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 December 30, 2014.

Amendments Approved by the Supreme Court

At a conference on October 2, 2014, the North Carolina Supreme Court approved the following amendments to the rules of the North Carolina State Bar:

Amendments to the Procedures for Reinstatement from Inactive Status and Administrative Suspension

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

The amendments eliminate the three different CLE requirements for reinstatement from inactive status and administrative suspension in favor of one standard that applies to all petitioners for reinstatement without regard to when the petitioner was transferred to inactive or suspended status; make March 10, 2011, the effective date for the requirement of passage of the bar exam if a petitioner was administratively suspended for seven years or more; and permit a member to take up to 6.0 CLE credits per year online to satisfy the requirements for reinstatement from inactive status and administrative suspension.

Amendment to the Rules 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

The amendment requires a lawyer to be a nonresident for at least six consecutive months in a given year to qualify for the nonresident exemption from mandatory CLE.

Amendments to the Standards for Certification as a Specialist

27 N.C.A.C. 1D, Section .2500, Certification Standards for the Criminal Law Specialty, and Section .2600, Certification Standards for the Immigration Law Specialty

The amendments to the standards for the criminal law specialty reduce the number of opposing counsel and judges that must be listed as peer references on an application for certification in criminal law. The amendments to the standards for the immigration law specialty clarify that CLE courses on topics related to immigration law may be used to satisfy the CLE requirements for certification and recertification, and require four peer references from lawyers or judges who have substantial experience in immigration law.

Amendments to the Rules of Professional Conduct

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

The amendments to 13 North Carolina Rules of Professional Conduct address issues relative to outsourcing, lawyer mobility, and advances in technology. An executive summary of the rule amendments can be viewed in the Spring 2014 edition of the Journal and on the State Bar website. The following rules were amended:

Rule 1.0, Terminology
Rule 1.1, Competence
Rule 1.4, Communication
Rule 1.6, Confidentiality of Information
Rule 1.17, Sale of a Law Practice
Rule 1.18, Duties to Prospective Client
Rule 4.4, Respect for Rights of Third Persons
Rule 5.3, Responsibilities Regarding Nonlawyer Assistance
Rule 5.5, Unauthorized Practice of Law; Multijurisdictional Practice of Law
Rule 7.1, Communications Concerning a Lawyer’s Services
Rule 7.2, Advertising
Rule 7.3, Solicitation of Clients
Rule 8.3, Disciplinary Authority; Choice of Law

Amendments Pending Approval by the Supreme Court

At its meetings on July 25, 2014, and October 24, 2014, the council of the North Carolina State Bar voted to adopt the following rule amendments for transmission to the North Carolina Supreme Court for approval (for the complete text see the Fall 2014 edition of the Journal or visit the State Bar website):

Proposed Amendments to the Discipline and Disability Rules

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

The proposed amendments change the name of the Trust Accounting Supervisory Program to the Trust Account Compliance Program. There are no changes to the substance of the rule other than the name change.

Proposed Amendments to the Rules 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

The proposed amendments change the name of the mandatory CLE program for new lawyers from “Professionalism for New Admittees” to “Professionalism for New Attorneys” (PNA program), and permit the Board of Continuing Education to approve alternative timeframes for the PNA program, thereby giving CLE providers more flexibility to be creative in their presentations of the program.

Proposed Amendments to Certification Standards for the Juvenile Delinquency Subspecialty

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

The proposed amendments reduce the number of practice hours required to meet the substantial involvement standard for the juvenile delinquency subspecialty and allow for additional forms of practice equivalents.

Proposed Amendments to the Standards for Certification of Paralegals

27 N.C.A.C. 1G, Section .0100, The Plan for Certification of Paralegals

The proposed amendments permit a degree from a foreign educational institution to satisfy part of the educational requirements for certification if the foreign degree is evaluated by a qualified credential evaluation service and found to be equivalent to an associate’s or bachelor’s degree from an accredited US institution.

Proposed Amendments to the Rules of the Board of Law Examiners

Rules Governing Admission to the Practice of Law in the State of North Carolina, Section .0100, Organization

The proposed amendments to Rules Governing Admission to the Practice of Law change the street and mailing address listed for the offices of the Board of Law Examiners to reflect the board’s recent move to a new location.

Proposed Amendments
Below are the rule amendments from the most recent meeting of the State Bar Council in October 2014.


Proposed Amendments to the Rules Governing the Board of Law Examiners

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

 

The proposed amendments will allow graduates of law schools that are not accredited by the American Bar Association to qualify for admission to the North Carolina State Bar under certain circumstances.

 

.0105 Approval of Law Schools

 

Every applicant for admission to the N.C. State Bar must meet the requirements set out in at least one of the numbered paragraphs below:

 

 

(4) The applicant holds an LL.B. or J.D. degree from a law school that was approved for licensure purposes in another state of the United States or the District of Columbia, was licensed in such state or district, and, at the time of the application for admission to the North Carolina State Bar, has been an active member in good standing of the bar in that state or district in each of the ten years immediately preceding application.


Proposed Amendments to The Plan of Legal Specialization

27 N.C.A.C. 1D, Section .1700, The Plan of Legal Specialization

The proposed amendments will eliminate the possibility of one person serving as board chair for an excessive period of time and will enable a logical succession of the chairmanship among the members of the board.

 

.1709 Succession

 

Each member of the board shall be entitled to serve for one full three-year term and to succeed himself or herself for one additional three-year term. Thereafter, no person may be reappointed without having been off of the board for at least three years: provided, however, that any member who is designated chairperson at the time that the member’s second three-year term expires may serve one additional year on the board three-year term in that the capacity of chair.


Proposed Amendments to the Workers’ Compensation Law Specialty Certification Standards

27 N.C.A.C. 1D, Section .2700, Certification Standards for Workers’ Compensation Law Specialty

 

The proposed amendments will add insurance as a related field in which a lawyer may earn CLE credits for certification and recertification.

 

.2705 Standards for Certification as a Specialist in Workers’ Compensation Law

 

Each applicant for certification as a specialist in workers’ compensation law shall meet the minimum standards set forth in Rule .1720 of this subchapter. In addition, each applicant shall meet the following standards for certification in workers’ compensation law:

 

(a) Licensure and Practice - ...

 

(b) Substantial Involvement - ...

 

(c) Continuing Legal Education - An applicant must earn no less than 36 hours of accredited continuing legal education (CLE) credits in workers’ compensation law and related fields during the three years preceding application, with not less than six credits earned in courses on workers’ compensation law in any one year. The remaining 18 hours may be earned in courses on workers’ compensation law or any of the following related fields: civil trial practice and procedure; evidence; insurance; ...

 

(d) Peer Review - ...

 

.2706 Standards for Continued Certification as a Specialist

 

The period of certification is five years... [E]ach 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 - ...

 

(b) Continuing Legal Education - The specialist must earn no less than 60 hours of accredited continuing legal education (CLE) credits in workers’ compensation law and related fields during the five years preceding application. Not less than six credits may be earned in any one year. Of the 60 hours of CLE, at least 30 hours shall be in workers’ compensation law, and the balance may be in the following related fields: civil trial practice and procedure; evidence; insurance; ...

 

(c) Peer Review - ...


Proposed Amendments to the Rules of Professional Conduct To Address Bullying and Intimidation

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

 

The proposed amendments clarify that the term “tribunal” encompasses any proceeding of a court, including depositions, and add comments to Rule 3.5, Rule 4.4, and Rule 8.4 to specify that conduct that constitutes bullying and attempts to intimidate are prohibited by existing provisions of the Rules of Professional Conduct.

 

Rule 1.0: Terminology

 

(a) ...

 

(n) “Tribunal” denotes a court, an arbitrator in a binding arbitration proceeding, or a legislative body, administrative agency, or other body acting in an adjudicative capacity. The term encompasses any proceeding conducted in the course of a trial or litigation, or conducted pursuant to the tribunal’s rules of civil or criminal procedure or other relevant rules of the tribunal, such as a deposition, arbitration, or mediation. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, may render a binding legal judgment directly affecting a party’s interests in a particular matter.

 

Rule 3.5 Impartiality and Decorum of the Tribunal

 

(a) A lawyer shall not:

 

(1) ...

 

(4) engage in conduct intended to disrupt a tribunal, including:

 

(A) failing to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving opposing counsel timely notice of the intent not to comply;

 

(B) engaging in undignified or discourteous conduct that is degrading to a tribunal; or

 

(C) intentionally or habitually violating any established rule of procedure or evidence; or

 

(5) ...

 

(b) ...

 

Comment

 

[1] ...

 

[10] As professionals, lawyers are expected to avoid disruptive, undignified, discourteous, and abusive behavior. Therefore, the prohibition against conduct intended to disrupt a tribunal applies to conduct that does not serve a legitimate goal of advocacy or a requirement of a procedural rule and includes angry outbursts, insults, slurs, personal attacks, and unfounded personal accusations as well as to threats, bullying, and other attempts to intimidate or humiliate judges, opposing counsel, litigants, witnesses, or court personnel. Zealous advocacy does not rely upon such tactics and is never a justification for such conduct. This conduct is prohibited both in open court and in ancillary proceedings conducted pursuant to the authority of the tribunal (e.g., depositions). See comment [11], Rule 1.0(n). Similarly, insults, slurs, threats, personal attacks, and groundless personal accusations made in documents filed with the tribunal are also prohibited by this Rule. “Conduct of this type breeds disrespect for the courts and for the legal profession. Dignity, decorum, and respect are essential ingredients in the proper conduct of a courtroom, and therefore in the proper administration of justice.” Atty. Grievance Comm’n v. Alison, 565 A.2d 60, 666 (Md. 1989). See also Rule 4.4(a)(prohibiting conduct that serves no substantial purpose other than to embarrass, delay, or burden a third person) and Rule 8.4(d)(prohibiting conduct prejudicial to the administration of justice).


[10]
[11] The duty to refrain from disruptive conduct applies to any proceeding of a tribunal, including a deposition or mediation. See Rule 1.0(m)(n).

 

Rule 4.4 Respect for Rights of Third Persons

 

(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

 

(b) ...

 

Comment

 

[1] Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons. It is impractical to catalogue all such rights, but they include legal restrictions on methods of obtaining evidence from third persons and unwarranted intrusions into privileged relationships, such as the client-lawyer relationship.

 

[2] Threats, bullying, harassment, insults, slurs, personal attacks, unfounded personal accusations generally serve no substantial purpose other than to embarrass, delay, or burden others and violate this rule. Conduct that serves no substantial purpose other than to intimidate, humiliate, or embarrass lawyers, litigants, witnesses, or other persons with whom a lawyer interacts while representing a client also violates this rule. See also Rule 3.5(a) (prohibiting conduct intended to disrupt a tribunal) and Rule 8.4(d)(prohibiting conduct prejudicial to the administration of justice).


[2]
[3] ...

[3] [4] ...

 

Rule 8.4 Misconduct

 

It is professional misconduct for a lawyer to:

 

(a) ...

 

(d) engage in conduct that is prejudicial to the administration of justice;

 

(e) ...

 

Comment

 

[1] ...

 

[4] A showing of actual prejudice to the administration of justice is not required to establish a violation of paragraph (d). Rather, it must only be shown that the act had a reasonable likelihood of prejudicing the administration of justice. For example, in State Bar v. DuMont, 52 N.C. App. 1, 277 S.E.2d 827 (1981), modified on other grounds, 304 N.C. 627, 286 S.E.2d 89 (1982), the defendant was disciplined for advising a witness to give false testimony in a deposition even though the witness corrected his statement prior to trial. The phrase “conduct prejudicial to the administration of justice” in paragraph (d) should be read broadly to proscribe a wide variety of conduct, including conduct that occurs outside the scope of judicial proceedings. In State Bar v. Jerry Wilson, 82 DHC 1, for example, a lawyer was disciplined for conduct prejudicial to the administration of justice after forging another individual’s name to a guarantee agreement, inducing his wife to notarize the forged agreement, and using the agreement to obtain funds.

 

[5] Threats, bullying, harassment, and other conduct serving no substantial purpose other than to intimidate, humiliate, or embarrass anyone associated with the judicial process including judges, opposing counsel, litigants, witnesses, or court personnel violate the prohibition on conduct prejudicial to the administration of justice. When directed to opposing counsel, such conduct tends to impedes opposing counsel’s ability to represent his or her client effectively. Comments “by one lawyer tending to disparage the personality or performance of another...tend to reduce public trust and confidence in our courts and, in more extreme cases, directly interfere with the truth-finding function by distracting judges and juries from the serious business at hand.” State v. Rivera, 350 N.C. 285, 291, 514 S.E.2d 720, 723 (1999). See Rule 3.5, cmt. [10] and Rule 4.4, cmt. [2].

[5]

 

[6]...

 

[re-numbering remaining paragraphs]

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