cogent, and convincing evidence why the member should not be suspended from the practice of law for the apparent failure to fulfill an obligation of membership in the State Bar as established by the administrative rules of the State Bar or by statute.

(2)           Recommendation of Administrative Committee.  The Administrative Committee shall determine whether the member has shown cause why the member should not be suspended. If the committee determines that the member has failed to show cause, the committee shall recommend to the council that the member be suspended.

(3)           Order of Suspension.  Upon the recommendation of the Administrative Committee, the council may enter an order suspending the member from the practice of law. The order shall be effective 30 days after proof of service on the member. The order shall be served on the member by mailing a copy thereof by registered or certified mail return receipt requested to the last-known address of the member according to the records of the North Carolina State Bar or such later address as may be known to the person effecting the service. Notice may also be by personal service by a State Bar investigator or any other person authorized by Rule 4 of the North Carolina Rules of Civil Procedure to serve process. Unless the member complies with or fulfills the obligation of membership within 30 days after service of the order, the obligations of a disbarred or suspended member to wind down the member's law practice within 30 days set forth in Rule .0128 of Subchapter 01B of these rules shall apply to the member upon the effective date of the order of suspension. If the member fails to fulfill the obligations set forth in Rule .0128 of Subchapter 01B within 30 days of the effective date of the order, the member shall be subject to professional discipline.

(f)  Late Compliance.  If a member fulfills the obligation of membership before a suspension order is entered by the council, no order of suspension will be entered.

(g)  Administrative Suspension Pursuant to Statute.  The provisions of this rule notwithstanding, if any section of the North Carolina General Statutes requires suspension of an occupational license, the procedure for suspension pursuant to such statute shall be as established by the statute. If no procedure is established by said statute, then the procedures specified in this rule shall be followed.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amendments Approved by the Supreme Court: September 22, 2016; March 6, 2014; August 23, 2012; March 11, 2010; October 8, 2009; March 6, 2008; November 16, 2006; March 2, 2006; October 1, 2003; February 3, 2000; March 5, 1998; March 7, 1996; December 7, 1995; September 7, 1995.

 

27 NCAC 01D .0904         Reinstatement from Suspension

(a)  Compliance Within 30 Days of Service of Suspension Order.

A member who receives an order of suspension for failure to comply with an obligation of membership may preclude the order from becoming effective and shall not be required to file a formal reinstatement petition or pay the reinstatement fee if the member shows within 30 days after service of the suspension order that the member has done the following:

(1)           fulfilled the obligations of membership set forth in the order;

(2)           paid the administrative fees associated with the issuance of the suspension order, including the costs of service;

(3)           paid any other delinquency shown on the financial records of the State Bar including outstanding judicial district bar dues;

(4)           signed and filed CLE annual report forms as required by Rule .1522 of this Subchapter;

(5)           completed CLE hours as required by Rules .1518 and .1522 of this Subchapter; and

(6)           filed any IOLTA certification required by Rule .1319 of this Subchapter.

(b)  Reinstatement More than 30 Days after Service of Suspension Order.

At any time more than 30 days after service of an order of suspension on a member, a member who has been suspended for failure to comply with an obligation of membership may petition the council for an order of reinstatement.

(c)  Definition of "Year."

As used in this rule, a year is a 365 day period of time unless a calendar year is specified.

(d)  Requirements for Reinstatement

(1)           Completion of Petition

The member must provide the information requested on a petition form prescribed by the council and must sign the petition under oath.

(2)           CLE Requirements for Calendar Years Before Suspended

Unless the member was exempt from such requirements pursuant to Rule .1517 of this Subchapter or is subject to the requirements in Paragraph (d)(4) of this Rule, the member must satisfy the minimum continuing legal education (CLE) requirements, as set forth in Rule .1518 of this Subchapter, for the calendar year immediately preceding the year in which the member was suspended (the "subject year"), including any deficit from a prior year that was carried forward and recorded in the member's CLE record for the subject year. The member shall also sign and file any delinquent CLE annual report form.

(3)           Additional CLE Requirements

If more than 1 year has elapsed between the effective date of the suspension order and the date upon which the reinstatement petition is filed, the member must complete 12 hours of approved CLE for each year that the member was suspended up to a maximum of 7 years. The CLE must be completed within 2 years prior to filing the petition. For each 12-hour increment, 6 hours may be taken online and 2 hours must be earned by attending courses in the areas of professional responsibility and/or professionalism. If during the period of suspension the member complied with mandatory CLE requirements of another state where the member is licensed, those CLE credit hours may be applied to the requirements under this provision without regard to whether they were taken during the 2 years prior to filing the petition.

(4)           Bar Exam Requirement If Suspended 7 or More Years

[Effective for all members who are administratively suspended on or after March 10, 2011.] If 7 years or more have elapsed between the effective date of the suspension order and the date that the petition is filed, the member must obtain a passing grade on a regularly scheduled North Carolina bar examination. A member subject to this requirement does not have to satisfy the CLE requirements in Paragraphs (d)(2) and (d)(3).

(A)          Active Licensure in Another State. Each year of active licensure in another state during the period of suspension shall offset one year of suspension for the purpose of calculating the 7 years necessary to actuate this provision. If the member is not required to pass the bar examination as a consequence of offsetting, the member shall satisfy the CLE requirements set forth in Paragraph (d)(3) for each year that the member was suspended up to a maximum of 7 years.

(B)          Military Service. Each calendar year in which a suspended member served on full-time, active military duty, whether for the entire calendar year or some portion thereof, shall offset one year of suspension for the purpose of calculating the 7 years necessary to actuate the requirement of this Paragraph. If the member is not required to pass the bar examination as a consequence of offsetting, the member shall satisfy the CLE requirements set forth in Paragraph (d)(3) for each year that the member was suspended up to a maximum of 7 years.

(5)           Character and Fitness to Practice

The member must have the moral qualifications, competency and learning in the law required for admission to practice law in the state of North Carolina, and must show that the member's resumption of the practice of law will be neither detrimental to the integrity and standing of the Bar or the administration of justice nor subversive of the public interest.

(6)           Payment of Fees, Assessments and Costs

The member must pay all of the following:

(A)          a $125.00 reinstatement fee or $250.00 reinstatement fee if suspended for failure to comply with CLE requirements;

(B)          all membership fees, Client Security Fund assessments, and late fees owed at the time of suspension and owed for the year in which the reinstatement petition is filed;

(C)          all district bar annual membership fees owed at the time of suspension and owed for the year in which the reinstatement petition is filed;

(D)          all attendee fees, fines and penalties owed the Board of Continuing Legal Education at the time of suspension and attendee fees for CLE courses taken to satisfy the requirements of Paragraphs (d)(2) and (3) above;

(E)           any costs assessed against the member by the chairperson of the Grievance Committee, the Disciplinary Hearing Commission, and/or the secretary or council of the North Carolina State Bar; and

(F)           all costs incurred by the North Carolina State Bar in suspending the member, including the costs of service, and in investigating and processing the application for reinstatement.

(7)           Pro Hac Vice Registration Statements

The member must file any overdue pro hac vice registration statement for which the member was responsible.

(8)           IOTLA Certification

The member must complete any IOLTA certification required by Rule .1319 of this Subchapter.

(9)           Wind Down of Law Practice During Suspension

The member must demonstrate that the member fulfilled the obligations of a disbarred or suspended member set forth in Rule .0128 of Subchapter 1B during the 30 day period after the effective date of the order of suspension, or that such obligations do not apply to the member due to the nature of the member's legal employment.

(e)  Procedure for Review of Reinstatement Petition.

The procedure for review of the reinstatement petition shall be as set forth in Rule .0902(c)-(f) above.

(f)  Reinstatement by Secretary of the State Bar.

At any time during the year after the effective date of a suspension order, a suspended member may petition for reinstatement pursuant to Paragraphs (b) and (c) of this Rule and may be reinstated by the secretary of the State Bar upon a finding that the suspended member has complied with or fulfilled the obligations of membership set forth in the order; there are no issues relating to the suspended member's character or fitness; and the suspended member has paid the costs of the suspension and reinstatement procedure including the costs of service and the reinstatement fee. Reinstatement by the secretary is discretionary. If the secretary declines to reinstate a member, the member's petition shall be submitted to the Administrative Committee at its next meeting and the procedure for review of the reinstatement petition shall be as set forth in Rule .0902(c)-(f).

(g)  Reinstatement from Disciplinary Suspension.

Notwithstanding the procedure for reinstatement set forth in the preceding paragraphs of this Rule, if an order of reinstatement from disciplinary suspension is granted to a member pursuant to Rule .0129 of Subchapter 1B of these Rules, any outstanding order granting inactive status or suspending the same member for failure to fulfill the obligations of membership under this section shall be dissolved and the member shall be reinstated to active status.

(h)  Denial of Petition.

When a petition for reinstatement is denied by the council in a given calendar year, the member may not petition again until the following calendar year. The reinstatement fee, costs, and any fees paid pursuant to Paragraph (d)(6) shall be retained. However, the State Bar membership fee, Client Security Fund assessment, and district bar membership fee assessed for the year in which the application is filed shall be refunded.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amendments Approved by the Supreme Court: September 22, 2016; October 2, 2014; March 6, 2014; August 27, 2013; March 8, 2013; March 8, 2012; March 10, 2011; March 11, 2010; October 8, 2009; November 16, 2006; March 2, 2006; October 1, 2003; February 27, 2003; March 5, 1998; March 7, 1996; September 7, 1995.

 

27 NCAC 01D .0905         Pro Bono Practice by Out of State Lawyers

(a)  A lawyer licensed to practice in another state but not North Carolina who desires to provide legal services free of charge to indigent persons may file a petition with the secretary addressed to the council setting forth:

(1)           the petitioner's name and address;

(2)           the state(s) in which the petitioner is or has been licensed and the date(s) when the petitioner was licensed;

(3)           the name of a member who is employed by a nonprofit corporation qualified to render legal services pursuant to G.S. 84-5.1 and has agreed to supervise the petitioner; and

(4)           any other matters pertinent to the petition as determined by the council.

(b)  Along with the petition, the petitioner shall provide in writing:

(1)           a certificate of good standing from each jurisdiction in which the petitioner has been licensed;

(2)           a record of any professional discipline ever imposed against the petitioner;

(3)           a statement from the petitioner that the petitioner is submitting to the disciplinary jurisdiction of the North Carolina State Bar, and will be governed by the North Carolina Rules of Professional Conduct in regard to any law practice authorized by the council in consequence of the petition; and

(4)           a statement from the member identified in the petition agreeing to supervise the petitioner in the provision of pro bono legal services exclusively for indigent persons.

(c)  The petition shall be referred to the Administrative Committee for review. After reviewing the petition and other pertinent information, the committee shall make a recommendation to the council regarding whether the petition should be granted.

(d)  Upon receipt of a petition and other information satisfying the provisions this rule, the council may, in its discretion, enter an order permitting the petitioner to provide legal services to indigent persons on a pro bono basis under the supervision of a member employed by a nonprofit corporation qualified to render legal services pursuant to G.S. 84-5.1. The order shall become effective immediately upon entry by the council. A copy of the order shall be mailed to the petitioner and to the supervising member. No person permitted to practice pursuant to such an order shall pay any membership fee to the North Carolina State Bar or any district bar or any other charge ordinarily imposed upon active members, nor shall any such person be required to attend continuing legal education courses.

(e)  A petitioner may be a compensated employee of a nonprofit corporation qualified to render legal services pursuant to G.S. 84-5.1 and, if granted pro bono practice status, may provide legal services to the indigent clients of that corporation subject to the following conditions:

(1)           the petitioner has filed an application for admission with the North Carolina Board of Law Examiners (BLE) and has never previously been denied admission to the North Carolina State Bar for any reason; a copy of the petitioner's application shall be provided with the petition for pro bono practice;

(2)           if the petitioner is granted pro bono practice status, that status will terminate when the BLE makes its final ruling on the petitioner's application for admission; and

(3)           the petitioner is supervised in the provision of all legal services to indigent persons as set forth in Paragraph (d).

(f)  A lawyer who is paid in-house counsel for a business organization with offices in North Carolina may petition under this rule to provide legal services to indigent persons on a pro bono basis under the supervision of a member employed by a nonprofit corporation qualified to render legal services pursuant to G.S. 84-5.1.

(g)  Permission to practice under this rule terminates upon notice from the member identified in the petition pursuant to Rule .0905(a)(3) above, or from the nonprofit corporation employing such member, that the out-of-state lawyer is no longer supervised by any member employed by the corporation. In addition, permission to practice under this rule being entirely discretionary on the part of the council, the order granting such permission may be withdrawn by the council for good cause shown without notice to the out-of-state lawyer or an opportunity to be heard. 

 

History Note:        Authority G.S. 84-7.1;

Eff. March 6, 2008;

Amendments Approved by the Supreme Court: September 22, 2016; September 24, 2015.

 

Section .1000 - Rules Governing Reinstatement Hearings Before the Administrative Committee

 

27 NCAC 01D .1001         Reinstatement Hearings

(a)  Notice: Time and Place of Hearing:

(1)           Time and Place of Hearing.  The chairperson of the Administrative Committee shall fix the time and place of the hearing within 30 days after the member's request for hearing is filed with the secretary.  The hearing shall be held as soon as practicable after the request for hearing is filed but in no event more than 90 days after such request is filed unless otherwise agreed by the member and the chairperson of the committee.

(2)           Notice to Member.  The notice of the hearing shall include the date, time and place of the hearing and shall be served upon the member at least 10 days before the hearing date.

(b)  Hearing Panel

(1)           Appointment.  The chairperson of the committee shall appoint a hearing panel consisting of three members of the committee to consider the petition and make a recommendation to the council.

(2)           Presiding Panel Member.  The chairperson shall appoint one of the three members of the panel to serve as the presiding member.  The presiding member shall rule on any question of procedure that may arise in the hearing; preside at the deliberations of the panel; sign the written determination of the panel; and report the panel's determination to the council.

(3)           Quorum.  A majority of the panel members is necessary to decide the matter.

(4)           Panel Recommendation.  Following the hearing on a contested reinstatement petition, the panel will make a written recommendation to the council on behalf of the committee regarding whether the member's license should be reinstated.  The recommendation shall include appropriate findings of fact and conclusions of law.

(c)  Burden of Proof:

(1)           Reinstatement from Inactive Status.  The burden of proof shall be upon the member to show by clear, cogent and convincing evidence that he or she has satisfied the requirements for reinstatement as set forth in 27 NCAC 01D .0902(b) of this Subchapter.

(2)           Reinstatement from Suspension for Nonpayment of Membership Fees, Late Fee, Client Security Fund Assessment, District Bar Membership Fees, or Assessed Costs.  The burden of proof shall be upon the member to show by clear, cogent and convincing evidence that he or she has satisfied the requirements for reinstatement as set forth in 27 NCAC 01D .0904(c) of this Subchapter.

(3)           Reinstatement from Suspension for Failure to Comply with the Rules Governing the Administration of the Continuing Legal Education Program.  The burden of proof shall be upon the member to show by clear, cogent and convincing evidence that he or she has:

(A)          satisfied the requirements for reinstatement as set forth in 27 NCAC 01D .0904(c) of this Subchapter;

(B)          cured any continuing legal education deficiency for which the member was suspended; and

(C)          paid the reinstatement fee required by 27 NCAC 01D .1512 and .1609(a) of this Subchapter.

(d)  Conduct of Hearing:

(1)           Member's Rights.  The member shall have these rights at the hearing:

(A)          to appear personally and be heard;

(B)          to be represented by counsel;

(C)          to call and examine witnesses;

(D)          to offer exhibits; and

(E)           to cross-examine witnesses.

(2)           State Bar Appears Through Counsel.  The counsel shall appear at the hearing on behalf of the State Bar and shall have the right:

(A)          to be heard;

(B)          to call and examine witnesses;

(C)          to offer exhibits; and

(D)          to cross-examine witnesses.

(3)           Rules of Procedure and Evidence.  The hearing will be conducted in accordance with the North Carolina Rules of Civil Procedure for nonjury trials insofar as practicable and the Rules of Evidence applicable in superior court, unless otherwise provided by this subchapter or the parties agree to other rules.

(4)           Report of Hearing; Costs.  The hearing shall be reported by a certified court reporter.  The member shall pay the costs associated with obtaining the court reporter's services for the hearing.  The member shall pay the costs of the transcript and shall arrange for the preparation of the transcript with the court reporter.  The member shall be taxed with all other costs of the hearing, but such costs shall not include any compensation to the members of the hearing panel.

(e)  Hearing Panel Recommendation.  The written recommendation of the hearing panel shall be served upon the member within seven days of the date of the hearing.

 

History Note:        Authority G.S. 84-23;

Adopted Eff. March 7, 1996;

Amended Eff. February 3, 2000; March 5, 1998.

 

27 NCAC 01D .1002         REVIEW AND ORDER OF COUNCIL

(a)  Review by Council of Recommendation of Hearing Panel.

(1)           Record to Council:

(A)          Compilation of Record.  The member will compile a record of the proceedings before the hearing panel, including a legible copy of the complete transcript, all exhibits introduced into evidence and all pleadings, motions and orders, unless the member and counsel agree in writing to shorten the record.  Any agreements regarding the record shall be included in the record transmitted to the council.

(B)          Transmission of Record to Council.  The member shall provide a copy of the record to the counsel not later than 90 days after the hearing unless an extension is granted by the president of the State Bar for good cause shown.  The member will transmit a copy of the record to each member of the council no later than 30 days before the council meeting at which the petition is to be considered.

(C)          Costs.  The member shall bear all of the costs of transcribing, copying, and transmitting the record to the members of the council.

(D)          Dismissal for Failure to Comply.  If the member fails to comply fully with any of the provisions of this Rule, the counsel may file a motion the secretary to dismiss the petition.

(2)           Oral or Written Argument.  In his or her discretion, the president of the State Bar may permit counsel for the state bar and the member to present oral or written argument, but the council will not consider additional evidence not in the record transmitted from the hearing panel, absent a showing that the ends of justice so require or that undue hardship will result if the additional evidence is not presented.

(b)  Order by Council.  The council will review the recommendation of the hearing panel and the record and will determine whether and upon what conditions the member will be reinstated.

(c)  Costs.  The council may tax the costs attributable to the proceeding against the member.

 

History Note:        Authority G.S. 84‑23; Order of the NC Supreme Court, dated October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994;

Amended Eff. March 7, 1996.

 

27 NCAC 01D .1003         REFERRAL FROM THE BOARD

When the board refers a matter to the council for determination after a hearing by the committee, the board shall transmit to the committee:

(1)           a notice of referral from the board to the committee, clearly identifying the member whose license is in question and the nature of the matter being referred;

(2)           copies of all relevant written materials accumulated or created by the board;

(3)           copies of all written materials submitted to the board by the member whose license is in questions;

(4)           a written statement of the board's findings and determinations in the matter that is being referred.

 

History Note:        Authority G.S. 84‑23; Order of the NC Supreme Court, dated October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1004         TIME OF HEARING

A matter referred to the committee for hearing shall be heard not less than 30 days and not more than 90 days after the date the notice of referral is received from the board by the committee.

 

History Note:        Authority G.S. 84‑23; Order of the NC Supreme Court, dated October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1005         NOTICE OF HEARING

(a)  Time of Notice to Member ‑ A member with respect to whom a matter has been referred for hearing shall receive notice of the hearing at least 20 days prior to the hearing.

(b)  Service of Notice on Member ‑ The notice of hearing shall be served on the member by registered mail.

(c)  Content of Notice to Member ‑ The notice of the hearing shall include:

(1)           notice of the date, time, and place of the hearing;

(2)           notice to the member that he or she may submit for consideration written materials, including a written statement of explanation, at any time prior to or during the hearing;

(3)           notice to the member that he or she may personally appear and be heard during the hearing;

(4)           notice to the member that he or she may be represented by counsel at the hearing.

(d)  Notice to the Board ‑ Notice shall be transmitted to the board at least 20 days prior to the hearing of the date, time, and place of the hearing.

 

History Note:        Authority G.S. 84‑23; Order of the NC Supreme Court, dated October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1006         THE HEARING

(a)  Nature of Inquiry: Suspension ‑ When the matter being heard involves the question of whether a member's license shall be suspended for noncompliance, the purpose of the hearing shall be to determine, as a matter of fact:

(1)           whether the member was in compliance with the requirements of the rules at the time the board made its determination;

(2)           if the member was not in compliance, whether there is good cause why his or her license should not be suspended.

(b)  Nature of Inquiry: Reinstatement ‑ When the matter being heard involves the question of whether the license of a suspended member shall be reinstated, the purpose of the hearing shall be to determine, as a matter of fact:

(1)           whether the continuing legal education deficiency which gave rise to the member's suspension had been cured at the time the board made its determination that it had not been cured;

(2)           if the deficiency had been cured at the time the board made its determination, whether the suspended member had paid the required reinstatement fee at the time the board made its determination.

(c)  The Forum ‑ A matter before the committee for a hearing shall be heard by a panel of three members of the committee, one of whom shall serve as the presiding member, designated as provided in Rule .1007 of this Section.

(d)  Member's Right to be Heard ‑ A member whose license is the subject of a hearing shall have the right to:

(1)           to appear personally at the hearing;

(2)           to speak and be heard at the hearing on any aspect of the matter being heard;

(3)           submit for consideration relevant written materials, including a written statement of explanation, at any time prior to or during the hearing;

(4)           be represented by counsel at the hearing.

(e)  Information from the Board:

(1)           The panel shall consider the written materials described in Rule .1003 of this Section transmitted by the board to the committee.

(2)           A member of the board, or other person authorized by the board, may attend the hearing and may present oral or written information and argument on any aspect of the matter being heard.

(f)  Effect of Board's Findings on Issues of Accreditation and Approval ‑  When the board has determined that a member has failed to comply with the requirements of the rules or that a suspended member has failed to cure a deficiency, upon its finding that credits essential to compliance or reinstatement were acquired in a course or program that was not properly accredited or approved:

(1)           the board's finding that the course or program was not properly accredited or approved shall be presumed by the panel to be correct; and

(2)           the member may rebut the presumption of correctness by satisfying the panel that the course or program had in fact been properly accredited or approved; or

(3)           the member may rebut the presumption of correctness by satisfying the panel that the board acted contrary to its rules in failing to accredit or approve the course or program.

(g)  Deliberations of the Panel ‑ The panel shall conduct its deliberations, make its determinations, and adopt its recommendations in private.

(h)  Decision of the Panel ‑ The panel shall consider a matter in accord with the process described in Rules .1008 and .1009 of this Section and shall put its determinations and recommendations in writing.

 

History Note:        Authority G.S. 84‑23; Order of the NC Supreme Court, dated October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1007         THE PANEL

(a)  Assignment of Matter to Panel - A matter referred by the board for hearing and determination shall be assigned to a panel for hearing.

(b)  Members of the Panel - A hearing panel shall consist of three members of the committee.

(c)  Designation of Members - The members of a hearing panel shall be designated by the chairperson of the committee.

(d)  Designation of Presiding Member - The chairperson of the committee shall designate one of the three members of a panel to serve as the presiding member.

(e)  Duties of Presiding Member - The presiding member shall:

(1)           timely schedule the hearing;

(2)           assure that proper and timely notice of hearing is given to the member and the board;

(3)           preside at the hearing and rule on any question of procedure that may arise;

(4)           preside at the deliberations of the panel;

(5)           sign the written determinations and recommendations of the panel;

(6)           report the panel's determinations and recommendations to the committee.

 

History Note:        Authority G.S. 84‑23; Order of the NC Supreme Court, dated October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1008         SUSPENSION HEARING: PROCESS FOR DETERMINING A MATTER INVOLVING THE QUESTION OF SUSPENSION

When the matter before the panel is one involving the question of whether a member shall be suspended for failing to comply with the requirements of the rules, the panel shall proceed as follows:

(1)           Examination for Basis for Noncompliance Determination ‑ The panel first shall examine the written information transmitted by the board to the committee, and shall determine whether that information provides a basis for the board's determination that the member had failed to comply with the requirements of the rules at the time the board made its determination.

(2)           When There Is No Basis for Noncompliance Determination ‑ If the written information from the board provides no basis for a determination of noncompliance, the panel shall determine that the member is in compliance and shall report to the committee a recommendation that the member not be suspended.

(3)           When There Is Some Basis for Noncompliance Determination ‑ If the written information from the board provides some basis for a determination of noncompliance, the panel then shall consider all information submitted to the panel or to the board by the member bearing on the issue of whether the member was in compliance with the requirements of the rules at the time the board made its determination.

(4)           Assessing the Information on the Issue of Compliance:

(a)           Based on all the information before it, the panel shall determine whether it is persuaded that the member was not in compliance with the requirements of the rules at the time the board made its determination.

(b)           In assessing the information on compliance, when the board's determination of noncompliance is based upon its finding that credits essential to compliance were acquired in a course or program that was not properly accredited or approved, the panel shall give that finding and any rebuttal information from the member the consideration described in Rule .1006(f) of this Section.

(5)           When the Panel Makes a Determination of Compliance ‑ If the panel is not persuaded that the member was not in compliance with the requirements of the rules at the time the board made its determination it shall determine that the member is in compliance and shall report to the committee a recommendation that the member not be suspended.

(6)           When the Panel Makes a Determination of Noncompliance ‑ If the panel is persuaded that the member was not in compliance with the requirements of the rules at the time the board made its determination, the panel then shall consider all information submitted to the panel or to the board by the member and submitted by the board to the panel bearing on the issue of whether there is good cause why the member's license should not be suspended.

(7)           When the Panel Determines That There Is Good Cause ‑ If the panel is satisfied that there is good cause that the member's license should not be suspended, it shall determine that there is good cause and shall report to the committee a recommendation that the member's license not be suspended.

(8)           When the Panel Determines That There Is Not Good Cause ‑ If the panel is not satisfied that there is good cause why the member's license should not be suspended, it shall determine that there is not good cause and shall report to the committee a recommendation that the member's license be suspended.

 

History Note:        Authority G.S. 84‑23; Order of the NC Supreme Court, dated October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1009         REINSTATEMENT HEARING: PROCESS FOR DETERMINING A MATTER INVOLVING THE QUESTION OF REINSTATEMENT

When the matter before the panel is one involving the question of whether a suspended member shall be reinstated following a suspension for noncompliance with the rules, the panel shall proceed as follows:

(1)           Examination of the Basis for Determination That Deficiency Not Cured ‑ The panel first shall examine the written information transmitted by the board to the committee and shall determine whether that information provides a basis for the board's determination that the deficiency for which the member's license was suspended had not been cured at the time the board made its determination.

(2)           When There Is No Basis for Determination That Deficiency Not Cured ‑ If the written information from the board provides no basis for a determination that the suspended member's deficiency had not been cured at the time the board made its determination, the panel shall determine that the deficiency had been cured and shall report to the committee a recommendation that the suspended member be reinstated.

(3)           When There Is Some Basis for Determination That Deficiency Not Cured ‑ If the written information from the board provides some basis for a determination that the suspended member's deficiency had not been cured at the time the board made its determination, the panel shall consider all information submitted to the panel or to the board by the member bearing on the issue of whether the deficiency had been cured at the time the board made its determination.

(4)           Assessing the Information on the Issue of Cure:

(a)           Based upon all the information before it, the panel shall determine whether it is persuaded that the suspended member's deficiency had not been cured at the time the board made its determination.

(b)           In assessing the information on cure, when the board's determination that the deficiency had not been cured is based upon its finding that credits essential to cure were acquired in a course or program that was not properly accredited or approved, the panel shall give that finding and any rebuttal information from the member the consideration described in Rule .1006(f) of this Section.

(5)           When the Panel Determines That the Deficiency Had Not Been Cured ‑ If the panel is persuaded that the suspended member's deficiency had not been cured at the time the board made its determination, it shall determine that the deficiency had not been cured and shall report to the committee a recommendation that the suspended member not be reinstated.

(6)           When the Panel Determines That the Deficiency Had Been Cured ‑ If the panel is persuaded that the suspended member's deficiency had been cured at the time the board made its determination, it shall determine that the deficiency had been cured and then shall consider all information submitted to the panel or to the board by the member and all information submitted by the board to the panel bearing on the issue of whether the reinstatement fee had been paid at the time the board made its determination.

(7)           When the Panel Determines That Reinstatement Fee Had Been Paid ‑ If the panel is not persuaded that the reinstatement fee had not been paid at the time the board made its determination, the panel shall determine that the fee had been paid and shall report to the committee a recommendation that the member be reinstated.

(8)           When the Panel Determines That Reinstatement Fee Had Not Been Paid ‑ If the panel has determined that the reinstatement fee had not been paid at the time the board made its determination, the panel shall determine that the fee had not been paid and shall report to the committee a recommendation that the member not be reinstated.

(9)           When the Member Submits Information Indicating Remedial Intervening Events ‑ When a suspended member submits information indicating that, after the board's determination and prior to the hearing before the panel, the suspended member cured the deficiency (if failure to cure was a basis for the denial), the panel shall remand the matter to the board with a request that it reconsider the matter in light of the new information.

 

History Note:        Authority G.S. 84‑23; Order of the NC Supreme Court, dated October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1010         REPORT BY THE PANEL TO THE COMMITTEE

(a)  Report by the Panel ‑ At the first meeting of the committee following a panel's hearing a matter, the panel shall report to the committee its determinations and recommendations.

(b)  When Report Recommends Reinstatement or No Suspension ‑ If the panel reports to the committee, in a matter involving the question of suspension, a recommendation that the member not be suspended, or, in a matter involving the question of reinstatement, a recommendation that the member be reinstated, the committee shall accept the report, and the panel's recommendation shall be the recommendation of the committee.

(c)  When Report Recommends Suspension or No Reinstatement ‑ If the panel reports to the committee, in a matter involving the question of suspension, a recommendation that the member be suspended, or, in a matter involving the question of reinstatement, a recommendation that the member not be reinstated, the committee shall consider the information reported by the panel and shall determine whether there is any basis for the panel's recommendation.

(d)  When Information Contains No Basis for Panel's Recommendation ‑ If the information reported by the panel contains no basis for the panel's recommendation of suspension or its recommendation of no reinstatement, the committee shall reject the panel's recommendation and shall recommend, in a suspension matter, that the member not be suspended or, in a reinstatement matter, that the member be reinstated.

(e)  When Information Contains Some Basis for Panel's Recommendation ‑ If the information reported by the panel contains some basis for the panel's recommendation of suspension, or its recommendation of no reinstatement, the committee shall accept the panel's recommendation and shall recommend, in a suspension matter, that the member be suspended or, in a reinstatement matter, that the member not be reinstated.

 

History Note:        Authority G.S. 84‑23; Order of the NC Supreme Court, dated October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1011         REPORT BY THE COMMITTEE TO THE COUNCIL

At the first meeting of the council following the committee's receiving the report of a panel on a matter, the committee shall report to the council for final action the committee's recommendation in the matter.

 

History Note:        Authority G.S. 84‑23; Order of the NC Supreme Court, dated October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994.

 

                              SECTION .1100 ‑ RESERVED FOR FUTURE CODIFICATION

 

                              SECTION .1200 ‑ RESERVED FOR FUTURE CODIFICATION

 

section .1300 - RULES GOVERNING THE ADMINISTRATION OF THE PLAN FOR INTEREST ON LAWYERS' TRUST ACCOUNTS (IOLTA)

 

27 NCAC 01D .1301         Purpose

(a)  The IOLTA Board of Trustees (board) shall carry out the provisions of the Plan for Interest on Lawyers' Trust Accounts and administer the IOLTA program (NC IOLTA).  Any funds remitted to the North Carolina State Bar from banks by reason of interest earned on general trust accounts established by lawyers pursuant to Rule 1.15-2(b) of the Rules of Professional Conduct or interest earned on trust or escrow accounts maintained by settlement agents pursuant to G.S. 45A-9 shall be deposited by the North Carolina State Bar through the board in a special account or accounts which shall be segregated from other funds of whatever nature received by the State Bar.

(b)  The funds received, and any interest, dividends, or other proceeds earned on or with respect to these funds, net of banking charges described in section .1316(e)(1), shall be used for programs concerned with the improvement of the administration of justice, under the supervision and direction of the NC IOLTA Board.  The board will award grants or non-interest bearing loans under the four categories approved by the North Carolina Supreme Court being mindful of its tax exempt status and the IRS rulings that private interests of the legal profession are not to be funded with IOLTA funds.

(c)  The programs for which the funds may be awarded are:

(1)           providing civil legal services for indigents;

(2)           enhancement and improvement of grievance and disciplinary procedures to protect the public more fully from incompetent or unethical attorneys;

(3)           development and maintenance of a fund for student loans to enable meritorious persons to obtain a legal education who would not otherwise have adequate funds for this purpose;

(4)           such other programs designed to improve the administration of justice as may from time to time be proposed by the board and approved by the Supreme Court of North Carolina.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. March 8, 2012; March 6, 2008; March 6, 1997; April 3, 1996.

 

27 NCAC 01D .1302         Jurisdiction: Authority

The Board of Trustees of the North Carolina State Bar Plan for Interest on Lawyers' Trust Accounts (IOLTA) is created as a standing committee by the North Carolina State Bar Council pursuant to Chapter 84 of the North Carolina General Statutes for the disposition of funds received by the North Carolina State Bar from interest on trust accounts or from other sources intended for the provision of legal services to the indigent and the improvement of the administration of justice.

 

History Note:        Authority G.S. 84-23;

Readopted Effective December 8, 1994;

Amended Effective March 8, 2007.

 

27 NCAC 01D .1303         OPERATIONAL RESPONSIBILITY

The responsibility for operating the program of the board rests with the governing body of the board, subject to the statutes governing the practice of law, the authority of the council and the rules of governance of the board.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1304         SIZE OF BOARD

The board shall have nine members, at least six of whom must be attorneys in good standing and authorized to practice law in the state of North Carolina.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1305         LAY PARTICIPATION

The board may have no more than three members who are not licensed attorneys.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1306         APPOINTMENT OF MEMBERS; WHEN; REMOVAL

The members of the board shall be appointed by the Council of the North Carolina State Bar.  The July quarterly meeting is when the appointments are made.  Vacancies occurring by reason of death, resignation or removal shall be filled by appointment of the council at the next quarterly meeting following the event giving rise to the vacancy, and the person so appointed shall serve for the balance of the vacated term.  Any member of the board may be removed at any time by an affirmative vote of a majority of the members of the council in session at a regularly called meeting.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1307         TERM OF OFFICE

Each member who is appointed to the board shall serve for a term of three years beginning on September 1.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1308         STAGGERED TERMS

It is intended that members of the board shall be elected to staggered terms such that three members are appointed in each year.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1309         SUCCESSION

Each member of the board shall be entitled to serve for two full three‑year terms.  No member shall serve more than two consecutive three‑year terms, in addition to service prior to the beginning of a full three‑year term, without having been off the board for at least three years.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1310         APPOINTMENT OF CHAIRPERSON

The chairperson of the board shall be appointed from time to time as necessary by the council.  The term of such individual as chairperson shall be for one year.  The chairperson may be reappointed thereafter during his or her tenure on the board.  The chairperson shall preside at all meetings of the board, shall prepare and present to the council the annual report of the board, and generally shall represent the board in its dealings with the public.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1311         APPOINTMENT OF VICE‑CHAIRPERSON

The vice chairperson of the board shall be appointed from time to time as necessary by the council.  The term of such individual as vice chairperson shall be one year.  The vice‑chairperson may be reappointed thereafter during tenure on the board.  The vice chairperson shall preside at and represent the board in the absence of the chairperson and shall perform such other duties as may be assigned to him or her by the chairperson or by the board.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1312         Source of Funds

Funding for the program carried out by the board shall come from funds remitted from depository institutions by reason of interest earned on trust accounts established by lawyers pursuant to Rule 1.15 of the Rules of Professional Conduct and Rule .1316 of this subchapter or interest earned on trust or escrow accounts maintained by settlement agents pursuant to G.S. 45A-9; voluntary contributions from lawyers; and interest, dividends, or other proceeds earned on the board's funds from investments or from other sources intended for the provision of legal services to the indigent and the improvement of the administration of justice.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. March 8, 2012; February 5, 2009; March 8, 2007.

 

27 NCAC 01D .1313         Fiscal Responsibility

All funds of the board shall be considered funds of the North Carolina State Bar, with the beneficial interest in those funds being vested in the board for grants to qualified applicants in the public interest, less administrative costs. These funds shall be administered and disbursed by the board in accordance with rules or policies developed by the North Carolina State Bar and approved by the North Carolina Supreme Court. The funds shall be used only to pay the administrative costs of the IOLTA program and to fund grants approved by the board under the four categories approved by the North Carolina Supreme Court as outlined above.

(a)  Maintenance of Accounts: Audit - The funds of the IOLTA program shall be maintained in a separate account from funds of the North Carolina State Bar such that the funds and expenditures therefrom can be readily identified. The accounts of the board shall be audited on an annual basis. The audit will be conducted after the books are closed at a time determined by the auditors, but not later than March 31 of the year following the year for which the audit is to be conducted.

(b)  Investment Criteria - The funds of the board shall be handled, invested and reinvested in accordance with investment policies adopted by the Council of the North Carolina State Bar for handling of dues, rents, and other revenues received by the North Carolina State Bar in carrying out its official duties.

(c)  Disbursements - Disbursement of funds of the board in the nature of grants to qualified applicants in the public interest, less administrative costs, shall be made by the board in accordance with policies developed by the North Carolina State Bar and approved by the North Carolina Supreme Court. The board shall adopt an annual operational budget and disbursements shall be made in accordance with the budget as adopted. The board shall determine the signatories on the IOLTA accounts.

 

History Note:        Authority G.S. 84-23;

Readopted Effective December 8, 1994;

Amendments Approved by the Supreme Court: September 28, 2017.

 

27 NCAC 01D .1314         MEETINGS

The board by resolution may set regular meeting dates and places.  Special meetings of the board may be called at any time upon notice given by the chairperson, the vice‑chairperson or any two members of the board.  Notice of meeting shall be given at least two days prior to the meeting by mail, telegram, facsimile transmission, or telephone.  A quorum of the board for conducting its official business shall be a majority of the total membership of the board.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1315         ANNUAL REPORT

The board shall prepare at least annually a report of its activities and shall present same to the council one month prior to its annual meeting.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1316         IOLTA ACCOUNTS

(a)  IOLTA Account Defined.  Pursuant to order of the North Carolina Supreme Court, every general trust account, as defined in the Rules of Professional Conduct, must be an interest or dividend-bearing account.  (As used herein, "interest" shall refer to both interest and dividends.)  Funds deposited in a general, interest-bearing trust account must be available for withdrawal upon request and without delay (subject to any notice period that the bank is required to reserve by law or regulation).  Additionally, pursuant to G.S. 45A-9, a settlement agent who maintains a trust or escrow account for the purposes of receiving and disbursing closing funds and loan funds shall direct that any interest earned on funds held in that account be paid to the NC State Bar to be used for the purposes authorized under the Interest on Lawyers Trust Account Program according to Section .1316(d) below.  For the purposes of these rules, all such accounts shall be known as "IOLTA Accounts" (also referred to as "Accounts").

(b)  Eligible Banks.  Lawyers may maintain one or more IOLTA Account(s) only at banks and savings and loan associations chartered under North Carolina or federal law, as required by Rule 1.15 of the Rules of Professional Conduct, that offer and maintain IOLTA Accounts that comply with the requirements set forth in this Subchapter (Eligible Banks).  Settlement agents shall maintain any IOLTA Account as defined by G.S. 45A-9 and Paragraph (a) above only at an Eligible Bank; however, a settlement agent that is not a lawyer may maintain an IOLTA Account at any bank that is insured by the Federal Deposit Insurance Corporation and has a certificate of authority to transact business from the North Carolina Secretary of State, provided the bank is approved by NC IOLTA.  The determination of whether a bank is eligible shall be made by NC IOLTA, which shall maintain (i) a list of participating Eligible Banks available to all members of the State Bar and to all settlement agents, and (ii) a list of banks approved for non-lawyer settlement agent IOLTA Accounts available to non-lawyer settlement agents.  A bank that fails to meet the requirements of this Subchapter shall be subject only to termination of its eligible or approved status by NC IOLTA. A violation of this Rule shall not be the basis for civil liability.

(c)  Notice Upon Opening or Closing IOLTA Account.  Every lawyer/law firm or settlement agent maintaining IOLTA Accounts shall advise NC IOLTA of the establishment or closing of each IOLTA Account.  Such notice shall include (i) the name of the bank where the account is maintained, (ii) the name of the account, (iii) the account number, and (iv) the name and bar number of the lawyer(s) in the firm and/or the name(s) of any non-lawyer settlement agent(s) maintaining the account.  The North Carolina State Bar shall furnish to each lawyer/law firm or settlement agent maintaining an IOLTA Account a suitable plaque explaining the program, which plaque shall be exhibited in the office the lawyer/law firm or settlement agent.

(d)  Directive to Bank.  Every lawyer or law firm and every settlement agent maintaining a North Carolina IOLTA Accounts shall direct any bank in which an IOLTA Account is maintained to:

(1)           remit interest, less any deduction for allowable reasonable bank service charges or fees, (as used herein, "service charges" shall include any charge or fee charged by a bank on an IOLTA Account) as defined in Paragraph (e), at least quarterly to NC IOLTA;

(2)           transmit with each remittance to NC IOLTA a statement showing for each account:  (i) the name of the law firm/lawyer or settlement agent maintaining the account, (ii) the lawyer/law firm's or settlement agent's IOLTA Account number, (iii) the earnings period, (iv) the average balance of the account for the earnings period, (v) the type of account, (vi) the rate of interest applied in computing remittance, (vii) the amount of any service charges for the earnings period, and (viii) the net remittance for the earnings period; and

(3)           transmit to the law firm/lawyer or settlement agent maintaining the account a report showing the amount remitted to NC IOLTA, the earnings period, and the rate of interest applied in computing the remittance.

(e)  Allowable Reasonable Service Charges.  Eligible Banks may elect to waive any or all service charges on IOLTA Accounts.  If a bank does not waive service charges on IOLTA Accounts, allowable reasonable service charges may be assessed but only against interest earned on the IOLTA Account or funds deposited by the lawyer/law firm or settlement agent in the IOLTA Account for the purpose of paying such charges.  Allowable reasonable service charges may be deducted from interest on an IOLTA Account only at the rates and in accordance with the bank's standard practice for comparable non-IOLTA accounts.  Allowable reasonable service charges for IOLTA Accounts are: (i) a reasonable Account maintenance fee, (ii) per check charges, (iii) per deposit charges, (iv) a fee in lieu of a minimum balance, (v) federal deposit insurance fees, and (vi) automated transfer (Sweep) fees.  All service charges other than allowable reasonable service charges assessed against an IOLTA Account are the responsibility of and shall be paid by the lawyer or law firm.  No service charges in excess of the interest earned on the Account for any month or quarter shall be deducted from interest earned on other IOLTA Accounts or from the principal of the Account.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. August 23, 2012; March 8, 2012; January 28, 2010; February 5, 2009; March 6, 2008.

 

27 NCAC 01D .1317         Comparability Requirements for IOLTA Accounts

(a)  Comparability of Interest Rate.  Eligible Banks that offer and maintain IOLTA Accounts must pay to an IOLTA Account the highest interest rate generally available from the bank to non-IOLTA Accounts (Comparable Rate) when the IOLTA Account meets or exceeds the same minimum balance or other account eligibility qualifications, if any.  In determining the highest interest rate generally available from the bank to non-IOLTA accounts, an Eligible Bank may consider factors, in addition to the IOLTA account balance, customarily considered by the bank when setting interest rates for its customers, provided that such factors do not discriminate between IOLTA accounts and non-IOLTA accounts.

(b)  Options for Satisfying Requirement.  An Eligible Bank may satisfy the Comparable Rate requirement by electing one of the following options:

(1)           use an account product that has a Comparable Rate;

(2)           without actually changing the IOLTA Account to the bank's Comparable Rate product, pay the Comparable Rate on the IOLTA Account; or

(3)           pay the benchmark rate (Benchmark), which shall be determined by NC IOLTA periodically, but not more frequently than every six months, to reflect the overall Comparable Rate for the NC IOLTA program.  The Benchmark shall be a rate equal to the greater of:  (i) 0.65 percent or (ii) 65 percent of the Federal Funds Target Rate as of the first business day of the IOLTA remitting period, and shall be net of allowable reasonable service charges.  When applicable, NC IOLTA will express the Benchmark in relation to the Federal Funds Target Rate.

(c)  Options for Account Types.  An IOLTA Account may be established as:

(1)           subject to Paragraph (d), a business checking account with an automated investment feature (Sweep Account), such as an overnight investment in financial institution daily repurchase agreements or money market funds invested solely in or fully collateralized by US government securities, which are US Treasury obligations and obligations issued or guaranteed as to principal and interest by the United States or any agency or instrumentality thereof;

(2)           a checking account paying preferred interest rates, such as market based or indexed rates;

(3)           a public funds interest-bearing checking account, such as accounts used for governmental agencies and other non-profit organizations;

(4)           an interest-bearing checking account such as a negotiable order of withdrawal (NOW) account, or business checking account with interest; or

(5)           any other suitable interest-bearing deposit account offered by the bank to its non-IOLTA customers.

(d)  Financial Requirements for Sweep Accounts.  If a bank establishes an IOLTA Account as described in Paragraph (c)(1), the following requirements must be satisfied:  an overnight investment in a financial institution daily repurchase agreement shall be fully collateralized by United States government securities, as described in this Rule, and may be established only with an Eligible Bank that is "well capitalized" or "adequately capitalized" as those terms are defined by applicable federal statutes and regulations.  A "money market fund" is an investment company registered under the Investment Company Act of 1940, as amended, that is qualified to hold itself out to investors as a money market fund under Rules and Regulations adopted by the Securities and Exchange Commission pursuant to said Act.  A money market fund shall be invested solely in United States government securities or repurchase agreements fully collateralized by United States government securities, as described in this Rule, and, at the time of the investment, shall have total assets of at least two hundred fifty million dollars ($250,000,000).

(e)  Interest Calculation.  Interest shall be calculated in accordance with an Eligible Bank's standard practice for comparable non-IOLTA Accounts.

(f)  Higher Rates and Waiver of Service Charges Allowed.  Nothing in this rule shall preclude a participating bank from paying a higher interest rate than described above or electing to waive any service charges on IOLTA Accounts.

 

History Note:        Authority G.S. 84-23;

Eff. July 1, 2010.

 

27 NCAC 01D .1318         Confidentiality

(a)  As used in this rule, "confidential information" means all information regarding IOLTA account(s) other than (1) a lawyer's/law firm's or settlement agent's status as a participant, former participant, or non-participant in NC IOLTA, and (2) information regarding the policies and practices of any bank in respect of IOLTA trust accounts, including rates of interest paid, service charge policies, the number of IOLTA accounts at such bank, the total amount on deposit in all IOLTA accounts at such bank, the total amounts of interest paid to NC IOLTA, and the total amount of service charges imposed by such bank upon such accounts.

(b)  Confidential information shall not be disclosed by the staff or trustees of NC IOLTA to any person or entity, except that confidential information may be disclosed (1) to any chairperson of the grievance committee, staff attorney, or investigator of the North Carolina State Bar upon his or her written request specifying the information requested and stating that the request is made in connection with a grievance complaint or investigation regarding one or more trust accounts of a lawyer/law firm or settlement agent; or (2) in response to a lawful order or other process issued by a court of competent jurisdiction, or a subpoena, investigative demand, or similar notice issued by a federal, state, or local law enforcement agency.

 

History Note:        Authority - Order of the NC Supreme Court;

Eff. March 6, 2008;

Recodified from Rule .1317 Eff. July 1, 2010;

Amended Eff. March 8, 2012.

 

27 NCAC 01D .1319         Certification

Every lawyer admitted to practice in North Carolina shall certify annually on or before June 30 to the North Carolina State Bar that all general trust accounts maintained by the lawyer or his or her law firm are established and maintained as IOLTA accounts as prescribed by Rule 1.15 of the Rules of Professional Conduct and Rule .1316 of this subchapter or that the lawyer is exempt from this provision because he or she does not maintain any general trust account(s) for North Carolina client funds.  Any lawyer acting as a settlement agent who maintains a trust or escrow account used for the purpose of receiving and disbursing closing and loan funds shall certify annually on or before June 30 to the North Carolina State Bar that such accounts are established and maintained as IOLTA accounts as prescribed by G.S. 45A-9 and Rule .1316 of this subchapter.

 

History Note:        Authority - Order of the N.C. Supreme Court;

Eff. March 6, 2008;

Amended Eff. February 5, 2009;

Recodified from Rule .1318 Eff. July 1, 2010;

Amended Eff. March 8, 2012.

 

27 NCAC 01D .1320         Noncompliance

Every lawyer must comply with all of the administrative requirements of this Rule, including the certification required in Rule .1319 of this Subchapter.  A lawyer's failure to comply with the mandatory provisions of this Subchapter shall be reported to the Administrative Committee which may initiate proceedings to suspend administratively the lawyer's active membership status and eligibility to practice law pursuant to Rule .0903 of this Subchapter.

 

History Note:        Order of the N.C. Supreme Court;

Adopted Eff. March 6, 2008;

Amended Eff. January 28, 2010;

Recodified from Rule .1319 Eff. July 1, 2010.

 

27 NCAC 01D .1321         Severability

If any provision of this plan or the application thereof is held invalid, the invalidity does not affect other provisions or application of the plan which can be given effect without the invalid provision or application, and to this end the provisions of the plan are severable.

 

History Note:        Order of the N.C. Supreme Court;

Eff. March 6, 2008;

Recodified from Rule .1320 Eff. July 1, 2010.

 

SECTION .1400 ‑ RULES GOVERNING THE ADMINISTRATION OF THE CLIENT SECURITY FUND OF THE NORTH CAROLINA STATE BAR

 

27 NCAC 01D .1401         PURPOSE; DEFINITIONS

(a)  The Client Security Fund of the North Carolina State Bar was established by the Supreme Court of North Carolina pursuant to an order dated August 29, 1984.  The fund is a standing committee of the North Carolina State Bar Council pursuant to an order of the Supreme Court dated October 10, 1984, as amended.  Its purpose is to reimburse, in whole or in part in appropriate cases and subject to the provisions and limitations of the Supreme Court's orders and these Rules, clients who have suffered financial loss as the result of dishonest conduct of lawyers engaged in the private practice of law in North Carolina, which conduct occurred on or after January 1, 1985.

(b)  As used herein the following terms have the meaning indicated.

(1)           "Applicant" shall mean a person who has suffered a reimbursable loss because of the dishonest conduct of an attorney and has filed an application for reimbursement.

(2)           "Attorney" shall mean an attorney who, at the time of alleged dishonest conduct, was licensed to practice law by the North Carolina State Bar.  The fact that the alleged dishonest conduct took place outside the state of North Carolina does not necessarily mean that the attorney was not engaged in the practice of law in North Carolina.

(3)           "Board" shall mean the Board of Trustees of the Client Security Fund.

(4)           "Council" shall mean the North Carolina State Bar Council.

(5)           "Dishonest conduct" shall mean wrongful acts committed by an attorney against an applicant in the nature of embezzlement from the applicant or the wrongful taking or conversion of monies or other property of the applicant, which monies or other property were entrusted to the attorney by the applicant by reason of an attorney‑client relationship between the attorney and the applicant or by reason of a fiduciary relationship between the attorney and the applicant customary to the practice of law.

(6)           "Fund" shall mean the Client Security Fund of the North Carolina State Bar.

(7)           "Reimbursable losses" shall mean only those losses of money or other property which meet all of the following tests:

(A)          the dishonest conduct which occasioned the loss occurred on or after January 1, 1985;

(B)          the loss was caused by the dishonest conduct of an attorney acting either as an attorney for the applicant or in a fiduciary capacity for the benefit of the applicant customary to the private practice of law in the matter in which the loss arose;

(C)          the applicant has exhausted all viable means to collect applicant's losses and has complied with these Rules.

(8)           The following shall not be deemed "reimbursable losses":

(A)          losses of spouses, parents, grandparents, children and siblings (including foster and half relationships), partners, associates or employees of the attorney(s) causing the losses;

(B)          losses covered by any bond, security agreement or insurance contract, to the extent covered thereby;

(C)          losses incurred by any business entity with which the attorney or any person described in Part (b)(8)(A) of this Rule is an officer, director, shareholder, partner, joint venturer, promoter or employee;

(D)          losses, reimbursement for which has been otherwise received from or paid by or on behalf of the attorney who committed the dishonest conduct;

(E)           losses arising in investment transactions in which there was neither a contemporaneous attorney‑client relationship between the attorney and the applicant nor a contemporaneous fiduciary relationship between the attorney and the applicant customary to the practice of law.  By way of illustration but not limitation, for purposes of this Rule [Part (b)(8)(E) of this Rule], an attorney authorized or permitted by a person or entity other than the applicant as escrow or similar agent to hold funds deposited by the applicant for investment purposes shall not be deemed to have a fiduciary relationship with the applicant customary to the practice of law.

(9)           "State Bar" shall mean the North Carolina State Bar.

(10)         "Supreme Court" shall mean the North Carolina Supreme Court.

(11)         "Supreme Court orders" shall mean the orders of the Supreme Court dated August 29, 1984, and October 10, 1984, as amended, authorizing the establishment of the Client Security Fund of the North Carolina State Bar and approving the rules of procedure of the Fund.

 

History Note:        Authority Orders of the NC Supreme Court, August 29, 1984, October 10, 1984;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1402         JURISDICTION: AUTHORITY

(a)  G.S. 84 vests in the State Bar authority to control the discipline, disbarment, and restoration of licenses of attorneys; to formulate and adopt rules of professional ethics and conduct; and to do all such things necessary in the furtherance of the purposes of the statutes governing the practice of the law as are not themselves prohibited by law.  G.S. 84‑22 authorizes the State Bar to establish such committees, standing or special, as from time to time the council deems appropriate for the proper discharge of its duties; and to determine the number of members, composition, method of appointment or election, functions, powers and duties, structure, authority to act, and other matters relating to such committees.  The rules of the State Bar, as adopted and amended from time to time, are subject to approval by the Supreme Court under G.S. 84‑21.

(b)  The Supreme Court orders, entered in the exercise of the Supreme Court's inherent power to supervise and regulate attorney conduct, authorized the establishment of the Fund, as a standing committee of the council, to be administered by the State Bar under rules and regulations approved by the Supreme Court.

 

History Note:        Authority Orders of the NC Supreme Court, August 29, 1984, October 10, 1984;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1403         OPERATIONAL RESPONSIBILITY

The responsibility for operating the Fund and the program of the board rests with the board, subject to the Supreme Court orders, the statutes governing the practice of law, the authority of the council, and the rules of the board.

 

History Note:        Authority Orders of the NC Supreme Court, August 29, 1984, October 10, 1984;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1404         SIZE OF BOARD

The board shall have five members, four of whom must be attorneys in good standing and authorized to practice law in the state of North Carolina.

 

History Note:        Authority Orders of the NC Supreme Court, August 29, 1984, October 10, 1984;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1405         LAY PARTICIPATION

The board shall have one member who is not a licensed attorney.

 

History Note:        Authority Orders of the NC Supreme Court, August 29, 1984, October 10, 1984;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1406         APPOINTMENT OF MEMBERS; WHEN; REMOVAL

The members of the board shall be appointed by the council. Any member of the board may be removed at any time by the affirmative vote of a majority of the members of the council at a regularly called meeting.  Vacancies occurring by reason of death, disability, resignation, or removal of a member shall be filled by appointment of the president of the State Bar with the approval of the council at its next quarterly meeting following the event giving rise to the vacancy, and the person so appointed shall serve for the balance of the vacated term.

 

History Note:        Authority Orders of the NC Supreme Court, August 29, 1984, October 10, 1984;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1407         TERM OF OFFICE

Each member who is appointed to the board, other than a member appointed to fill a vacancy created by the death, disability, removal or resignation of a member, shall serve for a term of five years beginning as of the first day of the month following the date upon which the appointment is made by the council.  A member appointed to fill a vacancy shall serve the remainder of the vacated term.

 

History Note:        Authority Orders of the NC Supreme Court, August 29, 1984, October 10, 1984;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1408         STAGGERED TERMS

It is intended that members of the board shall be elected to staggered terms such that one member is appointed in each year.

 

History Note:        Authority Orders of the NC Supreme Court, August 29, 1984, October 10, 1984;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1409         SUCCESSION

Each member of the board shall be entitled to serve for one full five‑year term.  A member appointed to fill a vacated term may be appointed to serve one full five‑year term immediately following the expiration of the vacated term but shall not be entitled as of right to such appointment.  No person shall be reappointed to the board until the expiration of three years following the last day of the previous term of such person on the board.

 

History Note:        Authority Orders of the NC Supreme Court, August 29, 1984, October 10, 1984;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1410         APPOINTMENT OF CHAIRPERSON

The chairperson of the board shall be appointed from the members of the board annually by the council.  The term of the chairperson shall be one year.  The chairperson may be reappointed by the council thereafter during tenure on the board.  The chairperson shall preside at all meetings of the board, shall prepare and present to the council the annual report of the board, and generally shall represent the board in its dealings with the public.

 

History Note:        Authority Orders of the NC Supreme Court, August 29, 1984, October 10, 1984;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1411         APPOINTMENT OF VICE‑CHAIRPERSON

The vice‑chairperson of the board shall be appointed from the members of the board annually by the council.  The term of the vice‑chairperson shall be one year.  The vice chairperson may be reappointed by the council thereafter during tenure on the board.  The vice‑chairperson shall preside at and represent the board in the absence of the chairperson and shall perform such other duties as may be assigned to him by the chairperson or by the board.

 

History Note:        Authority Orders of the NC Supreme Court, August 29, 1984, October 10, 1984;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1412         SOURCE OF FUNDS

Funds for the program carried out by the board shall come from assessments of members of the State Bar as ordered by the Supreme Court, from voluntary contributions, and as may otherwise be received by the Fund.

 

History Note:        Authority Orders of the NC Supreme Court, August 29, 1984, October 10, 1984;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1413         FISCAL RESPONSIBILITY

All funds of the board shall be considered funds of the State Bar and shall be maintained, invested, and disbursed as follows:

(1)           Maintenance of Accounts; Audit ‑ The State Bar shall maintain a separate account for funds of the board such that such funds and expenditures therefrom can be readily identified.  The accounts of the board shall be audited annually in connection with the audits of the State Bar.

(2)           Investment Criteria ‑ The funds of the board shall be kept, invested, and reinvested in accordance with investment policies adopted by the council for dues, rents, and other revenues received by the State Bar in carrying out its official duties.  In no case shall the funds be invested or reinvested in investments other than such as are permitted to fiduciaries under the General Statutes of North Carolina.

(3)           Disbursement ‑ Disbursement of funds of the board shall be made by or under the direction of the secretary of the State Bar.

 

History Note:        Authority Orders of the NC Supreme Court, August 29, 1984, October 10, 1984;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1414         MEETINGS

The annual meeting of the board shall be held in October of each year in connection with the annual meeting of the State Bar.  The board by resolution may set other regular meeting dates and places.  Special meetings of the board may be called at any time upon notice given by the chairperson, the vice‑chairperson, or any two members of the board.  Notice of meeting shall be given at least two days prior to the meeting by mail, telegram, facsimile transmission or telephone.  A quorum of the board for conducting its official business shall be a majority of the members serving at a particular time.  Written minutes of all meetings shall be prepared and maintained.

 

History Note:        Authority Orders of the NC Supreme Court, August 29, 1984, October 10, 1984;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1415         ANNUAL REPORT

The board shall prepare at least annually a report of its activities and shall present the same to the council at the annual meeting of the State Bar.

 

History Note:        Authority Orders of the NC Supreme Court, August 29, 1984, October 10, 1984;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1416         Appropriate Uses of the Client Security Fund

(a)  The board may use or employ the Fund for only the following purposes within the scope of the board's objectives as heretofore outlined:

(1)           to make reimbursements on approved applications as herein provided;

(2)           to purchase insurance to cover such losses in whole or in part as is deemed appropriate;

(3)           to invest such portions of the Fund as may not be needed currently to reimburse losses, in such investments as are permitted to fiduciaries by the General Statutes of North Carolina;

(4)           to pay the administrative expenses of the board, including employment of counsel to prosecute subrogation claims.

(b)  The board with the authorization of the council shall, in the name of the North Carolina State Bar, enforce any claims which the board may have for restitution, subrogation, or otherwise, and may employ and compensate consultants, agents, legal counsel, and such other employees as it deems necessary and appropriate.

 

History Note:        Authority - Orders of the North Carolina Supreme Court, August 29, 1984, October 10, 1984;

Readopted Effective December 8, 1994;

Amendments Approved by the Supreme Court: September 28, 2017.

 

27 NCAC 01D .1417         APPLICATIONS FOR REIMBURSEMENT

(a)  The board shall prepare a form of application for reimbursement which shall require the following minimum information, and such other information as the board may from time to time specify:

(1)           the name and address of the applicant;

(2)           the name and address of the attorney who is alleged to have engaged in dishonest conduct;

(3)           the amount of the alleged loss for which application is made;

(4)           the date on or period of time during which the alleged loss occurred;

(5)           a general statement of facts relative to the application;

(6)           a description of any relationship between the applicant and the attorney of the kinds described in Rule .1401(b)(8)(A) and (C) of this Section;

(7)           verification by the applicant;

(8)           all supporting documents, including:

(A)          copies of any court proceedings against the attorney;

(B)          copies of all documents showing any reimbursement or receipt of funds in payment of any portion of the loss.

(b)  The application shall contain the following statement in boldface type:

 

"IN ESTABLISHING THE CLIENT SECURITY FUND PURSUANT TO ORDER OF THE SUPREME COURT OF NORTH CAROLINA, THE NORTH CAROLINA STATE BAR DID NOT CREATE OR ACKNOWLEDGE ANY LEGAL RESPONSIBILITY FOR THE ACTS OF INDIVIDUAL ATTORNEYS IN THE PRACTICE OF LAW.  ALL REIMBURSEMENTS OF LOSSES FROM THE CLIENT SECURITY FUND SHALL BE A MATTER OF GRACE IN THE SOLE DISCRETION OF THE BOARD ADMINISTERING THE FUND AND NOT A MATTER OF RIGHT.  NO APPLICANT OR MEMBER OF THE PUBLIC SHALL HAVE ANY RIGHT IN THE CLIENT SECURITY FUND AS A THIRD PARTY BENEFICIARY OR OTHERWISE."

 

(c)  The application shall be filed in the office of the State Bar in Raleigh, North Carolina, attention Client Security Fund Board, and a copy shall be transmitted by such office to the chairperson of the board.

 

History Note:        Authority Orders of the NC Supreme Court, August 29, 1984, October 10, 1984;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1418         PROCESSING APPLICATIONS

(a)  The board shall cause an investigation of all applications filed with the State Bar to determine whether the application is for a reimbursable loss and the extent, if any, to which the application should be paid from the Fund.

(b)  The chairperson of the board shall assign each application to a member of the board for review and report.  Wherever possible, the member to whom such application is referred shall practice in the county wherein the attorney practices or practiced.

(c)  A copy of the application shall be served upon or sent by registered mail to the last known address of the attorney who it is alleged committed an act of dishonest conduct.

(d)  After considering a report of investigation as to an application, any board member may request that testimony be presented concerning the application.  In all cases, the alleged defalcating attorney or his or her representative will be given an opportunity to be heard by the board if the attorney so requests.

(e)  The board shall operate the Fund so that, taking into account assessments ordered by the Supreme Court but not yet received and anticipated investment earnings, a principal balance of approximately one million dollars ($1,000,000) is maintained.  Subject to the foregoing, the board shall, in its discretion, determine the amount of loss, if any, for which each applicant should be reimbursed from the Fund.  In making such determination, the board shall consider, inter alia, the following:

(1)           the negligence, if any, of the applicant which contributed to the loss;

(2)           the comparative hardship which the applicant suffered because of the loss;

(3)           the total amount of reimbursable losses of applicants on account of any one attorney or firm or association of attorneys;

(4)           the total amount of reimbursable losses in previous years for which total reimbursement has not been made and the total assets of the Fund;

(5)           the total amount of insurance or other source of funds available to compensate the applicant for any reimbursable loss.

(f)  The board may, in its discretion, allow further reimbursement in any year of a reimbursable loss reimbursed in part by it in prior years.

(g)  Provided, however, and the foregoing notwithstanding, in no case shall the Fund reimburse the otherwise reimbursable losses sustained by any one applicant as a result of the dishonest conduct of one attorney in an amount in excess of one hundred thousand dollars ($100,000).

(h)  No reimbursement shall be made to any applicant unless reimbursement is approved by a majority vote of the entire board at a duly held meeting at which a quorum is present.

(i)  No attorney shall be compensated by the board for prosecuting an application before it.

(j)  An applicant may be advised of the status of the board's consideration of the application and shall be advised of the final determination of the board.

(k)  All applications, proceedings, investigations, and reports involving applicants for reimbursement shall be kept confidential until and unless the board authorizes reimbursement to the applicant, or the attorney alleged to have engaged in dishonest conduct requests that the matter be made public.  All participants involved in an application, investigation, or proceeding (including the applicant) shall conduct themselves so as to maintain the confidentiality of the application, investigation or proceeding.  This provision shall not be construed to deny relevant information to be provided by the board to disciplinary committees or to anyone else to whom the council authorizes release of information.

(l)  The board may, in its discretion, for newly discovered evidence or other compelling reason, grant a request to reconsider any application which the board has denied in whole or in part; otherwise, such denial is final and no further consideration shall be given by the board to such application or another application upon the same alleged facts.

 

History Note:        Authority Orders of the NC Supreme Court, August 29, 1984, October 10, 1984;

Readopted Eff. December 8, 1994;

Amended Eff. March 6, 1997.

 

27 NCAC 01D .1419         SUBROGATION FOR REIMBURSEMENT

(a)  In the event reimbursement is made to an applicant, the State Bar shall be subrogated to the amount reimbursed and may bring an action against the attorney or the attorney's estate either in the name of the applicant or in the name of the State Bar.  As a condition of reimbursement, the applicant may be required to execute a "subrogation agreement" to such effect.  Filing of an application constitutes an agreement by the applicant that the North Carolina State Bar shall be subrogated to the rights of the applicant to the extent of any reimbursement.  Upon commencement of an action by the State Bar pursuant to its subrogation rights, it shall advise the reimbursed applicant at his or her last known address.  A reimbursed applicant may then join in such action to recover any loss in excess of the amount reimbursed by the Fund.  Any amounts recovered from the attorney by the board in excess of the amount to which the Fund is subrogated, less the board's actual costs of such recovery, shall be paid to or retained by the applicant as the case may be.

(b)  Before receiving a payment from the Fund, the person who is to receive such payment or his or her legal representative shall execute and deliver to the board a written agreement stating that in the event the reimbursed applicant or his or her estate should ever receive any restitution from the attorney or his or her estate, the reimbursed applicant agrees that the Fund shall be repaid up to the amount of the reimbursement from the Fund plus expenses.

 

History Note:        Authority Orders of the NC Supreme Court, August 29, 1984, October 10, 1984;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1420         AUTHORITY RESERVED BY THE SUPREME COURT

The Fund may be modified or abolished by the Supreme Court. In the event of abolition, all assets of the Fund shall be disbursed by order of the Supreme Court.

 

History Note:        Authority Orders of the NC Supreme Court, August 29, 1984, October 10, 1984;

Readopted Eff. December 8, 1994.

 

SECTION .1500 – RULES GOVERNING THE ADMINISTRATION OF THE CONTINUING LEGAL EDUCATION PROGRAM

 

27 NCAC 01D .1501         Scope, Purpose and Definitions

(a)  Scope

Except as provided herein, these rules shall apply to every active member licensed by the North Carolina State Bar.

(b)  Purpose

The purpose of these continuing legal education rules is to assist lawyers licensed to practice and practicing law in North Carolina in achieving and maintaining professional competence for the benefit of the public whom they serve. The North Carolina State Bar, under Chapter 84 of the General Statutes of North Carolina, is charged with the responsibility of providing rules of professional conduct and with disciplining attorneys who do not comply with such rules. The Revised Rules of Professional Conduct adopted by the North Carolina State Bar and approved by the Supreme Court of North Carolina require that lawyers adhere to important ethical standards, including that of rendering competent legal services in the representation of their clients.

At a time when all aspects of life and society are changing rapidly or becoming subject to pressures brought about by change, laws and legal principles are also in transition (through additions to the body of law, modifications and amendments) and are increasing in complexity. One cannot render competent legal services without continuous education and training.

The same changes and complexities, as well as the economic orientation of society, result in confusion about the ethical requirements concerning the practice of law and the relationships it creates. The data accumulated in the discipline program of the North Carolina State Bar argue persuasively for the establishment of a formal program for continuing and intensive training in professional responsibility and legal ethics.

It has also become clear that in order to render legal services in a professionally responsible manner, a lawyer must be able to manage his or her law practice competently. Sound management practices enable lawyers to concentrate on their clients' affairs while avoiding the ethical problems which can be caused by disorganization.

It is in response to such considerations that the North Carolina State Bar has adopted these minimum continuing legal education requirements. The purpose of these minimum continuing legal education requirements is the same as the purpose of the Revised Rules of Professional Conduct themselves—to ensure that the public at large is served by lawyers who are competent and maintain high ethical standards.

(c)  Definitions

(1)           "Active member" shall include any person who is licensed to practice law in the state of North Carolina and who is an active member of the North Carolina State Bar.

(2)           "Administrative Committee" shall mean the Administrative Committee of the North Carolina State Bar.

(3)           "Approved program" shall mean a specific, individual educational program approved as a continuing legal education program under these rules by the Board of Continuing Legal Education.

(4)           "Board" means the Board of Continuing Legal Education created by these rules.

(5)           "Continuing legal education" or "CLE" is any legal, judicial or other educational activity accredited by the board. Generally, CLE will include educational activities designed principally to maintain or advance the professional competence of lawyers and/or to expand an appreciation and understanding of the professional responsibilities of lawyers.

(6)           "Council" shall mean the North Carolina State Bar Council.

(7)           "Credit hour" means an increment of time of 60 minutes which may be divided into segments of 30 minutes or 15 minutes, but no smaller.

(8)           "Inactive member" shall mean a member of the North Carolina State Bar who is on inactive status.

(9)           "In-house continuing legal education" shall mean courses or programs offered or conducted by law firms, either individually or in connection with other law firms, corporate legal departments, or similar entities primarily for the education of their members. The board may exempt from this definition those programs which it finds

(A)          to be conducted by public or quasi-public organizations or associations for the education of their employees or members;

(B)          to be concerned with areas of legal education not generally offered by sponsors of programs attended by lawyers engaged in the private practice of law.

(10)         A "newly admitted active member" is one who becomes an active member of the North Carolina State Bar for the first time, has been reinstated, or has changed from inactive to active status.

(11)         "Participatory CLE" shall mean courses or segments of courses that encourage the participation of attendees in the educational experience through, for example, the analysis of hypothetical situations, role playing, mock trials, roundtable discussions, or debates.

(12)         "Professional responsibility" shall mean those courses or segments of courses devoted to a) the substance, underlying rationale, and practical application of the Rules of Professional Conduct; b) the professional obligations of the lawyer to the client, the court, the public, and other lawyers; c) moral philosophy and ethical decision-making in the context of the practice of law; and d) the effects of stress, substance abuse and chemical dependency, or debilitating mental conditions on a lawyer's professional responsibilities and the prevention, detection, treatment, and etiology of stress, substance abuse, chemical dependency, and debilitating mental conditions. This definition shall be interpreted consistent with the provisions of Rule .1501(c)(4) or (6) above.

(13)         "Professionalism" courses are courses or segments of courses devoted to the identification and examination of, and the encouragement of adherence to, non-mandatory aspirational standards of professional conduct which transcend the requirements of the Rules of Professional Conduct. Such courses address principles of competence and dedication to the service of clients, civility, improvement of the justice system, diversity of the legal profession and clients, advancement of the rule of law, service to the community, and service to the disadvantaged and those unable to pay for legal services.

(14)         "Registered sponsor" shall mean an organization that is registered by the board after demonstrating compliance with the accreditation standards for continuing legal education programs as well as the requirements for reporting attendance and remitting sponsor fees for continuing legal education programs.

(15)         "Rules" shall mean the provisions of the continuing legal education rules established by the Supreme Court of North Carolina (Section .1500 of this subchapter).

(16)         "Sponsor" is any person or entity presenting or offering to present one or more continuing legal education programs, whether or not an accredited sponsor.

(17)         "Year" shall mean calendar year.

 

History Note:        Authority - Order of the North Carolina Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Effective December 8, 1994;

Amendments Approved by the Supreme Court: March 6, 1997; March 3, 1999; June 7, 2001; March 3, 2005; March 8, 2007; October 9, 2008; August 25, 2011; April 5, 2018.

 

27 NCAC 01D .1502         JURISDICTION: AUTHORITY

The Council of the North Carolina State Bar hereby establishes the Board of Continuing Legal Education (board) as a standing committee of the council, which board shall have authority to establish regulations governing a continuing legal education program and a law practice assistance program for attorneys licensed to practice law in this state.

 

History Note:        Authority Order of the NC Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1503         OPERATIONAL RESPONSIBILITY

The responsibility for operating the continuing legal education program and the law practice assistance program shall rest with the board, subject to the statutes governing the practice of law, the authority of the council, and the rules of governance of the board.

 

History Note:        Authority Order of the NC Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1504         SIZE OF BOARD

The board shall have nine members, all of whom must be attorneys in good standing and authorized to practice in the state of North Carolina.

 

History Note:        Authority Order of the NC Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1505         LAY PARTICIPATION

The board shall have no members who are not licensed attorneys.

 

History Note:        Authority Order of the NC Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1506         APPOINTMENT OF MEMBERS; WHEN; REMOVAL

The members of the board shall be appointed by the council.  The first members of the board shall be appointed as of the quarterly meeting of the council following the creation of the board.  Thereafter, members shall be appointed annually as of the same quarterly meeting.  Vacancies occurring by reason of death, resignation, or removal shall be filled by appointment of the council at the next quarterly meeting following the event giving rise to the vacancy, and the person so appointed shall serve for the balance of the vacated term.  Any member of the board may be removed at any time by an affirmative vote of a majority of the members of the council in session at a regularly called meeting.

 

History Note:        Authority Order of the NC Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1507         TERM OF OFFICE

Each member who is appointed to the board shall serve for a term of three years beginning as of the first day of the month following the date on which the appointment is made by the council.  See, however, Rule .1508 of this Section.

 

History Note:        Authority Order of the NC Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1508         STAGGERED TERMS

It is intended that members of the board shall be elected to staggered terms such that three members are appointed in each year.  Of the initial board, three members shall be elected to terms of one year, three members shall be elected to terms of two years, and three members shall be elected to terms of three years.  Thereafter, three members shall be elected each year.

 

History Note:        Authority Order of the NC Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1509         SUCCESSION

Each member of the board shall be entitled to serve for one full three‑year term and to succeed himself or herself for one additional three‑year term.  Thereafter, no person may be reappointed without having been off the board for at least three years.

 

History Note:        Authority Order of the NC Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1510         APPOINTMENT OF CHAIRPERSON

The chairperson of the board shall be appointed from time to time as necessary by the council.  The term of such individual as chairperson shall be one year.  The chairperson may be reappointed thereafter during his or her tenure on the board.  The chairperson shall preside at all meetings of the board, shall prepare and present to the council the annual report of the board, and generally shall represent the board in its dealings with the public.

 

History Note:        Authority Order of the NC Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1511         APPOINTMENT OF VICE‑CHAIRPERSON

The vice‑chairperson of the board shall be appointed from time to time as necessary by the council. The term of such individual as vice‑chairperson shall be one year.  The vice‑chairperson may be reappointed thereafter during tenure on the board.  The vice‑chairperson shall preside at and represent the board in the absence of the chairperson and shall perform such other duties as may be assigned to him or her by the chairperson or by the board.

 

History Note:        Authority Order of the NC Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1512         SOURCE OF FUNDS

(a)  Funding for the program carried out by the board shall come from sponsor's fees and attendee's fees as provided below, as well as from duly assessed penalties for noncompliance and from reinstatement fees.

(1)           Registered sponsors located in North Carolina (for programs offered in or outside North Carolina), registered sponsors not located in North Carolina (for programs offered in North Carolina), and all other sponsors located in or outside of North Carolina (for programs offered in North Carolina) shall, as a condition of conducting an approved program, agree to remit a list of North Carolina attendees and to pay a fee for each active member of the North Carolina State Bar who attends the program for CLE credit. The sponsor's fee shall be based on each credit hour of attendance, with a proportional fee for portions of a program lasting less than an hour. The fee shall be set by the board upon approval of the council. Any sponsor, including a registered sponsor, that conducts an approved program which is offered without charge to attendees shall not be required to remit the fee under this section. Attendees who wish to receive credit for attending such an approved program shall comply with paragraph (a)(2) of this rule.

(2)           The board shall fix a reasonably comparable fee to be paid by individual attorneys who attend for CLE credit approved continuing legal education activities for which the sponsor does not submit a fee under Rule .1512(a)(1) above. Such fee shall accompany the member's annual affidavit. The fee shall be set by the board upon approval of the council.

(b)  Funding for a law practice assistance program shall be from user fees set by the board upon approval of the council and from such other funds as the council may provide.

(c)  No Refunds for Exemptions and Record Adjustments.

(1)           Exemption Claimed. If a credit hour of attendance is reported to the board, the fee for that credit hour is earned by the board regardless of an exemption subsequently claimed by the member pursuant to Rule .1517 of this subchapter. No paid fees will be refunded and the member shall pay the fee for any credit hour reported on the annual report form for which no fee has been paid at the time of submission of the member's annual report form.

(2)           Adjustment of Reported Credit Hours. When a sponsor is required to pay the sponsor's fee, there will be no refund to the sponsor or to the member upon the member's subsequent adjustment, pursuant to Rule .1522(a) of this subchapter, to credit hours reported on the annual report form. When the member is required to pay the attendee's fee, the member shall pay the fee for any credit hour reported after any adjustment by the member to credit hours reported on the annual report form.

 

History Note:        Authority - Order of the North Carolina Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Effective December 8, 1994;

Amendments Approved by the Supreme Court: September 22, 2016; April 5, 2018.

 

27 NCAC 01D .1513         Fiscal Responsibility

All funds of the board shall be considered funds of the North Carolina State Bar and shall be administered and disbursed accordingly.

(a) Maintenance of Accounts: Audit - The North Carolina State Bar shall maintain a separate account for funds of the board such that such funds and expenditures therefrom can be readily identified. The accounts of the board shall be audited on an annual basis in connection with the audits of the North Carolina State Bar.

(b) Investment Criteria - The funds of the board shall be handled, invested and reinvested in accordance with investment policies adopted by the council for the handling of dues, rents, and other revenues received by the North Carolina State Bar in carrying out its official duties.

(c) Disbursement - Disbursement of funds of the board shall be made by or under the direction of the secretary-treasurer of the North Carolina State Bar pursuant to authority of the council. The members of the board shall serve on a voluntary basis without compensation, but may be reimbursed for the reasonable expenses incurred in attending meetings of the board or its committees.

(d) All revenues resulting from the CLE program, including fees received from attendees and sponsors, late filing penalties, late compliance fees, reinstatement fees, and interest on a reserve fund shall be applied first to the expense of administration of the CLE program including an adequate reserve fund; provided, however, that a portion of each sponsor or attendee fee, in an amount to be determined by the council, shall be paid to the Chief Justice's Commission on Professionalism and to the North Carolina Equal Access to Justice Commission for administration of the activities of these commissions. Excess funds may be expended by the council on lawyer competency programs approved by the council.

 

History Note:        Authority - Order of the North Carolina Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Effective December 8, 1994;

Amended Eff. November 5, 2015; December 30, 1998.

 

27 NCAC 01D .1514         MEETINGS

The annual meeting of the board shall be held in October of each year in connection with the annual meeting of the North Carolina State Bar.  The board by resolution may set regular meeting dates and places.  Special meetings of the board may be called at any time upon notice given by the chairperson, the vice‑chairperson, or any two members of the board.  Notice of meeting shall be given at least two days prior to the meeting by mail, telegram, facsimile transmission or telephone.  A quorum of the board for conducting its official business shall be a majority of the members serving at a particular time.

 

History Note:        Authority Order of the NC Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1515         ANNUAL REPORT

The board shall prepare at least annually a report of its activities and shall present the same to the council one month prior to its annual meeting.

 

History Note:        Authority Order of the NC Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1516         Powers, Duties, and Organization of the Board

(a)  The board shall have the following powers and duties:

(1)           to exercise general supervisory authority over the administration of these rules;

(2)           to adopt and amend regulations consistent with these rules with the approval of the council;

(3)           to establish an office or offices and to employ such persons as the board deems necessary for the proper administration of these rules, and to delegate to them appropriate authority, subject to the review of the council;

(4)           to report annually on the activities and operations of the board to the council and make any recommendations for changes in the rules or methods of operation of the continuing legal education program;

(5)           to submit an annual budget to the council for approval and to ensure that expenses of the board do not exceed the annual budget approved by the council;

(6)           to administer a law office assistance program for the benefit of lawyers who request or are required to obtain training in the area of law office management.

(b)  The board shall be organized as follows:

(1)           Quorum - Five members shall constitute a quorum of the board.

(2)           The Executive Committee - The executive committee of the board shall be comprised of the chairperson, a vice-chairperson elected by the members of the board, and a member to be appointed by the chairperson. Its purpose is to conduct all necessary business of the board that may arise between meetings of the full board. In such matters it shall have complete authority to act for the board.

(3)           Other Committees - The chairperson may appoint committees as established by the board for the purpose of considering and deciding matters submitted to them by the board.

(c)  Appeals - Except as otherwise provided, the board is the final authority on all matters entrusted to it under Section .1500 and Section .1600 of this subchapter. Therefore, any decision by a committee of the board pursuant to a delegation of authority may be appealed to the full board and will be heard by the board at its next scheduled meeting. A decision made by the staff pursuant to a delegation of authority may also be reviewed by the full board but should first be appealed to any committee of the board having jurisdiction on the subject involved. All appeals shall be in writing. The board has the discretion to, but is not obligated to, grant a hearing in connection with any appeal regarding the accreditation of a program.

 

History Note:        Authority - Order of the North Carolina Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994;

Amended by council October 22, 2004;

Amended Eff. March 3, 2005.

 

27 NCAC 01D .1517         Exemptions

(a)  Notification of Board. To qualify for an exemption for a particular calendar year, a member shall notify the board of the exemption in the annual report for that calendar year sent to the member pursuant to Rule .1522 of this Subchapter. All active members who are exempt are encouraged to attend and participate in legal education programs.

(b)  Government Officials and Members of Armed Forces. The governor, the lieutenant governor, and all members of the council of state, members of the United States Senate, members of the United States House of Representatives, members of the North Carolina General Assembly, full-time principal chiefs and vice-chiefs of any Indian tribe officially recognized by the United States or North Carolina state governments, and members of the United States Armed Forces on full-time active duty are exempt from the requirements of these rules for any calendar year in which they serve some portion thereof in such capacity.

(c)  Judiciary and Clerks. Members of the state judiciary who are required by virtue of their judicial offices to take an average of twelve (12) or more hours of continuing judicial or other legal education annually and all members of the federal judiciary are exempt from the requirements of these rules for any calendar year in which they serve some portion thereof in such judicial capacities. A full-time law clerk for a member of the federal or state judiciary is exempt from the requirements of these rules for any calendar year in which the clerk serves some portion thereof in such capacity, provided, however, that the exemption shall not exceed two consecutive calendar years and, further provided, that the clerkship begins within one year after the clerk graduates from law school or passes the bar examination for admission to the North Carolina State Bar whichever occurs later.

(d)  Nonresidents. Any active member residing outside of North Carolina who does not practice in North Carolina for at least six (6) consecutive months and does not represent North Carolina clients on matters governed by North Carolina law shall be exempt from the requirements of these rules.

(e)  Law Teachers. An exemption from the requirements of these rules shall be given to any active member who does not practice in North Carolina or represent North Carolina clients on matters governed by North Carolina law and who is:

(1)           A full-time teacher at the School of Government (formerly the Institute of Government) of the University of North Carolina;

(2)           A full-time teacher at a law school in North Carolina that is accredited by the American Bar Association; or

(3)           A full-time teacher of law-related courses at a graduate level professional school accredited by its respective professional accrediting agency.

(f)  Special Circumstances Exemptions. The board may exempt an active member from the continuing legal education requirements for a period of not more than one year at a time upon a finding by the board of special circumstances unique to that member constituting undue hardship or other reasonable basis for exemption, or for a longer period upon a finding of a permanent disability.

(g)  Pro Hac Vice Admission. Nonresident attorneys from other jurisdictions who are temporarily admitted to practice in a particular case or proceeding pursuant to the provisions of G.S. 84-4.1 shall not be subject to the requirements of these rules.

(h)  Senior Status Exemption. The board may exempt an active member from the continuing legal education requirements if

(1)           the member is sixty-five years of age or older and

(2)           the member does not render legal advice to or represent a client unless the member associates with another active member who assumes responsibility for the advice or representation.

(i)  CLE Record During Exemption Period. During a calendar year in which the records of the board indicate that an active member is exempt from the requirements of these rules, the board shall not maintain a record of such member's attendance at accredited continuing legal education activities. Upon the termination of the member's exemption, the member may request carry over credit up to a maximum of twelve (12) credits for any accredited continuing legal education activity attended during the calendar year immediately preceding the year of the termination of the exemption. Appropriate documentation of attendance at such activities will be required by the board.

(j)  Permanent Disability. Attorneys who have a permanent disability that makes attendance at CLE programs inordinately difficult may file a request for a permanent substitute program in lieu of attendance and shall therein set out continuing legal education plans tailored to their specific interests and physical ability. The board shall review and approve or disapprove such plans on an individual basis and without delay.

(k)  Application for Substitute Compliance and Exemptions. Other requests for substitute compliance, partial waivers, other exemptions for hardship or extenuating circumstances may be granted by the board on a yearly basis upon written application of the attorney.

(l)  Bar Examiners. Credit is earned through service as a bar examiner of the North Carolina Board of Law Examiners. The board will award 12 hours of CLE credit for the preparation and grading of a bar examination by a member of the North Carolina Board of Law Examiners.

 

History Note:        Authority - Order of the North Carolina Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994;

Amendments Approved by the Supreme Court: September 22, 2016; June 9, 2016; October 2, 2014; October 7, 2010; March 3, 2005; October 1, 2003; February 12, 1997.

 

27 NCAC 01D .1518         Continuing Legal Education Program

(a)  Annual Requirement. Each active member subject to these rules shall complete 12 hours of approved continuing legal education during each calendar year beginning January 1, 1988, as provided by these rules and the regulations adopted thereunder.

Of the 12 hours:

(1)           at least 2 hours shall be devoted to the areas of professional responsibility or professionalism or any combination thereof; and

(2)           effective January 1, 2002, at least once every three calendar years, each member shall complete an hour of continuing legal education instruction on substance abuse and debilitating mental conditions as defined in Rule .1602 (a). This hour shall be credited to the annual 12-hour requirement but shall be in addition to the annual professional responsibility/professionalism requirement. To satisfy the requirement, a member must attend an accredited program on substance abuse and debilitating mental conditions that is at least one hour long.

(b)  Carryover. Members may carry over up to 12 credit hours earned in one calendar year to the next calendar year, which may include those hours required by paragraph (a)(1) above. Additionally, a newly admitted active member may include as credit hours which may be carried over to the next succeeding year any approved CLE hours earned after that member's graduation from law school.

(c)  Professionalism Requirement for New Members. Except as provided in paragraph (d)(1), each active member admitted to the North Carolina State Bar after January 1, 2011, must complete the North Carolina State Bar Professionalism for New Attorneys Program (PNA Program) in the year the member is first required to meet the continuing legal education requirements as set forth in Rule .1526(b) and (c) of this subchapter. CLE credit for the PNA Program shall be applied to the annual mandatory continuing legal education requirements set forth in paragraph (a) above.

(1)           Content and Accreditation. The State Bar PNA Program shall consist of 12 hours of training in subjects designated by the State Bar including, but not limited to, professional responsibility, professionalism, and law office management. The chairs of the Ethics and Grievance Committees, in consultation with the chief counsel to those committees, shall annually establish the content of the program and shall publish the required content on or before January 1 of each year. To be approved as a PNA Program, the program must be provided by a sponsor registered under Rule .1603 of this subchapter and the a sponsor must satisfy the annual content requirements, and submit a detailed description of the program to the board for approval at least 45 days prior to the presentation. A registered sponsor may not advertise a PNA Program until approved by the board. PNA Programs shall be specially designated by the board and no program that is not so designated shall satisfy the PNA Program requirement for new members.

(2)           Evaluation. To receive CLE credit for attending a PNA Program, the participant must complete a written evaluation of the program which shall contain questions specified by the State Bar. Sponsors shall collate the information on the completed evaluation forms and shall send a report showing the collated information, together with the original forms, to the State Bar when reporting attendance pursuant to Rule .1601(e)(1) of this subchapter.

(3)           Timetable and Partial Credit. The PNA Program shall be presented in two six-hour blocks (with appropriate breaks) over two days. The six-hour blocks do not have to be attended on consecutive days or taken from the same provider; however, no partial credit shall be awarded for attending less than an entire six-hour block unless a special circumstances exemption is granted by the board. The board may approve an alternative timetable for a PNA program upon demonstration by the provider that the alternative timetable will provide an enhanced learning experience or for other good cause; however, no partial credit shall be awarded for attending less than the entire 12-hour program unless a special circumstances exemption is granted by the board.

(4)           Online and Prerecorded Programs. The PNA Program may be distributed over the Internet by live web streaming (webcasting) but no part of the program may be taken online (via the Internet) on demand. The program may also be taken as a prerecorded program provided the requirements of Rule .1604(d) of this subchapter are satisfied and at least one hour of each six-hour block consists of live programming.

(d)  Exemptions from Professionalism Requirement for New Members.

(1)           Licensed in Another Jurisdiction. A member who is licensed by a United States jurisdiction other than North Carolina for five or more years prior to admission to practice in North Carolina is exempt from the PNA Program requirement and must notify the board of the exemption in the first annual report sent to the member pursuant to Rule .1522 of this subchapter.

(2)           Inactive Status. A newly admitted member who is transferred to inactive status in the year of admission to the State Bar is exempt from the PNA Program requirement but, upon the entry of an order transferring the member back to active status, must complete the PNA Program in the year that the member is subject to the requirements set forth in paragraph (a) above unless the member qualifies for the exemption under paragraph (d)(1) of this rule.

(3)           Exemptions Under Rule .1517. A newly admitted active member who qualifies for an exemption under Rule .1517 of this subchapter shall be exempt from the PNA Program requirement during the period of the Rule .1517 exemption. The member shall notify the board of the exemption in the first annual report sent to the member pursuant to Rule .1522 of this subchapter. The member must complete the PNA Program in the year the member no longer qualifies for the Rule .1517 exemption or the next calendar year unless the member qualifies for the exemption under paragraph (d)(1) of this rule.

(e)  The board shall determine the process by which credit hours are allocated to lawyers' records to satisfy deficits. The allocation shall be applied uniformly to the records of all affected lawyers and may not be appealed by an affected lawyer.

 

History Note:        Authority - Order of the North Carolina Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Effective December 8, 1994;

Amendments Approved by the Supreme Court: February 12, 1997; December 30, 1998; March 3, 1999; November 6, 2001; October 1, 2003; March 11, 2010; August 25, 2011; March 6, 2014; March 5, 2015; June 9, 2016; April 5, 2018.

 

27 NCAC 01D .1519         ACCREDITATION STANDARDS

The board shall approve continuing legal education programs that meet the following standards and provisions.

(a)  They shall have significant intellectual or practical content and the primary objective shall be to increase the participant's professional competence and proficiency as a lawyer.

(b)  They shall constitute an organized program of learning dealing with matters directly related to the practice of law, professional responsibility, professionalism, or ethical obligations of lawyers.

(c)  Credit may be given for continuing legal education activities where live instruction is used or mechanically or electronically recorded or reproduced material is used, including videotape or satellite transmitted programs. Subject to the limitations set forth in Rule .1604(e) of this subchapter, credit may also be given for continuing legal education activities on CD-ROM and on a computer website accessed via the Internet.

(d)  Continuing legal education materials are to be prepared, and activities conducted, by an individual or group qualified by practical or academic experience. Credit shall not be given for any continuing legal education activity taught or presented by a disbarred lawyer except a course on professional responsibility (including a course or program on the effects of substance abuse and chemical dependency, or debilitating mental conditions on a lawyer's professional responsibilities) taught by a disbarred lawyer whose disbarment date is at least five years (60 months) prior to the date of the activity. The advertising for the activity shall disclose the lawyer's disbarment.

(e)  Continuing legal education activities shall be conducted in a setting physically suitable to the educational activity of the program and, when appropriate, equipped with suitable writing surfaces or sufficient space for taking notes.

(f)  Thorough, high quality, and carefully prepared written materials should be distributed to all attendees at or before the time the course is presented. These may include written materials printed from a computer presentation, computer website, or CD-ROM. A written agenda or outline for a presentation satisfies this requirement when written materials are not suitable or readily available for a particular subject. The absence of written materials for distribution should, however, be the exception and not the rule.

(g)  A sponsor of an approved program must remit fees as required and keep and maintain attendance records of each continuing legal education program sponsored by it, which shall be furnished to the board in accordance with regulations.

(h)  Except as provided in Rules .1501 and.1604 of this subchapter, in-house continuing legal education and self-study shall not be approved or accredited for the purpose of complying with Rule .1518 of this subchapter.

(i)  Programs that cross academic lines, such as accounting-tax seminars, may be considered for approval by the board. However, the board must be satisfied that the content of the activity would enhance legal skills or the ability to practice law.

 

History Note:        Authority - Order of the North Carolina Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Effective December 8, 1994;

Amendments Approved by the Supreme Court: March 1, 2001; October 1, 2003; February 5, 2009; March 11, 2010; April 5, 2018.

 

27 NCAC 01D .1520         REGISTRATION OF SPONSORS AND PROGRAM APPROVAL

(a)  Registration of Sponsors. An organization desiring to be designated as a registered sponsor of programs, or other continuing legal education activities may apply to the board for registered sponsor status. The board shall register a sponsor if it is satisfied that the sponsor's programs have met the accreditation standards set forth in Rule .1519 of this subchapter and the application requirements set forth in Rule .1603 of this subchapter.

(1)           Duration of Status. Registered sponsor status shall be granted for a period of five years. At the end of the five-year period, the sponsor must apply to renew its registration pursuant to Rule .1603(b) of this subchapter.

(2)           Accredited Sponsors. A sponsor that was previously designated by the board as an "accredited sponsor" shall, on the effective date of paragraph (a)(1) of this rule, be re-designated as a "registered sponsor." Each such registered sponsor shall subsequently be required to apply for renewal of registration according to a schedule to be adopted by the board. The schedule shall stagger the submission date for such applications over a three-year period after the effective date of this paragraph (a)(2).

(b)  Program Approval for Registered Sponsors.

(1)           Once an organization is approved as a registered sponsor, the continuing legal education programs sponsored by that organization are presumptively approved for credit; however, application must still be made to the board for approval of each program. At least 50 days prior to the presentation of a program, a registered sponsor shall file an application, on a form prescribed by the board, notifying the board of the dates and locations of presentations of the program and the sponsor's calculation of the CLE credit hours for the program.

(2)           The board shall evaluate a program presented by a registered sponsor and, upon a determination that the program does not satisfy the requirements of Rule .1519, notify the registered sponsor that the program is not approved for credit. Such notice shall be sent by the board to the registered sponsor within 45 days after the receipt of the application. If notice is not sent to the registered sponsor within the 45-day period, the program shall be presumed to be approved. The registered sponsor may request reconsideration of an unfavorable accreditation decision by submitting a letter of appeal to the board within 15 days of receipt of the notice of disapproval. The decision by the board on an appeal is final.

(c)  Sponsor Request for Program Approval.

(1)           Any organization not designated as a registered sponsor that desires approval of a program shall apply to the board. Applicants denied approval of a program for failure to satisfy the accreditation standards in Rule .1519 of this subchapter may request reconsideration of such a decision by submitting a letter of appeal to the board within 15 days of receipt of the notice of disapproval. The decision by the board on an appeal is final.

(2)           The board may at any time decline to accredit CLE programs offered by a sponsor that is not registered for a specified period of time, as determined by the board, for failure to comply with the requirements of Rule .1512, Rule .1519, and Section .1600 of this subchapter.

(d)  Member Request for Program Approval. An active member desiring approval of a program that has not otherwise been approved shall apply to the board. Applicants denied approval of a program for failure to satisfy the accreditation standards in Rule .1519 of this subchapter may request reconsideration of such a decision by submitting a letter of appeal to the board within 15 days of the receipt of the notice of disapproval. The decision by the board on an appeal is final.

 

History Note:        Authority - Order of the North Carolina Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Effective December 8, 1994;

Amendments Approved by the Supreme Court: February 27, 2003; March 3, 2005; October 7, 2010; March 6, 2014; April 5, 2018.

 

27 NCAC 01D .1521         CREDIT HOURS

The board may designate by regulation the number of credit hours to be earned by participation, including, but not limited to, teaching, in continuing legal education activities approved by the board.

 

History Note:        Authority Order of the NC Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1522         Annual Report and Compliance Period

(a)  Annual Written Report. Commencing in 1989, each active member of the North Carolina State Bar shall provide an annual written report to the North Carolina State Bar in such form as the board shall prescribe by regulation concerning compliance with the continuing legal education program for the preceding year or declaring an exemption under Rule .1517 of this subchapter. The annual report form shall be corrected, if necessary, signed by the member, and promptly returned to the State Bar. Upon receipt of a signed annual report form, appropriate adjustments shall be made to the member's continuing legal education record with the State Bar. No further adjustments shall thereafter be made to the member's continuing legal education record unless, on or before July 31 of the year in which the report form is mailed to members, the member shows good cause for adjusting the member's continuing legal education record for the preceding year.

(b)  Compliance Period. The period for complying with the requirements of Rule .1518 of this subchapter is January 1 to December 31. A member may complete the requirements for the year on or by the last day of February of the succeeding year provided, however, that this additional time shall be considered a grace period and no extensions of this grace period shall be granted. All members are encouraged to complete the requirements within the appropriate calendar year.

(c)  Report. Prior to January 31 of each year, the prescribed report form concerning compliance with the continuing legal education program for the preceding year shall be mailed to all active members of the North Carolina State Bar.

(d)  Late Filing Penalty. Any attorney who, for whatever reasons, files the report showing compliance or declaring an exemption after the due date of the last day of February shall pay a $75.00 late filing penalty. This penalty shall be submitted with the report. A report that is either received by the board or postmarked on or before the due date shall be considered timely filed. An attorney who is issued a notice to show cause pursuant to Rule .1523(b) shall pay a late compliance fee of $125.00 pursuant to Rule .1523(e) of this subchapter. The board may waive the late filing penalty or the late compliance fee upon a showing of hardship or serious extenuating circumstances or other good cause.

 

History Note:        Authority - Order of the North Carolina Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Effective December 8, 1994;

Amended Eff. October 9, 2009; March 2, 2006; March 3, 2005; October 1, 2003.

 

 27 NCAC 01D .1523        NONCOMPLIANCE

(a)  Failure to Comply with Rules May Result in Suspension.  A member who is required to file a report of CLE credits and does not do so or who fails to meet the minimum requirements of these rules, including the payment of duly assessed penalties and attendee fees, may be suspended from the practice of law in the state of North Carolina.

(b)  Notice of Failure to Comply.  The board shall notify a member who appears to have failed to meet the requirements of these rules that the member will be suspended from the practice of law in this state, unless the member shows good cause in writing why the suspension should not be made or the member shows in writing that he or she has complied with the requirements within the 30-day period after service of the notice.  Notice shall be served on the member by mailing a copy thereof by registered or certified mail or designated delivery service (such as Federal Express or UPS), return receipt requested, to the last known address of the member according to the records of the North Carolina State Bar or such later address as may be known to the person attempting service.  Service of the notice may also be accomplished by (i) personal service by a State Bar investigator or by any person authorized by Rule 4 of the North Carolina Rules of Civil Procedure to serve process, or (ii) email sent to the email address of the member contained in the records of the North Carolina State Bar if the member sends an email from that same email address to the State bar acknowledging such service.

(c)  Entry of Order of Suspension Upon Failure to Respond to Notice to Show Cause.  If a written response attempting to show good cause is not postmarked or received by the board by the last day of the 30-day period after the member was served with the notice to show cause upon the recommendation of the board and the Administrative Committee, the council may enter an order suspending the member from the practice of law.  The order shall be entered and served as set forth in Rule .0903(d) of this Subchapter.

(d)  Procedure Upon Submission of a Timely Response to a Notice to Show Cause

(1)           Consideration by the Board.  If the member files a timely written response to the notice, the board shall consider the matter at its next regularly scheduled meeting or may delegate consideration of the matter to a duly appointed committee of the board.  If the matter is delegated to a committee of the board and the committee determines that good cause has not been shown, the member may file an appeal to the board.  The appeal must be filed within 30 calendar days of the date of the letter notifying the member of the decision of the committee.  The board shall review all evidence presented by the member to determine whether good cause has been shown or to determine whether the member has complied with the requirements of these rules within the 30-day period after service of the notice to show cause.

(2)           Recommendation of the Board.  The board shall determine whether the member has shown good cause why the member should not be suspended.  If the board determines that good cause has not been shown or that the member has not shown compliance with these rules within the 30-day period after service of the notice to show cause, then the board shall refer the matter to the Administrative Committee that the member be suspended.

(3)           Consideration by and Recommendation of the Administrative Committee.  The Administrative Committee shall consider the matter at its next regularly scheduled meeting.  The burden of proof shall be upon the member to show cause by clear, cogent, and convincing evidence why the member should not be suspended from the practice of law for the apparent failure to comply with the rules governing the continuing legal education program.  Except as set forth above, the procedure for such hearing shall be as set forth in Rule .0903(d)(1) and (2) of this Subchapter.

(4)           Order of Suspension.  Upon the recommendation of the Administrative Committee, the council may determine that the member has not complied with these rules and may enter an order suspending the member from the practice of law.  The order shall be entered and served as set forth in Rule .0903(d)(3) of this Subchapter.

(e)  Late Compliance Fee.  Any member to whom a notice to show cause is issued pursuant to Paragraph (b) above shall pay a late compliance fee as set forth in Rule .1522(d) of this Subchapter; provided, however, upon a showing of good cause as determined by the board as described in Paragraph (d)(2) above, the fee may be waived.

 

History Note:        Authority - Order of the North Carolina Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994;

Amended Eff. August 23, 2012; October 9, 2008; October 1, 2003; February 3, 2000; March 6, 1997; March 7, 1996.

 

27 NCAC 01D .1524         Reinstatement

(a)  Reinstatement Within 30 Days of Service of Suspension Order

A member who is suspended for noncompliance with the rules governing the continuing legal education program may petition the secretary for an order of reinstatement of the member's license at any time up to 30 days after the service of the suspension order upon the member. The secretary shall enter an order reinstating the member to active status upon receipt of a timely written request and satisfactory showing by the member that the member cured the continuing legal education deficiency for which the member was suspended. Such member shall not be required to file a formal reinstatement petition or pay a $250 reinstatement fee.

(b)  Procedure for Reinstatement More that 30 Days After Service of the Order of Suspension

Except as noted below, the procedure for reinstatement more than 30 days after service of the order of suspension shall be as set forth in Rule .0904(c) and (d) of this subchapter, and shall be administered by Administrative Committee.

(c)  Reinstatement Petition

At any time more than 30 days after service of an order of suspension on a member, a member who has been suspended for noncompliance with the rules governing the continuing legal education program may seek reinstatement by filing a reinstatement petition with the secretary. The secretary shall transmit a copy of the petition to each member of the board. The reinstatement petition shall contain the information and be in the form required by Rule .0904(c) of this subchapter. If not otherwise set forth in the petition, the member shall attach a statement to the petition in which the member shall state with particularity the accredited legal education courses which the member has attended and the number of credit hours obtained in order to cure any continuing legal education deficiency for which the member was suspended.

(d)  Reinstatement Fee

In lieu of the $125.00 reinstatement fee required by Rule .0904(c)(4)(A), the petition shall be accompanied by a reinstatement fee payable to the board, in the amount of $250.00.

(e)  Determination of Board; Transmission to Administrative Committee

Within 30 days of the filing of the petition for reinstatement with the secretary, the board shall determine whether the deficiency has been cured. The board's written determination and the reinstatement petition shall be transmitted to the secretary within five days of the determination by the board. The secretary shall transmit a copy of the petition and the board's recommendation to each member of the Administrative Committee.

(f)  Consideration by Administrative Committee

The Administrative Committee shall consider the reinstatement petition, together with the board's determination, pursuant to the requirements of Rule .0902(c)-(f) of this subchapter.

(g)  Hearing Upon Denial of Petition for Reinstatement

The procedure for hearing upon the denial by the Administrative Committee of a petition for reinstatement shall be as provided in Section .1000 of this subchapter.

 

History Note:        Authority - Order of the North Carolina Supreme Court, October 7, 1987, 318 N.C. 711.

Readopted Eff. December 8, 1994;

Amended Eff. March 3, 2005; February 3, 2000; March 6, 1997; March 7, 1996.

 

27 NCAC 01D .1525         Confidentiality

 

History Note:        Authority - Order of the North Carolina Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994;

Amended Eff. March 3, 1999;

Repealed Eff. October 17, 2001.

 

27 NCAC 01D .1526         EFFECTIVE DATE

(a)  The effective date of these Rules shall be January 1, 1988.

(b)  Active members licensed prior to July 1 of any calendar year shall meet the continuing legal education requirements of these Rules for such year.

(c)  Active members licensed after June 30 of any calendar year must meet the continuing legal education requirements of these Rules for the next calendar year.

 

History Note:        Authority Order of the NC Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1527         REGULATIONS

The following regulations (Section .1600 of the Rules of the North Carolina State Bar) for the continuing legal education program are hereby adopted and shall remain in effect until revised or amended by the board with the approval of the council.  The board may adopt other regulations to implement the continuing legal education program with the approval of the council.

 

History Note:        Authority Order of the NC Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994.

 

SECTION .1600 – REGULATIONS GOVERNING THE ADMINITRATION OF THE CONTINUING LEGAL EDUCATION PROGRAM

 

27 NCAC 01D .1601         General Requirements for PROGRAM Approval

(a)  Approval. CLE programs may be approved upon the written application of a sponsor, including a registered sponsor, or of an active member on an individual program basis. An application for such CLE program approval shall meet the following requirements:

(1)           If advance approval is requested by a sponsor, the application and supporting documentation, including one substantially complete set of the written materials to be distributed at the course or program, shall be submitted at least 50 days prior to the date on which the course or program is scheduled. If advance approval is requested by an active member, the application need not include a complete set of written materials.

(2)           In all other cases, the application and supporting documentation shall be submitted by the sponsor not later than 50 days after the date the course or program was presented or prior to the end of the calendar year in which the course or program was presented, whichever is earlier. Active members requesting credit must submit the application and supporting documentation within 50 days after the date the course or program was presented or, if the 50 days have elapsed, as soon as practicable after receiving notice from the board that the course accreditation request was not submitted by the sponsor.

(3)           The application shall be submitted on a form furnished by the board.

(4)           The application shall contain all information requested on the form.

(5)           The application shall be accompanied by a course outline or brochure that describes the content, identifies the teachers, lists the time devoted to each topic, and shows each date and location at which the program will be offered.

(6)           The application shall include a detailed calculation of the total CLE hours and hours of professional responsibility.

(b)  Program Quality and Materials. The application and materials provided shall reflect that the program to be offered meets the requirements of Rule .1519 of this subchapter. Sponsors, including registered sponsors, and active members seeking credit for an approved program shall furnish, upon request of the board, a copy of all materials presented and distributed at a CLE program. Written materials consisting merely of an outline without citation or explanatory notations generally will not be sufficient for approval. Any sponsor, including a registered sponsor, that expects to conduct a CLE program for which suitable written materials will not be made available to all attendees may obtain approval for that program only by application to the board at least 50 days in advance of the presentation showing why written materials are not suitable or readily available for such a program.

(c)  Facilities. Sponsors must provide a facility conductive to learning with sufficient space for taking notes.

(d)  Computer-Based CLE: Verification of Attendance. The sponsor of an on-line course must have a reliable method for recording and verifying attendance. The sponsor of a CD-ROM course must demonstrate that there is a reliable method for the user or the sponsor to record and verify participation in the course. A participant may periodically log on and off of a computer-based CLE course provided the total time spent participating in the course is equal to or exceeds the credit hours assigned to the program. A copy of the record of attendance must be forwarded to the board within 30 days after a member completes his or her participation in the course.

(e)  Records. Sponsors, including registered sponsors, shall within 30 days after the program is concluded

(1)           furnish to the board a list of the names of all North Carolina attendees together with their North Carolina State Bar membership numbers; the list shall be in alphabetical order and in a format prescribed by the board;

(2)           remit to the board the appropriate sponsor fee; and, if payment is not received by the board within 30 days after the course is concluded, interest at the legal rate shall be incurred; provided, however, the board may waive such interest upon a showing of good cause by a sponsor; and

(3)           furnish to the board a complete set of all written materials distributed to attendees at the course or program.

(f)  Announcement. Sponsors that have advanced approval for programs may include in their brochures or other program descriptions the information contained in the following illustration:

This [course, seminar, or program] has been approved by the Board of Continuing Legal Education of the North Carolina State Bar for continuing legal education credit in the amount of ____ hours, of which ____ hours will also apply in the area of professional responsibility.

(g)  Notice. Sponsors not having advanced approval shall make no representation concerning the approval of the course for CLE credit by the board. The board will mail a notice of its decision on CLE activity approval requests within (45) days of their receipt when the request for approval is submitted before the program and within (45) days when the request is submitted after the program. Approval thereof will be deemed if the notice is not timely mailed. This automatic approval will not operate if the sponsor contributes to the delay by failing to provide the complete information requested by the board or if the board timely notifies the sponsor that the matter has been tabled and the reason therefor.

 

History Note:        Authority - Order of the North Carolina Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Effective December 8, 1994;

Amendments Approved by the Supreme Court: October 1, 2003; March 3, 2005; March 6, 2008; October 7, 2010; April 5, 2018.

 

27 NCAC 01D .1602         Course Content Requirements

(a)  Professional Responsibility Courses on Stress, Substance Abuse, Chemical Dependency, and Debilitating Mental Conditions - Accredited professional responsibility courses on stress, substance abuse, chemical dependency, and debilitating mental conditions shall concentrate on the relationship between stress, substance abuse, chemical dependency, debilitating mental conditions, and a lawyer's professional responsibilities. Such courses may also include (1) education on the prevention, detection, treatment and etiology of stress, substance abuse, chemical dependency, and debilitating mental conditions, and (2) information about assistance for chemically dependent or mentally impaired lawyers available through lawyers' professional organizations. No more than three hours of continuing education credit will be granted to any one such course or segment of a course.

(b)  Law School Courses - Courses offered by an ABA accredited law school with respect to which academic credit may be earned may be approved activities. Computation of CLE credit for such courses shall be as prescribed in Rule .1605(a) of this subchapter. No more than 12 CLE hours in any year may be earned by such courses. No credit is available for law school courses attended prior to becoming an active member of the North Carolina State Bar.

(c)  Law Practice Management Courses - A CLE accredited course on law practice management must satisfy the accreditation standards set forth in Rule .1519 of this subchapter with the primary objective of increasing the participant's professional competence and proficiency as a lawyer. The subject matter presented in an accredited course on law practice management shall bear a direct relationship to either substantive legal issues in managing a law practice or a lawyer's professional responsibilities, including avoidance of conflicts of interest, protecting confidential client information, supervising subordinate lawyers and nonlawyers, fee arrangements, managing a trust account, ethical legal advertising, and malpractice avoidance. The following are illustrative, non-exclusive examples of subject matter that may earn CLE credit: employment law relating to lawyers and law practice; business law relating to the formation and operation of a law firm; calendars, dockets and tickler systems; conflict screening and avoidance systems; law office disaster planning; handling of client files; communicating with clients; and trust accounting. If appropriate, a law practice management course may qualify for professional responsibility (ethics) CLE credit. The following are illustrative, non-exclusive examples of subject matter that will NOT receive CLE credit: marketing; networking/rainmaking; client cultivation; increasing productivity; developing a business plan; improving the profitability of a law practice; selling a law practice; and purchasing office equipment (including computer and accounting systems).

(d)  Skills and Training Courses - A course that teaches a skill specific to the practice of law may be accredited for CLE if it satisfies the accreditation standards set forth in Rule .1519 of this subchapter with the primary objective of increasing the participant's professional competence and proficiency as a lawyer. The following are illustrative, non-exclusive examples of subject matter that may earn CLE credit: legal writing; oral argument; courtroom presentation; and legal research. A course that provides general instruction in non-legal skills shall NOT be accredited. The following are illustrative, non-exclusive examples of subject matter that will NOT receive CLE credit: learning to use software for an application that is not specific to the practice of law (e.g. word processing); learning to use office equipment (except as permitted by Paragraph (e) of this rule); public speaking; speed reading; efficiency training; personal money management or investing; career building; marketing; and general office management techniques.

(e)  Technology Courses – A course on a specific information technology product, device, platform, application, or other technology solution (IT solution) may be accredited for CLE if the course satisfies the accreditation standards in Rule .1519 of this Subchapter; specifically, the primary objective of the course must be to increase the participant's professional competence and proficiency as a lawyer. The following are illustrative, non-exclusive examples of courses that may earn CLE credit: electronic discovery software for litigation; document automation/assembly software; document management software; practice management software; digital forensics for litigation; and digital security. A course on the selection of an IT solution or the use of an IT solution to enhance a lawyer's proficiency as a lawyer or to improve law office management may be accredited if the requirements of Paragraphs (c) and (d) of this rule are satisfied. A course that provides general instruction on an IT solution but does not include instruction on the practical application of the IT solution to the practice of law shall not be accredited. The following are illustrative, non-exclusive examples of subject matter that will NOT receive CLE credit: generic education on how to use a tablet computer, laptop computer, or smart phone; training courses on Microsoft Office, Excel, Access, Word, Adobe, etc. programs; and instruction in the use of a particular desktop or mobile operating system. No credit will be given to a course that is sponsored by a manufacturer, distributor, broker, or merchandiser of the IT solution. A sponsor may not accept compensation from a manufacturer, distributor, broker, or merchandiser of an IT solution in return for presenting a CLE program about the IT solution. Presenters may include representatives of a manufacturer, distributor, broker, or merchandiser of the IT solution but they may not be the only presenters at the course and they may not determine the content of the course.

(f)  Activities That Shall Not Be Accredited CLE credit will not be given for general and personal educational activities. The following are illustrative, non-exclusive examples of subject matter that will NOT receive CLE credit:

(1)           courses within the normal college curriculum such as English, history, social studies, and psychology;

(2)           courses that deal with the individual lawyer's human development, such as stress reduction, quality of life, or substance abuse unless a course on substance abuse or mental health satisfies the requirements of Rule .1602(c);

(3)           courses designed primarily to sell services or products or to generate greater revenue, such as marketing or advertising (as distinguished from courses dealing with development of law office procedures and management designed to raise the level of service provided to clients).

(g)  Service to the Profession Training - A course or segment of a course presented by a bar organization may be granted up to three hours of credit if the bar organization's course trains volunteer attorneys in service to the profession, and if such course or course segment meets the requirements of Rule .1519(2)-(7) and Rule .1601(b), (c), and (g) of this Subchapter; if appropriate, up to three hours of professional responsibility credit may be granted for such course or course segment.

(h)  In-House CLE and Self-Study. No approval will be provided for in-house CLE or self-study by attorneys, except as follows:

(1)           programs exempted by the board under Rule .1501(c)(10) of this Subchapter;

(2)           as provided in Rule .1604(e) of this Subchapter; and

(3)           live programs on professional responsibility, professionalism, or professional negligence/malpractice presented by a person or organization that is not affiliated with the lawyers attending the program or their law firms and that has demonstrated qualification to present such programs through experience and knowledge.

(i)  Bar Review/Refresher Course. Courses designed to review or refresh recent law school graduates or attorneys in preparation for any bar exam shall not be approved for CLE credit.

 

History Note:        Authority - Order of the North Carolina Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994;

Amended Eff. June 9, 2016; March 6, 2014; October 9, 2008; March 8, 2007; March 2, 2006; March 3, 2005; June 7, 2001; March 1, 2001; March 3, 1999; March 5, 1998; March 6, 1997.

 

27 NCAC 01D .1603         REGISTERED SPONSORS

(a)  Application for Registered Sponsor Status. To be designated as a registered sponsor of programs or other continuing legal education activities under Rule .1520(a) of this subchapter, a sponsor must satisfy the following requirements:

(1)           File a completed application for registered sponsor status on a form furnished by the board.

(2)           During the three years prior to application, present at least five original programs that were approved for CLE credit by the board.

(3)           During the three years prior to application, substantially comply with the requirements in Rule .1601(a) and (e) of this subchapter on application for program approval, remitting sponsor fees, and reporting attendance for every program approved for credit.

(b)  Renewal of Registration. To retain registered sponsor status, a sponsor must apply for renewal every five years, as required by Rule .1520(a)(1), and must satisfy the requirements of paragraphs (a) of this rule. To facilitate staggered renewal applications, at the time that this rule becomes effective, any sponsor previously designated as an "accredited sponsor" shall be designated a registered sponsor and shall be assigned an initial renewal year which shall be not more than three years later.

(c)  Revocation of Registered Sponsor Status. The board may at any time revoke the registration of a registered sponsor for failure to satisfy the requirements of Section .1500 and Section .1600 of this subchapter.

 

History Note:        Authority - Order of the North Carolina Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Effective December 8, 1994;

Amendments Approved by the Supreme Court: April 5, 2018.

 

27 NCAC 01D .1604         Accreditation of Prerecorded Simultaneous Broadcast, and Computer-Based Programs

(a)  Presentation Including Prerecorded Material. An active member may receive credit for attendance at, or participation in, a presentation where prerecorded material is used. Prerecorded material may be either in a video or an audio format.

(b)  Simultaneous Broadcast. An active member may receive credit for participation in a live presentation which is simultaneously broadcast by telephone, satellite, live web streaming (webcasting), or video conferencing equipment. The member may participate in the presentation by listening to or viewing the broadcast from a location that is remote from the origin of the broadcast.  The broadcast may include prerecorded material provided it also includes a live question and answer session with the presenter.

(c)  Accreditation Requirements.  A member attending a prerecorded presentation is entitled to credit hours if

(1)           the live presentation or the presentation from which the program is recorded would, if attended by an active member, be an accredited course; and

(2)           all other conditions imposed by the rules in Section .1600 of this subchapter, or by the board in advance, are met.

(d)  Minimum Registration and Verification of Attendance.  A minimum of three active members must register for the presentation of a prerecorded program.  This requirement does not apply to the presentation of a live broadcast by telephone, satellite, or video conferencing equipment.  Attendance at a prerecorded or simultaneously broadcast (by telephone, satellite, or video conferencing) program must be verified by (1) the sponsor's report of attendance or (2) the execution of an affidavit of attendance by the participant.

(e)  Computer-Based CLE. Effective January 1, 2014, a member may receive up to six hours of credit annually for participation in a course on CD-ROM or on-line.  A CD-ROM course is an educational seminar on a compact disk that is accessed through the CD-ROM drive of the user's personal computer. An on-line course is an educational seminar available on a provider's website reached via the Internet.

(1)           A member may apply up to six credit hours of computer-based CLE to a CLE deficit from a preceding calendar year.  Any computer-based CLE credit hours applied to a deficit from a preceding year will be included in calculating the maximum of six hours of computer-based CLE allowed in the preceding calendar year. A member may carry over to the next calendar year no more than six credit hours of computer-based CLE pursuant to Rule .1518(b) of this subchapter.  Any credit hours carried-over pursuant to Rule .1518(b) of this subchapter will be included in calculating the six hours of computer-based CLE allowed in any one calendar year.

(2)           To be accredited, a computer-based CLE course must meet all of the conditions imposed by the rules in Section .1600 of this subchapter, or by the board in advance, except where otherwise noted, and be interactive, permitting the participant to communicate, via telephone, electronic mail, or a website bulletin board, with the presenter and/or other participants.

 

History Note:        Authority - Order of the North Carolina Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994;

Amended Eff. March 6, 2014; March 6, 2008; March 2, 2006; May 4, 2005; March 3, 2005; March 6, 1997.

 

27 NCAC 01D .1605         COMPUTATION OF CREDIT

(a)  Computation Formula – CLE and professional responsibility hours shall be computed by the following formula:

Sum of the total minutes of actual instruction / 60 = Total Hours

For example, actual instruction totaling 195 minutes would equal 3.25 hours toward CLE.

(b)  Actual Instruction.  Only actual education shall be included in computing the total hours of actual instruction.

The following shall not be included:

(1)           introductory remarks;

(2)           breaks;

(3)           business meetings;

(4)           speeches in connection with banquets or other events which are primarily social in nature;

(5)           question and answer sessions at a ratio in excess of 15 minutes per CLE hour and programs less than 30 minutes in length provided, however, that the limitation on question and answer sessions shall not limit the length of time that may be devoted to participatory CLE.

(c)  Teaching.  As a contribution to professionalism, credit may be earned for teaching in an approved continuing legal education activity or a continuing paralegal education activity held in North Carolina and approved pursuant to Section .0200 of Subchapter G of these rules.  Presentations accompanied by thorough, high quality, readable, and carefully prepared written materials will qualify for CLE credit on the basis of three hours of credit for each thirty minutes of presentation.  Repeat presentations qualify for one-half of the credits available for the initial presentation. For example, an initial presentation of 45 minutes would qualify for 4.5 hours of credit.

(d)  Teaching Law Courses

(1)           Law School Courses.  If a member is not a full-time teacher at a law school in North Carolina who is eligible for the exemption in Rule .1517(b) of this Subchapter, the member may earn CLE credit for teaching a course or a class in a quarter or semester-long course at an ABA accredited law school.  A member may also earn CLE credit by teaching a course or a class at a law school licensed by the Board of Governors of the University of North Carolina, provided the law school is actively seeking accreditation from the ABA.  If ABA accreditation is not obtained by a law school so licensed within three years of the commencement of classes, CLE credit will no longer be granted for teaching courses at the school.

(2)           Graduate School Courses.  Effective January 1, 2012, a member may earn CLE credit by teaching a course on substantive law or a class on substantive law in a quarter or semester-long course at a graduate school of an accredited university.

(3)           Courses at Paralegal Schools or Programs.  Effective January 1, 2006, a member may earn CLE credit by teaching a paralegal or substantive law course or a class in a quarter or semester-long course at an ABA approved paralegal school or program.

(4)           Credit Hours.  Credit for teaching activities described in Rule .1605(d)(1)-(3) above may be earned without regard to whether the course is taught online or in a classroom.  Credit will be calculated according to the following formula:

(A)          Teaching a Course.  3.5 Hours of CLE credit for every quarter hour of credit assigned to the course by the educational institution, or 5.0 Hours of CLE credit for every semester hour of credit assigned to the course by the educational institution.  (For example:  a 3-semester hour course will qualify for 15 hours of CLE credit).

(B)          Teaching a Class.  1.0 Hour of CLE credit for every 50-60 minutes of teaching.

(5)           Other Requirements.  The member shall also complete the requirements set forth in Rule .1518(b) of this Subchapter.

 

History Note:        Authority - Order of the North Carolina Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Eff. December 8, 1994;

Amended Eff. August 23, 2012; November 16, 2006; October 1, 2003; March 3, 1999.

 

27 NCAC 01D .1606         Fees

(a)  Sponsor Fee - The sponsor fee, a charge paid directly by the sponsor, shall be paid by all sponsors of approved programs presented in North Carolina and by registered sponsors located in North Carolina for approved programs wherever presented, except that no sponsor fee is required where approved programs are offered without charge to attendees. In any other instance, payment of the fee by the sponsor is optional. The amount of the fee, per approved CLE hour per active member of the North Carolina State Bar in attendance, is $3.50. This amount shall be allocated as follows: $1.25 to the Board of Continuing Legal Education to administer the CLE program; $1.00 to the Chief Justice's Commission on Professionalism; $1.00 to the North Carolina Equal Access to Justice Commission; and $.25 to the State Bar to administer the funds distributed to the commissions. The fee is computed as shown in the following formula and example which assumes a 6-hour course attended by 100 North Carolina lawyers seeking CLE credit: Fee: $3.50 x Total Approved CLE Hours (6) x Number of NC Attendees (100) = Total Sponsor Fee ($21.00).

(b)  Attendee Fee - The attendee fee is paid by the North Carolina attorney who requests credit for a program for which no sponsor fee was paid. An attorney will be invoiced for any attendees fees owed following the submission of the attorney's annual report form pursuant to Rule .1522(a) of this subchapter. Payment shall be remitted within 30 (thirty) days of the date of the invoice. The amount of the fee, per approved CLE hour for which the attorney claims credit, $3.50. This amount shall be allocated as follows: $1.25 to the Board of Continuing Legal Education to administer the CLE program; $1.00 to the Chief Justice's Commission on Professionalism; $1.00 to the North Carolina Equal Access to Justice Commission; and $0.25 to the State Bar to administer the funds distributed to the commissions. It is computed as shown in the following formula and example which assumes that the attorney attended an activity approved for 3 hours of CLE credit: Fee: $3.50 x Total Approved CLE hours (3.0) = Total Attendee Fee ($10.50).

(c)  Fee Review - The board will review the level of the fee at least annually and adjust it as necessary to maintain adequate finances for prudent operation of the board in a nonprofit manner. The council shall annually review the assessments for the Chief Justice's Commission on Professionalism and the North Carolina Equal Access to Justice Commission and adjust them as necessary to maintain adequate finances for the operation of the commissions.

(d)  Uniform Application and Financial Responsibility - The fee shall be applied uniformly without exceptions or other preferential treatment for a sponsor or attendee. The board shall make reasonable efforts to collect the sponsor fee from the sponsor of a CLE program when appropriate under Rule .1606(a) above. However, whenever a sponsor fee is not paid by the sponsor of a program, regardless of the reason, the lawyer requesting CLE credit for the program shall be financially responsible for the fee.

 

History Note:        Authority - Order of the North Carolina Supreme Court, October 7, 1987, 318 N.C. 711;

Readopted Effective December 8, 1994;

Amendments Approved by the Supreme Court: December 30, 1998; October 1, 2003; February 5, 2009; October 8, 2009; November 5, 2015; April 5, 2018.

 

27 NCAC 01D .1607         Reserved

27 NCAC 01D .1608         Reserved

27 NCAC 01D .1609         Reserved

27 NCAC 01D .1610         Reserved

27 NCAC 01D .1611         Reserved

 

SECTION .1700 ‑ THE PLAN OF LEGAL SPECIALIZATION

 

27 NCAC 01D .1701         PURPOSE

The purpose of this plan of certified legal specialization is to assist in the delivery of legal services to the public by identifying to the public those lawyers who have demonstrated special knowledge, skill, and proficiency in a specific field, so that the public can more closely match its needs with available services; and to improve the competency of the bar by establishing an additional incentive for lawyers to participate in continuing legal education and meet the other requirements of specialization.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1702         JURISDICTION: AUTHORITY

The Council of the North Carolina State Bar (the council) with the approval of the Supreme Court of North Carolina hereby establishes the Board of Legal Specialization (board) as a standing committee of the council, which board shall be the authority having jurisdiction under state law over the subject of specialization of lawyers.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1703         OPERATIONAL RESPONSIBILITY

The responsibility for operating the specialization program rests with the board, subject to the statutes governing the practice of law, the authority of the council and the rules of governance of the board.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1704         SIZE OF BOARD

The board shall have nine members, six of whom must be attorneys in good standing and authorized to practice law in the state of North Carolina.  The lawyer members of the board shall be representative of the legal profession and shall include lawyers who are in general practice as well as those who specialize.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1705         LAY PARTICIPATION

The board shall have three members who are not licensed attorneys.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1706         APPOINTMENT OF MEMBERS; WHEN; REMOVAL

The members of the board shall be appointed by the council.  The first members of the board shall be appointed as of the quarterly meeting of the council following the creation of the board.  Thereafter, members shall be appointed annually as of the same quarterly meeting.  Vacancies occurring by reason of death, resignation, or removal shall be filled by appointment of the council at the next quarterly meeting following the event giving rise to the vacancy, and the person so appointed shall serve for the balance of the vacated term.  Any member of the board may be removed at any time by an affirmative vote of a majority of the members of the council in session at a regularly called meeting.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1707         TERM OF OFFICE

Each member who is appointed to the board shall serve for a term of three years beginning as of the first day of the month following the date on which the appointment is made by the council.  See, however, Rule .1708 of this Section.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1708         STAGGERED TERMS

It is intended that members of the board shall be elected to staggered terms such that three members are appointed in each year.  Of the initial board, three members (two lawyers and one nonlawyer) shall be elected to terms of one year; three members (two lawyers and one nonlawyer) shall be elected to terms of two years; and three members (two lawyers and one nonlawyer) shall be elected to terms of three years.  Thereafter, three members (two lawyers and one nonlawyer) shall be elected in each year.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1709         Succession

Each member of the board shall be entitled to serve for one full three-year term and to succeed himself or herself for one additional three-year term. Thereafter, no person may be reappointed without having been off of the board for at least three years: provided, however, that any member who is designated chairperson at the time that the member's second three-year term expires may serve one additional year on the board in the capacity of chair.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. March 5, 2015; October 9, 2008.

 

27 NCAC 01D .1710         APPOINTMENT OF CHAIRPERSON

The chairperson of the board shall be appointed from time to time as necessary by the council from among the lawyer members of the board.  The term of such individual as chairperson shall be one year.  The chairperson may be reappointed thereafter during his or her tenure on the board.  The chairperson shall preside at all meetings of the board, shall prepare and present to the council the annual report of the board, and generally shall represent the board in its dealings with the public.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1711         APPOINTMENT OF VICE‑CHAIRPERSON

The vice‑chairperson of the board shall be appointed from time to time as necessary by the council from among the lawyer members of the board.  The term of such individual as vice‑chairperson shall be one year.  The vice‑chairperson may be reappointed thereafter during his or her tenure on the board.  The vice‑ chairperson shall preside at and represent the board in the absence of the chairperson and shall perform such other duties as may be assigned to him or her by the chairperson or by the board.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1712         SOURCE OF FUNDS

Funding for the program carried out by the board shall come from such application fees, examination fees, course accreditation fees, annual fees or recertification fees as the board, with the approval of the council, may establish.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1713         FISCAL RESPONSIBILITY

All funds of the board shall be considered funds of the North Carolina State Bar and shall be administered and disbursed accordingly.

(1)           Maintenance of Accounts: Audit ‑ The North Carolina State Bar shall maintain a separate account for funds of the board such that such funds and expenditure therefrom can be readily identified.  The accounts of the board shall be audited on an annual basis in connection with the audits of the North Carolina State Bar.

(2)           Investment Criteria ‑ The funds of the board shall be handled, invested and reinvested in accordance with investment policies adopted by the council for the handling of dues, rents and other revenues received by the North Carolina State Bar in carrying out its official duties.

(3)           Disbursement ‑ Disbursement of funds of the board shall be made by or under the direction of the secretary‑treasurer of the North Carolina State Bar.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1714         MEETINGS

The annual meeting of the board shall be held in the spring of each year. The board by resolution may set the annual meeting date and regular meeting dates and places. Special meetings of the board may be called at any time upon notice given by the chairperson, the vice-chairperson or any two members of the board. Notice of meeting shall be given at least two days prior to the meeting by mail, telegram, facsimile transmission, or telephone. A quorum of the board for conducting its official business shall be four or more of the members serving at the time of the meeting.

 

History Note:        Authority G.S. 84-23;

Readopted Effective December 8, 1994;

Amendments Approved by the Supreme Court: September 28, 2017.

 

27 NCAC 01D .1715         ANNUAL REPORT

The board shall prepare at least annually a report of its activities and shall present same to the council one month prior to its annual meeting.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1716         Powers and Duties of the Board

Subject to the general jurisdiction of the council and the North Carolina Supreme Court, the board shall have jurisdiction of all matters pertaining to regulation of certification of specialists in the practice of law and shall have the power and duty

(1)           to administer the plan;

(2)           subject to the approval of the council and the Supreme Court, to designate areas in which certificates of specialty may be granted and define the scope and limits of such specialities and to provide procedures for the achievement of these purposes;

(3)           to appoint, supervise, act on the recommendations of and consult with specialty committees as hereinafter identified;

(4)           to make and publish standards for the certification of specialists, upon the board's own initiative or upon consideration of recommendations made by the specialty committees, such standards to be designed to produce a uniform level of competence among the various specialties in accordance with the nature of the specialties;

(5)           to certify specialists or deny, suspend or revoke the certification of specialists upon the board's own initiative, upon recommendations made by the specialty committees or upon requests for review of recommendations made by the specialty committees;

(6)           to establish and publish procedures, rules, regulations, and bylaws to implement this plan;

(7)           to propose and request the council to make amendments to this plan whenever appropriate;

(8)           to cooperate with other boards or agencies in enforcing standards of professional conduct and to report apparent violations of the Revised Rules of Professional Conduct to the appropriate disciplinary authority;

(9)           to evaluate and approve, or disapprove, any and all continuing legal education courses, or educational alternatives, for the purpose of meeting the continuing legal education requirements established by the board for the certification of specialists and in connection therewith to determine the specialties for which credit shall be given and the number of hours of credit to be given in cooperation with the providers of continuing legal education; to determine whether and what credit is to be allowed for educational alternatives, including other methods of legal education, teaching, writing and the like; to issue rules and regulations for obtaining approval of continuing legal education courses and educational alternatives; to publish or cooperate with others in publishing current lists of approved continuing legal education courses and educational alternatives; and to encourage and assist law schools, organizations providing continuing legal education, local bar associations and other groups engaged in continuing legal education to offer and maintain programs of continuing legal education designed to develop, enhance and maintain the skill and competence of legal specialists;

(10)         to cooperate with other organizations, boards, and agencies engaged in the recognition of legal specialists or concerned with the topic of legal specialization including, but not limited to, utilizing appropriate and qualified organizations that are ABA accredited, to prepare and administer the written specialty examinations for specialties based predominantly on federal law;

(11)         notwithstanding any conflicting provision of the certification standards for any area of specialty, to direct any of the specialty committees not to administer a specialty examination if, in the judgment of the board, there are insufficient applicants or such would otherwise not be in the best interest of the specialization program.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994;

Amended Eff. November 16, 2006.

 

27 NCAC 01D .1717         RETAINED JURISDICTION OF THE COUNCIL

The council retains jurisdiction with respect to the following matters:

(1)           upon recommendation of the board, establishing areas in which certificates of specialty may be granted;

(2)           amending this plan;

(3)           hearing appeals taken from actions of the board;

(4)           establishing or approving fees to be charged in connection with the plan;

(5)           regulating attorney advertisements of specialization under the Rules of Professional Conduct.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1718         PRIVILEGES CONFERRED AND LIMITATIONS IMPOSED

The board in the implementation of this plan shall not alter the following privileges and responsibilities of certified specialists and other lawyers.

(1)           No standard shall be approved which shall in any way limit the right of a certified specialist to practice in all fields of law.  Subject to Canon 6 of the Rules of Professional Conduct, any lawyer, alone or in association with any other lawyer, shall have the right to practice in all fields of law, even though he or she is certified as a specialist in a particular field of law.

(2)           No lawyer shall be required to be certified as a specialist in order to practice in the field of law covered by that specialty.  Subject to Canon 6 of the North Carolina Rules of Professional Conduct, any lawyer, alone or in association with any other lawyer, shall have the right to practice in any field of law, or advertise his or her availability to practice in any field of law consistent with Canon 2 of the Rules of Professional Conduct, even though he or she is not certified as a specialist in that field.

(3)           All requirements for and all benefits to be derived from certification as a specialist are individual and may not be fulfilled by nor attributed to the law firm of which the specialist may be a member.

(4)           Participation in the program shall be on a completely voluntary basis.

(5)           A lawyer may be certified as a specialist in no more than two fields of law.

(6)           When a client is referred by another lawyer to a lawyer who is a recognized specialist under this plan on a matter within the specialist's field of law, such specialist shall not take advantage of the referral to enlarge the scope of his or her representation and, consonant with any requirements of the Rules of Professional Conduct, such specialist shall not enlarge the scope of representation of a referred client outside the area of the specialty field.

(7)           Any lawyer certified as a specialist under this plan shall be entitled to advertise that he or she is a "Board Certified Specialist" in his or her specialty to the extent permitted by the Rules of Professional Conduct.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1719         Specialty Committees

(a)  The board shall establish a separate specialty committee for each specialty in which specialists are to be certified.  Each specialty committee shall be composed of seven members appointed by the board, one of whom shall be designated annually by the chairperson of the board as chairperson of the specialty committee.  Members of each specialty committee shall be lawyers licensed and currently in good standing to practice law in this state who, in the judgment of the board, are competent in the field of law to be covered by the specialty.  Members shall hold office for three years, except those members initially appointed who shall serve as hereinafter designated.  Members shall be appointed by the board to staggered terms of office and the initial appointees shall serve as follows:  two shall serve for one year after appointment; two shall serve for two years after appointment; and three shall serve for three years after appointment.  Appointment by the board to a vacancy shall be for the remaining term of the member leaving the specialty committee.  All members shall be eligible for reappointment to not more than one additional three-year term after having served one full three-year term, provided, however, that the board may reappoint the chairperson of a committee to a third three-year term if the board determines that the reappointment is in the best interest of the specialization program.  Meetings of the specialty committee shall be held at regular intervals at such times, places and upon such notices as the specialty committee may from time to time prescribe or upon direction of the board.

(b)  Each specialty committee shall advise and assist the board in carrying out the board's objectives and in the implementation and regulation of this plan in that specialty.  Each specialty committee shall advise and make recommendations to the board as to standards for the specialty and the certification of individual specialists in that specialty.  Each specialty committee shall be charged with actively administering the plan in its specialty and with respect to that specialty shall

(1)           recommend to the board reasonable and nondiscriminatory standards applicable to that specialty;

(2)           make recommendations to the board for certification, continued certification, denial, suspension, or revocation of certification of specialists and for procedures with respect thereto;

(3)           administer procedures established by the board for applications for certification and continued certification as a specialist and for denial, suspension, or revocation of such certification;

(4)           administer examinations and other testing procedures, if applicable, investigate references of applicants and, if deemed advisable, seek additional information regarding applicants for certification or continued certification as specialists;

(5)           make recommendations to the board concerning the approval of and credit to be allowed for continuing legal education courses, or educational alternatives, in the specialty;

(6)           perform such other duties and make such other recommendations as may be delegated to or requested of the specialty committee by the board.

(c)  The board may appoint advisory members to a specialty committee to assist with the development, administration, and grading of the examination, the drafting of standards for a subspecialty, and any other activity set forth in Paragraph (b) of this Rule.  Advisory members shall be non-voting except as to any specific activity delegated to the advisory members by the board or by the chair of the specialty committee, including the evaluation of applications for certification.  No more than five advisory members may be appointed to a specialty committee.  Advisory members shall be lawyers licensed and currently in good standing to practice law in this state who, in the judgment of the board, are competent in the field of law to be covered by the specialty.  Advisory members shall hold office for an initial term of three years and shall thereafter serve at the discretion of the board for not more than two additional three-year terms.  Appointment by the board to a vacancy shall be for the remaining term, if any, of the advisory member being replaced.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. March 10, 2011; November 7, 1996.

 

27 NCAC 01D .1720         Minimum Standards for Certification of Specialists

(a)  To qualify for certification as a specialist, a lawyer applicant must pay any required fee, comply with the following minimum standards, and meet any other standards established by the board for the particular area of specialty.

(1)           The applicant must be licensed in a jurisdiction of the United States for at least five years immediately preceding his or her application and must be licensed in North Carolina for at least three years immediately preceding his or her application.  The applicant must be currently in good standing to practice law in this state and the applicant's disciplinary record with the courts, the North Carolina State Bar, and any other government licensing agency must support qualification in the specialty.

(2)           The applicant must make a satisfactory showing according to objective and verifiable standards, as determined by the board after advice from the appropriate specialty committee, of substantial involvement in the specialty during the five calendar years immediately preceding the calendar year of application.  Such substantial involvement shall be defined as to each specialty from a consideration of its nature, complexity, and differences from other fields and from consideration of the kind and extent of effort and experience necessary to demonstrate competence in that specialty.  It is a measurement of actual experience within the particular specialty according to any of several standards. It may be measured by the time spent on legal work within the areas of the specialty, the number or type of matters handled within a certain period of time or any combination of these or other appropriate factors.  However, within each specialty, experience requirements should be measured by objective standards. In no event should they be either so restrictive as to unduly limit certification of lawyers as specialists or so lax as to make the requirement of substantial involvement meaningless as a criterion of competence.  Substantial involvement may vary from specialty to specialty, but, if measured on a time-spent basis, in no event shall the time spent in practice in the specialty be less than 25 percent of the total practice of a lawyer engaged in a normal full-time practice.  Reasonable and uniform practice equivalents may be established including, but not limited to, successful pursuit of an advance educational degree, teaching, judicial, government, or corporate legal experience.

(3)           The applicant must make a satisfactory showing, as determined by the board after advice from the appropriate specialty committee, of continuing legal education in the specialty accredited by the board for the specialty, the minimum being an average of 12 hours of credit for continuing legal education, or its equivalent, for each of the three calendar years immediately preceding application. Upon establishment of a new specialty, this standard may be satisfied in such manner as the board, upon advice from the appropriate specialty committee, may prescribe or may be waived if, and to the extent, accreditable continuing legal education courses have not been available during the three years immediately preceding establishment of the specialty.

(4)           The applicant must make a satisfactory showing, as determined by the board after advice from the appropriate specialty committee, of qualification in the specialty through peer review.  The applicant must provide, as references, the names of at least ten lawyers, all of whom are licensed and currently in good standing to practice law in this state, or in any state, or judges, who are familiar with the competence and qualification of the applicant as a specialist.  None of the references may be persons related to the applicant or, at the time of application, a partner of or otherwise associated with the applicant in the practice of law.  The applicant by his or her application consents to confidential inquiry by the board or appropriate disciplinary body and other persons regarding the applicant's competence and qualifications to be certified as a specialist.  An applicant must receive a minimum of five favorable peer reviews to be considered by the board for compliance with this standard.

(A)          Each specialty committee shall evaluate the information provided by an applicant's references to make a recommendation to the board as to the applicant's qualification in the specialty through peer review.  The evaluation shall include a determination of the weight to be given to each peer review and shall take into consideration a reference's years of practice, primary practice areas and experience in the specialty, and the context in which a reference knows the applicant.

(5)           The applicant must achieve a satisfactory score on a written examination designed to test the applicant's knowledge and ability in the specialty for which certification is applied.  The examination must be applied uniformly to all applicants within each specialty area.  The board shall assure that the contents and grading of the examination are designed to produce a uniform level of competence among the various specialties.

(b)  All matters concerning the qualification of an applicant for certification, including, but not limited to, applications, references, tests and test scores, files, reports, investigations, hearings, findings, recommendations, and adverse determinations shall be confidential so far as is consistent with the effective administration of this plan, fairness to the applicant and due process of law.

(c)  The board may adopt uniform rules waiving the requirements of Rules .1720(a)(4) and (5) above for members of a specialty committee, including advisory members, at the time that the initial written examination for that specialty or any subspecialty of the specialty is given, and permitting said members to file applications to become a board certified specialist in that specialty upon compliance with all other required minimum standards for certification of specialists.

(d)  Upon written request of the applicant and with the recommendation of the appropriate specialty committee, the board may for good cause shown waive strict compliance with the criteria relating to substantial involvement, continuing legal education, or peer review, as those requirements are set forth in the standards for certification for specialization.  However, there shall be no waiver of the requirements that the applicant pass a written examination and be licensed to practice law in North Carolina for five years preceding the application.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. August 27, 2013; August 23, 2012; March 8, 2012; March 10, 2011; March 3, 2005.

 

27 NCAC 01D .1721         Minimum Standards for Continued Certification of SPECIALISTS

(a)  The period of certification as a specialist shall be five years.  During such period the board or appropriate specialty committee may require evidence from the specialist of his or her continued qualification for certification as a specialist, and the specialist must consent to inquiry by the board, or appropriate specialty committee of lawyers and judges, the appropriate disciplinary body, or others in the community regarding the specialist's continued competence and qualification to be certified as a specialist.  Application for and approval of continued certification as a specialist shall be required prior to the end of each five-year period.  To qualify for continued certification as a specialist, a lawyer applicant must pay any required fee, must demonstrate to the board with respect to the specialty both continued knowledge of the law of this state and continued competence and must comply with the following minimum standards.

(1)           The specialist's disciplinary record with the courts, the North Carolina State Bar, and any other government licensing agency supports qualification in the specialty.

(2)           The specialist must make a satisfactory showing, as determined by the board after advice from the appropriate specialty committee, of substantial involvement in the specialty during the entire period of certification as a specialist.  Substantial involvement for continued certification shall be determined in accordance with the principles set forth in Rule .1720(a)(2) of this subchapter and the specific standards for each specialty. In addition, unless prohibited or limited by the standards for a particular specialty, the following judicial service may be substituted for the equivalent years of practice experience if the applicant's judicial service included presiding over cases in the specialty: service as a full-time state or federal trial, appellate, or bankruptcy judge (including service as a federal magistrate judge); service as a judge for the courts of a federally recognized Indian tribe; service as an administrative law judge for the Social Security Administration; and service as a commissioner or deputy commissioner of the Industrial Commission.

(3)           The specialist must make a satisfactory showing, as determined by the board after advice from the appropriate specialty committee, of continuing legal education accredited by the board for the specialty during the period of certification as a specialist, the minimum being an average of 12 hours of credit for continuing legal education, or its equivalent, for each year during the entire period of certification as a specialist.

(4)           The specialist must comply with the requirements set forth in Rules .1720(a)(1) and (4) of this subchapter.

(b)  Upon written request of the applicant and with the recommendation of the appropriate specialty committee, the board may for good cause shown waive strict compliance with the criteria relating to substantial involvement, continuing legal education, or peer review, as those requirements are set forth in the standards for continued certification.  Before or after taking a continuing legal education course that is not in the specialty or a related field, a specialist may petition the board to approve the program as satisfying the continuing legal education criteria for recertification.  The petition shall show the relevancy of the program to the specialist's proficiency as a specialist, and be referred to the specialty committee for its recommendation prior to a decision by the board.

(c)  After the period of initial certification, a specialist may request, in advance and in writing, approval from the board for a waiver of one year of the substantial involvement necessary to satisfy the standards for the specialist's next recertification.  The specialist may request a waiver of one year of substantial involvement for every five years that the specialist has met the substantial involvement standard beginning with the period of initial certification.  However, none of the years for which a waiver is requested may be consecutive.  When a waiver of the substantial involvement requirement is granted, the specialist must satisfy all of the other requirements for recertification.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. August 27, 2013; March 8, 2012; February 5, 2009; March 6, 2002.

 

27 NCAC 01D .1722         ESTABLISHMENT OF ADDITIONAL STANDARDS

The board may establish, on its own initiative or upon the specialty committee's recommendation, additional or more stringent standards for certification than those provided in Rules .1720 and .1721 of this Section.  Additional standards or requirements established under this Rule need not be the same for initial certification and continued certification as a specialist.  It is the intent of the plan that all requirements for certification or recertification in any area of specialty shall be no more or less stringent than the requirements in any other area of specialty.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1723         Revocation or Suspension of Certification as a Specialist

(a)  Automatic Revocation or Suspension of Specialty Certification Following Professional Discipline. The board shall revoke its certification of a lawyer as a specialist if the lawyer is disbarred or receives a disciplinary suspension, any part of which is or subsequently becomes active, from the Disciplinary Hearing Commission of the North Carolina State Bar, a North Carolina court of law, or, if the lawyer is licensed in another jurisdiction in the United States, from a court of law or the regulatory authority of that jurisdiction. The board shall suspend its certification of a lawyer as a specialist if the lawyer receives a disciplinary suspension, all of which is stayed. If a stayed disciplinary suspension ends without becoming active, the lawyer may be reinstated as a specialist if the lawyer applies for recertification and satisfies all of the requirements for recertification as set forth in the recertification standards for the relevant specialty. During a suspension from specialty certification, application for recertification shall be deferred until the end of the suspension. This provision, and any amendment thereto, shall apply to discipline received on or after the effective date of the provision or the amendment as appropriate.

(b)  Discretionary Revocation or Suspension. The board may revoke its certification of a lawyer as a specialist if the specialty is terminated or may suspend or revoke such certification if it is determined, upon the board's own initiative or upon recommendation of the appropriate specialty committee and after hearing before the board as provided in Rule .1802 and Rule .1803, that

(1)           the certification of the lawyer as a specialist was made contrary to the rules and regulations of the board;

(2)           the lawyer certified as a specialist made a false representation, omission or misstatement of material fact to the board or appropriate specialty committee;

(3)           the lawyer certified as a specialist has failed to abide by all rules and regulations promulgated by the board;

(4)           the lawyer certified as a specialist has failed to pay the fees required;

(5)           the lawyer certified as a specialist no longer meets the standards established by the board for the certification of specialists;

(6)           the lawyer certified as a specialist received public discipline from the North Carolina State Bar on or after the effective date of this provision, other than suspension or disbarment from practice and the board finds that the conduct for which the professional discipline was received reflects adversely on the specialization program and the lawyer's qualification as a specialist; or

(7)           the lawyer certified as a specialist was sanctioned or received public discipline on or after the effective date of this provision from any state or federal court or, if the lawyer is licensed in another jurisdiction, from the regulatory authority of that jurisdiction in the United States, and the board finds that the conduct for which the sanctions or professional discipline was received reflects adversely on the specialization program and the lawyer's qualification as a specialist.

(c)  Report to Board. A lawyer certified as a specialist has a duty to inform the board promptly of any fact or circumstance described in Rules .1723(a) and (b) above.

(d)  Reinstatement. If the board revokes its certification of a lawyer as a specialist, the lawyer cannot again be certified as a specialist unless he or she so qualifies upon application made as if for initial certification as a specialist and upon such other conditions as the board may prescribe. If the board suspends certification of a lawyer as a specialist, such certification cannot be reinstated except upon the lawyer's application therefor and compliance with such conditions and requirements as the board may prescribe.

 

History Note:        Authority G.S. 84-23;

Readopted Effective December 8, 1994;

Amendments Approved by the Supreme Court: February 5, 2004; April 5, 2018.

 

27 NCAC 01D .1724         RIGHT TO HEARING AND APPEAL TO COUNCIL

A lawyer who is denied certification or continued certification as a specialist or whose certification is suspended or revoked shall have the right to a hearing before the board and, thereafter, the right to appeal the ruling made thereon by the board to the council under such rules and regulations as the board and council may prescribe.  (See Section .1800 of this Subchapter.)

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1725         AREAS OF SPECIALTY

There are hereby recognized the following specialties:

(1)           bankruptcy law

(a)           consumer bankruptcy law

(b)           business bankruptcy law

(2)           estate planning and probate law

(3)           real property law

(a)           real property - residential

(b)           real property - business, commercial, and industrial

(4)           family law

(5)           criminal law

(a)           federal and state criminal law

(b)           state criminal law

(c)           juvenile delinquency law

(6)           immigration law

(7)           workers' compensation

(8)           Social Security disability law

(9)           elder law

(10)         appellate practice

(11)         trademark law

(12)         utilities law

(13)         privacy and information security law

 

History Note:        Authority G.S. 84-23;

Readopted Effective December 8, 1994;

Amendments Approved by the Supreme Court: July 29, 1998; February 27, 2003; February 5, 2009; March 8, 2012; March 6, 2014; April 5, 2018.

 

27 NCAC 01D .1726         CERTIFICATION STANDARDS OF THE SPECIALTIES OF BANKRUPTCY LAW, ESTATE PLANNING AND PROBATE LAW, REAL PROPERTY LAW, FAMILY LAW, AND CRIMINAL LAW

Previous decisions approving the certification standards for the areas of specialty listed above are hereby reaffirmed.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1727         INACTIVE STATUS

(a)  Petition for Inactive Status. The board may transfer a certified specialist to inactive status upon receipt of a petition, on a form approved by the board, demonstrating that the petitioner satisfies the following conditions:

(1)           Certified for five years or more;

(2)           Special circumstances unique to the specialist constituting undue hardship or other reasonable basis for exempting the specialist from the substantial involvement standard for continued certification; including, but not limited to, marriage to active-duty military personnel requiring frequent relocation, active duty in the military reserves, disability lasting a total of six months or more over a 12-month period of time, and illness of an immediate family member requiring leaves of absence from work in excess of six months or more over a 12-month period of time; and

(3)           Discontinuation of all representations of specialist certification in all communications about the lawyer's practice.

(b)  Duration of Inactive Status. If the petitioner qualifies, inactive status shall be granted by the board for a period of not more than one year at a time. No more than three years of inactive status, whether consecutive or periodic, shall be granted to any certified specialist.

(c)  Designation During Inactive Status. During the period of inactive status, the certified specialist shall be listed in the board's records as inactive. An inactive specialist shall not represent that he or she is certified during any period of inactive status; however, an inactive specialist may advertise or communicate prior dates of certification (e.g., Board Certified Specialist in Family Law 1987-2003).

(d)  Annual Requirements. During the period of inactive status, the specialist shall not be required to satisfy the substantial involvement standard for continued certification in the specialty or to pay any fees; however, the specialist shall be required to satisfy the continuing legal education (CLE) standard for continued certification in the specialty. If a five-year period of certification ends during a year of inactive status, application for continued certification pursuant to Rule .1721 of this subchapter shall be deferred until return to active status.

(e)  Return to Active Status. To return to active status as a certified specialist, an inactive specialist shall petition the board on a form approved by the board. The inactive specialist shall be reinstated to active status upon demonstration that he or she satisfied the CLE standard for continued certification in the specialty and the recommendation of the specialty committee. Passage of a written examination in the specialty shall not be required unless the inactive specialist failed to satisfy the CLE standard for continued certification during the period of inactivity.

(f)  The right to petition for inactive status pursuant to this rule is in addition to the right to request a waiver of substantial involvement allowed by Rule .1721(c) of this subchapter.

 

History Note:        Authority G.S. 84-23;

Adopted by the Supreme Court September 28, 2017.

 

Section .1800 - Hearing and Appeal Rules of the Board of Legal Specialization

 

27 NCAC 01D .1801         Incomplete Applications; Reconsideration of Applications Rejected by Specialty Committee; and Reconsideration Procedure

(a)  Incomplete Applications. The executive director of the North Carolina State Bar Board of Legal Specialization (the board) will review every application to determine if the application is complete. An application is incomplete if it does not include complete answers to every question on the application and copies of all documents requested on the application. The applicant will be notified in writing if an application is incomplete. The applicant must submit the information necessary to complete the application within 21 days of the date of the notice. If the applicant fails to provide the required information during the requisite time period, the executive director will return the application to the applicant together with a refund of the application fee less a fifty dollar ($50.00) administrative fee. The decision of the executive director to reject an application as incomplete is final unless the applicant shows good cause for an extension of time to provide the required information. This provision does not apply to an application with respect to which fewer than five completed peer review forms have been timely filed with the board.

(b)  Denial of Application by Specialty Committee. The executive director shall refer all complete applications to the specialty committee for review for compliance with the standards for certification in the specialty area for which certification is sought.

After reviewing the applications, the specialty committee shall recommend to the board the acceptance or rejection of the applications. The specialty committee shall notify the board of its recommendations in writing and the reason for any negative recommendation must be specified.

(1)           Notification to Applicant of the Specialty Committee's Action. The executive director shall promptly notify the applicant in writing of the specialty committee's recommendation of rejection of the application and the board's intention to act in accordance with the committee's recommendation. The notification must specify the reason for the recommendation of rejection of the application and shall inform the applicant of the right to petition pursuant to paragraph (c) of this rule for reconsideration of the recommendation of the specialty committee.

(c)  Petition for Reconsideration. Within 14 days of the date of the notice from the executive director that an application has been recommended for rejection by a specialty committee, the applicant may petition the board for reconsideration. The petition shall be in writing and shall include the following information: the applicant's election between a reconsideration hearing on the written record or in-person; and the reasons for which the applicant believes the specialty committee's recommendation should not be accepted.

(d)  Reconsideration Procedure. Upon receipt of a petition filed pursuant to paragraph (c) of this rule, a three-member panel of the board, to be appointed by the chairperson of the board, shall reconsider an application pursuant to the following procedures:

(1)           Notice. The chairperson of the panel shall set the time and place of the hearing to reconsider the applicant's application as soon as practicable after the applicant's request for reconsideration is received. The applicant shall be notified of the date at least 10 days prior to the time set for the hearing.

(2)           Reconsideration on the Written Record. If the applicant elects to have the matter decided on the written record, the applicant will not be present at the hearing and no witnesses will appear before the panel except the executive director of the specialization program, or a staff designee, who shall provide administrative support to the panel. At least 10 days prior to the hearing, the applicant shall provide the panel with copies of any documents that the applicant would like to be considered by the panel.

(3)           Reconsideration In-Person. If the applicant elects to be present at the hearing, the applicant may be represented by counsel or represent himself or herself at such hearing. The applicant may offer witnesses and documents and may question any witness. At least 10 days prior to the hearing, the applicant shall provide the panel with copies of any documents that the applicant wants considered by the panel and, if the reconsideration is in-person, with the names of prospective witnesses. At least ten days prior to the hearing, the applicant shall be provided with copies of any documents that the executive director will submit to the panel, except confidential peer review forms or information, and with the names of prospective witnesses. Additional documents may be considered at the discretion of the panel.

(4)           Burden of Proof. The applicant must make a clear and convincing showing that the application satisfies the standards for certification in the applicable specialty

(5)           Conduct of Reconsideration Hearing.

(A)          Preservation of Record. The hearing shall be recorded unless the applicant agrees in writing that the hearing shall not be recorded or, if the applicant wants an official transcript, the applicant pays the costs associated with obtaining a court reporter and makes all arrangements for the court reporter's services and for the preparation of the transcript.

(B)          Procedural Rules. The reconsideration hearing shall not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted and may be considered by the panel according to its probative value if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions.

(C)          Decision of the Panel. The decision of the panel shall be by a majority of the members of the panel and shall be binding upon the board. Written notification of the decision shall be sent to the applicant. If the board's decision is unfavorable, the notification shall set forth the grounds for the decision and shall notify the applicant of the right to appeal the decision to the North Carolina State Bar Council (the council) pursuant to Rule .1804 of this subchapter.

(e)  Failure of Applicant to Petition the Board for Reconsideration Within the Time Allowed by These Procedures. If the applicant does not petition the board for reconsideration of the specialty committee's recommendation of rejection of the application within the time allowed by these rules, the board shall act on the matter at its next board meeting.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December  8, 1994;

Amended Eff. September 24, 2015; March 11, 2010; February 5, 2009; November 16, 2006; June 1, 1995.

 

27 NCAC 01D .1802         Denial, Revocation, or Suspension of Continued Certification as a Specialist

(a)  Denial of Continued Certification.  The board, upon its initiative or upon recommendation of the appropriate specialty committee, may deny continued certification of a specialist, if the applicant does not meet the requirements as found in Rule .1721(a) of this Subchapter.

(b)  Revocation and Suspension of Certification as a Specialist.  The board shall revoke the certification of a lawyer as provided in Rule .1723(a) of this Subchapter and may revoke or suspend the certification of a lawyer as provided in Rule .1723(b) of this Subchapter.

(c)  Notification of Board Action.  The executive director shall notify the lawyer of the board's action to grant or deny continued certification as a specialist upon application for continued certification pursuant to Rule .1721(a) of this Subchapter, or to revoke or suspend continued certification pursuant to Rule .1723(a) or (b) of this Subchapter.  If the board's action is unfavorable, the notification shall set forth the grounds for the action and shall notify the lawyer of the right to a hearing if allowed by these rules.

(d)  Request for Hearing.  Within  14 days of the date of the notice from the executive director of the board that the lawyer has been denied continued certification pursuant to Rule .1721(a) of this Subchapter or that certification has been revoked or suspended pursuant to Rule .1723(b) of this Subchapter, the lawyer must request a hearing before the board in writing.  There is no right to a hearing upon automatic revocation pursuant to Rule .1723(a) of this Subchapter.

(e)  Hearing Procedure.  Except as set forth in Rule .1802(f) below, the procedures set forth in Rule .1801(d) of this Subchapter shall be followed when a lawyer requests a hearing regarding the denial of continued certification pursuant to Rule .1721(a) of this Subchapter or the revocation or suspension of certification under Rule .1723(b) of this Subchapter.

(f)  Burden of Proof:  Preponderance of the Evidence.  A three-member panel of the board shall apply the preponderance of the evidence rule in determining whether the lawyer's certification should be continued, revoked, or suspended.  The burden of proof is upon the lawyer.

(g)  Notification of Board's Decision.  After the hearing, the board shall timely notify the lawyer of its decision regarding continued certification as a specialist.  If the board's decision is unfavorable, the notification shall set forth the grounds for the decision and the lawyer's appeal rights under Rule .1804 of this Subchapter.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. March 11, 2010; February 5, 2004.

 

27 NCAC 01D .1803         Reconsideration of Failed Examination

(a)  Review of Examination. Within 45 days of the date of the notice from the board's executive director that the applicant has failed the written examination, the applicant may review his or her examination at the office of the board at a time designated by the executive director. The applicant will be given the applicant's scores for each question on the examination. The applicant shall not copy, transcribe, or remove the examination from the board's office (or any other location established by the board for the review of the examination) and shall be subject to such other restrictions as the board deems necessary to protect the content of the examination.

(b)  Petition for Grade Review. If, after reviewing the examination, the applicant feels an error or errors were made in the grading, the applicant may file with the executive director a petition for grade review. The petition must be filed within 30 days after the last day of the exam review period and should set out in detail the examination questions and answers which, in the opinion of the applicant, have been incorrectly graded. Supporting information may be filed to substantiate the applicant's claim.

(c)  Denial of Petition by Chair. The director of the specialization program shall review the petition and determine whether, if all grading objections of the petitioner are decided in the petitioner’s favor, the petitioner’s grade on the examination would be changed to a passing grade. If the director determines that the petitioner’s grade would not be changed to passing, the director shall notify the chair who may deny the petition on this basis.

(d)  Review Procedure. The applicant's examination and petition shall be submitted to a panel consisting of three members of the specialty committee (the grade review panel). All identifying information shall be redacted from the examination and petition prior to submission to the grade review panel. The grade review panel shall review the petition of the applicant and determine whether the grade of the examination should be changed. The grade review panel shall make a written report to the board setting forth its recommendation relative to the grade on the applicant's examination and an explanation of its recommendation.

(e)  Decision of the Board. The board shall consider the petition and the report of the grade review panel and shall certify the applicant if it determines by majority vote that the applicant has satisfied all of the standards for certification.

(f)  Failure of Examination Prepared and Administered by a Testing Organization on Behalf of the Board. Notwithstanding paragraphs (a) – (d) of this rule, if the board is utilizing a qualified organization to prepare and administer the certification examination for a specialty pursuant to Rule .1716(10) of this subchapter, an applicant for such specialty shall only be entitled to the review and appeal procedures of the organization.

 

History Note:        Authority G.S. 84-23;

Adopted Eff. March 11, 2010;

Amended Eff. September 24, 2015; March 6, 2014.

 

27 NCAC 01D .1804         Appeal to the Council

(a)  Appealable Decisions.  An appeal may be taken to the council from a decision of the board which denies an applicant certification (i.e., when an applicant's application has been rejected because it is not in compliance with the standards for certification or when an applicant fails the written specialty examination), denies an applicant continued certification as a specialist, or suspends or revokes a specialist's certification. The rejection of an application because it is incomplete shall not be appealable.

(b)  Filing the Appeal. An appeal from a decision of the board as described in Paragraph (a) may be taken by filing with the executive director of the North Carolina State Bar (the State Bar) a written notice of appeal not later than 21 days after the date of the notice of the board's decision to the applicant who is denied certification or continued certification or to a lawyer whose certification is suspended or revoked.

(c)  Appeal Procedure. The appeal to the council shall be under such rules and regulations as the council may prescribe.

(d)  Scope of Review. Review by the council shall be limited to whether the applicant was provided with procedural rights and whether the board, or the reconsideration panel where applicable, applied the correct procedural standards and State Bar rules in rendering its decision. The applicant shall have the burden of making a clear and convincing showing of arbitrary, capricious, or fraudulent denial of procedural rights or misapplication of the procedural standards or State Bar rules.

(e)  Notice of the Council's Decision. The applicant shall receive written notice of the council's decision.

(f)  Costs. The council may tax the costs attributable to the proceeding against the applicant.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amendments Approved by the Supreme Court: September 22, 2016; March 11, 2010.

 

27 NCAC 01D .1805         JUDICIAL REVIEW

(a)  Appeals ‑ The appellant or the board may appeal from an adverse ruling by the council.

(b)  Wake County Superior Court ‑ All appeals from the council shall lie to the Wake County Superior Court.  [See N.C. State Bar v. Du Mont, 304 N.C. 627, 286 S.E.2d 89 (1982).]

(c)  Judicial Review Procedures ‑ Article 4 of G.S. 150B shall be complied with by all parties relative to the procedures for judicial review of the council's decision.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1806         Additional Rules Pertaining to Hearing and Appeals

(a)  Notices.  Every notice required by these rules shall be deemed sufficient if sent to the applicant at the address listed on the applicant's last application to the board or the address in the official membership records of the State Bar.

(b)  Expenses Related to Hearings and Appeals.  In its discretion, the board may direct that the necessary expenses incurred in any investigation, processing, and hearing of any matter to the board or appeal to the council be paid by the board or appeal to the council be paid by the board.  However, all expenses related to travel to any hearing or appeal for the applicant, his or her attorney, and witnesses called by the applicant shall be paid by the applicant.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. March 11, 2010.

 

SECTION .1900 ‑ RULES CONCERNING THE ACCREDITATION OF CONTINUING LEGAL EDUCATION FOR THE PURPOSES OF THE BOARD OF LEGAL SPECIALIZATION

 

27 NCAC 01D .1901         GENERAL PROVISIONS

(a)  An applicant for certification in a specialty field must make a satisfactory showing of the requisite number of hours of continuing legal education (CLE) in the specialty field for each of the last three years prior to application in accord with the standards adopted by the board in the field.  In no event will the number of hours be less than an average of 12 hours per year.  The average number of hours is computed by adding all hours of continuing legal education credits in the field for three years and dividing by three.

(b)  An applicant for continued certification must make a satisfactory showing of the requisite number of hours of continuing legal education (CLE) in the specialty field for each of the five years of certification in accord with the standards adopted by the board in the field.  In no event will the number of hours be less than an average of 12 hours per year.  The average number of hours is computed by adding all hours of continuing legal education credits in the field for the five years and dividing by five.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1902         DEFINITIONS

(a)  Applicant ‑ The person applying for certification or continued certification of specialization.

(b)  Board ‑ The North Carolina State Bar Board of Legal Specialization.

(c)  Committee ‑ The specialty committee appointed by the board in the applicant's specialty field.

(d)  Sponsor ‑ An organization offering continuing legal education courses for attendance by attorneys.

(e)  Accredited Sponsor ‑ A sponsor which has demonstrated to the satisfaction of the board that the continuing legal education programs offered by it meet the accreditation standards on a continuing basis warranting a presumption of accreditation.

(f)  Accreditation ‑ A determination by the board that the continuing legal education activities further the professional competence of the applicant and a certain number of hours of continuing legal education credit should be awarded for participation in the continuing legal education activity.

(g)  Continuing Legal Education (CLE) ‑ Attendance at lecture‑type instruction meeting the standards in Rule .1903 of this Section or participation in alternative activities described in Rule .1905 of this Section.

(h)  Specialty Field ‑ An area of the law as defined by the board in which the board certifies specialists.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1903         Accreditation Standards for Lecture-Type CLE Activities

(a)  The CLE activity shall have significant intellectual or practical content and the primary objective shall be to increase the participant's professional competence in the applicant's specialty field.

(b)  The CLE activity shall constitute an organized program of learning dealing with matters directly related to the practice of law, professional responsibility, or ethical obligations of lawyers in the applicant's specialty field.

(c)  The CLE activity may be live; prerecorded in audio or video format; simultaneously broadcast by telephone, satellite, live web streaming (webcasting), or video conferencing; or online. A prerecorded audio or video CLE activity must comply with the minimum registration and verification of attendance requirements in Rule .1604(d) of this chapter.

(d)  Continuing legal education materials are to be prepared and activities conducted by an individual or group qualified by practical or academic experience in a setting suitable to the educational activity of the program.

(e)  Except when not suitable or readily available because of the topic or the nature of the lecture, thorough, high quality, and carefully prepared written materials shall be provided to all attendees prior to or at the time the instruction is presented. Absence of materials should be the exception and not the rule.

 

History Note         Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. September 24, 2015.

 

27 NCAC 01D .1904         COMPUTATION OF HOURS OF INSTRUCTION

(a)  Hours of CLE will be computed by adding the number of minutes of actual instruction, dividing by 60 and rounding the results to the nearest one‑tenth of an hour.

(b)  Only actual instruction will be included in computing the total hours of actual instruction.  The following will be excluded:

(1)           introductory remarks;

(2)           breaks;

(3)           business meetings;

(4)           keynote speeches or speeches in connection with meals;

(5)           question and answer sessions in excess of 15 minutes per hour of instruction;

(6)           programs of less than 60 minutes in length.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1905         Alternatives to Lecture-Type CLE Course Instruction

(a)  Teaching - Preparation and presentation of written materials at an accredited CLE course will qualify for CLE credit at the rate of six hours of credit for each hour of presentation as computed under Rule .1904 of this Subchapter. In the case of joint preparation and/or presentation, each preparer and presenter will receive a proportionate share of the total credit available. Repeat presentations of substantially the same materials will qualify for one-half the credit available for the initial presentation. Instruction at an academic institution will qualify for three hours of CLE credit per semester hour taught in the specialty field.

(b)  Publication - Publication of a scholarly article in the applicant's specialty field will qualify for CLE credit in the discretion of the specialty committee, subject to board approval, based on a review of the article, its content, and its quality. No more than ten hours of credit will be given for a single article.

(c)  Self-study - An individual may review video or audio tapes or manuscripts of lectures from qualified CLE courses, which lectures would meet the accreditation standards in Rule .1903 of this Subchapter and receive credit according to the computation of hours in Rule .1904 of this Subchapter provided that no more than two hours per year of self-study shall qualify to meet the CLE requirements for certification or recertification.

(d)  Advanced degrees - Attendance at courses of instruction at a law school which can be credited toward the earning of an advanced degree in the specialty field of the applicant will qualify for one hour of CLE credit per semester hour taken if attained in the required period prior to application for certification or recertification.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. February 5, 2009; March 7, 1996.

 

27 NCAC 01D .1906         ACCREDITATION OF COURSES

(a)  All courses offered by an accredited sponsor which relate to the specialty field as defined by the board shall be accredited and credit for attendance shall be given for the hours of instruction related to the specialty field of the applicant as determined by the board.

(b)  The applicant shall make a showing that any course for which the applicant desires CLE credit offered by a sponsor not on the accredited sponsor list meets the accreditation standards of Rule .1903 of this Section.  The board will then determine the number of hours of credit based upon the standards of Rule .1904 of this Section.

(c)  An accredited sponsor may not represent or advertise that a CLE course is approved or that the attendees will be given CLE credit by the board unless such sponsor provides a brochure or other appropriate information describing the topics, hours of instruction, and instructors for its CLE offerings in a specialty field at least 30 days in advance of the date of the course.

(d)  An unaccredited sponsor desiring advance accreditation of a course and the right to designate its accreditation for the appropriate number of CLE credits in its solicitations shall submit a brochure or other appropriate information describing the topics, hours of instruction, location, and instructors for its CLE offerings at least 60 days prior to the date of the course. 

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994;

Amended Eff. October 1, 2003.

 

27 NCAC 01D .1907         ACCREDITATION OF SPONSOR

(a)  The following is the list of accredited sponsors:

(1)           North Carolina Bar Foundation;

(2)           North Carolina Academy of Trial Lawyers;

(3)           Wake Forest University Continuing Legal Education;

(4)           University of North Carolina at Chapel Hill Continuing Legal Education;

(5)           Duke University School of Law Continuing Legal Education;

(6)           Norman Adrian Wiggins School of Law Continuing Legal Education;

(7)           Middle District Bankruptcy Seminar;

(8)           UCB Estate Planning and Taxation Seminar;

(9)           any member of the Association of Continuing Legal Education Administrators;

(10)         University of Miami School of Law;

(11)         any of the following groups: American Bar Association, American College of Probate Counsel, American College of Trial Counsel, American patent Law Association, Association of American Law Schools, Association of Life Insurance Counsel, Conference of Chief Justices, Council on Legal Education for Professional Responsibility, Inc., Federal Bar Association, Federal Communications Bar Association, Judge Advocates Association, Maritime Law Association of the United States, National Association of Attorneys General, National Association of Bar Executives, National Association of Bar Presidents, National Association of Bar Counsel, National Association of Women Lawyers, National Bar Association, National Conference of Bar Examiners, National Conference of Commissioners on Uniform State Laws, National Conference of Judicial Councils, National District Attorneys Association, and National Legal Aid and Defender Association.

(b)  Any sponsor not listed in Paragraph (a) of this Rule desiring to attain accredited sponsor status must submit to the board a description of the courses offered for the two years prior to application to the board for accredited sponsor status.  The board may request copies of any course materials used in any of the offered courses.  If, in the judgment of the board, the sponsor has met the accreditation standards of Rule .1903 of this Section for each of the courses offered, the board will designate the sponsor as an accredited sponsor.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .1908         SHOWING BY APPLICANTS

Every applicant will list each type of CLE activity under each of the following categories:

(1)           attendance at CLE instruction offered by an accredited sponsor.  The course name, sponsor, and number of hours of CLE shall be listed by the applicant;

(2)           attendance at CLE instruction offered by a sponsor not on the accredited sponsor list or not given advanced approval by the board under Rule .1906 of this Section.  A fee of five dollars ($5.00) per course will be charged for accrediting each course listed by the applicant offered by a sponsor not on the accredited sponsor list or not given advanced approval under Rule .1906(d) of this Section.  The course name, sponsor, and number of hours of CLE shall be listed by the applicant;

(3)           participation as an instructor at a CLE course.  The course name, sponsor, and number of hours of instruction or preparation shall be stated by the applicant;

(4)           publication of a scholarly article.  A copy of the publication shall accompany the application;

(5)           self‑study.  A description of the materials used, the dates of use, the number of hours claimed, and the source from which they were obtained shall accompany the application.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

SECTION .2000 ‑ RULES OF THE BOARD OF LEGAL SPECIALIZATION FOR APPROVAL OF INDEPENDENT CERTIFYING ORGANIZATIONS

 

27 NCAC 01D .2001         POLICY STATEMENT

These guidelines for reviewing independent organizations which certify lawyers as specialists are designed to thoroughly evaluate the purpose and function of such certifying organizations and the procedures they use in their certification processes.  These guidelines are not meant to be exclusive, but to provide a framework in which certifying organizations can be evaluated.  The aim of this evaluation is to provide consumers of legal services a means of access to lawyers who are qualified in particular fields of law.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .2002         GENERAL PROCEDURE

As contemplated in Rule 2.5 of the North Carolina Rules of Professional Conduct, the North Carolina State Bar, through its Board of Legal Specialization (the board), shall, upon the filing of a completed application and the payment of any required fee, review the standards and procedures of any organization which certifies lawyers as specialists and desires the approval of the North Carolina State Bar.  The board shall prepare an application form to be used by certifying organizations and shall administer the application process.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .2003         FACTORS TO BE CONSIDERED IN REVIEWING CERTIFYING ORGANIZATIONS

(a)  Purpose of the Organization ‑ The stated purposes for the original formation of the organization and any subsequent changes in those purposes shall be examined to determine whether the organization is dedicated to the maintenance of professional competence.

(b)  Background of the Organization ‑ The length of time the organization has been in existence, whether the organization is a successor of another, the requirements for membership in the organization, the number of members which the organization has, the business structure under which the organization operates, and the professional qualifications of the individuals who direct the policies and operations of the organization shall be examined to determine whether the organization is a bona fide certifying organization.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .2004         STANDARDS FOR APPROVAL OF CERTIFYING ORGANIZATIONS

The following standards are to be considered by the board in evaluating an application for approval of a certifying organization.

(1)           Uniform Applicability of Certification Standards ‑ In general, the standards for certification in any specialty field must be understandable and easily applied to individual applicants.  Certification by the organization must be available to any attorney who meets the standards, and the organization must not certify an attorney who has not demonstrably met each standard.  The organization must agree to promptly inform the board of any material changes in its standards, definitions of specialty fields or certifying procedures and must further agree to respond promptly to any reasonable requests for information from the board.

(2)           Definitions of Specialty Fields ‑ Every field of law in which certification is offered must be susceptible of meaningful definition and be an area in which North Carolina lawyers regularly practice.

(3)           Decision Making by Recognized Experts ‑ The persons in a certifying organization making decisions regarding applicants shall include lawyers who, in the judgment of the board, are experts in the subject areas of practice and who each have extensive practice or involvement in those areas of practice.

(4)           Certification Standards ‑ A certifying organization's standards for certification of specialists must include, as a minimum, the standards required for certification set out in the North Carolina Plan of Legal Specialization (Section .1700 of this subchapter) and in the rules, regulations and standards adopted by the board from time to time.  Such standards shall not unlawfully discriminate against any lawyer properly qualified for certification as a specialist, but shall provide a reasonable basis for a determination that an applicant possesses special competence in a particular field of law, as demonstrated by the following means:

(a)           Substantial Involvement ‑ Substantial involvement in the area of specialty during the five‑year period immediately preceding application to the certifying agency.  Substantial involvement is generally measured by the amount of time spent practicing in the area of specialty.  In no event may the time spent in practicing the specialty be less than 25 percent of the total practice of a lawyer engaged in a normal full‑time practice;

(b)           Peer Review ‑ Peer recommendations from attorneys or judges who are familiar with the competence of the applicant in the area of specialty, none of whom are related to, engaged in legal practice with, or involved in continuing commercial relationships with the lawyer;

(c)           Written Examination ‑ Objective evaluation of the applicant's knowledge of the substantive and procedural law in the area of specialty as determined by written examination;

(d)           Continuing Legal Education ‑ At least 36 hours of approved continuing legal education credit in the area of specialty during the three years immediately preceding application to the certifying organization.

(5)           Applications and Procedures ‑ Application forms used by the certifying organization must be submitted to the board for review to determine that the requirements specified above are being met by applicants.  Additionally, the certifying organization must submit a description of the process it uses to review applications.

(6)           Requirements for Recertification ‑ The standards used by a certifying organization must provide for certification for a limited period of time, which shall not exceed five years, after which time persons who have been certified must apply for recertification.  Requirements for recertification must include continued substantial involvement in the area of specialty, continuing legal education, and appropriate peer review.

(7)           Revocation of Certification ‑ The standards used by a certifying organization shall include a procedure for revocation of certification.  A certification shall be revoked upon a finding that the certificate holder has been disbarred or suspended from the practice of law.  The standards shall require a certificate holder to report his or her disbarment or suspension from the practice of law to the certifying organization.

(8)           Waiver ‑ The standards used by a certifying organization may provide for waiver of the peer review and written examination requirements set forth in Rules .2004(4)(b) and (c) above for an applicant who was responsible for formulating and grading the organization's initial written examination in his or her area of specialty.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .2005         APPLICATION PROCEDURE

(a)  The organization may file an application seeking approval of the organization by the board.  Applications shall be on forms available from and approved by the board.  The application fee shall be one thousand dollars ($l,000.00).

(b)  The organization which has been approved shall provide its standards, definitions and/or certifying procedures to the board in January of each year and must pay an annual administrative fee of one hundred dollars ($100.00) to maintain its approved status.

(c)  When the board determines that an approved certifying organization has ceased to exist, has ceased to operate its certification program in the manner described in its application, or has failed to comply with the requirements of Rule .2005(b) above, its approved status shall be revoked.  After such a revocation, no North Carolina lawyer may publicize a certification from the organization in question.

(d)  The appeal procedures of the board shall apply to any application by an organization for approval as a certifying organization and any decision to revoke a certifying organization's approved status.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .2006         EFFECT OF APPROVAL OF A CERTIFYING ORGANIZATION BY THE BOARD OF LEGAL SPECIALIZATION

When an organization is approved as a certifying organization by the board, any North Carolina lawyer certified as a specialist by that organization may publicize that certification.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

SECTION .2100 ‑ CERTIFICATION STANDARDS FOR THE REAL PROPERTY LAW SPECIALTY

 

27 NCAC 01D .2101         ESTABLISHMENT OF SPECIALTY FIELD

The North Carolina State Bar Board of Legal Specialization (the board) hereby designates real property law, including the subspecialties of real property‑residential transactions and real property‑business, commercial, and industrial transactions as a field of law for which certification of specialists under the North Carolina Plan of Legal Specialization (see Section .1700 of this subchapter) is permitted.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .2102         DEFINITION OF SPECIALTY

The specialty of real property law is the practice of law dealing with real property transactions, including title examination, property transfers, financing, leases, and determination of property rights.  Subspecialties in the field are identified and defined as follows:

(1)           Real Property Law‑Residential Transactions ‑ The practice of law dealing with the acquisition, ownership, leasing, financing, use, transfer and disposition, of residential real property by individuals;

(2)           Real Property Law‑Business, Commercial, and Industrial Transactions ‑ The practice of law dealing with the acquisition, ownership, leasing, management, financing, development, use, transfer, and disposition of residential, business, commercial, and industrial real property.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .2103         RECOGNITION AS A SPECIALIST IN REAL PROPERTY LAW

A lawyer may qualify as a specialist by meeting the standards set for one or both of the subspecialties.  If a lawyer qualifies as a specialist in real property law by meeting the standards set for the real property law‑residential transactions subspecialty, the lawyer shall be entitled to represent that he or she is a "Board Certified Specialist in Real Property Law‑Residential Transactions."  If a lawyer qualifies as a specialist in real property law by meeting the standards set for the real property law‑business, commercial, and industrial transactions, the lawyer shall be entitled to represent that he or she is a "Board Certified Specialist in Real Property Law‑Business, Commercial, and Industrial Transactions."  If a lawyer qualifies as a specialist in real property law by meeting the standards set for both the real property law‑residential transactions subspecialty and the real property law‑business, commercial, and industrial transactions subspecialty, the lawyer shall be entitled to represent that he or she is a "Board Certified Specialist in Real Property Law‑Residential, Business, Commercial and Industrial Transactions."

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .2104         APPLICABILITY OF PROVISIONS OF THE NORTH CAROLINA PLAN OF LEGAL SPECIALIZATION

Certification and continued certification of specialists in real property law shall be governed by the provisions of the North Carolina Plan of Legal Specialization (see Section .1700 of this subchapter) as supplemented by these standards for certification.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .2105         Standards for Certification as a Specialist in Real Property Law

Each applicant for certification as a specialist in real property law shall meet the minimum standards set forth in Rule .1720 of this subchapter.  In addition, each applicant shall meet the following standards for certification in real property law:

(1)           Licensure and Practice - An applicant shall be licensed and in good standing to practice law in North Carolina as of the date of application. An applicant shall continue to be licensed and in good standing to practice law in North Carolina during the period of certification.

(2)           Substantial Involvement - An applicant shall affirm to the board that the applicant has experience through substantial involvement in the practice of real property law.

(a)           Substantial involvement shall mean during the five years preceding the application, the applicant has devoted an average of at least 500 hours a year to the practice of real property law, but not less than 400 hours in any one year.

(b)           Practice shall mean substantive legal work done primarily for the purpose of legal advice or representation, or a practice equivalent.

(c)           Practice equivalent means service as a law professor concentrating in the teaching of real property law. Teaching may be substituted for one year of experience to meet the five-year requirement.

(3)           Continuing Legal Education - An applicant must have earned no less than 36 hours of accredited continuing legal education (CLE) credits in real property law during the three years preceding application with not less than 6 credits in any one year. Of the 36 hours of CLE, at least 30 hours shall be in real property law and the balance may be in the related areas of environmental law, taxation, business organizations, estate planning and probate law, and elder law.

(4)           Peer review - An applicant must make a satisfactory showing of qualification through peer review. An applicant must provide the names of ten lawyers or judges who are familiar with the competence and qualification of the applicant in the specialty field. Written peer reference forms will be sent by the board or the specialty committee to each of the references. Completed peer reference forms must be received from at least five of the references. All references must be licensed and in good standing to practice in North Carolina. An applicant consents to the confidential inquiry by the board or the specialty committee of the submitted references and other persons concerning the applicant's competence and qualification.

(a)           A reference may not be related by blood or marriage to the applicant nor may the reference be a partner or associate of the applicant at the time of the application.

(b)           The references shall be given on standardized forms provided by the board with the application for certification in the specialty field. These forms shall be returned directly to the specialty committee.

(5)           Examinations - The applicant must pass a written examination designed to test the applicant's knowledge and ability in real property law.

(a)           Terms - The examination(s) shall be in written form and shall be given annually. The examination(s) shall be administered and graded uniformly by the specialty committee.

(b)           Subject Matter - The examination shall cover the applicant's knowledge in the following topics in real property law or in the subspecialty or subspecialties that the applicant has elected:

(i)            title examinations, property transfers, financing, leases, and determination of property rights;

(ii)           the acquisition, ownership, leasing, financing, use, transfer, and disposition of residential real property by individuals;

(iii)          the acquisition, ownership, leasing, management, financing, development, use, transfer, and disposition of residential, business, commercial, and industrial real property.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. October 9, 2008.

 

27 NCAC 01D .2106         Standards for Continued Certification as a Specialist

The period of certification is five years. Prior to the expiration of the certification period, a certified specialist who desires continued certification must apply for continued certification within the time limit described in Rule .2106(d) below. No examination will be required for continued certification. However, each applicant for continued certification as a specialist shall comply with the specific requirements set forth below in addition to any general standards required by the board of all applicants for continued certification.

(1)           Substantial Involvement - The specialist must demonstrate that, for each of the five years preceding application, he or she has had substantial involvement in the specialty as defined in Rule .2105(b) of this subchapter.

(2)           Continuing Legal Education - The specialist must have earned no less than 60 hours of accredited continuing legal education credits in real property law as accredited by the board with not less than 6 credits earned in any one year. Of the 60 hours of CLE, at least 50 hours shall be in real property law and the balance may be in the related areas of environmental law, taxation, business organizations, estate planning and probate law, and elder law.

(3)           Peer Review - The specialist must comply with the requirements of Rule .2105(d) of this subchapter.

(4)           Time for Application - Application for continued certification shall be made not more than 180 days nor less than 90 days prior to the expiration of the prior period of certification.

(5)           Lapse of Certification - Failure of a specialist to apply for continued certification in a timely fashion will result in a lapse of certification. Following such lapse, recertification will require compliance with all requirements of Rule .2105 of this subchapter, including the examination.

(6)           Suspension or Revocation of Certification - If an applicant's certification has been suspended or revoked during the period of certification, then the application shall be treated as if it were for initial certification under Rule .2105 of this subchapter.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. October 9, 2008.

 

27 NCAC 01D .2107         APPLICABILITY OF OTHER REQUIREMENTS

The specific standards set forth herein for certification of specialists in real property law are subject to any general requirement, standard, or procedure adopted by the board applicable to all applicants for certification or continued certification.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

SECTION .2200 ‑ CERTIFICATION STANDARDS FOR THE BANKRUPTCY LAW SPECIALTY

 

27 NCAC 01D .2201         ESTABLISHMENT OF SPECIALTY FIELD

The North Carolina State Bar Board of Legal Specialization (the board) hereby designates bankruptcy law, including the subspecialties of consumer bankruptcy law and business bankruptcy law, as a field of law for which certification of specialists under the Plan of Legal Specialization (see Section .1700 of this subchapter) is permitted.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .2202         DEFINITION OF SPECIALTY

The specialty of bankruptcy law is the practice of law dealing with all laws and procedures involving the rights, obligations, and remedies between debtors and creditors in potential or pending federal bankruptcy cases and state insolvency actions.  Subspecialties in the field are identified and defined as follows:

(1)           Consumer Bankruptcy Law ‑ The practice of law dealing with consumer bankruptcy and the representation of interested parties in contested matters or adversary proceedings in individual filings of Chapter 7, Chapter 12, or Chapter 13;

(2)           Business Bankruptcy Law ‑ The practice of law dealing with business bankruptcy and the representation of interested parties in contested matters or adversary proceedings in bankruptcy cases filed on behalf of debtors who are or have been engaged in business prior to an entity filing Chapter 7, Chapter 9, Chapter 11, or Chapter 12.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .2203         RECOGNITION AS A SPECIALIST IN BANKRUPTCY LAW

A lawyer may qualify as a specialist by meeting the standards set for one or both of the subspecialties.  If a lawyer qualifies as a specialist in bankruptcy law by meeting the standards set for the consumer bankruptcy law subspecialty, the lawyer shall be entitled to represent that he or she is a "Board Certified Specialist in Consumer Bankruptcy Law."  If a lawyer qualifies as a specialist in bankruptcy law by meeting the standards set for the business bankruptcy law subspecialty, the lawyer shall be entitled to represent that he or she is a "Board Certified Specialist in Business Bankruptcy Law."  If a lawyer qualifies as a specialist in bankruptcy law by meeting the standards set for both the consumer bankruptcy law and the business bankruptcy law subspecialties, the lawyer shall be entitled to represent that he or she is a "Board Certified Specialist in Business and Consumer Bankruptcy Law."

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .2204         APPLICABILITY OF PROVISIONS OF THE NORTH CAROLINA PLAN OF LEGAL SPECIALIZATION

Certification and continued certification of specialists in bankruptcy law shall be governed by the provisions of the Plan of Legal Specialization (see Section .1700 of this subchapter) as supplemented by these standards for certification.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .2205         Standards for Certification as a Specialist in Bankruptcy Law

Each applicant for certification as a specialist in bankruptcy law shall meet the minimum standards set forth in Rule .1720 of this subchapter. In addition, each applicant shall meet the following standards for certification as a specialist in bankruptcy law:

(1)           Licensure and Practice - An applicant shall be licensed and in good standing to practice law in North Carolina as of the date of application. An applicant shall continue to be licensed and in good standing to practice law in North Carolina during the period of certification.

(2)           Substantial Involvement - An applicant shall affirm to the board that the applicant has experience through substantial involvement in the practice of bankruptcy law.

(a)           Substantial involvement shall mean during the five years preceding the application, the applicant has devoted an average of at least 500 hours a year to the practice of bankruptcy law, but not less than 400 hours in any one year.

(b)           Practice shall mean substantive legal work done primarily for the purpose of legal advice or representation, or a practice equivalent.

(c)           Practice equivalent shall mean, after admission to the bar of any state, District of Columbia, or a U.S. territorial possession

(i)            service as a judge of any bankruptcy court, service as a clerk of any bankruptcy court, or service as a standing trustee;

(ii)           corporate or government service, including military service, after admission to the bar of any state, the District of Columbia, or any U.S. territorial possession, but only if the bankruptcy work done was legal advice or representation of the corporation, governmental unit, or individuals connected therewith;

(iii)          service as a deputy or assistant clerk of any bankruptcy court, as a research assistant to a bankruptcy judge, or as a law professor teaching bankruptcy and/or debtor-creditor related courses may be substituted for one year of experience to meet the five-year requirement.

(3)           Continuing Legal Education - An applicant must have earned no less than 36 hours of accredited continuing legal education (CLE) credits in bankruptcy law, during the three years preceding application with not less than 6 credits in any one year.

(4)           Peer Review - An applicant must make a satisfactory showing of qualification through peer review. An applicant must provide the names of ten lawyers or judges who are familiar with the competence and qualification of the applicant in the specialty field. Written peer reference forms will be sent by the board or the specialty committee to each of the references. Completed peer reference forms must be received from at least five of the references. All references must be licensed and in good standing to practice in North Carolina. An applicant consents to the confidential inquiry by the board or the specialty committee of the submitted references and other persons concerning the applicant's competence and qualification.

(a)           A reference may not be a judge of any bankruptcy court.

(b)           A reference may not be related by blood or marriage to the applicant nor may the reference be a partner or associate of the applicant at the time of the application.

(c)           The references shall be given on standardized forms provided by the board with the application for certification in the specialty field. These forms shall be returned directly to the specialty committee.

(5)           Examination - The applicant must pass a written examination designed to test the applicant's knowledge and ability in bankruptcy law.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994;

Amended Eff. November 16, 2006.

 

27 NCAC 01D .2206         STANDARDS FOR CONTINUED CERTIFICATION AS A SPECIALIST

The period of certification is five years.  Prior to the expiration of the certification period, a certified specialist who desires continued certification must apply for continued certification within the time limit described in Rule .2206(d) below.  No examination will be required for continued certification.  However, each applicant for continued certification as a specialist shall comply with the specific requirements set forth below in addition to any general standards required by the board of all applicants for continued certification.

(1)           Substantial Involvement ‑ The specialist must demonstrate that, for each of the five years preceding application, he or she has had substantial involvement in the specialty as defined in Rule .2205(b) of this subchapter.

(2)           Continuing Legal Education ‑ Since last certified, a specialist must have earned no less than 60 hours of accredited continued legal education credits in bankruptcy law with not less than six credits earned in any one year.

(3)           Peer Review ‑ The specialist must comply with the requirements of Rule .2205(d) of this subchapter.

(4)           Application for continued certification shall be made not more than 180 days nor less than 90 days prior to the expiration of the prior period of certification.

(5)           Lapse of Certification ‑ Failure of a specialist to apply for continued certification in a timely fashion will result in a lapse of certification.  Following such lapse, recertification will require compliance with all requirements of Rule .2205 of this subchapter, including the examination.

(6)           Suspension or Revocation of Certification ‑ If an applicant's certification has been suspended or revoked during the period of certification, then the application shall be treated as if it were for initial certification under Rule .2205 of this subchapter.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .2207         APPLICABILITY OF OTHER REQUIREMENTS

The specific standards set forth herein for certification of specialists in bankruptcy law are subject to any general requirement, standard, or procedure adopted by the board applicable to all applicants for certification or continued certification.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

SECTION .2300 ‑ CERTIFICATION STANDARDS FOR THE ESTATE PLANNING AND PROBATE LAW SPECIALTY

 

27 NCAC 01D .2301         ESTABLISHMENT OF SPECIALTY FIELD

The North Carolina State Bar Board of Legal Specialization (the board) hereby designates estate planning and probate law as a field of law for which certification of specialists under the Plan of Legal Specialization (see Section .1700 of this subchapter) is permitted.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .2302         DEFINITION OF SPECIALTY

The specialty of estate planning and probate law is the practice of law dealing with planning for conservation and disposition of estates, including consideration of federal and state tax consequences; preparation of legal instruments to effectuate estate plans; and probate of wills and administration of estates, including federal and state tax matters.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .2303         RECOGNITION AS A SPECIALIST IN ESTATE PLANNING AND PROBATE LAW

If a lawyer qualifies as a specialist in estate planning and probate law by meeting the standards set for the specialty, the lawyer shall be entitled to represent that he or she is a "Board Certified Specialist in Estate Planning and Probate Law."

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .2304         APPLICABILITY OF PROVISIONS OF THE NORTH CAROLINA PLAN OF LEGAL SPECIALIZATION

Certification and continued certification of specialists in estate planning and probate law shall be governed by the provisions of the Plan of Legal Specialization (see Section .1700 of this subchapter) as supplemented by these standards for certification.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .2305         Standards for Certification as a Specialist in Estate Planning and Probate Law

Each applicant for certification as a specialist in estate planning and probate law shall meet the minimum standards set forth in Rule .1720 of this subchapter. In addition, each applicant shall meet the following standards for certification as a specialist in estate planning and probate law:

(a)  Licensure and Practice - An applicant shall be licensed and in good standing to practice law in North Carolina as of the date of application. An applicant shall continue to be licensed and in good standing to practice law in North Carolina during the period of certification.

(b)  Substantial Involvement - The applicant shall affirm to the board that the applicant has experience through substantial involvement in the practice of estate planning and probate law.

(1)           Substantial involvement shall be measured as follows:

(A)          Time Spent - During the five years preceding the application, the applicant has devoted an average of at least 500 hours a year to the practice of estate planning and probate law, but not less than 400 hours in any one year;

(B)          Experience Gained - During the five years immediately preceding application, the applicant shall have had continuing involvement in a substantial portion of the activities described in each of the following paragraphs:

(i)            counseled persons in estate planning, including giving advice with respect to gifts, life insurance, wills, trusts, business arrangements and agreements, and other estate planning matters;

(ii)           prepared or supervised the preparation of (1) estate planning instruments, such as simple and complex wills (including provisions for testamentary trusts, marital deductions and elections), revocable and irrevocable inter vivos trusts (including short-term and minor's trusts), business planning agreements (including buy-sell agreements and employment contracts), powers of attorney and other estate planning instruments; and (2) federal and state gift tax returns, including representation before the Internal Revenue Service and the North Carolina Department of Revenue in connection with gift tax returns;

(iii)          handled or advised with respect to the probate of wills and the administration of decedents' estates, including representation of the personal representative before the clerk of superior court, guardianship, will contest, and declaratory judgment actions;

(iv)          prepared, reviewed or supervised the preparation of federal estate tax returns, North Carolina inheritance tax returns, and federal and state fiduciary income tax returns, including representation before the Internal Revenue Service and the North Carolina Department of Revenue in connection with such tax returns and related controversies.

(2)           Practice shall mean substantive legal work done primarily for the purpose of legal advice or representation, or a practice equivalent.

(3)           Practice equivalent shall mean

(A)          receipt of an LL.M. degree in taxation or estate planning and probate law (or such other related fields approved by the specialty committee and the board from an approved law school) may be substituted for one year of experience to meet the five-year requirement;

(B)          service as a trust officer with a corporate fiduciary having duties primarily in the area of estate and trust administration, may be substituted for one year of experience to meet the five-year requirement;

(C)          service as a law professor concentrating in the teaching of taxation or estate planning and probate law (or such other related fields approved by the specialty committee and the board). Such service may be substituted for one year of experience to meet the five-year requirement.

(c)  Continuing Legal Education - An applicant must have earned no less than 72 hours of accredited continuing legal education (CLE) credits in estate planning and probate law during the three years preceding application. Of the 72 hours of CLE, at least 45 hours shall be in estate planning and probate law (provided, however, that eight of the 45 hours may be in the related areas of elder law, Medicaid planning, and guardianship), and the balance may be in designated related fields. A list of the topics that qualify as related-field CLE shall be maintained by the board on its official website.

(d)  Peer Review - An applicant must make a satisfactory showing of qualification through peer review. An applicant must provide the names of ten lawyers or judges, all of whom are familiar with the competence and qualification of the applicant in the specialty field. Written peer reference forms will be sent by the board or the specialty committee to each of the references. Completed peer reference forms must be received from at least five of the references. All references must be licensed and in good standing to practice in North Carolina. An applicant consents to the confidential inquiry by the board or the specialty committee of the submitted references and other persons concerning the applicant's competence and qualification.

(1)           A reference may not be related by blood or marriage to the applicant nor may the reference be a partner or associate of the applicant at the time of the application.

(2)           The references shall be given on standardized forms provided by the board with the application for certification in the specialty field. These forms shall be returned directly to the specialty committee.

(e)  Examination - The applicant must pass a written examination designed to test the applicant's knowledge and ability in estate planning and probate law.

(1)           Terms - The examination shall be in written form and shall be given annually. The examination shall be administered and graded uniformly by the specialty committee.

(2)           Subject Matter - The examination shall cover test the applicant’s knowledge and application of the law of estate planning and probate. A list of the topics covered on the exam shall be maintained by the board on its official website.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994;

Amended Eff. June 9, 2016; October 9, 2008.

.

 

27 NCAC 01D .2306         Standards for Continued Certification as a Specialist

The period of certification is five years. Prior to the expiration of the certification period, a certified specialist who desires continued certification must apply for continued certification within the time limit described in Rule .2306(d) below. No examination will be required for continued certification. However, each applicant for continued certification as a specialist shall comply with the specific requirements set forth below in addition to any general standards required by the board of all applicants for continued certification.

(a)  Substantial Involvement - The specialist must demonstrate that, for each of the five years preceding application, he or she has had substantial involvement in the specialty as defined in Rule .2305(b) of this subchapter; however, for the purpose of continued certification as a specialist, service outside private practice, during which the specialist had duties primarily in the areas of estate planning, estate administration, and/or trust administration, may be substituted for the equivalent years of experience toward the five-year requirement, as determined by the board in its discretion.

(b)  Continuing Legal Education - Since last certified, a specialist must have earned no less than 120 hours of accredited continuing legal education credits in estate planning and probate law. Of the 120 hours of CLE at least 75 hours shall be in estate planning and probate law (provided, however, that 15 of the 75 hours may be in the related areas of elder law, Medicaid planning, and guardianship), and the balance may be in the related areas of taxation, business organizations, real property, family law, elder law, Medicaid planning, and guardianship.

(c)  Peer Review - The specialist must comply with the requirements of Rule .2305(d) of this subchapter.

(d)  Time for Application - Application for continued certification shall be made not more than 180 days nor less than 90 days prior to the expiration of the prior period of certification.

(e)  Lapse of Certification - Failure of a specialist to apply for continued certification in a timely fashion will result in a lapse of certification. Following such lapse, recertification will require compliance with all requirements of Rule .2305 of this subchapter, including the examination.

(f)  Suspension or Revocation of Certification - If an applicant's certification has been suspended or revoked during the period of certification, then the application shall be treated as if it were for initial certification under Rule .2305 of this subchapter.

 

History Note:        Authority G.S. 84-23;

Readopted Effective December 8, 1994;

Amendments Approved by the Supreme Court: October 9, 2008; April 5, 2018.

 

27 NCAC 01D .2307         APPLICABILITY OF OTHER REQUIREMENTS

The specific standards set forth herein for certification of specialists in estate planning and probate law are subject to any general requirement, standard, or procedure adopted by the board applicable to all applicants for certification or continued certification.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

SECTION .2400 ‑ CERTIFICATION STANDARDS FOR THE FAMILY LAW SPECIALTY

 

27 NCAC 01D .2401         ESTABLISHMENT OF SPECIALTY FIELD

The North Carolina State Bar Board of Legal Specialization (the board) hereby designates family law as a field of law for which certification of specialists under the North Carolina Plan of Legal Specialization (see Section .1700 of this subchapter) is permitted.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .2402         DEFINITION OF SPECIALTY

The specialty of family law is the practice of law relating to marriage, divorce, alimony, child custody and support, equitable distribution, enforcement of support, domestic violence, bastardy, and adoption.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .2403         RECOGNITION AS A SPECIALIST IN FAMILY LAW

If a lawyer qualifies as a specialist in family law by meeting the standards set for the specialty, the lawyer shall be entitled to represent that he or she is a "Board Certified Specialist in Family Law."

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .2404         APPLICABILITY OF PROVISIONS OF THE NORTH CAROLINA PLAN OF LEGAL SPECIALIZATION

Certification and continued certification of specialists in family law shall be governed by the provisions of the North Carolina Plan of Legal Specialization (see Section .1700 of this subchapter) as supplemented by these standards for certification.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .2405         Standards for Certification as a Specialist in Family Law

Each applicant for certification as a specialist in family law shall meet the minimum standards set forth in Rule .1720 of this Subchapter.  In addition, each applicant shall meet the following standards for certification as a specialist in family law:

(1)           Licensure and Practice - An applicant shall be licensed and in good standing to practice law in North Carolina as of the date of application. An applicant shall continue to be licensed and in good standing to practice law in North Carolina during the period of certification.

(2)           Substantial Involvement - An applicant shall affirm to the board that the applicant has experience through substantial involvement in the practice of family law.

(a)           Substantial involvement shall mean during the five years preceding the application, the applicant has devoted an average of at least 600 hours a year to the practice of family law, and not less than 400 hours during any one year.

(b)           Practice shall mean substantive legal work done primarily for the purpose of legal advice or representation, or a practice equivalent.

(c)           Practice equivalent shall mean

(i)            service as a law professor concentrating in the teaching of family law. Such service may be substituted for one year of experience to meet the five-year requirement.

(ii)           service as a district court judge in North Carolina, hearing a substantial number of family law cases. Such service may be substituted for one year of experience to meet the five-year requirement.

(3)           Continuing Legal Education - During the three calendar years prior to the year of application and the portion of the calendar year immediately prior to application, an applicant must have earned no less than 45 hours of accredited continuing legal education (CLE) credits in family law, nine of which may be in related fields. Related fields shall include taxation, trial advocacy, evidence, negotiation (including training in mediation, arbitration and collaborative law), juvenile law, real property, estate planning and probate law, business organizations, employee benefits, bankruptcy, elder law, and immigration law.  Only nine hours of CLE credit will be recognized for attendance at an extended negotiation or mediation training course. Parenting coordinator training will not qualify for family law or related field hours.  At least nine hours of CLE in family law or related fields must be taken during each of the three calendar years preceding application.

(4)           Peer Review - An applicant must make a satisfactory showing of qualification through peer review. An applicant must provide the names of ten lawyers or judges who are familiar with the competence and qualification of the applicant in the specialty field. Written peer reference forms will be sent by the board or the specialty committee to each of the references. Completed peer reference forms must be received from at least five of the references.  All references must be licensed and in good standing to practice in North Carolina. An applicant consents to the confidential inquiry by the board or the specialty committee of the submitted references and other persons concerning the applicant's competence and qualification.

(a)           A reference may not be related by blood or marriage to the applicant nor may the reference be a partner or associate of the applicant at the time of the application.

(b)           The references shall be given on standardized forms provided by the board with the application for certification in the specialty field. These forms shall be returned directly to the specialty committee.

(5)           Examination - The applicant must pass a written examination designed to test the applicant's knowledge and ability in family law.

(a)           Terms - The examination shall be in written form and shall be given annually. The examination shall be administered and graded uniformly by the specialty committee.

(b)           Subject Matter - The examination shall cover the applicant's knowledge and application of the law relating to marriage, divorce, alimony, child custody and support, equitable distribution, enforcement of support, domestic violence, bastardy, and adoption including, but not limited to, the following:

(i)            contempt (Chapter 05A of the North Carolina General Statutes);

(ii)           adoptions (Chapter 48);

(iii)          bastardy (Chapter 49);

(iv)          divorce and alimony (Chapter 50);

(v)           Uniform Child Custody Jurisdiction and Enforcement Act (Chapter 50A);

(vi)          domestic violence (Chapter 50B);

(vii)         marriage (Chapter 51);

(viii)        powers and liabilities of married persons (Chapter 52);

(ix)          Uniform Interstate Family Support Act (Chapter 52C);

(x)           Uniform Premarital Agreement Act (Chapter 52B);

(xi)          termination of parental rights, as relating to adoption and termination for failure to provide support (Chapter 07B, Article 11);

(xii)         garnishment and enforcement of child support obligations (Chapter 110, Article 9);

(xiii)        Parental Kidnapping Prevention Act (28 U.S.C. 1738A);

(xiv)        Internal Revenue Code 71 (Alimony), 215 (Alimony Deduction), 121 (Exclusion of Gain from the Sale of Principal Residence), 151 and 152 (Dependency Exemptions), 1041 (Transfer of Property Incidental to Divorce), 2043 and 2516 (Gift Tax Exception), 414(p) (Defining QDRO Requirements), 408 (d)(6) (IRA Transfer Requirements for Non-Taxable Event), and regulations interpretive of these Code sections; and

(xv)         Federal Wiretap Law.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. October 9, 2008; February 27, 2003; February 5, 2002.

 

27 NCAC 01D .2406         Standards for Continued Certification as a Specialist

The period of certification is five years. Prior to the expiration of the certification period, a certified specialist who desires continued certification must apply for continued certification within the time limit described in Rule .2406(d) below. No examination will be required for continued certification. However, each applicant for continued certification as a specialist shall comply with the specific requirements set forth below in addition to any general standards required by the board of all applicants for continued certification.

(a)  Substantial Involvement - The specialist must demonstrate that, for each of the five years preceding application, he or she has had substantial involvement in the specialty as defined in Rule .2405(b) of this Subchapter; however, for the purpose of continued certification, service as a district court judge in North Carolina hearing a substantial number of family law cases may be substituted, year for year, for the experience required to meet the five-year requirement.

(b)  Continuing Legal Education - Since last certified, a specialist must have earned no less than 60 hours of accredited continuing legal education credits in family law or related fields. Not less than nine credits may be earned in any one year, and no more than twelve credits may be in related fields. Related fields shall include taxation, trial advocacy, evidence, negotiations (including training in mediation, arbitration, and collaborative law), juvenile law, real property, estate planning and probate law, business organizations, employee benefits, bankruptcy, elder law, and immigration law. Only nine hours of CLE credit will be recognized for attendance at an extended negotiation or mediation training course. Parenting coordinator training will not qualify for family law or related field hours.

(c)  Peer Review - The specialist must comply with the requirements of Rule .2405(d) of this Subchapter.

(d)  Time for Application - Application for continued certification shall be made not more than 180 days nor less than 90 days prior to the expiration of the prior period of certification.

(e)  Lapse of Certification - Failure of a specialist to apply for continued certification in a timely fashion will result in a lapse of certification. Following such lapse, recertification will require compliance with all requirements of Rule .2405 of this Subchapter, including the examination.

(f)  Suspension or Revocation of Certification - If an applicant's certification has been suspended or revoked during the period of certification, then the application shall be treated as if it were for initial certification under Rule .2405 of this Subchapter.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amendments Approved by the Supreme Court: September 22, 2016; October 9, 2008; February 27, 2003.

 

27 NCAC 01D .2407         APPLICABILITY OF OTHER REQUIREMENTS

The specific standards set forth herein for certification of specialists in family law are subject to any general requirement, standards, or procedure adopted by the board applicable to all applicants for certification or continued certification.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

SECTION .2500 - CERTIFICATION STANDARDS FOR THE CRIMINAL LAW SPECIALTY

 

27 NCAC 01D .2501         Establishment of Specialty Field

The North Carolina State Bar Board of Legal Specialization (the board) hereby designates criminal law(encompassing both federal and state criminal law), including the subspecialty of state criminal law and juvenile delinquency law, as a field of law for which certification of specialists under the North Carolina Plan of Legal Specialization (see Section .1700 of this Subchapter) is permitted.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. August 25, 2011; March 10, 2011.

 

27 NCAC 01D .2502         Definition of Specialty

The specialty of criminal law is the practice of law dealing with the defense or prosecution of those charged with misdemeanor and felony crimes in state and federal trial courts.  The subspecialty in the field is identified and defined as follows:

(a)  State Criminal Law.  The practice of criminal law in state trial and appellate courts.

(b)  Juvenile Delinquency Law.  The practice of law in state juvenile delinquency courts.  The standards for the subspecialty are set forth in Rules .2508-.2509.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. August 25, 2011; March 10, 2011.

 

27 NCAC 01D .2503         Recognition as a Specialist in Criminal Law

A lawyer may qualify as a specialist by meeting the standards for criminal law or the subspecialties of state criminal law or juvenile delinquency law.  If a lawyer qualifies as a specialist by meeting the standards for the criminal law specialty, the lawyer shall be entitled to represent that he or she is a "Board Certified Specialist in Criminal Law."  If a lawyer qualifies as a specialist by meeting the standards set for the subspecialty of state criminal law, the lawyer shall be entitled to represent that he or she is a "Board Certified Specialist in State Criminal Law."  If a lawyer qualifies as a specialist by meeting the standards for the subspecialty of juvenile delinquency law, the lawyer shall be entitled to represent that he or she is a "Board Certified Specialist in Criminal Law – Juvenile Delinquency."

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. August 25, 2011; March 10, 2011.

 

27 NCAC 01D .2504         APPLICABILITY OF PROVISIONS OF THE NORTH CAROLINA PLAN OF LEGAL SPECIALIZATION

Certification and continued certification of specialists in criminal law shall be governed by the provisions of the North Carolina Plan of Legal Specialization (see Section .1700 of this subchapter) as supplemented by these standards for certification.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01D .2505         Standards for Certification as a Specialist

Each applicant for certification as a specialist in criminal law or the subspecialty of state criminal law shall meet the minimum standards set forth in Rule .1720 of this subchapter. In addition, each applicant shall meet the following standards for certification:

(a)  Licensure and Practice - An applicant shall be licensed and in good standing to practice law in North Carolina as of the date of the application. During the period of certification an applicant shall continue to be licensed and in good standing to practice law in North Carolina.

(b)  Substantial Involvement - An applicant shall affirm to the board that the applicant has experience through substantial involvement in the practice of criminal law.

(1)           Substantial involvement shall mean during the five years immediately preceding the application, the applicant devoted an average of at least 500 hours a year to the practice of criminal law, but not less than 400 hours in any one year. "Practice" shall mean substantive legal work, specifically including representation in criminal jury trials, done primarily for the purpose of providing legal advice or representation, or a practice equivalent.

(2)           "Practice equivalent" shall mean:

(A)          Service as a law professor concentrating in the teaching of criminal law for one year or more, which may be substituted for one year of experience to meet the five-year requirement set forth in Rule .2505(b)(1) above;

(B)          Service as a federal, state or tribal court judge for one year or more, which may be substituted for one year of experience to meet the five-year requirement set forth in Rule .2505(b)(1) above;

(3)           For the specialty of criminal law and the subspecialty of state criminal law, the board shall require an applicant to show substantial involvement by providing information that demonstrates the applicant's significant criminal trial experience such as:

(A)          representation during the applicant's entire legal career in criminal trials concluded by jury verdict;

(B)          representation as principal counsel of record in federal felony cases or state felony cases (Class G or higher);

(C)          court appearances in other substantive criminal proceedings in criminal courts of any jurisdiction; and

(D)          representation in appeals of decisions to the North Carolina Court of Appeals, the North Carolina Supreme Court, or any federal appellate court.

(c)  Continuing Legal Education

In the specialty of criminal law and the state criminal law subspecialty, an applicant must have earned no less than 40 hours of accredited continuing legal education credits in criminal law during the three years preceding the application, which 40 hours must include the following:

(1)           at least 34 hours in skills pertaining to criminal law, such as evidence, substantive criminal law, criminal procedure, criminal trial advocacy and criminal trial tactics;

(2)           at least 6 hours in the area of ethics and criminal law.

(d)  Peer Review

(1)           Each applicant for certification as a specialist in criminal law and the subspecialty of state criminal law must make a satisfactory showing of qualification through peer review.

(2)           All references must be licensed and in good standing to practice in North Carolina and must be familiar with the competence and qualifications of the applicant in the specialty field. The applicant consents to the confidential inquiry by the board or the specialty committee of the submitted references and other persons concerning the applicant's competence and qualifications.

(3)           Written peer reference forms will be sent by the board or the specialty committee to the references. Completed peer reference forms must be received from at least five of the references. The board or the specialty committee may contact in person or by telephone any reference listed by an applicant.

(4)           Each applicant must provide for reference and independent inquiry the names and addresses of the following: (i) ten lawyers and judges who practice in the field of criminal law and who are familiar with the applicant's practice, and (ii) opposing counsel and the judge in eight recent cases tried by the applicant to verdict or entry of order.

(5)           A reference may not be related by blood or marriage to the applicant nor may the reference be a partner or associate of the applicant at the time of the application.

(e)  Examination - The applicant must pass a written examination designed to test the applicant's knowledge and ability.

(1)           Terms - The examination(s) shall be in written form and shall be given at such times as the board deems appropriate. The examination(s) shall be administered and graded uniformly by the specialty committee.

(2)           Subject Matter - The examination shall cover the applicant's knowledge in the following topics in criminal law, and/or in the subspecialty of state criminal law, as the applicant has elected:

(A)          the North Carolina and Federal Rules of Evidence;

(B)          state and federal criminal procedure and state and federal laws affecting criminal procedure;

(C)          constitutional law;

(D)          appellate procedure and tactics;

(E)           trial procedure and trial tactics;

(F)           criminal substantive law;

(3)           Required Examination Components.

(A)          Criminal Law Specialty.

An applicant for certification in the specialty of criminal law must pass part I of the examination on general topics in criminal law and part II of the examination (federal and state criminal law).

(B)          State Criminal Law Subspecialty.

An applicant for certification in the subspecialty of state criminal law must pass part I of the examination on general topics in criminal law and part III of the examination on state criminal law.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amendments Approved by the Supreme Court: March 16, 2017; October 2, 2014; March 8, 2013; August 23, 2007; October 6, 2004; February 5, 2004.

 

27 NCAC 01D .2506         STANDARDS FOR CONTINUED CERTIFICATION AS A SPECIALIST

The period of certification is five years.  A certified specialist who desires continued certification must apply for continued certification within the time limit described in Rule .2506(4) below.  No examination will be required for continued certification.  However, each applicant for continued certification as a specialist shall comply with the specific requirements set forth below in addition to any general standards required by the board of all applicants for continued certification.

(1)           Substantial Involvement ‑ The specialist must demonstrate that for the five years preceding reapplication he or she has had substantial involvement in the specialty or subspecialty as defined in Rule .2505(b).

(2)           Continuing Legal Education ‑ The specialist must have earned no less than 65 hours of accredited continuing legal education credits in criminal law with not less than six credits earned in any one year.

(3)           Peer Review ‑ The specialist must comply with the requirements of Rule .2505(4) of this Subchapter.

(4)           Time for Application ‑ Application for continuing certification shall be made not more than 180 days nor less than 90 days prior to the expiration of the prior period of certification.

(5)           Lapse of Certification ‑ Failure of a specialist to apply for continued certification in a timely fashion will result in a lapse of certification.  Following such lapse, recertification will require compliance with all requirements of Rule .2505 of this Subchapter, including the examination.

(6)           Suspension or Revocation of Certification ‑ If an applicant's certification has been suspended or revoked during the period of certification, then the application shall be treated as if it were for initial certification under Rule .2505 of this Subchapter.

 

History Note:        Authority G.S. 84‑23;

Readopted Eff. December 8, 1994;

Amended Eff. February 5, 2004.

 

27 NCAC 01D .2507         Applicability of Other Requirements

The specific standards set forth herein for certification of specialists in criminal law, the subspecialty of state criminal law, and the subspecialty of juvenile delinquency law are subject to any general requirement, standard, or procedure adopted by the board applicable to all applicants for certification or continued certification.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. August 25, 2011; March 10, 2011;

 

27 NCAC 01D .2508         Standards for Certification as a Specialist in Juvenile Delinquency Law

Each applicant for certification as a specialist in juvenile delinquency law shall meet the minimum standards set forth in Rule .1720 of this subchapter. In addition, each applicant shall meet the following standards for certification:

(a)  Licensure and Practice - An applicant shall be licensed and in good standing to practice law in North Carolina as of the date of the application. During the period of certification an applicant shall continue to be licensed and in good standing to practice law in North Carolina.

(b)  Substantial Involvement - An applicant shall affirm to the board that the applicant has experience through substantial involvement in the practice of juvenile delinquency law.

(1)           Substantial involvement shall mean during the five years immediately preceding the application, the applicant devoted an average of at least 400 hours a year to the practice of juvenile delinquency law, but not less than 100 hours in any one year. "Practice" shall mean substantive legal work, specifically including representation of juveniles or the state in juvenile delinquency court, done primarily for the purpose of providing legal advice or representation, or a practice equivalent.

(2)           "Practice equivalent" shall mean:

(A)          Service for one year or more as a state district court judge responsible for presiding over juvenile delinquency court for 250 hours each year may be substituted for one year of experience to meet the five-year requirement set forth in Rule .2508(b)(1) above;

(B)          Service on or participation in the activities of local, state, or national civic, professional or government organizations that promote juvenile justice may be used to meet the requirement set forth in Rule .2508(b)(1) but not to exceed 100 hours for any year during the five years.

(C)          Service as a law professor in a juvenile delinquency legal clinic at an accredited law school may be used to meet the requirement set forth in Rule .2508(b)(1).

(D)          The practice of state criminal law may be used to meet the requirement set forth in Rule .2508(b)(1) but not to exceed 100 hours for any year during the five years. "Practice of state criminal law" shall mean substantive legal work representing adults or the state in the state’s criminal district and superior courts.

(3)           An applicant shall also demonstrate substantial involvement during the five years prior to application unless otherwise noted by providing information that demonstrates the applicant's significant juvenile delinquency court experience such as:

(A)          Representation of juveniles or the state during the applicant’s entire legal career in juvenile delinquency hearings concluded by disposition;

(B)          Representation of juveniles or the state in juvenile delinquency felony cases;

(C)          Court appearances in other substantive juvenile delinquency proceedings in juvenile court;

(D)          Representation of juveniles or the state through transfer to adult court; and

(E)           Representation of juveniles or the state in appeals of juvenile delinquency decisions.

(c)  Continuing Legal Education - An applicant must have earned no less than 40 hours of accredited continuing legal education (CLE) credits in criminal and juvenile delinquency law during the three years preceding application. Of the 40 hours of CLE, at least 12 hours shall be in juvenile delinquency law, and the balance may be in the following related fields: substantive criminal law, criminal procedure, trial advocacy, and evidence.

(d)  Peer Review –

(1)           Each applicant for certification as a specialist in juvenile delinquency law must make a satisfactory showing of qualification through peer review.

(2)           All references must be licensed and in good standing to practice in North Carolina and must be familiar with the competence and qualifications of the applicant in the specialty field. The applicant consents to the confidential inquiry by the board or the specialty committee of the submitted references and other persons concerning the applicant's competence and qualifications.

(3)           Written peer reference forms will be sent by the board or the specialty committee to the references. Completed peer reference forms must be received from at least five of the references. The board or the specialty committee may contact in person or by telephone any reference listed by an applicant.

(4)           Each applicant must provide for reference and independent inquiry the names and addresses of ten lawyers and judges who practice in the field of juvenile delinquency law or criminal law or preside over juvenile delinquency or criminal law proceedings and who are familiar with the applicant’s practice.

(5)           A reference may not be related by blood or marriage to the applicant nor may the reference be a partner or associate of the applicant at the time of the application.

(e)  Examination - An applicant must pass a written examination designed to demonstrate sufficient knowledge, skills, and proficiency in the field of juvenile delinquency law to justify the representation of special competence to the legal profession and the public.

(1)           Terms - The examination shall be given annually in written form and shall be administered and graded uniformly by the specialty committee.

(2)           Subject Matter – The examination shall cover the applicant's knowledge in the following topics:

(A)          North Carolina Rules of Evidence;

(B)          State criminal substantive law;

(C)          Constitutional law as it relates to criminal procedure and juvenile delinquency law;

(D)          State criminal procedure;

(E)           North Carolina Juvenile Code, Subchapters II and III, and related case law; and

(F)           North Carolina caselaw as it relates to juvenile delinquency law.

(3)           Examination Components - An applicant for certification in the subspecialty of juvenile delinquency law must pass part I of the criminal law examination on general topics in criminal law and part IV of the examination on juvenile delinquency law.

 

History Note:        Authority G.S. 84-23;

Eff. August 25, 2011;

Amended Eff. March 5, 2015.

 

27 NCAC 01D .2509         Standards for Continued Certification as a Specialist in Juvenile Delinquency Law

The period of certification is five years.  A certified specialist who desires continued certification must apply for continued certification within the time limit described in Rule .2509(d) below.  No examination will be required for continued certification.  However, each applicant for continued certification as a specialist shall comply with the specific requirements set forth below in addition to any general standards required by the board of all applicants for continued certification.

(a)  Substantial Involvement.  The specialist must demonstrate that for the five years preceding reapplication he or she has had substantial involvement in the specialty or subspecialty as defined in Rule .2508(b).

(b)  Continuing Legal Education.  The specialist must have earned no less than 65 hours of accredited continuing legal education credits in criminal law and juvenile delinquency law with not less than six credits earned in any one year.  Of the 65 hours, at least 20 hours shall be in juvenile delinquency law, and the balance may be in the following related fields: substantive criminal law, criminal procedure, trial advocacy, and evidence.

(c)  Peer Review.  The specialist must comply with the requirements of Rule .2508(d) of this Subchapter.

(d)  Time for Application.  Application for continuing certification shall be made not more than 180 days nor less than 90 days prior to the expiration of the prior period of certification.

(e)  Lapse of Certification.  Failure of a specialist to apply for continued certification in a timely fashion will result in a lapse of certification.  Following such lapse, recertification will require compliance with all requirements of Rule .2508 of this Subchapter, including the examination.

(f)  Suspension or Revocation of Certification.  If an applicant's certification has been suspended or revoked during the period of certification, then the application shall be treated as if it were for initial certification under Rule .2508 of this Subchapter.

 

History Note:        Authority G.S. 84-23;

Eff. August 25, 2011.

 

SECTION .2600 - CERTIFICATION STANDARDS FOR THE IMMIGRATION LAW SPECIALTY

 

27 NCAC 01D .2601         ESTABLISHMENT OF SPECIALTY FIELD

The North Carolina State Bar Board of Legal Specialization (the board) hereby designates immigration law as a field of law for which certification of specialists under the North Carolina Plan of Legal Specialization (see Section .1700 of this Subchapter) is permitted.

 

History Note:        Authority G.S. 84-4;

Eff. March 6, 1997.

 

27 NCAC 01D .2602         DEFINITION OF SPECIALTY

The specialty of immigration law is the practice of law dealing with obtaining and retaining permission to enter and remain in the United States including, but not limited to, such matters as visas, changes of status, deportation and exclusion, naturalization, appearances before courts and governmental agencies, and protection of constitutional rights.

 

History Note:        Authority G.S. 84-4;

Eff. March 6, 1997.

 

27 NCAC 01D .2603         RECOGNITION AS A SPECIALIST IN IMMIGRATION LAW

If a lawyer qualifies as a specialist in immigration law by meeting the standards set for the specialty, the lawyer shall be entitled to represent that he or she is a "Board Certified Specialist in Immigration Law."

 

History Note:        Authority G.S. 84-4;

Eff. March 6, 1997.

 

27 NCAC 01D .2604         APPLICABILITY OF PROVISIONS OF THE NORTH CAROLINA PLAN OF LEGAL

SPECIALIZATION

Certification and continued certification of specialists in immigration law shall be governed by the provisions of the North Carolina Plan of Legal Specialization (see Section .1700 of this Subchapter) as supplemented by these standards for certification.

 

History Note:        Authority G.S. 84-4;

Eff. March 6, 1997.

 

27 NCAC 01D .2605         Standards for Certification as a Specialist in Immigration Law

Each applicant for certification as a specialist in immigration law shall meet the minimum standards set forth in Rule .1720 of this subchapter. In addition, each applicant shall meet the following standards for certification in immigration law:

(a)  Licensure and Practice - An applicant shall be licensed and in good standing to practice law in North Carolina as of the date of application. An applicant shall continue to be licensed and in good standing to practice law in North Carolina during the period of certification.

(b)  Substantial Involvement - An applicant shall affirm to the board that the applicant has experience through substantial involvement in the practice of immigration law.

(1)           An applicant shall affirm that during the five years immediately preceding the application, the applicant devoted an average of at least 700 hours a year to the practice of immigration law, but not less than 400 hours in any one year. Service as a law professor concentrating in the teaching of immigration law may be substituted for one year of experience to meet the five-year requirement.

(2)           An applicant shall show substantial involvement in immigration law for the required period by providing such information as may be required by the board regarding the applicant's participation in at least five of the seven categories of activities listed below during the five years immediately preceding the date of application:

(A)          Family Immigration.  Representation of clients before the U.S. Immigration and Naturalization Service and the State Department in the filing of petitions and applications.

(B)          Employment Related Immigration.  Representation of employers and/or aliens before at least one of the following: the N.C. Employment Security Commission, U.S. Department of Labor, U.S. Immigration and Naturalization Service, U.S. Department of State or U.S. Information Agency.

(C)          Naturalization.  Representation of clients before the U.S. Immigration and Naturalization Service and judicial courts in naturalization matters.

(D)          Administrative Hearings and Appeals.  Representation of clients before immigration judges in deportation, exclusion, bond redetermination, and other administrative matters; and the representation of clients in appeals taken before the Board of Immigration Appeals, Administrative Appeals Unit, Board of Alien Labor Certification Appeals, Regional Commissioners, Commissioner, Attorney General, Department of State Board of Appellate Review, and Office of Special Counsel for Immigration Related Unfair Employment Practices (OCAHO).

(E)           Administrative Proceedings and Review in Judicial Courts.  Representation of clients in judicial matters such as applications for habeas corpus, mandamus and declaratory judgments; criminal matters involving immigration law; petitions for review in judicial courts; and ancillary proceedings in judicial courts.

(F)           Asylum and Refugee Status.  Representation of clients in these matters.

(G)          Employer Verification, Sanctions, Document Fraud, Bond and Custody, Rescission, Registry, and Fine Proceedings.  Representation of clients in these matters.

(c)  Continuing Legal Education - An applicant must earn no less than 48 hours of accredited continuing legal education (CLE) credits in topics relating to immigration law during the four years preceding application. At least 20 of the 48 CLE credit hours must be earned during the first and second year preceding application and at least 20 of the CLE hours must be earned during the third and fourth years preceding application. Of the 48 hours, at least 42 must be in immigration law; the balance may be in the related areas of federal administrative procedure, trial advocacy, evidence, taxation, family law, employment law, and criminal law and procedure.

(d)  Peer Review - An applicant must make a satisfactory showing of qualification through peer review. An applicant must provide the names of ten lawyers or judges who are familiar with the competence and qualification of the applicant in the specialty field. Written peer reference forms will be sent by the board or the specialty committee to each of the references. Completed peer reference forms must be received from at least five of the references. All references must be licensed and in good standing to practice in North Carolina. At least four of the completed peer reference forms received by the board must be from lawyers or judges who have substantial practice or judicial experience in immigration law. An applicant consents to the confidential inquiry by the board or the specialty committee of the submitted references and other persons concerning the applicant's competence and qualification.

(1)           A reference may not be related by blood or marriage to the applicant nor may the reference be a partner or associate of the applicant at the time of the application.

(2)           The references shall be given on standardized forms provided by the board with the application for certification in the specialty field. These forms shall be returned directly to the specialty committee.

(e)  Examination - The applicant must pass a written examination designed to test the applicant's knowledge, skills, and proficiency in immigration law. The examination shall be in written form and shall be given annually. The examination shall be administered and graded uniformly by the specialty committee.

 

History Note:        Authority G.S. 84-23;

Eff. March 6, 1997;

Amended Eff. October 2, 2014.

 

27 NCAC 01D .2606         STANDARDS FOR CONTINUED CERTIFICATION AS A SPECIALIST

The period of certification is five years.  Prior to the expiration of the certification period, a certified specialist who desires continued certification must apply for continued certification within the time limit described in Paragraph (d) of this Rule.  No examination will be required for continued certification.  However, each applicant for continued certification as a specialist shall comply with the specific requirements set forth below in addition to any general standards required by the board of all applicants for continued certification.

(1)           Substantial Involvement ‑ The specialist must demonstrate that, for each of the five years preceding application, he or she has had substantial involvement in the specialty as defined in Rule .2605(b) of this Section.

(2)           Continuing Legal Education ‑ The specialist must have earned no less than 60 hours of accredited continuing legal education credits in immigration law as accredited by the board.  At least 30 of the 60 CLE credit hours must be earned during the first three years after certification or recertification, as applicable.  Of the 60 hours, at least 52 must be in immigration law; the balance may be in the related areas of federal administrative procedure, trial advocacy, evidence, taxation, family law, employment law, and criminal law and procedure.

(3)           Peer Review ‑ The specialist must comply with the requirements of Rule .2605(d) of this Section.

(4)           Time for Application ‑ Application for continued certification shall be made not more than 180 days nor less than 90 days prior to the expiration of the prior period of certification.

(5)           Lapse of Certification ‑ Failure of a specialist to apply for continued certification in a timely fashion will result in a lapse of certification.  Following such lapse, recertification will require compliance with all requirements of Rule .2605 of this Section, including the examination.

(6)           Suspension or Revocation of Certification ‑ If an applicant's certification has been suspended or revoked during the period of certification, then the application shall be treated as if it were for initial certification under Rule .2605 of this Section.

 

History Note:        Authority G.S. 84-4;

Eff. March 6, 1997.

 

27 NCAC 01D .2607         APPLICABILITY OF OTHER REQUIREMENTS

The specific standards set forth herein for certification of specialists in immigration law are subject to any general requirement, standard, or procedure adopted by the board applicable to all applicants for certification or continued certification.

 

History Note:        Authority G.S. 84-4;

Eff. March 6, 1997.

 

section .2700 – certification standards for the workers' compensation specialty

 

27 NCAC 01D .2701         Establishment of Specialty Field

The North Carolina State Bar Board of Legal Specialization (the board) hereby designates workers' compensation as a field of law for which certification of specialists under the North Carolina Plan of Legal Specialization (see Section .1700 of this Subchapter) is permitted.

 

History Note:        Authority G.S. 84-23;

Adopted Eff. May 4, 2000.

 

27 NCAC 01D .2702         Definition of Specialty

The specialty of workers' compensation is the practice of law involving the analysis of problems or controversies arising under the North Carolina Workers' Compensation Act (Chapter 97, North Carolina General Statutes) and the litigation of those matters before the North Carolina Industrial Commission.

 

History Note:        Authority G.S. 84-23;

Adopted Eff. May 4, 2000.

 

27 NCAC 01D .2703         Recognition as a Specialist in Workers' Compensation Law

If a lawyer qualifies as a specialist in workers' compensation law by meeting the standards set for the specialty, the lawyer shall be entitled to represent that he or she is a "Board Certified Specialist in Workers' Compensation Law."

 

History Note:        Authority G.S. 84-23;

Adopted Eff. May 4, 2000.

 

27 NCAC 01D .2704         Applicability of Provisions of the North Carolina Plan of Legal Specialization

Certification and continued certification of specialists in workers' compensation law shall be governed by the provisions of the North Carolina Plan of Legal Specialization (see Section .1700 of this Subchapter) as supplemented by these standards for certification.

 

History Note:        Authority G.S. 84-23;

Adopted Eff. May 4, 2000.

 

27 NCAC 01D .2705         Standards for Certification as a Specialist in Workers' Compensation Law

Each applicant for certification as a specialist in workers' compensation law shall meet the minimum standards set forth in Rule .1720 of this subchapter. In addition, each applicant shall meet the following standards for certification in workers' compensation law:

(a)  Licensure and Practice - An applicant shall be licensed and in good standing to practice law in North Carolina as of the date of application. An applicant shall continue to be licensed and in good standing to practice law in North Carolina during the period of certification.

(b)  Substantial Involvement - An applicant shall affirm to the board that the applicant has experience through substantial involvement in the practice of workers' compensation law.

(1)           Substantial involvement shall mean during the five years immediately preceding the application, the applicant devoted an average of at least 500 hours a year to the practice of workers' compensation law, but not less than 400 hours in any one year. "Practice" shall mean substantive legal work done primarily for the purpose of providing legal advice or representation, or a practice equivalent.

(2)           "Practice equivalent" shall mean:

(A)          Service as a law professor concentrating in the teaching of workers' compensation law for one year or more may be substituted for one year of experience to meet the five-year requirement set forth in Rule .2705(b)(1) above;

(B)          Service as a mediator of workers' compensation cases may be included in the hours necessary to satisfy the requirement set forth in Rule .2705(b)(1) above;

(C)          Service as a deputy commissioner or commissioner of the North Carolina Industrial Commission may be substituted for the substantial involvement requirements in Rule .2705(b)(1) above provided

(i)            the applicant was a full time deputy commissioner or commissioner throughout the five years prior to application, or

(ii)           the applicant was engaged in the private representation of clients for at least one year during the five years immediately preceding the application; and, during this year, the applicant devoted not less than 400 hours to the practice of workers' compensation law. During the remaining four years, the applicant was either engaged in the private representation of clients and devoted an average of at least 500 hours a year to the practice of workers' compensation law, but not less than 400 hours in any one year, or served as a full time deputy commissioner or commissioner of the North Carolina Industrial Commission.

(3)           The board may require an applicant to show substantial involvement in workers' compensation law by providing information regarding the applicant's participation, during the five years immediately preceding the date of the application, in activities such as those listed below:

(A)          representation as principal counsel of record in complex cases tried to an opinion and award of the North Carolina Industrial Commission;

(B)          representation in occupational disease cases tried to an opinion and award of the North Carolina Industrial Commission; and

(C)          representation in appeals of decisions to the North Carolina Court of Appeals or the North Carolina Supreme Court.

(c)  Continuing Legal Education - An applicant must earn no less than 36 hours of accredited continuing legal education (CLE) credits in workers' compensation law and related fields during the three years preceding application, with not less than six credits earned in courses on workers' compensation law in any one year. The remaining 18 hours may be earned in courses on workers' compensation law or any of the following related fields: civil trial practice and procedure; evidence; insurance; mediation; medical injuries, medicine, or anatomy; labor and employment law; Social Security disability law; and the law relating to long-term disability or Medicaid/Medicare claims.

(d)  Peer Review - An applicant must make a satisfactory showing of qualification through peer review. An applicant must provide the names of ten lawyers, commissioners or deputy commissioners of the North Carolina Industrial Commission, or judges who are familiar with the competence and qualification of the applicant in the specialty field. Written peer reference forms will be sent by the board or the specialty committee to each of the references. Completed peer reference forms must be received from at least five of the references. All references must be licensed and in good standing to practice in North Carolina and have substantial practice or judicial experience in workers' compensation law. An applicant consents to the confidential inquiry by the board or the specialty committee of the submitted references and other persons concerning the applicant's competence and qualification.

(1)           A reference may not be related by blood or marriage to the applicant nor may the reference be a partner or associate of the applicant at the time of the application.

(2)           The references shall be given on standardized forms mailed by the board to each reference. These forms shall be returned directly to the specialty committee.

(e)  Examination - An applicant must pass a written examination designed to demonstrate sufficient knowledge, skills, and proficiency in the field of workers' compensation law to justify the representation of special competence to the legal profession and the public. The examination shall be given annually in written form and shall be administered and graded uniformly by the specialty committee.

 

History Note:        Authority G.S. 84-23;

Eff. May 4, 2000;

Amended Eff. March 5, 2015; March 10, 2011.

 

27 NCAC 01D .2706         Standards for Continued Certification as a Specialist

The period of certification is five years. Prior to the expiration of the certification period, a certified specialist who desires continued certification must apply for continued certification within the time limit described in Rule .2706(d) below. No examination will be required for continued certification. However, each applicant for continued certification as a specialist shall comply with the specific requirements set forth below in addition to any general standards required by the board of all applicants for continued certification.

(a)  Substantial Involvement - The specialist must demonstrate that, for each of the five years preceding application, he or she has had substantial involvement in the specialty as defined in Rule .2705(b) of this Subchapter, provided, however, that a specialist who served on the Industrial Commission as a full time commissioner or deputy commissioner during the five years preceding application may substitute each year of service on the Industrial Commission for one year of practice.

(b)  Continuing Legal Education - The specialist must earn no less than 60 hours of accredited continuing legal education (CLE) credits in workers' compensation law and related fields during the five years preceding application. Of the 60 hours of CLE, at least 30 hours shall be in workers' compensation law, and the balance may be in the following related fields: civil trial practice and procedure; evidence; insurance; mediation; medical injuries, medicine, or anatomy; labor and employment law; Social Security disability law; and the law relating to long-term disability or Medicaid/Medicare claims. The specialist must earn not less than six credits in courses on workers' compensation law each year and the balance of credits may be earned in courses on workers' compensation law or any of the related fields previously listed.

(c)  Peer Review - The specialist must comply with the requirements of Rule .2705(d) of this Subchapter.

(d)  Time for Application - Application for continued certification shall be made not more than 180 days nor less than ninety days prior to the expiration of the prior period of certification.

(e)  Lapse of Certification - Failure of a specialist to apply for continued certification in a timely fashion will result in a lapse of certification. Following such lapse, recertification will require compliance with all requirements of Rule .2705 of this Subchapter, including the examination.

(f)  Suspension or Revocation of Certification - If an applicant's certification has been suspended or revoked during the period of certification, then the application shall be treated as if it were for initial certification under Rule .2705 of this Subchapter.

 

History Note:        Authority G.S. 84-23;

Eff. May 4, 2000;

Amendments Approved by the Supreme Court: September 22, 2016; March 5, 2015; March 10, 2011.

 

27 NCAC 01D .2707         Applicability of Other Requirements

The specific standards set forth herein for certification of specialists in workers' compensation law are subject to any general requirement, standard, or procedure adopted by the board applicable to all applicants for certification or continued certification.

 

History Note:        Authority G.S. 84-23;

Adopted Eff. May 4, 2000.

 

Section .2800 - Certification Standards for the Social Security Disability Law Specialty

 

27 NCAC 01D .2801         Establishment of Specialty Field

The North Carolina State Bar Board of Legal Specialization (the board) hereby designates Social Security disability law as a field of law for which certification of specialists under the North Carolina Plan of Legal Specialization (see Section .1700 of this subchapter) is permitted.

 

History Note:        Authority G.S. 84-23;

Adopted Eff. March 2, 2006.

 

27 NCAC 01D .2802         Definition of Specialty

The specialty of Social Security disability law is the practice of law relating to the analysis of claims and controversies arising under Title II and Title XVI of the Social Security Act and the representation of claimants in those matters before the Social Security Administration and/or the federal courts.

 

History Note:        Authority G.S. 84-23;

Adopted Eff. March 2, 2006.

 

27 NCAC 01D .2803         Recognition as a Specialist in Social Security Disability Law

If a lawyer qualifies as a specialist in Social Security disability law by meeting the standards set for the specialty, the lawyer shall be entitled to represent that he or she is a "Board Certified Specialist in Social Security Disability Law."

 

History Note:        Authority G.S. 84-23;

Adopted Eff. March 2, 2006.

 

27 NCAC 01D .2804         Applicability of Provisions of the North Carolina Plan of Legal Specialization

Certification and continued certification of specialists in Social Security disability law shall be governed by the provisions of the North Carolina Plan of Legal Specialization (see Section .1700 of this subchapter) as supplemented by these standards for certification.

 

History Note:        Authority G.S. 84-23;

Adopted Eff. March 2, 2006.

 

27 ncac 01D .2805         STANDARDS FOR CERTIFICATION AS A SPECIALIST IN SOCIAL SECURITY DISABILITY LAW

Each applicant for certification as a specialist in Social Security disability law shall meet the minimum standards set forth in Rule .1720 of this subchapter.  In addition, each applicant shall meet the following standards for certification in Social Security disability law:

(a)  Licensure and Practice.  An applicant shall be licensed and in good standing to practice law in North Carolina as of the date of application. An applicant shall continue to be licensed and in good standing to practice law in North Carolina during the period of certification.

(b)  Substantial Involvement.  An applicant shall affirm to the board that the applicant has experience through substantial involvement in the practice of Social Security disability law.

(1)           "Substantial involvement" shall mean during the five years immediately preceding the application, the applicant devoted an average of at least 600 hours a year to the practice of Social Security disability law, but not less than 500 hours in any one year.  "Practice" shall mean substantive legal work done primarily for the purpose of providing legal advice or representation, or a practice equivalent.

(2)           "Practice equivalent" shall mean:

(A)          Service as a law professor concentrating in the teaching of Social Security disability law for one year or more may be substituted for one year of experience to meet the five-year requirement set forth in Rule .2805(b)(1) above;

(B)          Service as a Social Security administrative law judge, Social Security staff lawyer, or assistant United States attorney involved in cases arising under Title II and Title XVI may be substituted for three of the five years necessary to satisfy the requirement set forth in Rule .2805(b)(1) above;

(3)           The board may require an applicant to show substantial involvement in Social Security disability law by providing information regarding the applicant's participation, during his or her legal career, as primary counsel of record in the following:

(A)          Proceedings before an administrative law judge;

(B)          Cases appealed to the appeals council of the Social Security Administration; and

(C)          Cases appealed to federal district court.

(c)  Continuing Legal Education.  An applicant must earn no less than 36 hours of accredited continuing legal education (CLE) credits in Social Security disability law and related fields during the three years preceding application, with not less than six credits earned in any one year. Of the 36 hours of CLE, at least 18 hours shall be in Social Security disability law, and the balance may be in the following related fields: trial skills and advocacy; practice management; medical injuries, medicine, or anatomy; ERISA; labor and employment law; elder law; workers' compensation law; veterans' disability law; and the law relating to long term disability or Medicaid/Medicare claims.

(d)  Peer Review.  An applicant must make a satisfactory showing of qualification through peer review.  An applicant must provide the names of ten lawyers or judges who are familiar with the competence and qualification of the applicant in the specialty field.  Written peer reference forms will be sent by the board or the specialty committee to each of the references. Completed peer reference forms must be received from at least five of the references.  All references must be licensed and in good standing to practice law in a jurisdiction in the United States and have substantial practice or judicial experience in Social Security disability law.  An applicant consents to the confidential inquiry by the board or the specialty committee of the submitted references and other persons concerning the applicant's competence and qualification.

(1)           A reference may not be related by blood or marriage to the applicant nor may the reference be a partner or associate of the applicant at the time of the application.

(2)           The references shall be given on standardized forms mailed by the board to each reference.  These forms shall be returned directly to the specialty committee.

(e)  Examination.  An applicant must pass a written examination designed to demonstrate sufficient knowledge, skills, and proficiency in the field of Social Security disability law to justify the representation of special competence to the legal profession and the public.  The examination shall be given annually in written form and shall be administered and graded uniformly by the specialty committee.

(1)           Subject Matter - The examination shall cover the applicant's knowledge and application of the law relating to the following:

(A)          Title II and Title XVI of the Social Security Act;

(B)          Federal practice and procedure in Social Security disability cases;

(C)          Medical proof of disability;

(D            Vocational aspects of disability;

(E)           Workers' compensation offset;

(F)           Eligibility for Medicare and Medicaid;

(G)          Eligibility for Social Security retirement and survivors benefits;

(H)          Interaction of Social Security benefits with employee benefits (e.g., long term disability and back pay);

(I)            Equal Access to Justice Act; and

(J)            Fee collection and other ethical issues in Social Security practice.

 

History Note:        Authority G.S. 84-23;

Eff. March 2, 2006;

Amended Eff. March 10, 2011.

 

27 NCAC 01D .2806         Standards for Continued Certification as a Specialist

The period of certification is five years.  Prior to the expiration of the certification period, a certified specialist who desires continued certification must apply for continued certification within the time limit described in Rule .2806(d) below.  No examination will be required for continued certification.  However, each applicant for continued certification as a specialist shall comply with the specific requirements set forth below in addition to any general standards required by the board of all applicants for continued certification.

(a)  Substantial Involvement - The specialist must demonstrate that, for each of the five years preceding application, he or she has had substantial involvement in the specialty as defined in Rule .2805(b) of this subchapter.

(b)  Continuing Legal Education - The specialist must earn no less than 60 hours of accredited continuing legal education credits in Social Security disability law and related fields during the five years preceding application.  Not less than six of the credits may be earned in any one year. Of the 60 hours of CLE, at least 20 hours shall be in Social Security disability law, and the balance may be in the following related fields: trial skills and advocacy; practice management; medical injuries, medicine, or anatomy; ERISA; labor and employment law; elder law; workers' compensation law; veterans' disability law; and the law relating to long term disability or Medicaid/Medicare claims.

(c)  Peer Review - The specialist must comply with the requirements of Rule .2805(d) of this subchapter.

(d)  Time for Application - Application for continued certification shall be made not more than 180 days nor less than 80 days prior to the expiration of the prior period of certification.

(e)  Lapse of Certification - Failure of a specialist to apply for continued certification in a timely fashion will result in a lapse of certification.  Following such lapse, recertification will require compliance with all requirements of Rule .2805 of this subchapter, including the examination.

(f)  Suspension or Revocation of Certification - If an applicant's certification has been suspended or revoked during the period of certification, then the application shall be treated as if it were for initial certification under Rule .2805 of this subchapter.

 

History Note:        Authority G.S. 84-23;

Eff. March 2, 2006;

Amended Eff. March 10, 2011.

 

27 NCAC 01D .2807         Applicability of Other Requirements

The specific standards set forth herein for certification of specialists in Social Security disability law are subject to any general requirement, standard, or procedure adopted by the board applicable to all applicants for certification or continued certification.

 

History Note:        Authority G.S. 84-23;

Adopted Eff. March 2, 2006.

 

SECTION .2900 ‑ CERTIFICATION STANDARDS FOR THE ELDER LAW SPECIALTY

 

27 NCAC 01D .2901         Establishment of Specialty Field

The North Carolina State Bar Board of Legal Specialization (the board) hereby designates elder law as a field of law for which certification of specialists under the North Carolina Plan of Legal Specialization (see Section .1700 of this Subchapter) is permitted.

 

History Note:        Authority G.S. 84-23;

Eff. February 5, 2009.

 

27 NCAC 01D .2902         Definition of Specialty

The specialty of elder law is the practice of law involving the counseling and representation of older persons and their representatives relative to the legal aspects of health and long term care planning; public benefits; surrogate decision-making, legal capacity; the conservation, disposition, and administration of the estates of older persons; and the implementation of decisions of older persons and their representatives relative to the foregoing with due consideration to the applicable tax consequences of an action, or the need for more sophisticated tax expertise.

Lawyers certified in elder law must be capable of recognizing issues that arise during counseling and representation of older persons, or their representatives, with respect to abuse, neglect, or exploitation of the older person, insurance, housing, long term care, employment, and retirement. The elder law specialist must also be familiar with professional and non-legal resources and services publicly and privately available to meet the needs of the older persons, and be capable of recognizing the professional conduct and ethical issues that arise during representation.

 

History Note:        Authority G.S. 84-23;

Eff. February 5, 2009.

 

27 NCAC 01D .2903         Recognition as a Specialist in Elder Law

If a lawyer qualifies as a specialist in elder law by meeting the standards set for the specialty, the lawyer shall be entitled to represent that he or she is a "Board Certified Specialist in Elder Law."

 

History Note:        Authority G.S. 84-23;

Eff. February 5, 2009.

 

27 NCAC 01D .2904         Applicability of Provisions of the North Carolina Plan of Legal Specialization

Certification and continued certification of specialists in elder law shall be governed by the provisions of the North Carolina Plan of Legal Specialization (see Section .1700 of this Subchapter) as supplemented by these standards for certification.

 

History Note:        Authority G.S. 84-23;

Eff. February 5, 2009.

 

27 NCAC 01D .2905         Standards for Certification as a Specialist in Elder Law

Each applicant for certification as a specialist in elder law shall meet the minimum standards set forth in Rule .1720 of this subchapter.  In addition, each applicant shall meet the following standards for certification in elder law:

(a)  Licensure and Practice.  An applicant shall be licensed and in good standing to practice law in North Carolina as of the date of application.  An applicant shall continue to be licensed and in good standing to practice law in North Carolina during the period of certification.

(b)  Substantial Involvement.  An applicant shall affirm to the board that the applicant has experience through substantial involvement in the practice of elder law.

(1)           Substantial involvement shall mean during the five years immediately preceding the application, the applicant devoted an average of at least 700 hours a year to the practice of elder law, but not less than 400 hours in any one year.  Practice shall mean substantive legal work done primarily for the purpose of providing legal advice or representation, or a practice equivalent.

(2)           Practice equivalent shall mean service as a law professor concentrating in the teaching of elder law (or such other related fields as approved by the specialty committee and the board) for one year or more. Such service may be substituted for one year of experience to meet the five-year requirement set forth in Rule .2905(b)(1) above.

(c)  Substantial Involvement Experience Requirements. In addition to the showing required by Rule .2905(b), an applicant shall show substantial involvement in elder law by providing information regarding the applicant's participation, during the five years immediately preceding the date of the application, in at least sixty (60) elder law matters in the categories set forth in Rule .2905(c)(3) below.

(1)           As used in this section, an applicant will be considered to have participated in an elder law matter if the applicant:

(A)          provided advice (written or oral, but if oral, supported by substantial documentation in the client's file) tailored to and based on facts and circumstances specific to a particular client;

(B)          drafted legal documents such as, but not limited to, wills, trusts, or health care directives, provided that those legal documents were tailored to and based on facts and circumstances specific to the particular client;

(C)          prepared legal documents and took other steps necessary for the administration of a previously prepared legal directive such as, but not limited to, a will or trust; or

(D)          provided representation to a party in contested litigation or administrative matters concerning an elder law issue.

(2)           Of the 60 elder law matters:

(A)          forty (40) must be in the experience categories listed in Rule .2905(c)(3)(A) through (E) with at least five matters in each category;

(B)          ten (10) must be in experience categories listed in Rule .2905(c)(3)(F) through (N), with no more than five in any one category; and

(C)          the remaining ten (10) may be in any category listed in Rule .2905(c)(3), and are not subject to the limitations set forth in Rule .2905(c)(2)(B) or (C).

(3)           Experience Categories:

(A)          health and Personal Care Planning including giving advice regarding, and preparing, advance medical directives (medical powers of attorney, living wills, and health care declarations) and counseling older persons, attorneys-in-fact, and families about medical and life-sustaining choices, and related personal life choices.

(B)          pre-Mortem Legal Planning including giving advice and preparing documents regarding wills, trusts, durable general or financial powers of attorney, real estate, gifting, and the financial and tax implications of any proposed action.

(C)          fiduciary Representation including seeking the appointment of, giving advice to, representing, or serving as executor, personal representative, attorney-in-fact, trustee, guardian, conservator, representative payee, or other formal or informal fiduciary.

(D)          legal Capacity Counseling including advising how capacity is determined and the level of capacity required for various legal activities, and representing those who are or may be the subject of guardianship/conservatorship proceedings or other protective arrangements.

(E)           public Benefits Advice including planning for and assisting in obtaining Medicaid, supplemental security income, and veterans benefits.

(F)           Special Needs Counseling, including the planning, drafting, and administration of special/supplemental needs trusts, housing, employment, education, and related issues.

(G)          advice on Insurance Matters including analyzing and explaining the types of insurance available, such as health, life, long term care, home care, COBRA, medigap, long term disability, dread disease, and burial/funeral policies.

(H)          resident Rights Advocacy including advising patients and residents of hospitals, nursing facilities, continuing care retirement communities, assisted living facilities, adult care facilities, and those cared for in their homes of their rights and appropriate remedies in matters such as admission, transfer and discharge policies, quality of care, and related issues.

(I)            housing Counseling including reviewing the options available and the financing of those options such as: mortgage alternatives, renovation loan programs, life care contracts, and home equity conversion.

(J)            employment and Retirement Advice including pensions, retiree health benefits, unemployment benefits, and other benefits.

(K)          counseling with regard to age and/or disability discrimination in employment and housing.

(L)           litigation and Administrative Advocacy in connection with any of the above matters, including will contests, contested capacity issues, elder abuse (including financial or consumer fraud), fiduciary administration, public benefits, nursing home torts, and discrimination.

(d)  Continuing Legal Education.  An applicant must earn forty-five (45) hours of accredited continuing legal education (CLE) credits in elder law and related fields, as specified in this rule, during the three full calendar years preceding application and the year of application, with not less than nine (9) credits earned in any of the three calendar years. Of the 45 CLE credits, at least ten (10) credits must be earned attending elder law-specific CLE programs.  Related fields shall include the following: estate planning and administration, trust law, health and long-term care planning, public benefits, veterans' benefits, surrogate decision-making, older persons' legal capacity, social security disability, Medicaid/Medicare claims, special needs planning, and taxation.  No more than twenty (20) credits may be earned in the related fields of estate taxation or estate administration.

(e)  Peer Review.  An applicant must make a satisfactory showing of qualification through peer review.  An applicant must provide the names of ten lawyers or judges who are familiar with the competence and qualification of the applicant in the specialty field.  Written peer reference forms will be sent by the board or the specialty committee to each of the references.  Completed peer reference forms must be received from at least five of the references. All references must be licensed and in good standing to practice in North Carolina and have substantial practice or judicial experience in elder law or in a related field as set forth in Rule .2905(d).  An applicant consents to the confidential inquiry by the board or the specialty committee of the submitted references and other persons concerning the applicant's competence and qualification.

(1)           A reference may not be related by blood or marriage to the applicant nor may the reference be a partner or associate of the applicant at the time of the application.

(2)           The references shall be given on standardized forms mailed by the board to each reference. These forms shall be returned directly to the specialty committee.

(f)  Examination.  An applicant must pass a written examination designed to demonstrate sufficient knowledge, skills, and proficiency in the field of elder law to justify the representation of special competence to the legal profession and the public.  The examination shall be given annually in written form and shall be administered and graded uniformly by the specialty committee or by any ABA accredited elder law certification organization with which the board contracts pursuant to Rule .1716(10) of this subchapter.

 

History Note:        Authority G.S. 84-23;

Eff. February 5, 2009;

Amended Eff. March 8, 2012; March 10, 2011; March 11, 2010.

 

27 NCAC 01D .2906         Standards for Continued Certification as a Specialist

The period of certification is five years. Prior to the expiration of the certification period, a certified specialist who desires continued certification must apply for continued certification within the time limit described in Item (4) of this Rule. No examination will be required for continued certification. However, each applicant for continued certification as a specialist shall comply with the specific requirements set forth below in addition to any general standards required by the board of all applicants for continued certification.

(1)           Substantial Involvement - The specialist must demonstrate that, for each of the five years preceding application, he or she has had substantial involvement in the specialty as defined in Rule .2905(2) of this Subchapter.

(2)           Continuing Legal Education - The specialist must earn 75 hours of accredited continuing legal education (CLE) credits in elder law or related fields during the 5 calendar years preceding application, with not less than 10 credits earned in any calendar year. Related fields shall include the following: estate planning and administration, trust law, health and long term care planning, public benefits, surrogate decision-making, older persons' legal capacity, social security disability, Medicaid/Medicare claims and taxation. No more than 40 credits may be earned in the related fields of estate taxation or estate administration.

(3)           Peer Review - The specialist must comply with the requirements of Rule .2905(5) of this Subchapter.

(4)           Time for Application - Application for continued certification shall be made not more than 180 days nor less than 90 days prior to the expiration of the prior period of certification.

(5)           Lapse of Certification - Failure of a specialist to apply for continued certification in a timely fashion will result in a lapse of certification. Following such lapse, recertification will require compliance with all requirements of Rule .2905 of this Subchapter, including the examination.

(6)           Suspension or Revocation of Certification - If an applicant's certification has been suspended or revoked during the period of certification, then the application shall be treated as if it were for initial certification under Rule .2905 of this Subchapter.

 

History Note:        Authority G.S. 84-23;

Eff. February 5, 2009.

 

27 NCAC 01D .2907         Applicability of Other Requirements

The specific standards set forth herein for certification of specialists in elder law are subject to any general requirement, standard, or procedure adopted by the board applicable to all applicants for certification or continued certification.

 

History Note:        Authority G.S. 84-23;

Eff. February 5, 2009.

 

SECTION .3000 - CERTIFICATION STANDARDS FOR THE APPELLATE PRACTICE SPECIALTY

 

27 NCAC 01D .3001         Establishment of Specialty Field

The North Carolina State Bar Board of Legal Specialization (the board) hereby designates appellate practice as a field of law for which certification of specialists under the North Carolina Plan of Legal Specialization (see Section .1700 of this Subchapter) is permitted.

 

History Note:        Authority G.S. 84-23;

Eff. March 10, 2011.

 

27 NCAC 01D .3002         Definition of Specialty

The specialty of appellate practice is the practice of law relating to appeals to the Appellate Division of the North Carolina General Courts of Justice, as well as appeals to appellate-level courts of any state or territory of the United States, the Supreme Court of the United States, the United States Courts of Appeals, the United States Court of Appeals for the Armed Forces and the United States Courts of Criminal Appeals for the armed forces, and any tribal appellate court for a federally recognized Indian tribe (hereafter referred to as a "state or federal appellate court" or collectively as "state and federal appellate courts").

 

History Note:        Authority G.S. 84-23;

Eff. March 10, 2011.

 

27 NCAC 01D .3003         Recognition as a Specialist in Appellate Practice

If a lawyer qualifies as a specialist in appellate practice by meeting the standards for the specialty, the lawyer shall be entitled to represent that he or she is a "Board Certified Specialist in Appellate Practice."  Any lawyer who is entitled to represent that he or she is a "Board Certified Specialist in Criminal Appellate Practice" (having been certified as such under the standards set forth in Section .2500 of this Subchapter) at the time of the adoption of these standards shall also be entitled to represent that he or she is a "Board Certified Specialist in Appellate Practice" and shall thereafter meet the standards for continued certification under Rule .3006 of this Section in lieu of the standards for continued certification under Rule .2506 of Section .2500 of this Subchapter.

 

History Note:        Authority G.S. 84-23;

Eff. March 10, 2011.

 

27 NCAC 01D .3004         APPLICABILITY OF PROVISIONS OF THE NORTH CAROLINA PLAN OF LEGAL SPECIALIZATION

Certification and continued certification of specialists in appellate practice shall be governed by the provisions of the North Carolina Plan of Legal Specialization (see Section .1700 of this Subchapter) as supplemented by these standards for certification.

 

History Note:        Authority G.S. 84-23;

Eff. March 10, 2011.

 

27 NCAC 01D .3005         standards for certification as a specialist in appellate practice

Each applicant for certification as a specialist in appellate practice shall meet the minimum standards set forth in Rule .1720 of this Subchapter.  In addition, each applicant shall meet the following standards for certification in appellate practice:

(a)  Licensure and Practice.  An applicant shall be licensed and in good standing to practice law in North Carolina as of the date of application.  An applicant shall continue to be licensed and in good standing to practice law in North Carolina during the period of certification.

(b)  Substantial Involvement.  An applicant shall affirm to the board that the applicant has experience through substantial involvement in appellate practice.

(1)           Substantial involvement shall mean that during the five years immediately preceding the application, the applicant devoted an average of at least 400 hours a year, and not less than 100 hours in any one year, to appellate practice.  "Practice" shall mean substantive legal work done primarily for the purpose of providing legal advice or representation including activities described in Paragraph (2) below, or a practice equivalent as described in Paragraph (3) below.

(2)           Substantive legal work in appellate practice includes, but is not limited to, the following: preparation of a record on appeal or joint appendix for filing in any state or federal appellate court; researching, drafting, or editing of a legal brief, motion, petition, or response for filing in any state or federal appellate court; participation in or preparation for oral argument before any state or federal appellate court; appellate mediation, either as the representative of a party or as a mediator, in any state or federal appellate court; consultation on issues of appellate practice including consultation with trial counsel for the purpose of preserving a record for appeal; service on a committee or commission whose principal focus is the study or revision of the rules of appellate procedure of the North Carolina or federal courts; authoring a treatise, text, law review article, or other scholarly work relating to appellate practice; teaching appellate advocacy at an ABA accredited law school; and coaching in appellate moot court programs.

(3)           "Practice equivalent" shall include the following activities:

(A)          Service as a trial judge for any North Carolina General Court of Justice, United States Bankruptcy Court, or United States District Court, including service as a magistrate judge, for one year or more may be substituted for one year of experience toward the five-year requirement set forth in Rule .3005(b)(1).

(B)          Service as a full-time, compensated law clerk for any North Carolina or federal appellate court for one year or more may be substituted for one year of experience toward the five-year requirement set forth in Rule .3005(b)(1).

(C)          Service as an appellate judge for any North Carolina or federal appellate court may be substituted for the equivalent years of experience toward the five-year requirement set forth in Rule .3005(b)(1) as long as the applicant's experience, before the applicant took the bench, included substantial involvement in appellate practice (as defined in Paragraph (b)(1)) for two years before the applicant's service as an appellate judge.

(4)           An applicant must also demonstrate substantial involvement in appellate practice by providing information regarding the applicant's participation during his or her legal career in the following:

(A)          Five oral arguments to any state or federal appellate court; and

(B)          Principal authorship of 10 briefs submitted to any state or federal appellate court.

(c)  Continuing Legal Education.  An applicant must earn no fewer than 36 hours of accredited continuing legal education (CLE) credits in appellate practice and related fields during the three years preceding application, with no less than six credits to be earned in any one year.  Of the 36 hours of CLE, at least 18 hours shall be in appellate practice, and the balance may be in the following related fields:  trial advocacy; civil trial practice and procedure; criminal trial practice and procedure; evidence; legal writing; legal research; and mediation.  An applicant may ask the specialty committee to recognize an additional field as related to appellate practice for the purpose of meeting the CLE standard.  An applicant who uses authorship of a treatise, text, law review article, or other scholarly work relating to appellate practice or the teaching of appellate advocacy at an ABA-accredited law school to satisfy the substantial involvement requirement in Paragraph (b) of this Rule may not use the same experience to satisfy the CLE requirements of this Paragraph (c).

(d)  Peer Review.  An applicant must make a satisfactory showing of qualification through peer review.  An applicant must provide the names of 10 lawyers or judges who are familiar with the competence and qualification of the applicant in the specialty field.  Written peer reference forms will be sent by the board or the specialty committee to each of the references. Completed peer reference forms must be received from at least five of the references.  All references must be licensed and in good standing to practice law and must have significant legal or judicial experience in appellate practice.  An applicant consents to confidential inquiry by the board or the specialty committee to the submitted references and other persons concerning the applicant's competence and qualification.

(1)           A reference may not be related by blood or marriage to the applicant nor may the reference be a colleague at the applicant's place of employment at the time of the application.

(2)           The references shall be given on standardized forms mailed by the board to each reference.  These forms shall be returned to the board and forwarded by the board to the specialty committee.

(e)  Examination.  An applicant must pass an examination designed to allow the applicant to demonstrate sufficient knowledge, skills, and proficiency in the field of appellate practice to justify the representation of special competence to the legal profession and the public.  The examination shall be given annually and shall be administered and graded uniformly by the specialty committee.  The exam shall include a written component which may be take-home and may include an oral argument before a moot court.

(1)           Subject Matter – The examination shall cover the applicant's knowledge and application of the following:

(A)          The North Carolina Rules of Appellate Procedure;

(B)          North Carolina General Statutes relating to appeals;

(C)          The Federal Rules of Appellate Procedure;

(D)          Federal statutes relating to appeals;

(E)           The Local Rules and Internal Operating Procedures of the United States Court of Appeals for the Fourth Circuit;

(F)           The Rules of the United States Supreme Court;

(G)          Brief writing;

(H)          Oral argument; and

(I)            Principles of appellate jurisdiction.

 

History Note:        Authority G.S. 84-23;

Eff. March 10, 2011.

 

27 NCAC 01D .3006         standards for continued certification as a specialist

The period of certification is five years.  Prior to the expiration of the certification period, a certified specialist who desires continued certification must apply for continued certification within the time limit described in Rule .3006(d) below.  No examination will be required for continued certification.  However, each applicant for continued certification as a specialist shall comply with the specific requirements set forth below in addition to any general standards required by the board of all applicants for continued certification.

(a)  Substantial Involvement.  The specialist must demonstrate that, for each of the five years preceding application for continuing certification, he or she has had substantial involvement in the specialty as defined in Rule .3005(b) of this Subchapter.

(b)  Continuing Legal Education.  The specialist must earn no less than 60 hours of accredited CLE credits in appellate practice and related fields during the five years preceding application for continuing certification.  No less than six of the credits may be earned in any one year.  Of the 60 hours of CLE, at least 20 hours shall be in appellate practice, and the balance may be in the related fields set forth in Rule .3005(c).

(c)  Peer Review.  The specialist must comply with the requirements of Rule .3005(d) of this Subchapter.

(d)  Time for Application.  Application for continued certification shall be made not more than 180 days, nor less than 90 days, prior to the expiration of the prior period of certification.

(e)  Lapse of Certification.  Failure of a specialist to apply for continued certification in a timely fashion will result in a lapse of certification.  Following such a lapse, recertification will require compliance with all requirements of Rule .3005 of this Subchapter, including the examination.

(f)  Suspension or Revocation of Certification.  If an applicant's certification has been suspended or revoked during the period of certification, the application shall be treated as if it were for initial certification under Rule .3005 of this Subchapter.

The specific standards set forth herein for certification of specialists in appellate practice are subject to any general requirement, standard, or procedure, adopted by the board, that applies to all applicants for certification or continued certification.

 

History Note:        Authority G.S. 84-23;

Eff. March 10, 2011.

 

27 NCAC 01D .3007         Applicability of Other Requirements

The specific standards set forth herein for certification of specialists in appellate practice are subject to any general requirement, standard, or procedure, adopted by the board, that applies to all applicants for certification or continued certification.

 

History Note:        Authority G.S. 84-23;

Eff. March 10, 2011.

 

27 NCAC 01D .3008         advisory members of the appellate practice specialty committee

The board may appoint former chief justices of the North Carolina Supreme Court to serve as advisory members of the Appellate Practice Specialty Committee.  Notwithstanding any other provision in The Plan of Legal Specialization (Section .1700 of this Subchapter) or this Section .3000, the board may waive the requirements of Rule .3005(d) and (e) above if an advisory committee member has served at least one year on the North Carolina Supreme Court and may permit the advisory member to file an application to become a board certified specialist in appellate practice upon compliance with all other required standards for certification in the specialty.  Advisory members shall hold office for an initial term of three years and shall thereafter serve at the discretion of the board.

 

History Note:        Authority G.S. 84-23;

Eff. March 10, 2011.

 

SECTION .3100 - Certification Standards for the Trademark Law Specialty

 

27 NCAC 01D .3101         ESTABLISHMENT OF SPECIALTY FIELD

The North Carolina State Bar Board of Legal Specialization (the board) hereby designates trademark law as a specialty for which certification of specialists under the North Carolina Plan of Legal Specialization (see Section .1700 of this Subchapter) is permitted.

 

History Note:        Authority G.S. 84-23;

Eff. March 8, 2013.

 

27 NCAC 01D .3102         Definition of Specialty

The specialty of trademark law is the practice of law devoted to commercial symbols, and typically includes the following: advising clients regarding creating and selecting trademarks; conducting and/or analyzing trademark searches; prosecuting trademark applications; enforcing and protecting trademark rights; and counseling clients on matters involving trademarks.  Practitioners regularly practice before the United States Patent and Trademark Office (USPTO), the Trademark Trial and Appeal Board (TTAB), the Trademark Division of the NC Secretary of State's Office, and the North Carolina and/or federal courts.

 

History Note:        Authority G.S. 84-23;

Eff. March 8, 2013.

 

27 NCAC 01D .3103         Recognition as a Specialist in Trademark Law

If a lawyer qualifies as a specialist in trademark law by meeting the standards set for the specialty, the lawyer shall be entitled to represent that he or she is a "Board Certified Specialist in Trademark Law."

 

History Note:        Authority G.S. 84-23;

Eff. March 8, 2013.

 

27 NCAC 01D .3104         Applicability of Provisions of the North Carolina Plan of Legal Specialization

Certification and continued certification of specialists in trademark law shall be governed by the provisions of the North Carolina Plan of Legal Specialization (see Section .1700 of this Subchapter) as supplemented by these standards for certification.

 

History Note:        Authority G.S. 84-23;

Eff. March 8, 2013.

 

27 NCAC 01D .3105         Standards for Certification as a Specialist in Trademark Law

Each applicant for certification as a specialist in trademark law shall meet the minimum standards set forth in Rule .1720 of this subchapter.  In addition, each applicant shall meet following standards for certification in trademark law:

(1)           Licensure and Practice - An applicant shall be licensed and in good standing to practice law in North Carolina as of the date of application.  An applicant shall continue to be licensed and in good standing to practice law in North Carolina during the period of certification.

(2)           Substantial Involvement - An applicant shall affirm to the board that the applicant has experience through substantial involvement in trademark law.

(a)           Substantial involvement shall mean that during the five years immediately preceding the application, the applicant devoted an average of at least 500 hours a year to the practice of trademark law, but not less than 400 hours in any one year.

(b)           Practice shall mean substantive legal work in trademark law done primarily for the purpose of legal advice or representation or a practice equivalent.

(c)           "Practice equivalent" shall mean:

(i)            Service as a law professor concentrating in the teaching of trademark law which may be substituted for up to two years of experience to meet the five-year requirement set forth in Rule .3105(b)(1).

(ii)           Service as a trademark examiner at the USPTO or a functionally equivalent trademark office for any state or foreign government which may be substituted for up to two years of experience to meet the five-year requirement set forth in Rule .3105(b)(1).

(iii)          Service as an administrative law judge for the TTAB which may be substituted for up to three years of experience to meet the five-year requirement set forth in Rule .3105(b)(1).

(d)           The board may, in its discretion, require an applicant to provide additional information as evidence of substantial involvement in trademark law, including information regarding the applicant's participation, during his or her legal career, in the following: portfolio management, prosecution of trademark applications, search and clearance of trademarks, licensing, due diligence, domain name selection and dispute resolution, TTAB litigation, state court trademark litigation, federal court trademark litigation, trademark dispute resolution, and international trademark law.

(3)           Continuing Legal Education - To be certified as a specialist in trademark law, an applicant must have earned no less than 36 hours of accredited continuing legal education credits in trademark law during the three years preceding application. The 36 hours must include at least 20 hours in trademark law and the remaining 16 hours in related courses including: business transactions, copyright, franchise law, internet law, sports and entertainment law, trade secrets, and unfair competition.

(4)           Peer Review - An applicant must make a satisfactory showing of qualification through peer review. An applicant must provide the names of ten lawyers or judges who are familiar with the competence and qualification of the applicant in the specialty field.  Written peer reference forms will be sent by the board or the specialty committee to each of the references. Completed peer reference forms must be received from at least five of the references.  All references must be licensed and in good standing to practice law and must have significant legal or judicial experience in trademark law. An applicant consents to confidential inquiry by the board or the specialty committee to the submitted references and other persons concerning the applicant's competence and qualification.

(a)           A reference may not be related by blood or marriage to the applicant nor may the reference be a colleague at the applicant's place of employment at the time of the application.

(b)           The references shall be given on standardized forms mailed by the board to each reference. These forms shall be returned to the board and forwarded by the board to the specialty committee.

(5)           Examination - An applicant must pass a written examination designed to demonstrate sufficient knowledge, skills, and proficiency in the field of trademark law to justify the representation of special competence to the legal profession and the public.

(a)           Terms - The examination shall be given annually in written form and shall be administered and graded uniformly by the specialty committee.

(b)           Subject Matter - The examination shall cover the applicant's knowledge and application of trademark law and rules of practice, and may include the following statutes and related case law:

(i)            The Lanham Act (15 USC §1501 et seq.);

(ii)           Trademark Regulations (37 CFR Part 2);

(iii)          Trademark Manual of Examining Procedure (TMEP);

(iv)          Trademark Trial and Appeal Board Manual of Procedure (TBMP);

(v)           The Trademark Counterfeiting Act of 1984 (18 USC §2320 et seq.); and

(vi)          North Carolina Trademark Act (N.C. Gen. Stat. Chap. 80).

 

History Note:        Authority G.S. 84-23;

Eff. March 8, 2013.

 

27 NCAC 01D .3106         Standards for Continued Certification as a Specialist

The period of certification is five years.  Prior to the expiration of the certification period, a certified specialist who desires continued certification must apply for continued certification within the time limit described in Rule .3106(d). No examination will be required for continued certification.  However, each applicant for continued certification as a specialist shall comply with the specific requirements set forth below in addition to any general standards required by the board of all applicants for continued certification.

(1)           Substantial Involvement - The specialist must demonstrate that, for each of the five years preceding application for continuing certification, he or she has had substantial involvement in the specialty as defined in Rule .3105(b) of this Subchapter.

(2)           Continuing Legal Education - The specialist must earn no less than 60 hours of accredited CLE credits in trademark law and related fields during the five years preceding application for continuing certification.  No less than six of the credits may be earned in any one year. Of the 60 hours of CLE, at least 34 hours shall be in trademark law, and the balance of 26 hours may be in the related fields set forth in Rule .3105(c) of this Subchapter.

(3)           Peer Review - The specialist must comply with the requirements of Rule .3105(d) of this Subchapter.

(4)           Time for Application - Application for continued certification shall be made not more than 180 days, nor less than 90 days, prior to the expiration of the prior period of certification.

(5)           Lapse of Certification - Failure of a specialist to apply for continued certification in a timely fashion will result in a lapse of certification.  Following such a lapse, recertification will require compliance with all requirements of Rule .3105 of this Subchapter, including the examination.

(6)           Suspension or Revocation of Certification - If an applicant's certification has been suspended or revoked during the period of certification, the application shall be treated as if it were for initial certification under Rule .3105 of this Subchapter.

 

History Note:        Authority G.S. 84-23;

Eff. March 8, 2013.

 

27 NCAC 01D .3107         Applicability of Other Requirements

The specific standards set forth herein for certification of specialists in trademark law are subject to any general requirement, standard, or procedure adopted by the board applicable to all applicants for certification or continued certification.

 

History Note:        Authority G.S. 84-23;

Eff. March 8, 2013.

 

section .3200 – CERIFICATION STANDARDS FOR THE UTILITIES LAW SPECIALITY

 

27 NCAC 01D .3201         Establishment of Specialty Field

The North Carolina State Bar Board of Legal Specialization (the board) hereby designates utilities law as a specialty for which certification of specialists under the North Carolina Plan of Legal Specialization (see Section .1700 of this subchapter) is permitted.

 

History Note:        Authority G.S. 84-23;

Eff. June 9, 2016.

 

27 NCAC 01D .3202         Definition of Specialty

The specialty of utilities law is the practice of law focusing on the North Carolina Public Utilities Act (Chapter 62 of the North Carolina General Statutes) and practice before the North Carolina Utilities Commission (the Commission) and related state and federal regulatory bodies.

 

History Note:        Authority G.S. 84-23;

Eff. June 9, 2016.

 

27 NCAC 01D .3203         Recognition as a Specialist in Utilities Law

If a lawyer qualifies as a specialist in utilities law by meeting the standards set for the specialty, the lawyer shall be entitled to represent that he or she is a "Board Certified Specialist in Utilities Law."

 

History Note:        Authority G.S. 84-23;

Eff. June 9, 2016.

 

27 NCAC 01D .3204         Applicability of Provisions of the North Carolina Plan of Legal Specialization

Certification and continued certification of specialists in utilities law shall be governed by the provisions of the North Carolina Plan of Legal Specialization (see Section .1700 of this subchapter) as supplemented by these standards for certification.

 

History Note:        Authority G.S. 84-23;

Eff. June 9, 2016.

 

27 NCAC 01D .3205         Standards for Certification as a Specialist in Utilities Law

Each applicant for certification as a specialist in utilities law shall meet the minimum standards set forth in Rule .1720 of this Subchapter. In addition, each applicant shall meet the following standards for certification in utilities law:

(a)  Licensure and Practice - An applicant shall be licensed and in good standing to practice law in North Carolina as of the date of application. An applicant shall continue to be licensed and in good standing to practice law in North Carolina during the period of certification.

(b)  Substantial Involvement - An applicant shall affirm to the board that the applicant has experience through substantial involvement in utilities law.

(1)           Substantial involvement shall mean that during the five years immediately preceding the application, the applicant devoted an average of at least 500 hours a year to the practice of utilities law but not less than 400 hours in any one year.

(2)           Practice shall mean substantive legal work in utilities law done primarily for the purpose of providing legal advice or representation, including the activities described in Paragraph (3), or a practice equivalent as described in Paragraph (4).

(3)           Substantive legal work in utilities law includes, but is not limited to, practice before or representation in matters relative to the Commission, Federal Energy Regulatory Commission (FERC), Federal Communications Commission (FCC), Nuclear Regulatory Commission (NRC), Pipeline and Hazardous Materials Safety Administration (PHMSA), North Carolina Department of Environment and Natural Resources (NCDENR), North American Electric Reliability Corporation, utilities commissions of other states, and related state and federal regulatory bodies as well as participation in committee work of organizations or continuing legal education programs that are focused on subject matter involved in practice before the Commission or related state and federal regulatory bodies.

(4)           "Practice equivalent" shall mean:

(A)          Each year of service as a commissioner on the Commission during the five years prior to application may be substituted for a year of the experience necessary to meet the five-year requirement set forth in Rule .3205(b)(1).

(B)          Each year of service on the legal staff of the Commission or of the Public Staff during the five years prior to application may be substituted for a year of the experience necessary to meet the five-year requirement set forth in Rule .3205(b)(1).

(c)  Continuing Legal Education – To be certified as a specialist in utilities law, an applicant must have earned no less than 36 hours of accredited continuing legal education credits in utilities law and related fields during the three years preceding application. The 36 hours must include at least 18 hours in utilities law; the remaining 18 hours may be in related-field CLE. Utilities law CLE includes but is not limited to courses on the subjects identified in Rule .3202 and Rule .3205(b)(3) of this Subchapter. A list of the topics that qualify as related-field CLE shall be maintained by the board on its official website.

(d)  Peer Review - An applicant must make a satisfactory showing of qualification through peer review. An applicant must provide the names of ten lawyers or judges who are familiar with the competence and qualification of the applicant in the specialty field. Written peer reference forms will be sent by the board or the specialty committee to each of the references. Completed peer reference forms must be received from at least five of the references. All references must be licensed and in good standing to practice law and must have significant legal or judicial experience in utilities law. An applicant consents to confidential inquiry by the board or the specialty committee to the submitted references and other persons concerning the applicant's competence and qualification.

(1)           A reference may not be related by blood or marriage to the applicant nor may the reference be a colleague at the applicant's place of employment at the time of the application.

(2)           The references shall be given on standardized forms mailed by the board to each reference. These forms shall be returned to the board and forwarded by the board to the specialty committee.

(e)  Examination - An applicant must pass a written examination designed to demonstrate sufficient knowledge, skills, and proficiency in the field of utilities law to justify the representation of special competence to the legal profession and the public.

(1)           Terms - The examination shall be given annually in written form and shall be administered and graded uniformly by the specialty committee.

(2)           Subject Matter – The examination shall test the applicant's knowledge and application of utilities law.

 

History Note:        Authority G.S. 84-23;

Eff. June 9, 2016.

 

27 NCAC 01D .3206         Standards for Continued Certification as a Specialist

The period of certification is five years. Prior to the expiration of the certification period, a certified specialist who desires continued certification must apply for continued certification within the time limit described in Rule .3206(d) below. No examination will be required for continued certification. However, each applicant for continued certification as a specialist shall comply with the specific requirements set forth below in addition to any general standards required by the board of all applicants for continued certification.

(a)  Substantial Involvement - The specialist must demonstrate that, for each of the five years preceding application for continuing certification, he or she has had substantial involvement in the specialty as defined in Rule .3205(b) of this Subchapter.

(b)  Continuing Legal Education - The specialist must earn no less than 60 hours of accredited CLE credits in utilities law and related fields during the five years preceding application for continuing certification. Of the 60 hours of CLE, at least 30 hours shall be in utilities law, and the balance of 30 hours may be in the related fields set forth in Rule .3205(c).

(c)  Peer Review - The specialist must comply with the requirements of Rule .3205(d) of this Subchapter.

(d) Time for Application - Application for continued certification shall be made not more than 180 days, nor less than 90 days, prior to the expiration of the prior period of certification.

(e)  Lapse of Certification - Failure of a specialist to apply for continued certification in a timely fashion will result in a lapse of certification. Following such a lapse, recertification will require compliance with all requirements of Rule .3205 of this Subchapter, including the examination.

(f)  Suspension or Revocation of Certification - If an applicant's certification has been suspended or revoked during the period of certification, the application shall be treated as if it were for initial certification under Rule .3205 of this Subchapter.

 

History Note:        Authority G.S. 84-23;

Eff. June 9, 2016.

 

27 NCAC 01D .3207         Applicability of Other Requirements

The specific standards set forth herein for certification of specialists in utilities law are subject to any general requirement, standard, or procedure adopted by the board applicable to all applicants for certification or continued certification.

 

History Note:        Authority G.S. 84-23;

Eff. June 9, 2016.

 

section .3300 - certification standards for the privacy and information security law

 

27 NCAC 01D .3301         ESTABLISHMENT OF SPECIALTY FIELD

The North Carolina State Bar Board of Legal Specialization (the board) hereby designates privacy and information security law as a specialty for which certification of specialists under the North Carolina Plan of Legal Specialization (see Section .1700 of this subchapter) is permitted.

 

History Note:        Authority G.S. 84-23;

Adopted by the Supreme Court September 28, 2017.

 

27 NCAC 01D .3302         Definition of Specialty

The specialty of privacy and information security law encompasses the laws that regulate the collection, storage, sharing, monetization, security, disposal, and permissible uses of personal or confidential information about individuals, businesses, and organizations, and the security of information regarding individuals and the information systems of businesses and organizations. The specialty also includes legal requirements and risks related to cyber incidents, such as external intrusions into computer systems, and cyber threats, such as governmental information sharing programs.

 

History Note:        Authority G.S. 84-23;

Adopted by the Supreme Court September 28, 2017.

 

27 NCAC 01D .3303         RECOGNITION AS A SPECIALIST IN PRIVACY AND INFORMATION SECURITY LAW

If a lawyer qualifies as a specialist in privacy and information security law by meeting the standards set for the specialty, the lawyer shall be entitled to represent that he or she is a "Board Certified Specialist in Privacy and Information Security Law."

 

History Note:        Authority G.S. 84-23;

Adopted by the Supreme Court September 28, 2017.

 

27 NCAC 01D .3304         APPLICAbiLITY OF PROVISIONS OF THE NORTH CAROLINA PLAN OF LEGAL SPECIALIZATION

Certification and continued certification of specialists in privacy and information security law shall be governed by the provisions of the North Carolina Plan of Legal Specialization (see Section .1700 of this subchapter) as supplemented by these standards for certification.

 

History Note:        Authority G.S. 84-23;

Adopted by the Supreme Court September 28, 2017.

 

27 NCAC 01D .3305         STANDARDS FOR CERTIFICATION AS A SPECIALIST IN PRIVACY AND INFORMATION SECURITY LAW

Each applicant for certification as a specialist in privacy and information security law shall meet the minimum standards set forth in Rule .1720 of this subchapter. In addition, each applicant shall meet following standards for certification in privacy and information security law:

(a)  Licensure and Practice - An applicant shall be licensed and in good standing to practice law in North Carolina as of the date of application. An applicant shall continue to be licensed and in good standing to practice law in North Carolina during the period of certification.

(b)  Substantial Involvement - An applicant shall affirm to the board that the applicant has experience through substantial involvement in privacy and information security law.

(1)           Substantial involvement shall mean that during the five years immediately preceding the application, the applicant devoted an average of at least 400 hours a year to the practice of privacy and information security law but not less than 300 hours in any one year.

(2)           Practice shall mean substantive legal work in privacy and information security law done primarily for the purpose of providing legal advice or representation, including the activities described in paragraph (3), or a practice equivalent as described in paragraph (4).

(3)           Substantive legal work in privacy and information security law includes, but is not limited to, representation on compliance, transactions and litigation relative to the laws that regulate the collection, storage, sharing, monetization, security, disposal, and permissible uses of personal or confidential information about individuals, businesses, and organizations. Practice in this specialty requires the application of information technology principles including current data security concepts and best practices. Legal work in the specialty includes, but is not limited to, knowledge and application of the following: data breach response laws, data security laws, and data disposal laws; unauthorized access to information systems, such as password theft, hacking, and wiretapping, including the Stored Communications Act, the Wiretap Act, and other anti-interception laws; cyber security mandates; website privacy policies and practices, including the Children's Online Privacy Protection Act (COPPA); electronic signatures and records, including the Electronic Signatures in Global and National Commerce Act (E-SIGN Act) and the Uniform Electronic Transactions Act (UETA); e-commerce laws and contractual legal frameworks related to privacy and data security such as Payment Card Industry Data Security Standards (PCI-DSS) and the NACHA rules; direct marketing, including the CAN-SPAM Act, Do-Not-Call, and Do-Not-Fax laws; international privacy compliance, including the European Union data protection requirements; social media policies and regulatory enforcement of privacy-related concerns pertaining to the same; financial privacy, including the Gramm-Leach-Bliley Act, the Financial Privacy Act, the Bank Secrecy Act, and other federal and state financial laws, and the regulations of the federal financial regulators including the SEC, CFPB, and FinCEN; unauthorized transaction and fraudulent funds transfer laws, including the Electronic Funds Transfer Act and Regulation E, as well as the Uniform Commercial Code; credit reporting laws and other "background check" laws, including the Fair Credit Reporting Act; identity theft laws, including the North Carolina Identity Theft Protection Act and the Federal Trade Commission's "Red Flags" regulations; health information privacy, including the Health Information Portability and Accountability Act (HIPAA); educational privacy, including the Family Educational Rights and Privacy Act (FERPA) and state laws governing student privacy and education technology; employment privacy law; and privacy torts.

(4)           "Practice equivalent" shall mean:

(A)          Full-time employment as a compliance officer for a business or organization for one year or more during the five years prior to application may be substituted for an equivalent number of the years of experience necessary to meet the five-year requirement set forth in Rule .3305(b)(1) if at least 25% of the applicant's work was devoted to privacy and information security implementation.

(B)          Service as a law professor concentrating in the teaching of privacy and information security law for one year or more during the five years prior to application may be substituted for an equivalent number of years of experience necessary to meet the five-year requirement set forth in Rule .3305(b)(1);

(c)  Continuing Legal Education - To be certified as a specialist in privacy and information security law, an applicant must have earned no less than 36 hours of accredited continuing legal education credits in privacy and information security law and related fields during the three years preceding application. The 36 hours must include at least 18 hours in privacy and information security law; the remaining 18 hours may be in related-field CLE or technical (non-legal) continuing education (CE). At least six credits each year must be earned in privacy and information security law. Privacy and information security law CLE includes but is not limited to courses on the subjects identified in Rule .3302 and Rule .3305(b)(3) of this subchapter. A list of the topics that qualify as related-field CLE and technical CE shall be maintained by the board on its official website.

(d)  Peer Review - An applicant must make a satisfactory showing of qualification through peer review. An applicant must provide the names of ten lawyers or judges who are familiar with the competence and qualification of the applicant in the specialty field to serve as references for the applicant. Completed peer reference forms must be received from at least five of the references. All references must be licensed and in good standing to practice law in North Carolina or another jurisdiction in the United States; however, no more than five references may be licensed in another jurisdiction. References with legal or judicial experience in privacy and information security law are preferred. An applicant consents to confidential inquiry by the board or the specialty committee to the submitted references and other persons concerning the applicant's competence and qualification.

(1)           A reference may not be related by blood or marriage to the applicant nor may the reference be a colleague at the applicant's place of employment at the time of the application. A lawyer who is in-house counsel for an entity that is the applicant's client may serve as a reference.

(2)           Peer review shall be given on standardized forms mailed by the board to each reference. These forms shall be returned to the board and forwarded by the board to the specialty committee.

(e)  Examination - An applicant must pass a written examination designed to demonstrate sufficient knowledge, skills, and proficiency in the field of privacy and information security law to justify the representation of special competence to the legal profession and the public.

(1)           Terms - The examination shall be given at least once a year in written form and shall be administered and graded uniformly by the specialty committee or by an organization determined by the board to be qualified to test applicants in privacy and information security law.

(2)           Subject Matter - The examination shall test the applicant's knowledge and application of privacy and information security law.

 

History Note:        Authority G.S. 84-23;

Adopted by the Supreme Court September 28, 2017.

 

27 NCAC 01D .3306         STANDARDS FOR CONTINUED CERTIFICATION AS A SPECIALIST

The period of certification is five years. Prior to the expiration of the certification period, a certified specialist who desires continued certification must apply for continued certification within the time limit described in Rule .3306(d) below. No examination will be required for continued certification. However, each applicant for continued certification as a specialist shall comply with the specific requirements set forth below in addition to any general standards required by the board of all applicants for continued certification.

(a)  Substantial Involvement - The specialist must demonstrate that, for each of the five years preceding application for continuing certification, he or she has had substantial involvement in the specialty as defined in Rule .3305(b) of this subchapter.

(b)  Continuing Legal Education - The specialist must earn no less than 60 hours of accredited CLE credits in privacy and information security law and related fields during the five years preceding application for continuing certification. Of the 60 hours of CLE, at least 30 hours shall be in privacy and information security law, and the balance of 30 hours may be in related field CLE or technical (non-legal) CE. At least six credits each year must be earned in privacy and information security law. A list of the topics that qualify as related-field CLE and technical CE shall be maintained by the board on its official website.

(c)  Peer Review - The specialist must comply with the requirements of Rule .3305(d) of this subchapter.

(d)  Time for Application - Application for continued certification shall be made not more than 180 days, nor less than 90 days, prior to the expiration of the prior period of certification.

(e)  Lapse of Certification - Failure of a specialist to apply for continued certification in a timely fashion will result in a lapse of certification. Following such a lapse, recertification will require compliance with all requirements of Rule .3305 of this subchapter, including the examination.

(f)  Suspension or Revocation of Certification - If an applicant's certification was suspended or revoked during a period of certification, the application shall be treated as if it were for initial certification under Rule .3305 of this subchapter.

 

History Note:        Authority G.S. 84-23;

Adopted by the Supreme Court September 28, 2017.

 

27 NCAC 01D .3307         APPLICABILITY OF OTHER REQUIREMENTS

The specific standards set forth herein for certification of specialists in privacy and information security law are subject to any general requirement, standard, or procedure adopted by the board applicable to all applicants for certification or continued certification.

 

History Note:        Authority G.S. 84-23;

Adopted by the Supreme Court September 28, 2017.

 

 

 

SUBCHAPTER 1E - REGULATIONS FOR ORGANIZATIONS PRACTICING LAW

 

SECTION .0100 - REGULATIONS FOR PROFESSIONAL CORPORATIONS AND PROFESSIONAL LIMITED LIABILITY COMPANIES PRACTICING LAW

 

27 NCAC 01E .0101                          AUTHORITY, SCOPE, AND DEFINITIONS

(a)  "Authority" Chapter 55B of the General Statutes of North Carolina, being "the Professional Corporation Act," particularly Section 55B-12, and Chapter 57C, being the "North Carolina Limited Liability Company Act," particularly Section 57C-2-01(c), authorizes the Council of the North Carolina State Bar (the council) to adopt regulations for professional corporations and professional limited liability companies practicing law.  These regulations are adopted by the council pursuant to that authority.

(b)  "Statutory Law" These regulations only supplement the basic statutory law governing professional corporations (Chapter 55B) and professional limited liability companies (Chapter 57C) and shall be interpreted in harmony with those statutes and with other statutes and laws governing corporations and limited liability companies generally.

(c)  "Definitions"  All terms used in these regulations shall have the meanings set forth below or shall be as defined in the Professional Corporation Act or the North Carolina Limited Liability Company Act as appropriate.

(1)           "Council" shall mean the Council of the North Carolina State Bar.

(2)           "Licensee" shall mean any natural person who is duly licensed to practice law in North Carolina.

(3)           "Professional limited liability company or companies" shall mean any professional limited liability company or companies organized for the purpose of practicing law in North Carolina.

(4)           "Professional corporations" shall mean any professional corporation or corporations organized for the purpose of practicing law in North Carolina.

(5)           "Secretary" shall mean the secretary of the North Carolina State Bar.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01E .0102          NAME OF PROFESSIONAL CORPORATION OR PROFESSIONAL LIMITED LIABILITY COMPANY

(a)  "Name of Professional Corporation" The name of every professional corporation shall contain the surname of one or more of its shareholders or of one or more persons who were associated with its immediate corporate, individual, partnership, or professional limited liability company predecessor in the practice of law and shall not contain any other name, word, or character (other than punctuation marks and conjunctions) except as required or permitted by Rules .0102(a)(1), (2) and (5) in this Rule.  The following additional requirements shall apply to the name of a professional corporation:

(1)           "Corporate Designation" The name of a professional corporation shall end with the following words:

(A)          "Professional Association" or the abbreviation "P.A."; or

(B)          "Professional Corporation" or the abbreviation "P.C."

(2)           "Deceased or Retired Shareholder" The surname of any shareholder of a professional corporation may be retained in the corporate name after such person's death, retirement or inactivity due to age or disability, even though such person may have disposed of his or her shares of stock in the professional corporation;

(3)           "Disqualified Shareholder" If a shareholder in a professional corporation whose surname appears in the corporate name becomes legally disqualified to render professional services in North Carolina or, if the shareholder is not licensed in North Carolina, in any other jurisdiction in which the shareholder is licensed, the name of the professional corporation shall be promptly changed to eliminate the name of such shareholder, and such shareholder shall promptly dispose of his or her shares of stock in the corporation;

(4)           "Shareholder Becomes Judge or Official" If a shareholder in a professional corporation whose surname appears in the corporate name becomes a judge or other adjudicatory officer or holds any other office which disqualifies such shareholder to practice law, the name of the professional corporation shall be promptly changed to eliminate the name of such shareholder and such person shall promptly dispose of his or her shares of stock in the corporation;

(5)           "Trade Name Allowed" A professional corporation shall not use any name other than its corporate name, except to the extent a trade name or other name is required or permitted by statute, rule of court or the Rules of Professional Conduct.

(b)  "Name of Professional Limited Liability Company" The name of every professional limited liability company shall contain the surname of one or more of its members or one or more persons who were associated with its immediate corporate, individual, partnership, or professional limited liability company predecessor in the practice of law and shall not contain any other name, word or character (other than punctuation marks and conjunctions) except as required or permitted by Rules .0102(b)(1), (2) and (5) below.  The following requirements shall apply to the name of a professional limited liability company:

(1)           "Professional Limited Liability Company Designation" The name of a professional limited liability company shall end with the words "Professional Limited Liability Company" or the abbreviations "P.L.L.C." or "PLLC";

(2)           "Deceased or Retired Member" The surname of any member of a professional limited liability company may be retained in the limited liability company name after such person's death, retirement, or inactivity due to age or disability, even though such person may have disposed of his or her interest in the professional limited liability company;

(3)           "Disqualified Member" If a member of a professional limited liability company whose surname appears in the name of such professional limited liability company becomes legally disqualified to render professional services in North Carolina or, if the member is not licensed in North Carolina, in any other jurisdiction in which the member is licensed, the name of the professional limited liability company shall be promptly changed to eliminate the name of such member, and such member shall promptly dispose of his or her interest in the professional limited liability company;

(4)           "Member Becomes Judge or Official" If a member of a professional limited liability company whose surname appears in the professional limited liability company name becomes a judge or other adjudicatory official or holds any other office which disqualifies such person to practice law, the name of the professional limited liability company shall be promptly changed to eliminate the name of such member and such person shall promptly dispose of his or her interest in the professional limited liability company;

(5)           "Trade Name Allowed" A professional limited liability company shall not use any name other than its limited liability company name, except to the extent a trade name or other name is required or permitted by statute, rule of court, or the Rules of Professional Conduct.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. March 6, 1997.

 

27 NCAC 01E .0103          REGISTRATION WITH THE NORTH CAROLINA STATE BAR

(a)  Registration of Professional Corporation - At least one of the incorporators of a professional corporation shall be an attorney at law duly licensed to practice in North Carolina. The incorporators shall comply with the following requirements for registration of a professional corporation with the North Carolina State Bar:

(1)           Filing with State Bar - Prior to filing the articles of incorporation with the secretary of state, the incorporators of a professional corporation shall file the following with the secretary of the North Carolina State Bar:

(A)          the original articles of incorporation;

(B)          an additional executed copy of the articles of incorporation;

(C)          a conformed copy of the articles of incorporation;

(D)          a registration fee of fifty dollars;

(E)           an application for certificate of registration for a professional corporation (Form PC-1; see Section .0106(a) of this subchapter) verified by all incorporators, setting forth

(i)            the name and address of each person who will be an original shareholder or an employee who will practice law for the corporation in North Carolina;

(ii)           the name and address of at least one person who is an incorporator;

(iii)          the name and address of at least one person who will be an original director; and

(iv)          the name and address of at least one person who will be an original officer, and stating that all such persons are duly licensed to practice law in North Carolina. The application shall also

(a)           set forth the name, address, and license information of each original shareholder who is not licensed to practice law in North Carolina but who shall perform services on behalf of the corporation in another jurisdiction in which the corporation maintains an office; and

(b)           certify that all such persons are duly licensed to practice law in the appropriate jurisdiction. The application shall include a representation that the corporation will be conducted in compliance with the Professional Corporation Act and these regulations; and

(F)           a certification for professional corporation by the Council of the North Carolina State Bar (Form PC-2; see Rule .0106(b) of this subchapter), a copy of which shall be attached to the original, the executed copy, and the conformed copy of the articles of incorporation, to be executed by the secretary in accordance with Rule .0103(a)(2) below.

(2)           Certificates Issued by Secretary and Council - The secretary shall review the articles of incorporation for compliance with the laws relating to professional corporations and these regulations. If the secretary determines that all persons who will be original shareholders are active members in good standing with the North Carolina State Bar, or duly licensed to practice law in another jurisdiction in which the corporation shall maintain an office, and that the articles of incorporation conform with the laws relating to professional corporations and these regulations, the secretary shall take the following actions:

(A)          execute the certification for professional corporation by the Council of the North Carolina State Bar (Form PC-2; see Rule .0106(b) of this subchapter) attached to the original, the executed copy, and the conformed copy of the articles of incorporation and return the original and the conformed copies of the articles of incorporation, together with the attached certificates, to the incorporators for filing with the secretary of state;

(B)          retain the executed copy of the articles of incorporation together with the application (Form PC-1) and the certification of council (Form PC-2) in the office of the North Carolina State Bar as a permanent record;

(C)          issue a certificate of registration for a professional corporation (Form PC-3; see Rule .0106(c) of this subchapter) to the professional corporation to become effective upon the effective date of the articles of incorporation after said articles are filed with the secretary of state.

(b)  Registration of a Professional Limited Liability Company - At least one of the persons executing the articles of organization of a professional limited liability company shall be an attorney at law duly licensed to practice law in North Carolina. The persons executing the articles of organization shall comply with the following requirements for registration with the North Carolina State Bar:

(1)           Filing with State Bar - Prior to filing the articles of organization with the secretary of state, the persons executing the articles of organization of a professional limited liability company shall file the following with the secretary of the North Carolina State Bar:

(A)          the original articles of organization;

(B)          an additional executed copy of the articles of organization;

(C)          a conformed copy of the articles of organization;

(D)          a registration fee of $50;

(E)           an application for certificate of registration for a professional limited liability company (Form PLLC-1; see Rule .0106(f) of this subchapter) verified by all of the persons executing the articles of organization, setting forth

(i)            the name and address of each original member or employee who will practice law for the professional limited liability company in North Carolina;

(ii)           the name and address of at least one person executing the articles of organization; and

(iii)          the name and address of at least one person who will be an original manager, and stating that all such persons are duly licensed to practice law in North Carolina. The application shall also

(a)           set forth the name, address, and license information of each original member who is not licensed to practice law in North Carolina but who shall perform services on behalf of the professional limited liability company in another jurisdiction in which the professional limited liability company maintains an office; and

(b)           certify that all such persons are duly licensed to practice law in the appropriate jurisdiction. The application shall include a representation that the professional limited liability company will be conducted in compliance with the North Carolina Limited Liability Company Act and these regulations;

(F)           a certification for professional limited liability company by the Council of the North Carolina State Bar, (Form PLLC-2; see Rule .0106(g) of this subchapter), a copy of which shall be attached to the original, the executed copy, and the conformed copy of the articles of organization, to be executed by the secretary in accordance with Rule .0103(b)(2) below.

(2)           Certificates Issued by the Secretary - The secretary shall review the articles of organization for compliance with the laws relating to professional limited liability companies and these regulations. If the secretary determines that all of the persons who will be original members are active members in good standing with the North Carolina State Bar, or duly licensed in another jurisdiction in which the professional limited liability company shall maintain an office, and the articles of organization conform with the laws relating to professional limited liability companies and these regulations, the secretary shall take the following actions:

(A)          execute the certification for professional limited liability company by the Council of the North Carolina State Bar (Form PLLC-2) attached to the original, the executed copy and the conformed copy of the articles of organization and return the original and the conformed copy of the articles of organization, together with the attached certificates, to the persons executing the articles of organization for filing with the secretary of state;

(B)          retain the executed copy of the articles of organization together with the application (Form PLLC-1) and the certification (Form PLLC-2) in the office of the North Carolina State Bar as a permanent record;

(C)          issue a certificate of registration for a professional limited liability company (Form PLLC-3; see Rule .0106(h) of this subchapter) to the professional limited liability company to become effective upon the effective date of the articles of organization after said articles are filed with the secretary of state.

(c)  Refund of Registration Fee - If the secretary is unable to make the findings required by Rules .0103(a)(2) or .0103(b)(2) above, the secretary shall refund the $50 registration fee.

(d)  Expiration of Certificate of Registration - The initial certificate of registration for either a professional corporation or a professional limited liability company shall remain effective through June 30 following the date of registration.

(e)  Renewal of Certificate of Registration - The certificate of registration for either a professional corporation or a professional limited liability company shall be renewed on or before July 1 of each year upon the following conditions:

(1)           Renewal of Certificate of Registration for Professional Corporation - A professional corporation shall submit an application for renewal of certificate of registration for a professional corporation (Form PC-4; see Rule .0106(d) of this subchapter) to the secretary listing the names and addresses of all of the shareholders and employees of the corporation who practice law for the professional corporation in North Carolina and the name and address of at least one officer and one director of the professional corporation, and certifying that all such persons are duly licensed to practice law in the state of North Carolina and representing that the corporation has complied with these regulations and the provisions of the Professional Corporation Act. Such application shall also

(i)            set forth the name, address, and license information of each shareholder who is not licensed to practice law in North Carolina but who performs services on behalf of the corporation in another jurisdiction in which the corporation maintains an office; and

(ii)           certify that all such persons are duly licensed to practice law in the appropriate jurisdiction. Upon a finding by the secretary that all shareholders are active members in good standing with the North Carolina State Bar, or are duly licensed to practice law in another jurisdiction in which the corporation maintains an office, the secretary shall renew the certificate of registration by making a notation in the records of the North Carolina State Bar;

(2)           Renewal of Certificate of Registration for a Professional Limited Liability Company - A professional limited liability company shall submit an application for renewal of certificate of registration for a professional limited liability company (Form PLLC-4; see Rule .0106(i) of this subchapter) to the secretary listing the names and addresses of all of the members and employees of the professional limited liability company who practice law in North Carolina, and the name and address of at least one manager, and certifying that all such persons are duly licensed to practice law in the state of North Carolina, and representing that the professional limited liability company has complied with these regulations and the provisions of the North Carolina Limited Liability Company Act. Such application shall also

(i)            set forth the name, address, and license information of each member who is not licensed to practice law in North Carolina but who performs services on behalf of the professional limited liability company in another jurisdiction in which the professional limited liability company maintains an office; and

(ii)           certify that all such persons are duly licensed to practice law in the appropriate jurisdiction. Upon a finding by the secretary that all members are active members in good standing with the North Carolina State Bar, or are duly licensed to practice law in another jurisdiction in which the professional limited liability company maintains an office, the secretary shall renew the certificate of registration by making a notation in the records of the North Carolina State Bar;

(3)           Renewal Fee - An application for renewal of a certificate of registration for either a professional corporation or a professional limited liability company shall be accompanied by a renewal fee of $25;

(4)           Refund of Renewal Fee - If the secretary is unable to make the findings required by Rules .0103(e)(1) or .0103(e)(2) above, the secretary shall refund the $25 registration fee;

(5)           Failure to Apply for Renewal of Certificate of Registration - In the event a professional corporation or a professional limited liability company shall fail to submit the appropriate application for renewal of certificate of registration, together with the renewal fee, to the North Carolina State Bar within 30 days following the expiration date of its certificate of registration, the certificate of registration for the delinquent professional corporation or professional limited liability company shall be suspended and the secretary of state will be notified of the suspension of said certificate of registration;

(6)           Reinstatement of Suspended Certificate of Registration - Upon (a) the submission to the North Carolina State Bar of the appropriate application for renewal of certificate of registration, together with all past due renewal fees and late fees; and (b) a finding by the secretary that the representations in the application are correct, a suspended certificate of registration of a professional corporation or professional limited liability company shall be reinstated by the secretary by making a notation in the records of the North Carolina State Bar.

(7)           Inactive Status Pending Dissolution - If a professional corporation or professional limited liability company notifies the State Bar in writing or, in response to a notice to show cause issued pursuant to Rule .0103(e)(5) of this subchapter, a delinquent professional corporation or professional limited liability company shows that the organization is no longer practicing law and is winding down the operations and financial activities of the organization, no renewal fee or late fee shall be owed and the organization shall be moved to inactive status for a period of not more than one year. If, at the end of that period, a copy of the articles of dissolution has not been filed with the State Bar, the secretary of the State Bar shall send a notice to show cause letter and shall pursue suspension of the certificate of registration as set forth in Rule. .0103(e)(5) of this subchapter.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. March 6, 1997;

Amendments Approved by the Supreme Court: March 16, 2017; October 1, 2003.

 

27 NCAC 01E .0104          MANAGEMENT AND FINANCIAL MATTERS

(a)  "Management" At least one director and one officer of a professional corporation and at least one manager of a professional limited liability company shall be active members in good standing with the North Carolina State Bar.

(b)  "Authority Over Professional Matters:" No person affiliated with a professional corporation or a professional limited liability company, other than a licensee, shall exercise any authority whatsoever over the rendering of professional services in North Carolina or in matters of North Carolina law.

(c)  "No Income to Disqualified Person" The income of a professional corporation or of a professional limited liability company attributable to the practice of law during the time that a shareholder of the professional corporation or a member of a professional limited liability company is legally disqualified to render professional services in North Carolina or, if the shareholder or member is not licensed in North Carolina, in any other jurisdiction in which the shareholder or member is licensed or after a shareholder or a member becomes a judge, other adjudicatory officer, or the holder of any other office, as specified in Rule .0102(a)(4) or .0102(b)(4) of this subchapter, shall not in any manner accrue to the benefit of such shareholder, or his or her shares, or to such member.

(d)  "Stock of a Professional Corporation" A professional corporation may acquire and hold its own stock.

(e)  "Acquisition of Shares of Deceased or Disqualified Shareholder" Subject to the provisions of G.S. 55B-7, a professional corporation may make such agreement with its shareholders or its shareholders may make such agreement between themselves as they may deem just for the acquisition of the shares of a deceased or retiring shareholder or a shareholder who becomes disqualified to own shares under the Professional Corporation Act or under these regulations.

(f)  "Stock Certificate Legend" There shall be prominently displayed on the face of all certificates of stock in a professional corporation a legend that any transfer of the shares represented by such certificate is subject to the provisions of the Professional Corporation Act and these regulations.

(g)  "Transfer of Stock of Professional Corporation" When stock of a professional corporation is transferred to a licensee, the professional corporation shall request that the secretary issue a stock transfer certificate (Form PC?5;  see Rule .0106(e) of this subchapter) as required by G.S. 55B-6.  The secretary is authorized to issue the certificate which shall be permanently attached to the stub of the transferee's stock certificate in the stock register of the professional corporation.  The fee for such certificate shall be two dollars ($2.00) for each transferee listed on the stock transfer certificate.

(h)  "Stock Register of Professional Corporation" The stock register of a professional corporation shall be kept at the principal office of the corporation and shall be subject to inspection by the secretary or his or her delegate during business hours at the principal office of the corporation.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994;

Amended Eff. March 6, 1997.

 

27 NCAC 01E .0105          GENERAL AND ADMINISTRATIVE PROVISIONS

(a)  "Administration of Regulations" These regulations shall be administered by the secretary, subject to the review and supervision of the council. The council may from time to time appoint such standing or special committees as it may deem proper to deal with any matter affecting the administration of these regulations. It shall be the duty of the secretary to bring to the attention of the council or its appropriate committee any violation of the law or of these regulations.

(b)  "Appeal to Council" If the secretary shall decline to execute any certificate required by Rule .0103(a)(2), Rule .0103(b)(2), or Rule .0104(g) of this subchapter, or to renew the same when properly requested, or shall refuse to take any other action requested in writing by a professional corporation or a professional limited liability company, the aggrieved party may request in writing that the council review such action. Upon receipt of such a request, the council shall provide a formal hearing for the aggrieved party through a committee of its members.

(c)  "Articles of Amendment, Merger, and Dissolution" A copy of the following documents, duly certified by the secretary of state, shall be filed with the secretary within 10 days after filing with the secretary of state:

(1)           all amendments to the articles of incorporation of a professional corporation or to the articles of organization of a professional limited liability company;

(2)           all articles of merger to which a professional corporation or a professional limited liability company is a party;

(3)           all articles of dissolution dissolving a professional corporation or a professional limited liability company;

(4)           any other documents filed with the secretary of state changing the corporate structure of a professional corporation or the organizational structure of a professional limited liability company.

(d)  "Filing Fee" Except as otherwise provided in these regulations, all reports or papers required by law or by these regulations to be filed with the secretary shall be accompanied by a filing fee of two dollars ($2.00).

(e)  "Accounting for Filing Fees" All fees provided for in these regulations shall be the property of the North Carolina State Bar and shall be deposited by the secretary to its account, and such account shall be separately stated on all financial reports made by the secretary to the council and on all financial reports made by the council.

(f)  "Records of State Bar" The secretary shall keep a file for each professional corporation and each professional limited liability company which shall contain the executed articles of incorporation or organization, all amendments thereto, and all other documents relating to the affairs of the corporation or professional limited liability company.

(g)  "Additional Information" A professional corporation or a professional limited liability corporation shall furnish to the secretary such information and documents relating to the administration of these regulations as the secretary or the council may reasonably request.

 

History Note:        Authority G.S. 84-23;

Readopted Eff. December 8, 1994.

 

27 NCAC 01E .0106          FORMS

(a)  "Form PC" 1:

 

Application for Certificate of Registration for a Professional Corporation

 

The undersigned, being all of the incorporators of _______, a professional corporation to be incorporated under the laws of the state of North Carolina for the purpose of practicing law, hereby certify to the Council of the North Carolina State Bar:

 

1.  At least one person who is an incorporator, at least one person who will be an original officer, and at least one person who will be an original director, and all persons who, to the best knowledge and belief of the undersigned, will be original shareholders and employees who will practice law for said professional corporation are duly licensed to practice law in the state of North Carolina.  The names and addresses of such persons are:

 

Name and Position                                                                                                                 Address

 

 (incorporator, officer, director, shareholder, employee)

                                                                                                                                                                                               

                                                                                                                                                                                               

                                                                                                                                                                                               

 

2.  Each original shareholder who is not licensed to practice law in North Carolina but who will perform services on behalf of the corporation in another jurisdiction in which the corporation maintains an office is duly licensed to practice law in that jurisdiction.  The name, address, and license information of each such person are:

 

Name, Address, Jurisdiction of Licensure, License Number

                                                                                                                                                                                               

                                                                                                                                                                                               

                                                                                                                                                                                               

 

3.  The jurisdictions other than North Carolina in which the corporation will maintain an office are:

 

Name of Jurisdiction and Address of Office(s)

                                                                                                                                                                                               

                                                                                                                                                                                               

                                                                                                                                                                                               

 

4.  The undersigned represent that the professional corporation will be conducted in compliance with the Professional Corporations Act and with the North Carolina State Bar's Regulations for Professional Corporations and Professional Limited Liability Companies Practicing Law.

 

5.  Application is hereby made for a Certificate of Registration to be effective upon the effective date of the professional corporation's articles of incorporation after said articles are filed with the secretary of state.

 

6.  Attached hereto is the registration fee of $50.

 

This the _______ day of _______, 19___.

 

                                                                                               

Incorporator

 

                                                                                               

Incorporator

 

                                                                                               

Incorporator

 

[Signatures of all incorporators.]

 

NORTH CAROLINA

 

_______ COUNTY

 

I hereby certify that _______, _______, _______, _______, and _______, being all of the incorporators of _______, a professional corporation, personally appeared before me this day and stated that they have read the foregoing Application for Certificate of Registration for a Professional Corporation and that the statements contained therein are true.

 

Witness my hand and notarial seal, this _______ day of _______, 19____.

 

                                                                                               

Notary Public

 

My commission expires:

                                                                                                                                                                                               

 

(b) Form PC" 2:

 

                            Certification for Professional Corporation by Council of the North Carolina State Bar

 

The incorporators of _______, a professional corporation, have certified to the Council of the North Carolina State Bar the names and addresses of all persons who will be original owners of said professional corporation's shares.

 

Based upon that certification and my examination of the roll of attorneys licensed to practice law in the state of North Carolina, I hereby certify that the ownership of the shares of stock is in compliance with the requirements of G.S. 55B-4(2) and G.S. 55B-6.

 

This certificate is executed under the authority of the Council of the North Carolina State Bar, this _______ day of _______, 19____.

 

                                                                                               

Secretary of the North Carolina State Bar

 

[This certificate is required by G.S. 55B-4(4) and must be attached to the original articles of incorporation when filed with the secretary of state.  See Rule .0103(a)(2) of this subchapter.]

 

(c) Form PC" 3:

 

                                                     Certificate of Registration for a Professional Corporation

 

It appears that _______, a professional corporation, has met all of the requirements of G.S. 55B-4, G.S. 55B-6 and the Regulations for Professional Corporations and Professional Limited Liability Companies Practicing Law of the North Carolina State Bar.

 

By the authority of the Council of the North Carolina State Bar, I hereby issue this Certificate of Registration for a Professional Corporation pursuant to the provisions of G.S. 55B-10 and the North Carolina State Bar's Regulations for Professional Corporations and Professional Limited Liability Companies Practicing Law.

 

This registration is effective upon the effective date of the articles of incorporation of said professional corporation, after said articles are filed with the secretary of state, and expires on June 30, 19____.

 

This the _______ day of _______, 19____.

 

                                                                                               

Secretary of the North Carolina State Bar

 

(d) Form PC" 4:

 

                              Application for Renewal of Certificate of Registration for Professional Corporation

 

Application is hereby made for renewal of the Certificate of Registration for Professional Corporation of _______, a professional corporation.

 

In support of this application, the undersigned hereby certify to the Council of the North Carolina State Bar:

 

1. At least one of the officers and one of the directors, and all of the shareholders and employees of said professional corporation who practice law for said professional corporation in North Carolina are duly licensed to practice law in the state of North Carolina.  The names and addresses of such persons are:

 

Name and Position                                                                                                                 Address

 

(incorporator, officer, director, shareholder, employee)

                                                                                                                                                                                               

                                                                                                                                                                                               

                                                                                                                                                                                               

 

2. Each shareholder who is not licensed to practice law in North Carolina but who performs services on behalf of the corporation in another jurisdiction in which the corporation maintains an office is duly licensed to practice law in that jurisdiction.  The name, address, and license information of each such person are:

 

Name, Address, Jurisdiction of Licensure, License Number

                                                                                                                                                                                               

                                                                                                                                                                                               

                                                                                                                                                                                               

 

3. The jurisdictions other than North Carolina in which the corporation maintains an office are:

 

Name of Jurisdiction and Address of Office(s)

                                                                                                                                                                                               

                                                                                                                                                                                               

                                                                                                                                                                                               

 

4. At all times since the issuance of its Certificate of Registration for Professional Corporation, said professional corporation has complied with the North Carolina State Bar's Regulations for Professional Corporations and Professional Limited Liability Companies Practicing Law and with the Professional Corporations Act.

 

5. Attached hereto is the renewal fee of $25.

 

This the _______ day of _______, 19___.

 

                                                                                               

(Professional Corporation)

 

By:                                                                                         

President (or Chief Executive)

 

NORTH CAROLINA

 

_______ COUNTY

 

I hereby certify that _______, _______, _______, _______, and _______, being all of the incorporators of _______, a professional corporation, personally appeared before me this day and stated that they have read the foregoing Application for Certificate of Registration for a Professional Corporation and that the statements contained therein are true.

 

Witness my hand and notarial seal, this _______ day of _______, 19____.

 

                                                                                               

Notary Public

 

My commission expires:

                                                                                                                                                                                               

 

(e)  Form PC" 5:

 

                                                          North Carolina State Bar Stock Transfer Certificate

 

I hereby certify that _______ (transferee) is duly licensed to practice law in the State of North Carolina and as of this date may be a transferee of shares of stock in a professional corporation formed to practice law in the state of North Carolina.

 

This certificate is executed under the authority of the Council of the North Carolina State Bar, this _______ day of _______, 19_______.

 

                                                                                               

Secretary of the North Carolina State Bar

 

[This certificate is required by G.S. 55B-6 and must be attached to the transferee's stock certificate.  See Rule .0104(g) of this subchapter.]

 

(f)  Form PLLC" 1:

 

                         Application for Certificate of Registration for a Professional Limited Liability Company

 

The undersigned, being all of the persons executing the articles of organization of _______, a professional limited liability company to be organized under the laws of the state of North Carolina for the purpose of practicing law, hereby certify to the Council of the North Carolina State Bar:

 

1. At least one person executing the articles of organization, at least one person who will be an original manager, and all persons who, to the best knowledge and belief of the undersigned, will be original members and employees who will practice law for said professional limited liability company in North Carolina are duly licensed to practice law in the state of North Carolina.  The names and addresses of all such persons are:

 

Name and Position                                                                                                                 Address

 

(signer of articles, manager, member, employee)

                                                                                                                                                                                               

                                                                                                                                                                                               

                                                                                                                                                                                               

 

2. Each original member who is not licensed to practice law in North Carolina but who will perform services on behalf of the professional limited liability company in another jurisdiction in which the professional limited liability company maintains an office is duly licensed to practice law in that jurisdiction.  The names, addresses, and license information of each such person are:

 

Name, Address, Jurisdiction of Licensure, License Number

                                                                                                                                                                                               

                                                                                                                                                                                               

                                                                                                                                                                                               

 

3. The jurisdictions other than North Carolina in which the professional limited liability company will maintain an office are:

 

Name of Jurisdiction and Address of Office(s)

                                                                                                                                                                                               

                                                                                                                                                                                               

                                                                                                                                                                                               

 

4. The undersigned represent that the professional limited liability company will be conducted in compliance with the North Carolina Limited Liability Company Act and with the North Carolina state Bar's Regulations for Professional Corporations and Professional Limited Liability Companies Practicing Law.

 

5. Application is hereby made for a Certificate of Registration to be effective upon the effective date of the professional limited liability company's articles of organization after said articles are filed with the secretary of state.

 

6. Attached hereto is the registration fee of $50.

 

This the _______ day of _______, 19___.

 

                                                                                               

                                                                                               

                                                                                               

 

(Signatures of all persons executing articles of organization.)

 

NORTH CAROLINA

 

_______ COUNTY

 

I hereby certify that _______, _______, _______, _______, and _______, being all of the incorporators of _______, a professional corporation, personally appeared before me this day and stated that they have read the foregoing Application for Certificate of Registration for a Professional Corporation and that the statements contained therein are true.

 

Witness my hand and notarial seal, this _______ day of _______, 19____.

 

                                                                                               

Notary Public

 

My commission expires:

                                                                                                                                                                                               

 

(g)  Form PLLC" 2:

 

              Certification for Professional Limited Liability Company by Council of the North Carolina State Bar

 

All of the persons executing the articles of organization of _______, a professional limited liability company, have certified to the Council of the North Carolina State Bar the names and addresses of all persons who will be original members of said professional limited liability company.

 

Based upon that certification and my examination of the roll of attorneys licensed to practice law in the state of North Carolina, I hereby certify that the membership interest is in compliance with the requirements of G.S. 55C-2-01(c), and, by reference, G.S. 55B-4(2) and G.S. 55B-6.

 

This certificate is executed under the authority of the Council of the North Carolina State Bar, this _______ day of _______, 19____.

 

                                                                                               

Secretary of the North Carolina State Bar

 

[This certificate is required by G.S. 55B-4(4) and G.S. 57C-2-01 and must be attached to the original articles of organization when filed with the secretary of state.  See Rule .0103(b)(2) of this subchapter.]

 

(h)  Form PLLC" 3:

 

                                       Certificate of Registration for a Professional Limited Liability Company

 

It appears that _______, a professional limited liability company, has met all of the requirements of G.S. 57C-2-01 and the North Carolina State Bar's Regulations for Professional Corporations and Professional Limited Liability Companies Practicing Law.

 

By the authority of the Council of the North Carolina State Bar, I hereby issue this Certificate of Registration for a Professional Limited Liability Company pursuant to the provisions of G.S. 55B-10, G.S. 57C-2-01 and the North Carolina State Bar's Regulations for Professional Corporations and Professional Limited Liability Companies Practicing Law.

 

This registration is effective upon the effective date of the articles of organization of said professional limited liability company, after said articles are filed with the secretary of state, and expires on June 30, 19____.

 

This the _______ day of _______, 19____.

 

                                                                                               

Secretary of the North Carolina State Bar

 

(i)  Form PLLC" 4:

 

                Application for Renewal of Certificate of Registration for Professional Limited Liability Company

 

Application is hereby made for renewal of the Certificate of Registration for Professional Limited Liability Company of _______, a professional limited liability company.

 

In support of this application, the undersigned hereby certify to the Council of the North Carolina State Bar:

 

1. At least one of the managers, and all of the members and employees of said professional limited liability company who practice law for said professional limited liability company in North Carolina are duly licensed to practice law in the State of North Carolina.  The names and addresses of all such persons are:

 

Name and Position                                                                                                                 Address

 

(manager, member, employee)

                                                                                                                                                                                               

                                                                                                                                                                                               

                                                                                                                                                                                               

 

2. Each member who is not licensed to practice law in North Carolina but who performs services on behalf of the professional limited liability company in another jurisdiction in which the professional limited liability company maintains an office is duly licensed to practice law in that jurisdiction.  The names, addresses, and license information of each such person are:

 

Name, Address, Jurisdiction of Licensure, License Number