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, 2015.
Amendments Approved by the Supreme Court
On September 24, 2015, the North Carolina Supreme Court approved the following amendments to the rules of the North Carolina State Bar (for the complete text see the Spring 2015 and Summer 2015 editions of the Journal or visit the State Bar website):
Rules to Create a Procedure for Permanent Relinquishment of Membership in the State Bar
27 N.C.A.C. 1A, Section .0300, Permanent Relinquishment of Membership in the State Bar; Section .0400, Election, Succession, and Duties of Officers
The new rules create a procedure for relinquishing membership in the State Bar. The effect of relinquishment is the loss of all privileges of membership in the State Bar and, should the person desire to practice law in North Carolina again, the requirement that the person apply to the North Carolina Board of Law Examiners as if for the first time. To include the relinquishment rules in an appropriate location within Subchapter 1A of the State Bar rules, the rules in Section .0300 were moved to the beginning of Section .0400 and both sections were renamed.
Amendments to the Rules Governing the Training of Law Students
27 N.C.A.C. 1C, Section .0200, Rules Governing Practical Training of Law Students
The rule amendments eliminate the requirement that supervising lawyers in a law school clinic be full-time faculty members. This allows law schools to employ, on a part-time basis, adjunct faculty to supervise students in a clinic.
Amendments to the Rule on Pro Bono Practice by Out–of-State Lawyers
27 N.C.A.C. 1D, Section .0900, Procedures for Administrative Committee
The amendments allow an out-of-state lawyer employed by a nonprofit corporation rendering legal services to indigent persons to obtain pro bono practice status during the pendency of the lawyer’s application for admission to the North Carolina State Bar.
Amendments to the Rules of the Board of Legal Specialization
27 N.C.A.C. 1D, Section .1800, Hearing and Appeal Rules of the Board of Legal Specialization; Section .1900, Rules Concerning the Accreditation of Continuing Legal Education for the Purposes of the Board of Legal Specialization
The amendments to the specialization hearing and appeal rules explain that an “incomplete application” does not include an application with respect to which fewer than five completed peer review forms have been timely filed with the Board of Legal Specialization; increase the time an applicant has to review a failed examination after receiving notice of failure; and shorten the time an applicant has to file a petition for grade review.
The amendments to the specialization CLE rules make the rules consistent with the general CLE accreditation rules by allowing an applicant for specialty certification or recertification to satisfy the CLE requirements by attending prerecorded, simultaneously broadcast, and online programs.
Amendments to the Rules of Professional Conduct
27 N.C.A.C. 2, Rules of Professional Conduct, Rule 5.3, Responsibility Regarding Nonlawyer Assistance, Rule 5.5, Unauthorized Practice of Law; Multijurisdictional Practice of Law; Rule 5.6, Restrictions on Right to Practice, Rule 7.3, Solicitation of Clients
Amendments to the titles of Rule 5.3, Rule 5.5, and Rule 7.3 of the Rules of Professional Conduct correspond to amendments to the text of these rules that were approved by the Court on October 2, 2014.
The amendments to Rule 5.6, Restrictions on Right to Practice, clarify that the prohibition on participation in a settlement agreement that restricts a lawyer’s right to practice applies to settlement agreements between private parties and the government, not just to agreements between private parties. The amendment to the official comment explains that the prohibition does not apply to a plea agreement or other settlement of a criminal matter or a disciplinary case in which the accused is a lawyer.
Amendments Pending Approval by the Supreme Court
At its meeting on October 23, 2015, the North Carolina State Bar Council voted to adopt the following rule amendments for transmission to the North Carolina Supreme Court for approval (for the complete text of all proposed rule amendments see the Fall 2015 edition of the Journal unless otherwise indicated):
Proposed Amendments to the Rules Governing the Board of Law Examiners
27 N.C.A.C. 1C, Section .0100, Board of Law Examiners
Proposed amendments to Rule .0101, Election, are recommended by the North Carolina Board of Law Examiners to modernize the outdated rule and to conform provisions of the rule to current practice in regard to the appointment of members of the board. Proposed amendments to Rule .0105, Approval of Law Schools, are recommended by the Board of Law Examiners to eliminate the experience requirement from the rule. The rule was amended last year to allow 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 jurisdiction and remained in good standing with that bar for ten years.
Proposed Amendments to the Rules and Regulations Governing the Administration of the CLE Program
27 N.C.A.C. 1D, Section .1500, Rules Governing the Administration of the Continuing Legal Education Program; Section .1600, Regulations Governing the Administration of the Continuing Legal Education Program
A proposed amendment to Rule .1517, Exemptions, clarifies that the exemption from CLE requirements for members who teach law-related courses at professional schools has reference only to graduate level courses. Proposed amendments to Rule .1513, Fiscal Responsibility, and Rule .1606, Fees, increase the CLE credit hour fee (the attendee or sponsor fee) from $3 to $3.50 per hour of approved credit, and allocate the additional $0.50/credit hour to the North Carolina Equal Access to Justice Commission to support the administration of the activities of the commission. Subject to the Court’s approval, the effective date of the amendments is January 1, 2016.
Proposed Amendments to the Rules on Certification of Paralegals
27 N.C.A.C. 1G, Section .0100, The Plan for Certification of Paralegals
Proposed amendments to the standards for certification of paralegals add the disciplinary suspension or revocation of an occupational or professional (nonlegal) license and the unauthorized practice of law to the list of conduct that may be considered by the board when determining whether an applicant is honest, trustworthy, and fit to be certified as a paralegal.
Proposed Amendments to the Trust Accounting Rule in the Rules of Professional Conduct
27 N.C.A.C. 2, Rules of Professional Conduct, Rule 1.15, Safekeeping Property
In the Spring, Summer, and Fall 2015 editions of the Journal, proposed amendments to Rule 1.15, Safekeeping Property (and its subparts, Rule 1.15-1, Rule 1.15-2, and Rule 1.15-3) and to Rule 8.5, Misconduct, were published. The proposed amendments add requirements that will facilitate the early detection of internal theft and errors, and adjust the recordkeeping requirements to accommodate “paperless” work environments. A new subpart, Rule 1.15-4, Alternative Trust Account Management Procedure for Multiple-Member Firm, was proposed to create a procedure whereby a firm with two or more lawyers may designate a firm principal to serve as the “trust account oversight officer” to oversee the administration of the firm’s general trust accounts in conformity with the requirements of Rule 1.15.
Proposed Amendments
Below are the rule amendments from the most recent meeting of the State Bar Council in July 2015.
Proposed Amendments to the Discipline and Disability Rules
27 N.C.A.C. 1B, Section .0100, Discipline and Disability of Attorneys
The proposed amendments to the Discipline and Disability Rules separate Rule .0114, Formal Hearing, into five shorter rules, to wit: Rule .0114, Proceedings before the Disciplinary Hearing Commission: General Rules Applicable to All Proceedings; Rule .0115, Proceedings before the Disciplinary Hearing Commission: Pleadings and Prehearing Procedure; Rule .0116, Proceedings before the Disciplinary Hearing Commission: Formal Hearing; Rule .0117, Proceedings before the Disciplinary Hearing Commission: Posttrial Motions; and Rule .0118, Proceedings before the Disciplinary Hearing Commission: Stayed Suspensions. In addition, the content of existing Rule .0114 is reorganized within this five-rule structure, and numerous substantive changes are proposed, including amendments to the provisions on mandatory scheduling conferences, settlement conferences, default, sanctions, and post hearing procedures relative to stayed suspensions. To make the proposed amendments more readable, only substantive changes are shown with underlining and strikethroughs; the amendments necessary to reorganize the content of Rule .0114 are not shown. Proposed 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 will be renumbered and cross references to other rules throughout the section will be renumbered accordingly.
.0114 Formal Hearing Proceedings before the Disciplinary Hearing Commission: General Rules Applicable to All Proceedings
(a) 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 causes 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) Service - Service of complaints and summonses and other documents or papers will be accomplished as set forth in the North Carolina Rules of Civil Procedure.
(c) Continuances – The chairperson of the hearing panel may continue any hearing for good cause shown. After a hearing has commenced, no continuances other than an adjournment from day to day will be granted except under extraordinary circumstances.
(d) 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 secretary 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 that last reported to the secretary by the defendant the address on record with the State Bar’s membership department.
(2) Notice of Appearance - When a defendant is represented by counsel an attorney in a proceeding, counsel 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 the counsel of record for such defendant defendant’s attorney of record in lieu of transmission to the defendant.
(e) 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 receipt by the clerk, and not the date of deposit in the mail, is determinative.
(f) 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.
(g) 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.
(h) 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 majority vote of the hearing panel.
.0115 Proceedings before the Disciplinary Hearing Commission: Pleadings and Prehearing Procedure
(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 causes 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) Complaint and Service – Complaints will be filed with the secretary. The counsel will file the complaint with the clerk of the commission. The secretary counsel will cause a summons and a copy of the complaint to be served upon the defendant, and thereafter a copy of the complaint will be delivered to the chairperson of the commission informing the chairperson of the date service on the defendant was effected 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 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.
(c) 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.
(d) 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 Committee and Date of Hearing – Within 20 days of the receipt of return of service of a complaint by the secretary, 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. Such notice will also contain the time and place determined by the chairperson for the hearing to commence. The commencement of the hearing will be initially scheduled not less than 90 nor more than 150 days from the date of service of the complaint upon the defendant, unless one or more subsequent complaints have been served on the defendant within 90 days from the date of service of the first or a preceding complaint. When one or more subsequent complaints have been served on the defendant within 90 days from the date of service of the first or a preceding complaint, the chairperson of the commission may consolidate the cases for hearing, and the hearing will be initially scheduled not less than 90 nor more than 150 days from the date of service of the last complaint upon the defendant. By agreement between the parties and with the consent of the chair, the date for the initial setting of the hearing may be set less than 90 days after the date of service on the defendant.
(e) 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.
(f) 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 be not 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 N.C. Rules of Civil Procedure.
(f) Default - Failure to file an answer admitting, denying or explaining the complaint or asserting the grounds for failing to do so, within the time limited or extended, will be grounds for entry of the defendant’s default and in such case the allegations contained in the complaint will be deemed admitted. The secretary will enter the defendant’s default when the fact of default is made to appear by motion of the counsel or otherwise. The counsel may thereupon apply to the hearing panel for a default order imposing discipline, and the hearing panel will thereupon enter an order, make findings of fact and conclusions of law based on the admissions, and order the discipline deemed appropriate. The hearing panel may, in its discretion, hear such additional evidence as it deems necessary prior to entering the order of discipline. For good cause shown, the hearing panel may set aside the secretary’s entry of default. 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.
(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 determined 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. If the panel rejects a proposed settlement, another hearing panel must be empaneled to try the case, unless all parties consent to proceed with the original panel. The parties may submit a proposed settlement to a second hearing panel, but the parties shall not have the right to request a third hearing panel if the settlement order 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.
(i) Pre-Hearing Conference - At the discretion of the chairperson of the hearing panel, and upon five days’ notice to parties, a conference may be ordered before the date set for commencement of the hearing for the purpose of obtaining admissions or otherwise narrowing the issues presented by the pleadings. Such conference may be held before any member of the panel designated by its chairperson, who shall have the power to issue such orders as may be appropriate. At any conference which may be held to expedite the orderly conduct and disposition of any hearing, there may be considered, in addition to any offers of settlement or proposals of adjustment, the following:
(1) the simplification of the issues;
(2) the exchange of exhibits proposed to be offered in evidence;
(3) the stipulation of facts not remaining in dispute or the authenticity of documents;
(4) the limitation of the number of witnesses;
(5) the discovery or production of data;
(6) such other matters as may properly be dealt with to aid in expediting the orderly conduct and disposition of the proceeding.
The chairperson may impose sanctions as set out in Rule 37(b) of the N.C. Rules of Civil Procedure against any party who willfully fails to comply with a prehearing order issued pursuant to this section.
(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 lists 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 N.C. Rules of Civil Procedure.
(7) Evidence or witnesses not included in the Stipulation on Prehearing Conference may be excluded from admission or consideration at the hearing.
(l) Pretrial 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 N.C. Rules of Civil Procedure.
(3) The nonmoving party shall have 10 days from the filing of the motion to respond. If the motion is served upon the nonmoving party by regular mail only, then the nonmoving 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 nonmoving 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 nonmoving party will run from the date of the filing of the notice.
(m) Continuance of Hearing Date - The initial hearing date as set by the chairperson in accordance with Rule .0115(f) above may be reset by the chairperson, and said initial hearing or reset hearing may be continued by the chairperson of the hearing panel for good cause shown.
.0116 Proceedings before the Disciplinary Hearing Commission: Formal Hearing
(a) Public Hearing - 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.
(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 that the defendant violated the Rules of Professional Conduct by clear, cogent, and convincing evidence.
(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.
(u) Orders - If the hearing panel finds that the charges of misconduct are not established by clear, cogent, and convincing evidence, it will enter an order dismissing the complaint. If the hearing panel finds that the charges of misconduct are established by clear, cogent, and convincing evidence, the hearing panel will enter an order of discipline. In either instance, the panel will file an order which will include the panel’s findings of fact and conclusions of law.
(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 secretary 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 secretary 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 then 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;
(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.
(y) Service of Orders - All reports and orders of the hearing panel 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 secretary. The copy to the defendant will be served by certified mail, return receipt requested or personal service.
A defendant who cannot, with due diligence, be served by certified mail or personal service shall be deemed served by the mailing of a copy of the order to the defendant’s last known address on file with the N.C. State Bar.
Service by mail shall be deemed complete upon deposit of the report or order enclosed in a postpaid, properly addressed wrapper in a post office or official depository under the exclusive care and custody of the United Sates Postal Service.
(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.
.0117 Proceedings before the Disciplinary Hearing Commission: Posttrial Motions
(1) Consent Orders After Trial - At any time after a disciplinary hearing and prior to the execution of the panel’s final order pursuant to Rule .0114(y) above, the panel may, with the consent of the parties, amend its decision regarding the findings of fact, conclusions of law, or the disciplinary sanction imposed.
(a) New Trials and Amendment of Judgments (Rule 59)
(1) As provided in Rule .0114(z)(2)(B) below, following a disciplinary hearing before the commission, eEither 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 served, in writing, on the chairperson of the hearing panel which heard the disciplinary case 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, permit the parties to present order oral argument.
(b) Relief from Judgment or Order (Rule 60)
(1) Following a disciplinary proceeding before the commission, either party may file a motion for relief from the final judgment or order, based on any of the grounds set out in Rule 60 of the North Carolina Rules of Civil Procedure.
(2) Motions made under Rule .0114(z)(2)(B) above will be made no later than one year after the effective date of the order from which relief is sought. Motions pursuant to this section will be heard and decided in the same manner as motions submitted pursuant to Rule .0114(z)(2) above.
(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 under Rule .0114(z)(2) above or Rule .0114(z)(3) above 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.
.0118 Proceedings before the Disciplinary Hearing Commission: Stayed Suspensions
(x) Stayed Suspensions - In any case in which a period of suspension is stayed upon compliance by the defendant with conditions, the commission will retain jurisdiction of the matter until all conditions are satisfied. If, during the 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 secretary specifying the violation and seeking an order requiring the defendant to show cause why the stay should not be lifted and the suspension activated for violation of the condition. The counsel will also serve a copy of any such motion upon the defendant. The secretary will promptly transmit the motion to the chairperson of the commission who, if he or she enters an order to show cause, will appoint a hearing panel as provided in Rule .0108(a)(2) of this subchapter, appointing the members of the hearing panel that originally heard the matter wherever practicable. The chairperson of the commission will also schedule a time and a place for a hearing and notify the counsel and the defendant of the composition of the hearing panel and the time and place for the hearing. After such a hearing, the hearing panel may enter an order lifting the stay and activating the suspension, or any portion thereof, and taxing the defendant with the costs, if it finds that the North Carolina State Bar has proven, by the greater weight of the evidence, that the defendant has violated a condition. If the hearing panel finds that the North Carolina State Bar has not carried its burden, then it will enter an order continuing the stay. In any event, the hearing panel will include in its order findings of fact and conclusions of law in support of its decision.
(a) Procedures - 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) Noncompliance with conditions
(A) 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.
(B) 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.
(C) 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.
(D) 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.
(i) 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.
(ii) 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.
(iii) 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.
(iv) 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 or additional conditions with which the defendant is required to comply during the stayed suspension.
(E) 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.
(F) 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 remain 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 commission and served upon the counsel contemporaneously.
(2)The motion must identify each condition the order of discipline requires the defendant to meet to be eligible for a stay and must explain 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. Whenever practicable, thechairperson 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 section, 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 hearing panel must enter an order including findings of fact and conclusions of law. The hearing panel may impose modified 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 hearing panel may tax costs and administrative fees in connection with the motion.
.0115 .0119 Effect of a Finding of Guilt in Any Criminal Case
(a) Criminal Offense Showing Professional Unfitness - Any member who has been found guilty of or has tendered and has had accepted a plea of guilty or no contest to a criminal offense showing professional unfitness in any state or federal court, may be suspended from the practice of law as set out in Rule .0115(d) below.
(a) (b) Conclusive Evidence of Guilt - A certified copy certificate of the conviction of an attorney for any crime or a certified copy certificate of the a judgment entered against an attorney where a plea of guilty, nolo contendere, 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 and serve upon the member a motion for interim suspension accompanied by proof of the conviction, plea, or verdict;
(2) The member shall have 10 days in which to file a response;
(3) The chairperson 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.
(c) Discipline Based on Criminal Conviction - Upon the receipt of a certified copy of a jury verdict showing a verdict of guilty, a certificate of the conviction of a member of a criminal offense showing professional unfitness, or a certificate of the judgment entered against an attorney where a plea of nolo contendere or no contest has been accepted by a court, the Grievance Committee, at its next meeting following notification of the conviction, may authorize the filing of a complaint if one is not pending. In the hearing on such complaint, the sole issue to be determined will be the extent of the discipline to be imposed. The attorney may be disciplined based upon the conviction without awaiting the outcome of any appeals of the conviction or judgment, unless the attorney has obtained a stay of the disciplinary action as set out in G.S. §84-28(d1). Such a stay shall not prevent the North Carolina State Bar from proceeding with a disciplinary proceeding against the attorney based upon the same underlying facts or events that were the subject of the criminal proceeding.
(d) Interim Suspension - Upon the receipt of a certificate of conviction of a member of a criminal offense showing professional unfitness, or a certified copy of a plea of guilty or no contest to such an offense, or a certified copy of a jury verdict showing a verdict of guilty to such an offense, the commission chairperson may, in the chairperson’s discretion, enter an order suspending the member pending the disposition of the disciplinary proceeding against the member before the commission. The provisions of Rule .0124(c) of this subchapter will apply to the suspension.
(e) Criminal Offense Which Does Not Show Professional Unfitness - Upon the receipt of a certificate of conviction of a member of a criminal offense which does not show professional unfitness, or a certificate of judgment against a member upon a plea of no contest to such an offense, or a certified copy of a jury verdict showing a verdict of guilty to such an offense, the Grievance Committee will take whatever action, including authorizing the filing of a complaint, it may deem appropriate. In a hearing on any such complaint, the sole issue to be determined will be the extent of the discipline to be imposed. The attorney may be disciplined based upon the conviction without awaiting the outcome of any appeals of the conviction or judgment, unless the attorney has obtained a stay of the disciplinary action as set out in G.S. §84-28(d1). Such a stay shall not prevent the North Carolina State Bar from proceeding with a disciplinary proceeding against the attorney based upon the same underlying facts or events that were the subject of the criminal proceeding.
.0116 .0120 Reciprocal Discipline & Disability Proceedings
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[Renumbering remaining rules in section and correcting cross references to other rules throughout the section accordingly.]
Proposed Amendments to the Rules and Regulations Governing the Administration of the CLE Program
27 N.C.A.C. 1D, Section .1500, Rules Governing the Administration of the continuing Legal Education Program; Section .1600, Regulations Governing the Administration of the Continuing Legal Education Program
The proposed amendments to Rule .1518 require a sponsor of a Professionalism for New Attorneys Program to be an accredited sponsor. The proposed amendments to Rule .1602 allow credit to be granted to private/in-house CLE programs concerning professional responsibility and professional negligence/malpractice presented live by providers that are not affiliated with the host law firm or law department and that have been pre-qualified to present such programs.
.1518 Continuing Legal Education Program
(a) Annual Requirement.
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(b) Carryover.
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(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)...
(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.…To be approved as a PNA Program, the program must be provided by an accredited sponsor 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 at least 45 days prior to the presentation. of a PNA Program, a sponsor must submit a detailed description of the program to the board for approval. Accredited sponsors shall not be exempt from the prior submission requirement and A sponsor may not advertise a PNA Program until approved by the board. PNA Programs shall be specially designated by the board and no course that is not so designated shall satisfy the PNA Program requirement for new members.
(2) Evaluation ...
(d) Exemptions from Professionalism Requirement for New Members.
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.1602 Course Content Requirements
(a) Professional Responsibility Courses on Stress, Substance Abuse, Chemical Dependency, and Debilitating Mental Conditions
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(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) those programs exempted by the board under Rule .1501(c)(10) of this subchapter;
(2) or 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.
Proposed Amendments to the Standards for the Estate Planning and Probate Law Specialty
27 N.C.A.C. 1D, Section .2300, Certification Standards for the Estate Planning and Probate Law Specialty
The proposed amendments to the standards for the estate planning specialty eliminate the subject matter listings for related-field CLE and for the exam and explain that the listings are posted on the specialization program’s website.
.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 -
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(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 the designated related fields areas. A list of the topics that qualify as related-field CLE shall be maintained by the board on its official website of taxation, business organizations, real property, family law, elder law, Medicaid planning, and guardianship.
(d) Peer Review - An applicant must make a satisfactory showing of qualification through peer review.
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(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 in the following topics of estate planning and probate.: A list of the topics covered on the exam shall be maintained by the board on its official website.
(A) federal and North Carolina gift taxes;
(B) federal estate tax;
(C) North Carolina inheritance tax;
(D) federal and North Carolina fiduciary income taxes;
(E) federal and North Carolina income taxes as they apply to the final returns of the decedent and his or her surviving spouse;
(F) North Carolina law of wills and trusts;
(G) North Carolina probate law, including fiduciary accounting;
(H) federal and North Carolina income and gift tax laws as they apply to revocable and irrevocable inter vivos trusts:
(I) North Carolina law of business organizations, family law, and property law as they may be applicable to estate planning transactions;
(J) federal and North Carolina tax law applicable to partnerships and corporations (including S corporations) which may be encountered in estate planning and administration.
Proposed Standards for a New Specialty in Utilities Law
27 N.C.A.C. 1D, Section .3200, Certification Standards for Utilities Law Specialty
A new specialty in utilities law is proposed by the Board of Legal Specialization upon its determination that representation of clients in utilities law matters requires knowledge of the law, procedures, and forums unique to this practice area. This proposed new section of the rules for the specialization program sets forth standards for the new specialty which are comparable to the standards for the other areas of specialty certification. Because this is an entirely new section, bold, underlined print is not used to identify new material.
.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.
.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.
.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.”
.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.
.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.
.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.
.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.
Proposed Amendment to The Plan for Paralegal Certification
27 N.C.A.C. 1G, Section .0200, Rules Governing Continuing Paralegal Education
The proposed amendment to the rules on paralegal continuing education eliminates the $75 accreditation fee for any continuing paralegal education program that is presented without charge to attendees.
.0204 Fees
Accredited Program Fee – Sponsors seeking accreditation for a particular program (whether or not the sponsor itself is accredited by the North Carolina State Bar Board of Continuing Legal Education), that has not already been approved or accredited by the North Carolina State Bar Board of Continuing Legal Education, shall pay a non-refundable fee of $75.00. However, no fee shall be charged for any program that is offered without charge to attendees. The All programs program must be approved in accordance with Rule .0203(1). An accredited program may be advertised by the sponsor in accordance with Rule .0203(2).
