Proposed Rule Amendments

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 June 30, 2010.

Below are the rule amendments from the most recent meeting of the State Bar Council in April 2010.

Proposed Amendment to Membership Requirements

27 N.C.A.C. 1A, Section .0200, Membership – Annual Membership Fees

The proposed amendment requires a State Bar member to update the member's address, including e-mail address, each year.

Amendment Pending Approval of the Supreme Court

.0202 Register of Members

(a) Initial Registration with State Bar.

...

(d) Updating Membership Information.

Each year on or before July 1, every member shall provide or verify the member's current name, mailing address, and e-mail address.

Proposed Amendment to Eliminate a Standing Committee of the Council

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

The Justice System Committee of the State Bar Council has been defunct for many years. The proposed amendment would eliminate this standing committee of the council.

.0701 Standing Committees and Boards

(a) Standing Committees. Promptly after his or her election, the president shall appoint members to the standing committees identified below to serve for one year beginning January 1 of the year succeeding his or her election. ...

(1) Executive Committee.

...

(6) Justice System Committee. It shall be the duty of the Justice System Committee to assist the council in identifying and advancing the appropriate role of the State Bar in connection with initiatives, programs, legislation and other actions intended to improve access to justice, simplify the law and judicial procedures, and enhance the justice system and the public's confidence in that system; to consider means and methods of enhancing the degree of professionalism exhibited in the practice and conduct of the lawyers of this State; and to perform such other duties and consider such other matters as the council or the president may designate.

(6) ~~(7)~~ Legal Assistance for Military Personnel (LAMP) Committee.

...

[Renumbering remaining paragraphs]

...

Proposed Amendment to Model Bylaws for Judicial District Bars

27 N.C.A.C. 1A, Section .1000, Model Bylaws for Use by Judicial District Bars

The proposed amendment to the model bylaw incorporates the statutory requirement (N.C. Gen. Stat. A784-18.1(b)) that thirty (30) days notice be given of any meeting at which there will be a vote on mandatory district bar dues.

.1007 Meetings

(a) Annual meetings:

...

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

(d) ~~(c)~~ Quorum:

...

Proposed Amendment to the Rules Governing the Practical Training of Law Students

27 N.C.A.C. 1C, Section .0200, Rules Governing the Practical Training of Law Students

The proposed amendment will authorize the identification of a law student practicing under the auspices of the rules on a business card issued by the supervising lawyer provided the student's status as a nonlawyer is affirmatively disclosed.

.0207 Use of Student's Name

(a) A legal intern's name may properly

(1)...

(2) ...; and

(3) be printed on a business card provided the name of the supervising attorney also appears on the business card and there appears below the legal intern's name a clear identification that the legal intern is certified under these rules. An appropriate designation is "Certified Legal Intern under the Supervision of [supervising attorney]."

(b) A student's name may not appear

~~(1)~~ on the letterhead of a supervising attorney, legal aid clinic, or government agency,.

~~(2) on a business card bearing the name of a supervising attorney, legal aid clinic, or government agency; or~~

~~(3) on a business card identifying the legal intern as certified under these rules.~~

Proposed Amendments to the Rules and Regulations Governing the CLE Program

27 N.C.A.C. 1D, Section .1500, Rules Governing the Administration of the Continuing Legal Education Program, and Section .1600, Regulations Governing the Administration of the Continuing Legal Education Program

The proposed amendments will do the following: (1) require a lawyer to be a nonresident for at least six months in a given year to qualify for the nonresident exemption from mandatory CLE; (2) increase the number of days for submission and for processing of a request for approval of a course or program; and (3) permit the Board of Continuing Legal Education to waive interest on delinquent payments of sponsor fees upon a showing of good cause.

.1517 Exemptions

(a) Notification of Board.

...

(d) Nonresidents. Any active member residing outside of North Carolina who does not practice in North Carolina for at least six (6) months and does not represent North Carolina clients on matters governed by North Carolina law shall be exempt from the requirements of these rules.

(e) Law Teachers.

...

.1520 Accreditation of Sponsors and Programs

(a) Accreditation of Sponsors.

(b) Presumptive Approval for Accredited Sponsors.

(1) ...

(2) The board may evaluate a program presented by an accredited sponsor and, upon a determination that the program does not satisfy the requirements of Rule .1519, notify the accredited sponsor that any presentation of the same program, the date for which was not included in the announcement required by Rule .1520(e) below, is not approved for credit. Such notice shall be sent by the board to the accredited sponsor within 30 45 days after the receipt of the announcement. The accredited sponsor may request reconsideration of such a decision by submitting a letter of appeal to the board within 15 days of receipt of the notice of disapproval. The decision by the board on an appeal is final.

...

(e) Program Announcements of Accredited Sponsors. At least 30 50 days prior to the presentation of a program, an accredited sponsor shall file an announcement, on a form prescribed by the board, notifying the board of the dates and locations of presentations of the program and the sponsor's calculation of the CLE credit hours for the program.

(f) ...

.1601 General Requirements for Course Approval

(a) Approval.

CLE activities may be approved upon the written application of a sponsor, other than an accredited sponsor, or of an active member on an individual program basis. An application for such CLE course approval shall meet the following requirements:

(1) If advance approval is requested by a sponsor, the application and supporting documentation, including one substantially complete set of the written materials to be distributed at the course or program, shall be submitted at least 45 50 days prior to the date on which the course or program is scheduled. If advance approval is requested by an active member, the application need not include a complete set of written materials.

(2) In all other cases, the application and supporting documentation shall be submitted by the sponsor not later than 45 50 days after the date the course or program was presented or prior to the end of the calendar year in which the course or program was presented, whichever is earlier. Active members requesting credit must submit the application and supporting documentation within 45 50 days after the date the course or program was presented or, if the 45 50 days have elapsed, as soon as practicable after receiving notice from the board that the course accreditation request was not submitted by the sponsor.

(3)

...

(b) Course Quality and Materials. .... Any sponsor, including an accredited sponsor, who expects to conduct a CLE activity for which suitable written materials will not be made available to all attendees may obtain approval for that activity only by application to the board at least 45 50 days in advance of the presentation showing why written materials are not suitable or readily available for such a program.

...

(e) Records. Sponsors, including accredited sponsors, shall within 30 days after the course is concluded

(1) ...

(2) remit to the board the appropriate sponsor fee; and, if payment is not received by the board within 30 days after the course is concluded, interest at the legal rate shall be incurred; provided, however, the board may waive such interest upon a showing of good cause by a sponsor; and

(3) ...

Proposed Amendments to the Rules for Prepaid Legal Services Plans

27 N.C.A.C. 1E, Section .0300, Rules Concerning Prepaid Legal Services Plans

The proposed amendments authorize a member of the State Bar's legal staff to review and pass upon initial applications for registration of a prepaid legal services plan.

.0304 Registration Procedures

To register with the North Carolina State Bar, a prepaid legal services plan must comply with all of the following procedures for initial registration:

(a) ...

(c) The Authorized Practice Committee ("committee"), as a duly authorized standing committee of the North Carolina State Bar Council, shall ~~review the initial~~ oversee the registration ~~statements submitted by each~~ of prepaid legal services ~~plan~~ plans in accordance with these rules. to determine if the plan, as represented in its registration statement, meets the definition of a prepaid legal services plan as defined in Rule .0303, and therefore should be registered in North Carolina. The committee may appoint a subcommittee to conduct an initial review and to recommend to the committee whether the plan meets the definition of a prepaid legal services plan. The committee shall also establish any deadlines by when registrations may be submitted for review and any additional, necessary rules and procedures regarding the initial and annual registrations, and the revocation of registrations, of prepaid legal services plans.

.0305 Registration

Counsel will ~~The committee shall~~ review the plan's initial registration statement ~~form~~ to determine whether the registration statement is complete and the plan, as described in the registration statement, meets the definition of a prepaid legal services plan and otherwise satisfies the requirements for registration provided by Rule .0304. If, in the opinion of counsel, the plan, ~~as submitted,~~ clearly meets the definition and the registration statement otherwise satisfies the requirements for registration, ~~the committee shall instruct~~ the secretary will to issue a certificate of registration to the plan's sponsor. If, in the opinion of counsel, the plan does not meet the definition, or otherwise fails to satisfy the requirements for registration, counsel will inform the plan's sponsor that the registration is not accepted and explain any deficiencies ~~the secretary shall advise the plan's sponsor of the committee's decision and the reasons therefore~~. Upon notice that the plan's registration has not been accepted, the plan sponsor may resubmit an amended plan registration form or request a hearing before the committee pursuant to Rule .0313 below. Counsel will provide a report to the committee each quarter identifying the plans submitted and the registration decision made by counsel.

Proposed Amendments to the Rules of Professional Conduct

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

The proposed amendment to the Preamble of the Rules of Professional Conduct adds a statement urging lawyers not to discriminate in their practices on the basis of race, gender, national origin, religion, age, disability, sexual orientation, or gender identity. The Preamble is the introduction to the Rules and is never the basis for professional discipline.

The proposed amendments to Rule 8.3, Reporting Professional Misconduct, exempts a lawyer acting as a mediator from reporting professional misconduct if information relative to the misconduct is protected from disclosure by the North Carolina Supreme Court Standards of Professional Conduct for Mediators.

0.1 Preamble: A Lawyer's Responsibilities

[1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.

[2] ...

[6] While employed or engaged in a professional capacity, a lawyer should not discriminate on the basis of a person's race, gender, national origin, religion, age, disability, sexual orientation, or gender identity. This responsibility of non-discrimination does not prohibit a lawyer's advocacy on any issue.

[7] ~~[6]~~ ....

[Renumbering remaining paragraphs]

Rule 8.3 Reporting Professional Misconduct

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the North Carolina State Bar or the court having jurisdiction over the matter.

(b) ...

(e) A lawyer who is serving as a mediator and who is subject to the North Carolina Supreme Court Standards of Professional Conduct for Mediators (the Standards) is not required to disclose information learned during a mediation if the Standards do not allow disclosure. If disclosure is allowed by the Standards, the lawyer is required to report professional misconduct consistent with the duty to report set forth in paragraph (a).

Comment

[1] ...

[7] The North Carolina Supreme Court has adopted Standards of Professional Conduct for Mediators (the Standards) to regulate the conduct of certified mediators and mediators in court-ordered mediations. Mediators governed by the Standards are required to keep confidential the statements and conduct of the parties and other participants in the mediation, with limited exceptions, to encourage the candor that is critical to the successful resolution of legal disputes. Paragraph (e) recognizes the concurrent regulatory function of the Standards and protects the confidentiality of the mediation process. Nevertheless, if the Standards allow disclosure, a lawyer serving as a mediator who learns of or observes conduct by a lawyer that is a violation of the Rules of Professional Conduct is required to report consistent with the duty set forth in paragraph (a) of this Rule. In the event a lawyer serving as a mediator is confronted with professional misconduct by a lawyer participating in a mediation that may not be disclosed pursuant to the Standards, the lawyer/mediator should consider withdrawing from the mediation or taking such other action as may be required by the Standards. See, e.g., N.C. Dispute Resolution Commission Advisory Opinion 10-16 (February 26, 2010).

Editor's Note:

Amendments to the IOLTA Rules Approved by the Supreme Court on January 28, 2010.

27 N.C.A.C. 1D, Section .1300, Rules Governing the Administration of the Plan for Interest on Lawyers' Trust Accounts

The rule amendments implementing interest rate comparability for the IOLTA program were approved by the Supreme Court on January 28, 2010. After submitting the amendments to the Office of Administrative Hearings for incorporation into the North Carolina Administrative Code, the State Bar was advised that formatting rules for the code do not permit a rule to be designated with a hyphenated number. Therefore, Rule .1316-1 will be renumbered Rule .1317 and all subsequent rules in this section of subchapter 1D will be renumbered.