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The Process and Your Comments

Proposed amendments to the Rules of the North Carolina State Bar are published for comment during the quarter after the council of the North Carolina State Bar approves their publication. The proposed amendments are published in the North Carolina State Bar's Journal and on this website. After publication for comment, the proposed rule amendments are considered for adoption by the council at its next quarterly meeting. If adopted, the rule amendments are submitted to the North Carolina Supreme Court for approval. Amendments become effective upon approval by the court. Unless otherwise noted, proposed additions to rules appear in in bold and underlined print, deletions are interlined. Proposed amendments to the Rules of Professional Conduct appear at the end of the page.

The State Bar welcomes your comments regarding proposed amendments to the rules. Please send a written response to L. Thomas Lunsford II, The North Carolina State Bar, PO Box 25908, Raleigh, NC 27611, or comments@ncbar.gov, by December 30, 2016.

Highlights

Supreme Court approves amendments to Discipline and Disability Rules that improve the procedures for hearings before the Disciplinary Hearing Commission.

Court also approves rule governing the Board of Law Examiners that permits a lawyer, whose law degree was sufficient to obtain licensure in another state, to apply for the North Carolina bar exam regardless of whether the law school is ABA accredited. 

Council publishes proposed rule on media coverage of DHC hearings.

Amendments Approved by the Supreme Court

On September 22, 2016, the North Carolina Supreme Court approved the following amendments to the rules of the North Carolina State Bar (for the complete text see the Fall 2015, Spring 2016, and Summer 2016 editions of the Journal, unless otherwise noted, or visit the State Bar website):

Amendments to the Rules on the Organization of the State Bar

27 N.C.A.C. 1A, Section .0700, Standing Committees of the Council

The amendments establish the Technology and Social Media Committee as a standing committee of the State Bar Council.

Amendments to the Discipline and Disability Rules

27 N.C.A.C. 1B, Section .0100, Discipline and Disability of Attorneys

The amendments to the Discipline and Disability Rules separate Rule .0114, Formal Hearing, into five shorter rules. In addition, the content of existing Rule .0114 is reorganized within this five-rule structure, and numerous substantive changes were approved, including amendments to the provisions on mandatory scheduling conferences, settlement conferences, default, sanctions, and post-hearing procedures relative to stayed suspensions. Amendments to the substance of existing Rule .0115, Effect of a Finding of Guilt in Any Criminal Case, (renumbered as Rule .0119) explain the documents constituting conclusive evidence of conviction of a crime and the procedure for obtaining an interim suspension.

With the division of existing Rule .0114 into five shorter rules, existing Rule .0115 and all subsequent rules in this section are renumbered and internal cross references to other rules throughout the section are renumbered accordingly.

Amendments to Rule .0129, Confidentiality, clarify that the State Bar may disclose, after the Disciplinary Hearing Commission (DHC) proceeding has concluded or to address publicity not initiated by the State Bar, the fact that a complaint was filed before the DHC pursuant to Rule .0113(j)(4), .0113(l)(4), or .0113(m)(4) because the defendant rejected discipline imposed by the Grievance Committee.

Amendments to the Rules Governing the Board of Law Examiners

27 N.C.A.C. 1C, Section .0100, Board of Law Examiners

An amendment to Rule .0105, Approval of Law Schools, recommended by the Board of Law Examiners, eliminates the ten-year licensure requirement from the rule that allows a graduate of a non-ABA accredited law school to be considered for admission to the State Bar if the graduate was previously admitted to the bar of another state and remained in good standing with that bar for ten years.

Amendments to the Procedures for the Administrative Committee

27 N.C.A.C. 1D, Section .0900, Procedures for Administrative Committee

Amendments to the rules on reinstatement from inactive status and administrative suspension eliminate from the CLE requirements for reinstatement the condition that five of the 12 CLE credit hours required for each year of inactive or suspended status must be earned by taking practical skills courses.

Amendments to Rule .0905 specify that pro bono practice status for an out-of-state lawyer ends when the lawyer ceases working under the supervision of a North Carolina legal aid lawyer, and clarify that the status may be revoked by the council without notice to the out-of-state lawyer or an opportunity to be heard.

Amendments to the Continuing Legal Education Rules

27 N.C.A.C. 1D, Section .1500, Rules Governing the Administration of the Continuing Legal Education Program

The amendments to Rule .1512 clarify that the sponsor/attendees fee charged for each hour of CLE credit is earned for every hour reported regardless of subsequently claimed exemption or adjustment in reported hours. In addition, amendments to Rule .1517 add full-time tribal chiefs and vice-chiefs to the list of lawyers holding political office who are exempt from mandatory CLE.

Amendments to the Specialization Rules

27 N.C.A.C. 1D, Section .1800, Hearing and Appeal Rules of the Board of Legal Specialization; Section .2400, Certification Standards for the Family Law Specialty; Section .2700, Certification Standards for the Workers’ Compensation Specialty

Amendments to Rule .1804 of the hearing rules for the specialization program simplify the procedure for a failed applicant to appeal a final certification decision of the Board of Legal Specialization to the council. The amendment to the standards for the family law specialty will permit a family law specialist who was elected or appointed to the district court bench to meet the substantial involvement requirement for recertification if the specialist’s service on the bench involved hearing a substantial number of family law cases. The amendment to the standards for recertification in the workers’ compensation specialty clarifies that a specialist must earn at least six CLE credits in workers’ compensation law courses in each year of the five-year period of certification.

Amendments to the Rules of Professional Conduct

27 N.C.A.C. 2, Rules of Professional Conduct

The amendments to Rule 1.0, Terminology, replace the term “Partner” with the more generic and apt term “Principal” and modify the definition of the term to include lawyers who have management authority over legal departments of a company, organization, or government entity. In accordance with this change in terminology, amendments in other rules (and the comments thereto) replace the word “partner” with the word “principal” where appropriate.

Proposed Amendments

At its meeting on October 28, 2016, the council voted to publish proposed amendments to the Rules of Professional Conduct that are explained and set forth in an accompanying article. The council also voted to publish the following proposed rule amendments for comment from the members of the Bar:

Proposed Amendments to the Rule on Judicial District Bar Dues

27 N.C.A.C. 1A, Section .0900, Organization of the Judicial District Bars

The proposed amendment shortens the time that district bars have to report delinquent district bar dues from 12 months to 6 months after the delinquency date.

.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. ...

(b) Accounting to State Bar. ...

(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...

(e) Members Subject to Assessment. ...

(f) Members Exempt from Assessment. ...

(g) Hardship Waivers. ...

(h) Reporting Delinquent Members to State Bar. Twelve Three to six months after the delinquency date of the first invoice 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.

Proposed Amendments to the Rule on Formal Hearings Before the DHC

27 N.C.A.C. 1B, Section .0100, Proceedings Before the Disciplinary Hearing Commission: Formal Hearing

Upon the request of the Disciplinary Hearing Commission (DHC), the council approved for publication proposed amendments to the rule on formal hearings before the DHC specifying that, absent a showing of good cause, the media will be permitted to broadcast and photograph formal DHC hearings; the chair of a hearing panel who denies a request for such access must make findings of fact supporting that decision; a request for media access must be filed no less than 48 hours before the hearing is scheduled to begin; the chair of the hearing panel must rule on such motion no less than 24 hours before the hearing is scheduled to begin; and, except as set forth in the proposed amendments, Rule 15 of the General Rules of Practice for the Superior and District Courts will apply to electronic media coverage of DHC hearings.

.0116 Proceedings Before the Disciplinary Hearing Commission: Formal Hearing

(a) Public Hearing

(1) ...

(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 ...

Proposed Amendments to the Certification Standards for the Criminal Law Specialty

27 N.C.A.C. 1D, Section .2500, Certification Standards for the Criminal Law Specialty

The proposed amendment to the standards for board certification in criminal law changes the requirements relative to peer review from opposing counsel and judges in cases recently tried by the applicant.

.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 ...

(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) ...

(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 last eight recent cases serious (Class G or higher) felony cases tried by the applicant to verdict or entry of order.

(5) ...

Proposed Amendments to the Regulations for PCs and PLLCs

27 N.C.A.C. 1E, Section .0100, Regulations for Organizations Practicing Law

The proposed amendments eliminate the requirement that a notice to show cause be issued to a professional corporation or professional limited liability company for failure to apply for renewal of a certificate of registration. The applicable statues, N.C. Gen. Stat. §§55B-11 and 55B-13, do not require such notice prior to the suspension or revocation of a certificate of registration.

.0103 Registration with the North Carolina State Bar

(a) Registration of Professional Corporation ...

(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) ...

(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) ...

(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 secretary shall send a notice to show cause letter to the professional corporation or the professional limited liability company advising said professional corporation or professional limited liability company of the delinquency and requiring said professional corporation or professional limited liability company to either submit the appropriate application for renewal of certificate of registration, together with the renewal fee and a late fee of $10, to the North Carolina State Bar within 30 days or to show cause for failure to do so. Failure to submit the application, the renewal fee, and the late fee within said thirty days, or to show cause within said time period, shall result in the suspension of the certificate of registration for the delinquent professional corporation or professional limited liability company shall be suspended and the issuance of a notification to 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) ... 

Proposed Rule Amendments on Disclosure of Information About a Possible Wrongful Conviction

At its meeting on October 28, 2016, the council voted to publish proposed amendments to the Rules of Professional Conduct that, under certain circumstances, require the disclosure of post-conviction information or evidence that may exonerate a convicted defendant. The proposed amendments to Rule 3.8, Special Responsibilities of a Prosecutor, set forth specific disclosure requirements for a prosecutor who comes into possession of new, credible information or evidence creating a reasonable likelihood that a defendant was wrongfully convicted. A proposed new Rule 8.6, Information About a Possible Wrongful Conviction, sets forth comparable requirements for all other members of the Bar. In addition, the comment to Rule 1.6, Confidentiality, is amended to add a proposed cross-reference to new Rule 8.6. The proposed amendments appear below.

In light of the importance of the subject matter and the potential for conflicting points of view from the criminal defense bar and from prosecutors, the study of whether to amend the Rules to establish this new duty was undertaken with care to include important stakeholders from various constituencies. This introduction provides insight into that process.

At its meeting in January 2016, the Ethics Committee voted to appoint a subcommittee to study paragraphs (g) and (h) of ABA Model Rule 3.8 (ABA MR 3.8) which set forth a prosecutor’s duty upon receipt of potentially exonerating post-conviction evidence. Darrin Jordan, the chair of the Ethics Committee, appointed five Ethics Committee members to the subcommittee. William S. Mills of Durham served as chair of the subcommittee. Bradley Bannon of Raleigh and Eben T. Rawls III of Charlotte, both criminal defense lawyers, were appointed to the subcommittee along with US Attorney for the Eastern District of North Carolina John S. Bruce of Raleigh, and former State Prosecutor C. Branson Vickory of Mount Olive. Colon Willoughby, a State Bar councilor who serves on the Grievance Committee and the former prosecutor for Wake County, was asked to serve as an advisory member of the subcommittee.

The subcommittee met five times over six months. All meetings except the initial planning meeting were in person. Representatives of the following organizations were present or participated by conference call in some or all of the four in-person meetings of the subcommittee: NC Administrative Office of the Courts, NC Advocates for Justice, NC Center on Actual Innocence, NC Conference of District Attorneys, NC Department of Justice, NC Office of Indigent Defense Services, NC Lawyers Mutual Insurance Company, Federal Public Defender for the Eastern District, Duke Law School Wrongful Convictions Clinic, UNC School of Law, and Wake County Office of the Public Defender. The representatives were all given unlimited opportunity to address the subcommittee. In addition, the deliberations of the subcommittee were monitored by and reported upon by an Associated Press reporter.

The subcommittee started with the consideration of ABA MR 3.8(g) and (h) and the duties imposed on prosecutors by those provisions of the model rule. There was soon consensus that wrongful convictions undermine the integrity of the adjudicative process and are of concern to all participants in the criminal justice system. The subcommittee resolved the question of whether a duty of disclosure should be imposed upon prosecutors and, concluding that there should, considered the questions of what information or evidence must be disclosed and to whom. The subcommittee also considered, but rejected, ABA MR 3.8(h), which creates a duty to remedy a wrongful conviction. Finally, it determined that there should be a safe harbor for a prosecutor who, acting in good faith, determines that information is not subject to disclosure under the rule even if the prosecutor’s conclusion is subsequently determined to be erroneous.

During the deliberations, the subcommittee members agreed that the threat to the integrity of the adjudicative process presented by wrongful convictions justifies extending the duty to disclose to all members of the State Bar. The subcommittee then carefully sought to balance a lawyer’s duty of confidentiality to a client and the duty to the justice system to disclose potentially exonerating information. This balancing of competing duties is found in paragraph (b) of new Rule 8.6, which limits the duty to disclose when, among other circumstances, disclosure would criminally implicate a client, substantially prejudice the client’s interests, or violate the attorney-client privilege.

The proposed amendments to Rule 3.8 and proposed new Rule 8.6 are consensus recommendations of all members of the subcommittee. When the subcommittee presented its report to the Ethics Committee, the full committee voted unanimously in favor of recommending publication to the State Bar Council, and the council’s vote on that recommendation was also unanimous.

Questions about the process or the proposed amendments may be directed to Alice Mine, counsel to the Ethics Committee, at ethics@ncbar.gov. Comments on the proposed amendments for the consideration of the Ethics Committee are welcomed. Please send comments to Ms. Mine at the above email address.

Proposed Amendments to the Rules of Professional Conduct

27 N.C.A.C. 2, Rules of Professional Conduct

Rule 1.6, Confidentiality of Information

(a) A lawyer shall not reveal information acquired during the professional relationship with a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).

(b) ...

Comment

[1] This Rule governs the disclosure by a lawyer of information relating to the representation of a client acquired during the lawyer’s representation of the client. See Rule 1.18 for the lawyer’s duties with respect to information provided to the lawyer by a prospective client, Rule 1.9(c)(2) for the lawyer’s duty not to reveal information acquired during a lawyer’s prior representation of a former client, and Rules 1.8(b) and 1.9(c)(1) for the lawyer’s duties with respect to the use of such information to the disadvantage of clients and former clients, and Rule 8.6 for a lawyer’s duty to disclose information to rectify a wrongful conviction.

[2]...

Rule 3.8, Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:

(a) ...

(g) When a prosecutor knows of new, credible evidence or information creating a reasonable likelihood that a convicted defendant did not commit an offense for which the defendant was convicted, the prosecutor shall:

(1) if the conviction was obtained in the prosecutor’s jurisdiction, promptly disclose that evidence or information to (i) the defendant or defendant’s counsel of record if any, and (ii) the North Carolina Office of Indigent Defense Services or, in the case of a federal conviction, the federal public defender for the jurisdiction; or

(2) if the conviction was obtained in another jurisdiction, promptly disclose that evidence or information to the prosecutor’s office in the jurisdiction of the conviction or to (i) the defendant or defendant’s counsel of record if any, and (ii) the North Carolina Office of Indigent Defense Services or, in the case of a federal conviction, the federal public defender for the jurisdiction of conviction.

(h) A prosecutor who concludes in good faith that evidence or information is not subject to disclosure under paragraph (g) does not violate this rule even if the prosecutor’s conclusion is subsequently determined to be erroneous.

Comment

[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate; the prosecutor’s duty is to seek justice, not merely to convict or to uphold a conviction. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence ...

[8] When a prosecutor knows of new, credible evidence or information creating a reasonable likelihood that a defendant did not commit an offense for which the defendant was convicted in the prosecutor’s district, paragraph (g)(1) requires prompt disclosure to the defendant. However, if disclosure will harm the defendant’s interests or the integrity of the evidence or information, disclosure should be made to the defendant’s lawyer, if any. Disclosure must be made to North Carolina Indigent Defense Services (NCIDS) or, if appropriate, the federal public defender under all circumstances regardless of whether disclosure is also made to the defendant or the defendant’s lawyer. If there is a good faith basis for not disclosing the evidence or information to the defendant, disclosure to NCIDS or the federal public defender and to any counsel of record satisfies this rule. If the conviction was obtained in another jurisdiction, paragraph (g)(2) allows the prosecutor promptly to disclose the evidence or information to the prosecutor’s office in the jurisdiction of conviction in lieu of any other disclosure. The prosecutor in the jurisdiction of the conviction then has an independent duty of disclosure under paragraph (g)(1). In lieu of disclosure to the prosecutor’s office in the jurisdiction of conviction, paragraph (g)(2) requires disclosure to the defendant or to the defendant’s lawyer, if any, and to NCIDS or, if appropriate, the federal public defender.

[9] The word “new” as used in paragraph (g) means evidence or information unknown to a trial prosecutor at the time of the conviction or, if known to a trial prosecutor at the time of the conviction, never previously disclosed to the defendant or defendant’s legal counsel. When analyzing new evidence or information, the prosecutor must evaluate the substance of the information received, and not solely the credibility of the source, to determine whether the evidence or information creates a reasonable likelihood that the defendant did not commit the offense.

[10] Nevertheless, a prosecutor who receives evidence or information relative to a conviction may disclose that evidence or information as directed in paragraph (g)(1) and (2) without examination to determine whether it is new, credible, or creates a reasonable likelihood that a convicted defendant did not commit an offense. A prosecutor who receives evidence or information subject to disclosure under paragraph (g) does not have a duty to undertake further investigation to determine whether the defendant is in fact innocent.

[11] A prosecutor’s independent judgment, made in good faith, that the new evidence or information is not of such nature as to trigger the obligations of paragraph (g), though subsequently determined to have been erroneous, does not constitute a violation of this Rule.

Rule 8.6, Information About a Possible Wrongful Conviction [NEW RULE]

(a) Subject to paragraph (b), when a lawyer knows of credible evidence or information, including evidence or information otherwise protected by Rule 1.6, that creates a reasonable likelihood that a defendant did not commit the offense for which the defendant was convicted, the lawyer shall promptly disclose that evidence or information to the prosecutorial authority for the jurisdiction in which the defendant was convicted and to the North Carolina Office of Indigent Defense Services or, if appropriate, the federal public defender for the district of conviction.

(b) Notwithstanding paragraph (a), a lawyer shall not disclose evidence or information if:

(1) the evidence or information is protected from disclosure by law, court order, or 27 N.C.A.C. Ch. 1B §.0129;

(2) disclosure would criminally implicate the client or otherwise substantially prejudice the client’s interests; or

(3) disclosure would violate the attorney-client privilege applicable to communications between a lawyer and client.

(c) A lawyer who in good faith concludes that information is not subject to disclosure under this rule does not violate the rule even if that conclusion is subsequently determined to be erroneous.

(d) This rule does not require disclosure if the lawyer knows an appropriate governmental authority, the convicted defendant, or the defendant’s lawyer already possesses the information.

Comment

[1] The integrity of the adjudicative process faces perhaps no greater threat than when an innocent person is wrongly convicted and incarcerated. The special duties of a prosecutor with respect to disclosure of potentially exonerating post-conviction information are set forth in Rule 3.8(g) and (h). However, as noted in the comment to Rule 3.3, Candor Toward the Tribunal, the special obligation to protect the integrity of the adjudicative process applies to all lawyers. Under Rule 3.3(b), this obligation may require a lawyer to disclose fraudulent testimony to a tribunal even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6. Similarly, the need to rectify a wrongful conviction and prevent or end the incarceration of an innocent person justifies extending the duty to disclose potentially exculpatory information to all members of the North Carolina State Bar, regardless of practice area and limited only by paragraph (b). It also justifies the disclosure of information otherwise protected by Rule 1.6. For prosecutors, compliance with Rule 3.8(g) and (h) constitutes compliance with this rule.

[2] This rule may require a lawyer to disclose credible evidence or information, whether protected by Rule 1.6 or not, if the evidence or information creates a reasonable likelihood that a convicted defendant did not commit the offense for which the defendant was convicted. To determine whether disclosure is required, a lawyer must not only consider the credibility of the evidence or information and its source, but must also evaluate the substance of the evidence or information to determine whether it creates a reasonable likelihood that the defendant did not commit the offense.

[3] The duty to disclose is qualified in paragraph (b) by legal obligations and client loyalty. A lawyer may not disclose evidence or information if prohibited by law, court order, or the administrative rule that makes the proceedings of the State Bar’s Grievance Committee confidential (27 N.C.A.C. Ch. 1B §.0129). The latter prohibition insures a lawyer’s response to a grievance does not inadvertently impose a duty to disclose on the lawyers in the State Bar Office of Counsel or on the State Bar Grievance Committee. In addition, paragraph (b) specifies that a lawyer may not disclose evidence or information if doing so would criminally implicate the lawyer’s client or the evidence or information was received in a privileged communication between the client and the lawyer. Disclosure is also prohibited when it would result in substantial prejudice to the client’s interests. Substantial prejudice to a client’s interests includes bodily harm, loss of liberty, or loss of a significant legal right or interest such as the right to effective assistance of counsel or the right against self-incrimination.

[4] When disclosure of information protected by Rule 1.6 is permitted, the lawyer should counsel the client confidentially, advising the client of the lawyer’s duty to disclose and, if possible, seeking the client’s cooperation. 

Letter to State Bar President and Ethics Committee Chair

November 3, 2016 

Mark Merritt, President
North Carolina State Bar

Darrin Jordan, Chair
Ethics Committee

Re: Proposed Amendments to Rule 3.8 - Special Responsibilities of a Prosecutor and Proposed New Rule 8.6, Disclosing Information About a Potential Wrongful Conviction

Dear Mark and Darrin:

I am writing to share with you my experience as a participant in the various meetings that were held by a subcommittee of the State Bar Ethics Committee that considered and ultimately approved new ethics rules regarding the disclosure of information relevant to the problem of wrongful convictions. Bill Mills of Durham chaired the subcommittee; Brad Bannon, John Bruce, Eben Rawls, Branny Vickory and Colon Willoughby were the members. Alice Mine was the advisor to the subcommittee.

As you might expect given the diverse backgrounds and perspectives of the members, there was much discussion about the relative merits of the various proposals considered by the subcommittee. Everyone, however, recognized that the problem of wrongful convictions in North Carolina (and elsewhere) was real and was serious, and that it was in everyone’s interest to correct such miscarriages of justice as soon as possible. So although the discussions were vigorous, everyone listened carefully to different perspectives, made appropriate compromises, and ended up with draft amendments to Rule 3.8, and a new proposed Rule 8.6, that passed the subcommittee (and eventually, the full Ethics Committee) unanimously! That is a great result, and a testament to Bill Mills, Alice Mine, and the members of the subcommittee. These new Rules will hopefully go a long way to making sure that when new evidence surfaces indicating that an innocent person is serving a sentence for a crime he or she did not commit, it will be disclosed and acted upon as quickly as possible.

But I also want to commend Bill, the subcommittee, and Alice, for welcoming the participation and input of other members of the State Bar. There were many interested attorneys who attended all the meetings, including sitting District Attorneys, such as Lorrin Freeman of Wake County and Andrew Murray of Mecklenburg County, and attorneys who do the incredible work of freeing innocent people from prison, including Chris Mumma of the North Carolina Center on Actual Innocence and Theresa Newman of the Duke Law School Wrongful Convictions Clinic. Chris, in particular, shared her concerns as someone who was instrumental in creating the North Carolina Innocence Inquiry Commission and who has been responsible for freeing innocent people from prison for her entire professional career. It was clear to me that all of us who attended these meetings were listened to carefully, and that our experiences and perspectives were considered by everyone on the subcommittee.

So I write in the hope that more attorneys can be encouraged to participate in such discussions in the future, on topics that affect their clients and their professional conduct, or that simply interest them as a professional matter - even if they are not formal members of any ethics subcommittee. Based on my experience, it will be well worth the time and effort. We all can and should have a voice when it comes to the ethical rules that control our actions as lawyers. If we speak, the ethics committee will listen.

Sincerely,

David S. Rudolf
Rudolf Widenhouse
Charlotte, NC

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