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.

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 September 30, 2009.

Below are the rule amendments from the most recent meeting of the State Bar Council

Proposed Amendments to the Rules on Discipline and Disability

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

Amendment Pending Approval of the Supreme Court

The proposed amendments provide for enhanced disciplinary sanctions as a function of prior discipline. The proposed amendments were originally published in the Winter 2008 edition of the Journal in a proposed new rule (Rule .0131). Upon reconsideration, it was determined that rewording would improve the clarity of the proposed amendments and that the proposed amendments should be placed within the two existing rules on the range of discipline that may be imposed by the Grievance Committee and by the Disciplinary Hearing Commission.

.0113 Proceedings before the Grievance Committee

(a) ...

(k) Admonitions, Reprimands, and Censures

...

~~(k)~~ (l) Effect of Prior Discipline.

(1) If a member is found culpable of professional misconduct in any proceeding in which discipline may be imposed and the member has a record of one or two prior impositions of discipline, the degree of discipline imposed in the current proceeding shall be greater than that imposed in the immediate prior proceeding unless discipline was last imposed more than six years prior to the current proceeding or the offense for which discipline was last imposed was so inconsequential that imposing greater discipline in the current proceeding would be manifestly unjust.

(2) If a member is found culpable of professional misconduct in any proceeding in which discipline may be imposed and the member has a record of three or more prior impositions of discipline within the past six years, the degree of discipline in the current proceeding shall be no less than a suspension unless the mitigating circumstances are so compelling as to warrant a lesser degree of discipline.

(3) Rule .0115(a) and (b) notwithstanding, a record of discipline is not a prerequisite to the imposition of any appropriate form of discipline, including disbarment, as authorized by N.C. Gen. Stat. A7A084-28 and Chapter 1B of these rules.

~~(l)~~ (m) Procedures for Admonitions and Reprimands

...

[Re-lettering remaining paragraphs.]

.0114 Formal Hearing

(a) ...

...

(x) Effect of Prior Discipline.

(1) If a member is found culpable of professional misconduct in any proceeding in which discipline may be imposed and the member has a record of one or two prior impositions of discipline, the degree of discipline imposed in the current proceeding shall be greater than that imposed in the immediate prior proceeding unless discipline was last imposed more than six years prior to the current proceeding or the offense for which discipline was last imposed was so inconsequential that imposing greater discipline in the current proceeding would be manifestly unjust.

(2) If a member is found culpable of professional misconduct in any proceeding in which discipline may be imposed and the member has a record of three or more prior impositions of discipline within the past six years, the degree of discipline in the current proceeding shall be no less than a suspension unless the mitigating circumstances are so compelling as to warrant a lesser degree of discipline.

(3) Rule .0115(a) and (b) notwithstanding, a record of discipline is not a prerequisite to the imposition of any appropriate form of discipline, including disbarment, as authorized by N.C. Gen. Stat. A7A084-28 and Chapter 1B of these rules.

~~(x)~~ (y) In any case ...

[Re-lettering remaining paragraphs.]

Proposed Amendments to the Rules on Judicial District Bars

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

The proposed amendments provide that judicial district bar dues, like State Bar dues, are not payable during the year of admission to the State Bar by examination, and that lawyers on active military duty are exempt. To avoid undermining the current fiscal year budgets of the various judicial district bars, the proposed amendments will not go into effect for a particular judicial district until the first full fiscal year following the adoption.

.0902 Annual Membership Fee

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

(a) Notice to State Bar...

(e) Members Subject to Assessment; No Proration; Exceptions. Only those lawyers who are active members of a judicial district bar may be assessed an annual membership fee. No part of the annual membership fee shall be prorated or apportioned to fractional parts of the year, and no part of the membership fee shall be waived for any reason with the following exceptions:

(1) [Effective as of a judicial district bar's first full fiscal year following adoption of this amendment.] A lawyer licensed to practice law in North Carolina for the first time by examination is exempt from payment of the annual membership fee for the judicial district during the fiscal year in which the lawyer was admitted to practice law;

(2) [Effective as of a judicial district bar's first full fiscal year following adoption of this amendment.] A member serving in the armed forces, whether in a legal or nonlegal capacity, is exempt from payment of the annual membership fee for any fiscal year in which the member is on active duty in the military; and

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

(f) Hardship Waivers...

Proposed Amendments to the Plan for Certification of Paralegals

27 N.C.A.C. 1G, Section .0100, The Plan for Certification of Paralegals, and Section .0200, Continuing Paralegal Education

Amendment Pending Approval of the Supreme Court

Recommended by the Board of Paralegal Certification, the proposed amendments make the following changes to the rules governing the State Bar's program to certify paralegals: (1) recognize that a juris doctor degree from an ABA-accredited law school satisfies the educational requirements for certification; (2) substitute the correct names for the organizations formerly known as the North Carolina Academy of Trial Advocates and the North Carolina Bar Association Legal Assistants Division; and (3) prohibit continuing paralegal education (CPE) credit for self-study except for courses taken online.

.0119 Standards for Certification of Paralegals

(a) To qualify for certification as a paralegal, an applicant must pay any required fee, and comply with the following standards:

(1) Education. The applicant must have earned one of the following:

(A) an associate's, bachelor's, or master's degree from a qualified paralegal studies program; or

(B) an associate's or bachelor's degree in any discipline from any institution of post-secondary education that is accredited by an accrediting body recognized by the United States Department of Education and a certificate from a qualified paralegal studies program; or

(C) a juris doctorate degree from a law school accredited by the American Bar Association.

(2) Examination. ...

.0105 Appointment of Members; When; Removal

(a) Appointment...

(b) Procedure for Nomination of Candidates for Paralegal Members.A0

(1) Composition of Nominating Committee. At leastA060 days prior to a meeting of the council at which one or more paralegal members of the board are subject to appointment for a full three year term, the board shall appoint a nominating committee comprised of certified paralegals as follows:

(i) A representative selected by the North Carolina Paralegal Association;

(ii) A representative selected by the North Carolina Bar Association ~~Legal Assistants~~ Paralegal Division;

(iii) A representative selected by the North Carolina ~~Academy of Trial Lawyers~~ Advocates for Justice Legal Assistants Division;

(iv) Three representatives from three local or regional paralegal organizations to be selected by the board; and

(v) An independent paralegal (not employed by a law firm, government entity, or legal department) to be selected by the board.

(2) Selection of Candidates. ...

.0202 Accreditation Standards

The Board of Paralegal Certification shall approve continuing education activities in compliance with the following standards and provisions.

(a) ...

(c) A certified paralegal may receive credit for continuing education activities ~~where~~ in which live instruction ~~is used~~ or ~~mechanically or electronically~~ recorded ~~or reproduced~~ material is used, . Recorded material includes ~~including~~ videotaped or satellite transmitted programs, and programs on CD-ROM, DVD, or other similar electronic or digital replay formats. A minimum of three certified paralegals must register to attend the presentation of a replayed prerecorded program. This requirement does not apply to participation from a remote location in the presentation of a live broadcast by telephone, satellite, or video conferencing equipment.

(d) A certified paralegal may receive credit for participation in a course ~~on CD-ROM or~~ online. ~~A CD-ROM course is an educational seminar on a compact disk that is accessed through the CD-ROM drive of the user's personal computer.~~ An online course is an educational seminar available on a provider's website reached via the internet. To be accredited, a computer-based ~~CLE~~ CPE course must be interactive, permitting the participant to communicate, via telephone, electronic mail, or a website bulletin board, with the presenter and/or other participants.

(e) ...

Proposed Elimination of the Rule Requiring Certification of Insurance Coverage

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

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

Amendment Pending Approval of the Supreme Court

Since 2004, every member is required annually to submit a certificate stating whether the member is engaged in the private practice of law and, if so, whether the member is covered by a policy of professional liability insurance. The information is made available to the public on the State Bar's website. Upon reflection, it does not appear that the information is sufficiently useful or reliable to justify the cost of its collection and publication. For this reason, it is proposed that the requirement be eliminated by the deletion of the enabling rule in its entirety. The rule is not republished here but can be viewed on the State Bar website (www.ncbar.gov) or in the Lawyers Handbook. The complete citation for the rule is 27 N.C.A.C. 1A, Rule .0204, Certificate of Insurance Coverage.

To eliminate the duty to file a certificate of insurance, it is proposed that the rule on suspension for failure to fulfill obligations of membership also be amended as shown below.

Subchapter 1D, Section .0900

.0903 Suspension for Failure to Fulfill Obligations of Membership

(a) Procedure for Enforcement of Obligations of Membership

...

(1) The following are examples of obligations of membership that will be enforced by administrative suspension. This list is illustrative and not exclusive:

(A) ...

~~(D) Filing of the certificate of insurance coverage as required in Rule .0204 of subchapter 1A of these rules;~~

(D)~~(E)~~ ...

[Reletter remaining subparagraphs]

(b) ...

Proposed Amendment to the Procedures for the Ethics Committee

27 N.C.A.C. 1D, Section .0100, Procedures for Ruling on Questions of Legal Ethics

Amendment Pending Approval of the Supreme Court

The Program Evaluation Committee, an ad hoc committee of the council appointed in January by then-President John McMillan to evaluate and make recommendations for the improvement of existing State Bar programs, gave its report and recommendations to the council at the October meeting. After analyzing the procedures of the Ethics Committee, the Program Evaluation Committee recommended the publication of a rule codifying a procedure for a consent agenda to remove items from the Ethics Committee's agenda that do not warrant discussion by the full committee.

NOTE: This is an entirely new rule. Bold print is not, therefore, used to show changes.

.0105 Procedures for Meetings of the Ethics Committee

(a) Consent Agenda. The agenda for a meeting of the committee shall include a consent agenda consisting of those proposed formal ethics opinions, proposed ethics decisions, and ethics advisories (collectively "proposed opinions") published, circulated, or mailed during the preceding quarter that the chairperson, vice-chair, and staff counsel agree do not warrant discussion by the full committee.

(b) Vote on Consent Agenda. The consent agenda shall be considered at the beginning of the meeting of the committee following the consideration of administrative matters. Any committee member may make a non-debatable motion to remove an item from the consent agenda for separate discussion and vote. The motion must receive an affirmative vote of one-third of all of the duly appointed members of the committee in order for an item to be removed from the consent agenda. The items remaining upon the consent agenda shall be considered together upon a non-debatable motion to approve the remaining items on the consent agenda. The motion must pass by a vote of not less than a majority of the duly appointed members of the committee pursuant to Rule .0104(f) of this subchapter. All items on a consent agenda so approved shall be transmitted to the council with a recommendation to adopt.

Proposed Amendments to the Rules Governing the Attorney Client Assistance Program

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

27 N.C.A.C. 1D, Section .0700, Procedures for Fee Dispute Resolution

Amendment Pending Approval of the Supreme Court

Upon the recommendation of the Program Evaluation Committee, it is proposed that the standing committee in charge of the Attorney Client Assistance Program be eliminated and the program continue to operate under the auspices of the Grievance Committee. Changes to the operating rules for the fee dispute resolution program are also recommended to make the rules more accurately reflect the actual procedures and functioning of the program.

Subchapter 1A, Section .0700

.0701 Standing Committees and Boards

(a) Standing Committees.

...

(1) Executive Committee.

…

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

(4) Authorized Practice Committee.

…

(7) Attorney Client Assistance Committee. It shall be the duty of the Attorney Client Assistance Committee to develop and oversee policies and programs to help clients and lawyers resolve difficulties or disputes, including fee disputes, using means other than the formal grievance or civil litigation processes; to establish and implement a disaster response plan, in accordance with the provisions of Section .0300 of Subchapter 1D of these rules, to assist victims of disasters in obtaining legal representation and to prevent the improper solicitation of victims by lawyers; and to perform such other duties and consider such other matters as the council or the president may designate.

~~(8)~~ (7) Legal Assistance for Military Personnel (LAMP) Committee.

…

[Renumber remaining paragraphs]

Subchapter 1D, Section .0700

.0701 Purpose and Implementation

The purpose of the Fee Dispute Resolution Program ~~shall be to assist lawyers and clients to~~ is to help clients and lawyers settle disputes over fees. In doing so, the Fee Dispute Resolution Program shall assist the lawyers and clients in determining the appropriate fee for legal services rendered. The State Bar shall implement the Fee Dispute Resolution Program under the auspices of ~~the Attorney Client Assistance Committee (the committee)~~ the Grievance Committee (the committee) and administered by the Attorney Client Assistance Program (ACAP), which ~~shall~~ will be offered to clients and their lawyers at no cost. A person other than the client who pays the lawyer's legal fee or expenses may file a fee dispute petition. The person who paid the fees or expenses will not be permitted to participate in the fee dispute resolution process.

.0702 Jurisdiction

The committee shall have jurisdiction over all disagreements concerning the fees and expenses charged or incurred for legal services provided by an attorney licensed to practice law in North Carolina arising out of a client-lawyer relationship. Jurisdiction shall also extend to any person, other than the client, who pays the fee of such an attorney.

~~The committee shall not have jurisdiction over the following:~~

~~1. disputes concerning fees or expenses established by a court, federal or state administrative agency, or federal or state official;~~

~~2. disputes involving services that are the subject of a pending grievance complaint alleging the violation of the Revised Rules of Professional Conduct;~~

~~3. fee disputes that are or were the subject of litigation;~~

~~4. fee disputes between lawyers and service providers, such as court reporters and expert witnesses;~~

~~5. fee disputes between lawyers and individuals with whom the lawyer had no client-lawyer relationship, except in those case where the fee has been paid by a person other than the client; and~~

~~6. disputes concerning fees charged for ancillary services provided by the lawyer not involving the practice of law.~~

~~The committee shall encourage mediated settlement of fee disputes falling within its jurisdiction pursuant to Rule .0706 of this subchapter.~~

(a) The committee has jurisdiction over a disagreement arising out of a client-lawyer relationship concerning the fees and expenses charged or incurred for legal services provided by a lawyer licensed to practice law in North Carolina.

(b) The committee does not have jurisdiction over the following:

(1) a dispute concerning fees or expenses established by a court, federal or state administrative agency, or federal or state official;

(2) a dispute involving services that are the subject of a pending grievance complaint alleging violation of the Rules of Professional Conduct;

(3) a dispute over fees or expenses that are or were the subject of litigation unless

(i) a court directs the matter to the State Bar for mediation, or

(ii) both parties to the dispute agree to dismiss the litigation without prejudice and pursue mediation;

(4) a dispute between a lawyer and a service provider, such as a court reporter or an expert witness;

(5) a dispute between a lawyer and a person or entity with whom the lawyer had no client-lawyer relationship, except that the committee has jurisdiction over a dispute between a lawyer and a person other than the lawyer's client who paid fees or expenses to the lawyer for the benefit of the client; and

(6) a dispute concerning a fee charged for services provided by the lawyer that do not constitute the practice of law.

The committee will encourage settlement of fee disputes falling within its jurisdiction pursuant to Rule .0708 of this subchapter.

.0703 Coordinator of Fee Dispute Resolution

The secretary-treasurer of the North Carolina State Bar ~~shall~~ will designate a member of the staff to serve as coordinator of the Fee Dispute Resolution Program. The coordinator ~~shall~~ will develop forms, maintain records, and provide statistics on the Fee Dispute Resolution Program. The coordinator ~~shall~~ will also develop an annual report to the council. The coordinator may also serve as a facilitator.

.0704 ~~Reserved~~ Confidentiality

The existence of and content of any petition for resolution of disputed fee and of any lawyer's response to a petition for resolution of a disputed fee are confidential.

.0705 Selection of ~~Mediators~~ Facilitators

The State Bar will select a pool of qualified mediators. Selected mediators shall be certified by the North Carolina Dispute Resolution Commission or have a minimum of three (3) years experience as a mediator.

The secretary-treasurer of the North Carolina State Bar will designate members of the State Bar staff to serve as facilitators.

.0706 ~~Processing Requests for Fee Dispute Resolution~~ Powers and Duties of the Vice-Chairperson

(a) Requests for fee dispute resolution shall be timely submitted in writing to the coordinator of fee dispute resolution addressed to the North Carolina State Bar, PO Box 25908, Raleigh, NC 27611. The attorney must allow at least 30 days after the client shall have received written notice of the fee dispute resolution program before filing a lawsuit. An attorney may file a lawsuit prior to expiration of the required 30-day notice period or after the petition is filed by the client if such is necessary to preserve a claim. However, the attorney must not take any further steps to pursue the litigation until he/she complies with the provision of the fee dispute resolution rules. Clients may request fee dispute resolution at any time prior to the filing of a lawsuit. No filing fee shall be required. The request should state with clarity and brevity the facts of the fee dispute and the names and addresses of the parties. It should also state that, prior to requesting fee dispute resolution, a reasonable attempt was made to resolve the dispute by agreement, the matter has not been adjudicated, and the matter is not presently the subject of litigation. All requests for resolution of a disputed fee must be filed before the statute of limitation has run or within three years of the ending of the client/attorney relationship, whichever comes last.

(b) The coordinator of fee dispute resolution or his/her designee shall investigate the request to determine its suitability for fee dispute resolution. If it is determined that the matter is not suitable for fee dispute resolution, the coordinator shall prepare a brief written report setting forth the facts and a recommendation for dismissal. Grounds for dismissal include, but are not limited to, the following:

~~(1) the request is frivolous or moot;~~

~~(2) the absence of jurisdiction; or~~

~~(3) the facts as stated support the conclusion that the fee was earned and is not excessive.~~

The report shall be forwarded to the chairperson of the committee. If the chairperson of the Attorney Client Assistance Committee of the State Bar concurs with the recommendation, the matter shall be dismissed and the parties notified.

(c) If the chairperson disagrees with the recommendation for dismissal, an attempt to resolve the dispute will be made pursuant to Rule .0707 below or the chair may recommend review by the full committee.

The vice-chairperson of the Grievance Subcommittee overseeing ACAP, or his/her designee, who must be a councilor, will:

(a) approve or disapprove all recommendations that a petition for resolution of disputed fee be dismissed;

(b) call and preside over meetings of the committee; and

(c) refer to the Grievance Committee all cases in which it appears to the vice chairperson that (i) a lawyer might have charged, contracted to receive or received an illegal or clearly excessive fee or a clearly excessive amount for expenses or (ii) a lawyer might have failed to refund an unearned portion of a fee in violation of Rule of Professional Conduct 1.5, or (iii) a lawyer might have violated one or more Rules of Professional Conduct other than or in addition to Rule 1.5.

.0707 ~~Mediation Proceedings~~ Processing Requests for Fee Dispute Resolution

(a) The coordinator shall assign the case to a mediator who shall conduct a mediated settlement conference. The mediator shall be responsible for reserving a place and making arrangements for the conference at a time and place convenient to all parties.

(b) The attorney against whom a request for fee dispute resolution is filed must attend the mediated settlement conference in person and may not send another representative of his or her law firm. If a party fails to attend a mediated settlement conference without good cause, the mediator may either reschedule the conference or recommend dismissal.

(c) The mediator shall at all times be in control of the conference and the procedures to be followed. The mediator may communicate privately with any participant prior to and during the conference. Any private communication with a participant shall be disclosed to all other participants at the beginning of the conference. The mediator shall define and describe the following at the beginning of the conference:

~~(1) the process of mediation;~~

~~(2) the differences between mediation and other forms of conflict resolution;~~

~~(3) that the mediated settlement conference is not a trial, themediator is not a judge, and the parties retain their right to trial if they do not reach settlement;~~

~~(4) The circumstances under which the mediator may meet and communicate privately with any of the parties or with any other person;~~

~~(5) Whether and under what conditions communications with the mediator will be held in confidence during the conference;~~

~~(6) The duties and responsibilities of the mediator and the participants; and~~

~~(7) That any agreement reached will be reached by mutual consent, reduced to writing and signed by all parties.~~

The mediator has a duty to be impartial and advise all participants of any circumstance bearing on possible bias, prejudice, or partiality. It is the duty of the mediator timely to determine and declare that an impasse exists and that the conference should end.

(a) Requests for resolution of a disputed fee must be submitted in writing to the coordinator of the Fee Dispute Resolution Program addressed to the North Carolina State Bar, PO Box 25908, Raleigh, NC 27611. A lawyer is required by Rule 1.5 of the Rules of Professional Conduct to notify in writing a client with whom the lawyer has a dispute over a fee of the existence of the Fee Dispute Resolution Program and to wait at least 30 days after the client receives such notification before filing a lawsuit to collect a disputed fee. A lawyer may file a lawsuit prior to expiration of the required 30-day notice period or after the petition is filed by the client only if such filing is necessary to preserve a claim. If a lawyer does file a lawsuit pursuant to the preceding sentence, the lawyer must not take steps to pursue the litigation until the fee dispute resolution process is completed. A client may request fee dispute resolution at any time before either party files a lawsuit. The petition for resolution of a disputed fee must contain:

(1) the names and addresses of the parties to the dispute;

(2) a clear and brief statement of the facts giving rise to the dispute;

(3) a statement that, prior to requesting fee dispute resolution, a reasonable attempt was made to resolve the dispute by agreement;

(4) a statement that the subject matter of the dispute has not been adjudicated and is not presently the subject of litigation.

(b) All petitions for resolution of a disputed fee must be filed (i) before the expiration of the statute of limitation applicable in the General Court of Justice for collection of the funds in issue or (ii) within three years of the termination of the client-lawyer relationship, whichever is later.

(c) The coordinator of Fee Dispute Resolution Program or the facilitator will investigate the petition to determine its suitability for fee dispute resolution. If it is determined that the dispute is not suitable for fee dispute resolution, the coordinator and/or the facilitator will prepare a dismissal letter setting forth the facts and a recommendation for dismissal. The coordinator and/or the facilitator will forward the dismissal letter to the vice-chairperson. If the vice chairperson agrees with the recommendation, the petition will be dismissed. The coordinator and/or facilitator will notify the parties in writing of the dismissal. Grounds for dismissal include, but are not limited to, the following:

(1) the petition is frivolous or moot;

(2) the committee lacks jurisdiction over one or more of the parties or over the subject matter of the dispute;

(3) the fee has been earned; or

(4) the expenses were properly incurred.

(d) If the vice-chairperson disagrees with the recommendation for dismissal, the coordinator will schedule a settlement conference.

.0708 ~~Finalizing the Agreement~~ Settlement Conference Proceedings

~~If an agreement is reached in the conference, parties to the agreement shall reduce its terms to writing and sign it along with their counsel, if any, prior to leaving the conference.~~

(a) The coordinator will assign the case to a facilitator.

(b) The facilitator will send a Letter of Notice to the lawyer by certified mail. The Letter of Notice will include a copy of the petition and any documents the petitioner included with the petition.

(c) Within 15 days after the Letter of Notice is served upon the lawyer, the lawyer must provide a written response to the petition. The facilitator is authorized to grant requests for extensions of time to respond. The lawyer's response must be a full and fair disclosure of all the facts and circumstances pertaining to the dispute. The facilitator will provide a copy of the lawyer's response to the client unless the lawyer objects in writing.

(d) The facilitator will conduct an investigation.

(e) The facilitator will conduct a telephone settlement conference between the parties. The facilitator is authorized to carry out the settlement conference by separate telephone calls with each of the parties or by conference calls, depending upon which method the facilitator believes has the greater likelihood of success.

(f) The facilitator will define and describe the following to the parties:

(1) the procedure that will be followed;

(2) the differences between a facilitated settlement conference and other forms of conflict resolution;

(3) that the settlement conference is not a trial;

(4) that the facilitator is not a judge;

(5) that participation in the settlement conference does not deprive the parties of any right they would otherwise have to pursue resolution of the dispute through the court system if they do not reach a settlement;

(6) the circumstances under which the facilitator may communicate privately with any of the parties or with any other person;

(7) whether and under what conditions private communications with the facilitator will be shared with the other party or held in confidence during the conference; and

(8) that any agreement reached will be reached by mutual consent.

(g) The facilitator has a duty to be impartial and to advise all participants of any circumstance that might cause either party to conclude that the facilitator has a possible bias, prejudice, or partiality.

(h) It is the duty of the facilitator to timely determine when the dispute cannot be resolved by settlement and to declare that an impasse exists and that the settlement conference should end.

(i) Upon completion of the settlement conference, the facilitator will prepare a disposition letter to be sent to the parties detailing:

(1) that the settlement conference resulted in a settlement and the terms of settlement; or

(2) that the settlement conference resulted in an impasse.

.0709 Record Keeping

The coordinator of fee dispute resolution ~~shall~~ will keep a record of each request for fee dispute resolution. The record must contain the following information:

(1) the client's name;

(2) ~~date of the request;~~ the date the petition was received;

(3) the lawyer's name;

(4) the district in which the lawyer resides or maintains a place of business;

(5) ~~how the dispute was resolved (dismissed for non-merit, mediated agreement, arbitration, etc.);~~ what action was taken on the petition and, if applicable, how the dispute was resolved; and

(6) ~~the time necessary to resolve the dispute.~~ the date the file was closed.

.0710 District Bar Fee Dispute Resolution

For the purpose of resolving disputes involving attorneys residing or doing business in the district, any district bar may adopt a fee dispute resolution program, subject to the approval of the council, which shall operate in lieu of the program described herein. Although such programs may be tailored to accommodate local conditions, they must be offered without cost, comply with the jurisdictional restrictions set forth in Rule .0702 of this subchapter, and be consistent with the provisions of Rules .0706 and .0707. Subject to the approval of the council, any judicial district bar may adopt a fee dispute resolution program for the purpose of resolving disputes involving lawyers residing or doing business in the district. The State Bar does not offer arbitration as a form of dispute resolution. The judicial district bar may offer arbitration to resolve a disputed fee. A judicial district bar fee dispute resolution program shall have jurisdiction over disputes that would otherwise be addressed by the State Bar's ACAP department. Such programs may be tailored to accommodate local conditions but they must be offered without cost and must comply with the jurisdictional restrictions set forth in Rule .0702 of this subchapter.

.0711 District Bar Settlement Conference Proceedings

(a) The chairperson of the judicial district bar fee dispute committee will assign the case to a facilitator who will conduct a settlement conference. The facilitator is responsible for arranging the settlement conference at a time and place convenient to all parties.

(b) The lawyer who is named in the petition must attend the settlement conference in person and may not send a representative in his or her place. If a party fails to attend a settlement conference without good cause, the facilitator may either reschedule the settlement conference or recommend dismissal of the petition.

(c) The facilitator must at all times be in control of the settlement conference and the procedures to be followed. The facilitator may communicate privately with any participant prior to and during the settlement conference. Any private communication with a participant will be disclosed to all other participants at the beginning of the settlement conference or, if the private communication occurs during the settlement conference, immediately after the private communication occurs. The facilitator will explain the following at the beginning of the settlement conference:

(1) the procedure that will be followed;

(2) the differences between a facilitated settlement conference and other forms of conflict resolution;

(3) that the settlement conference is not a trial;

(4) that the facilitator is not a judge;

(6) the circumstances under which the facilitator may meet and communicate privately with any of the parties or with any other person;

(7) whether and under what conditions communications with the facilitator will be held in confidence during the settlement conference;

(8) that any agreement reached will be reached by mutual consent; and

(9) that, if the parties reach an agreement, that agreement will be reduced to writing and signed by the parties and their counsel, if any, before the parties leave the settlement conference.

(d) The facilitator has a duty to be impartial and to advise all participants of any circumstance that might cause either party to conclude that the facilitator has a possible bias, prejudice, or partiality.

(e) It is the duty of the facilitator to timely determine when the dispute cannot be resolved by settlement and to declare that an impasse exists and that the settlement conference should end.

Proposed Amendments to the Procedures for the Administrative Committee

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

Amendment Pending Approval of the Supreme Court

The proposed rule amendments will empower the secretary of the State Bar (i.e., the executive director) to reinstate a member who has been administratively suspended upon the member's satisfaction of all membership obligations, the payment of all associated fees, and the executive director's determination that there are no persisting issues relating to the member's character or fitness.

.0904 Compliance After Suspension for Failure to Fulfill Obligations of Membership

(a) Reinstatement Within 30 Days of Service of Suspension Order. A member who receives an Order of Suspension for failure to comply with an obligation of membership may preclude the order from becoming effective by submitting a written request and satisfactory showing within 30 days after service of the suspension order that the member has complied with or fulfilled the obligations of membership set forth in the order, and has paid the costs of the suspension and reinstatement procedure, including the costs of service. Such member shall not be required to file a formal reinstatement petition or pay ~~a $125~~ the reinstatement fee.

(b) Reinstatement More than 30 Days After Service of Suspension Order.

...

(d) Procedure for Review of Reinstatement Petition

...

(e) Reinstatement by Secretary of the State Bar. At any time after the effective date of a suspension order and prior to the next meeting of the Administrative Committee, a suspended member may petition for reinstatement pursuant to paragraphs (b) and (c) of this rule and may be reinstated by the secretary of the State Bar upon a finding that the suspended member has complied with or fulfilled the obligations of membership set forth in the order; there are no issues relating to the suspended member's character or fitness; and the suspended member has paid the costs of the suspension and reinstatement procedure including the costs of service and the reinstatement fee. Reinstatement by the secretary is discretionary. If the secretary declines to reinstate a member, the member's petition shall be submitted to the Administrative Committee at its next meeting and the procedure for review of the reinstatement petition shall be as set forth in Rule .0902(c)-(f).

Proposed Amendments to the CLE Rules

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

Amendment Pending Approval of the Supreme Court

Upon the recommendation of the Program Evaluation Committee, it is proposed that the CLE rules be amended to include a requirement that all newly admitted lawyers be required to complete a 12-hour course of instruction on professionalism, professional responsibility, and law office management to be known as the North Carolina State Bar New Admittee Professionalism Program.

Upon the recommendation of the Board of Continuing Legal Education, an amendment is proposed that will prohibit a disbarred lawyer from teaching an approved CLE course within five years of the effective date of the disbarment.

.1518 Continuing Legal Education Program

(a) Annual Requirement. Each active member subject to these rules shall complete 12 hours of approved continuing legal education during each calendar year beginning January 1, 1988, as provided by these rules and the regulations adopted thereunder. ~~(b)~~ Of the 12 hours:

(1) at least 2 hours shall be devoted to the areas of professional responsibility or professionalism or any combination thereof; and

(2) effective January 1, 2002, at least once every three calendar years, each member shall complete an hour of continuing legal education instruction on substance abuse and debilitating mental conditions as defined in Rule .1602 ~~(c)~~ (a). This hour shall be credited to the annual 12-hour requirement ~~set forth in Rule .1518 (a) above~~ but shall be in addition to the annual professional responsibility/professionalism requirement ~~of Rule .1518 (b)(1) above~~. To satisfy ~~this~~ the requirement, a member must attend an accredited program on substance abuse and debilitating mental conditions that is at least one hour long.

~~(c)~~ (b) Carryover. Members may carry over up to 12 credit hours earned in one calendar year to the next calendar year, which may include those hours required by ~~Rule .1518(b)~~ paragraph (a)(1) above. Additionally, a newly admitted active member may include as credit hours which may be carried over to the next succeeding year any approved CLE hours earned after that member's graduation from law school.

(c) Professionalism Requirement for New Members. Except as provided in paragraph (d)(1), all active members admitted to the North Carolina State Bar after January 1, 2011, must complete the North Carolina State Bar New Admittee Professionalism Program (New Admittee Program) in the year the member is first required to meet the continuing legal education requirements as set forth in Rule .1526(b) and (c) of this subchapter. CLE credit for the New Admittee Program shall be applied to the annual mandatory continuing legal education requirements set forth in paragraph (a) above.

(1) Content and Accreditation. The State Bar New Admittee Program shall consist of 12 hours of training in subjects designated by the State Bar including, but not limited to, professional responsibility, professionalism, and law office management. The chairs of the Ethics and Grievance Committees, in consultation with the chief counsel to those committees, shall annually establish the content of the program and shall publish the required content on or before January 1 of each year. To be approved as a New Admittee Program CLE activity, a sponsor must satisfy the annual content requirements. At least 45 days prior to the presentation of a New Admittee 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 may not advertise a New Admittee Program until approved by the board. New Admittee Programs shall be specially designated by the board and no course that is not so designated shall satisfy the New Admittee Program requirement for new members.

(2) Evaluation. To receive CLE credit for attending a New Admittee Program, the participant must complete a written evaluation of the program which shall contain questions specified by the State Bar. Sponsors shall collate the information on the completed evaluation forms and shall send a report showing the collated information, together with the original forms, to the State Bar when reporting attendance pursuant to Rule .1601(e)(1) of this subchapter.

(3) Format and Partial Credit. The New Admittee Program shall be presented in two six-hour blocks (with appropriate breaks) over two days. The six-hour blocks do not have to be attended on consecutive days or taken from the same provider; however, no partial credit shall be awarded for attending less than an entire six-hour block unless a special circumstances exemption is granted by the board. No part of the program may be taken on-line (via the Internet).

(d) Exemptions from Professionalism Requirement for New Members.

(1) Licensed in Another Jurisdiction. A member who is licensed by a United States jurisdiction other than North Carolina for five or more years prior to admission to practice in North Carolina is exempt from the New Admittee Program requirement and must notify the board of the exemption in the first annual report sent to the member pursuant to Rule .1522 of this subchapter.

(2) Inactive Status. A newly admitted member who is transferred to inactive status in the year of admission to the State Bar is exempt from the New Admittee Program requirement but, upon the entry of an order transferring the member back to active status, must complete the New Admittee Program in the year that the member is subject to the requirements set forth in paragraph (a) above unless the member qualifies for the exemption under paragraph (d)(1) of this rule.

(3) Exemptions Under Rule .1517. A newly admitted active member who qualifies for an exemption under Rule .1517 of this subchapter shall be exempt from the New Admittee Program requirement during the period of the Rule .1517 exemption. The member shall notify the board of the exemption in the first annual report sent to the member pursuant to Rule .1522 of this subchapter. The member must complete the New Admittee Program in the year the member no longer qualifies for the Rule .1517 exemption or the next calendar year unless the member qualifies for the exemption under paragraph (d)(1) of this rule.

.1519 Accreditation Standards

The board shall approve continuing legal education activities which meet the following standards and provisions.

(a) ...

(d) Continuing legal education materials are to be prepared, and activities conducted, by an individual or group qualified by practical or academic experience. Credit shall not be given for any continuing legal education activity taught or presented by a disbarred lawyer except a course on professional responsibility (including a course or program on the effects of substance abuse and chemical dependency, or debilitating mental conditions on a lawyer's professional responsibilities) taught by a disbarred lawyer whose disbarment date is at least five years (60 months) prior to the date of the activity. The advertising for the activity shall disclose the lawyer's disbarment.

Proposed Amendments to the Plan of Legal Specialization

27 N.C.A.C. 1D, Section .1800, Hearing and Appeal Rules of the Board of Legal Specialization; Section .2900, Certification Standards for the Elder Law Specialty

Amendment Pending Approval of the Supreme Court

The proposed amendments to the hearing and appeal rules of the specialization program improve the clarity of the rules, streamline the appeal process, and make hearings less adversarial.

The proposed amendments to the standards for the elder law specialty make the experience requirements for certification the same as those required by the National Elder Law Foundation, the testing organization for the elder law specialty.

.1801 Incomplete Applications: Reconsideration of Applications~~, Failure of Written Examinations~~ Rejected by Specialty Committee; and ~~Appeals~~ Reconsideration Procedure

(a) ~~Applications Incomplete and/or Applicants Not in Compliance with Standards for Certification~~

~~(1)~~ Incomplete Applications. The executive director of the North Carolina State Bar Board of Legal Specialization (the board) will review every application to determine if the application is complete. The applicant will be notified in writing ~~of the incompleteness of his or her application~~ if an application is incomplete. The applicant must submit ~~the~~ the information necessary to ~~completed~~ complete the application within 21 days of the date of ~~mailing of~~ the notice. If the applicant fails to provide the required information ~~for the application~~ during the requisite time period, the executive director will ~~refer the application to the specialty committee for review~~. return the application to the applicant together with a refund of the application fee less a fifty dollar ($50.00) administrative fee. The decision of the executive director to reject an application as incomplete is final unless the applicant shows good cause for an extension of time to provide the required information.

(b) ~~(2) Applicant Not in Compliance~~ Denial of Application by Specialty Committee. The executive director shall refer all complete applications to the specialty committee for review ~~any application which appears complete on its face, but which does not satisfactorily demonstrate~~ for compliance with the standards for certification in the specialty area for which certification is sought.

~~(3) Specialty Committee Action - The specialty committee shall review the incomplete applications and the applications not in compliance with the standards for certification.~~ After reviewing the applications, the specialty committee shall recommend to the board the acceptance or rejection of the applications. The specialty committee shall notify the board of its recommendations in writing and the reason for any negative recommendation must be specified. ~~The specialty committee must complete the above process within 14 days of receiving the applications.~~

(14) Notification to Applicant of the Specialty Committee's Action. The executive director shall promptly notify the applicant in writing of the specialty committee's recommendation of rejection of the application and the board's intention to act in accordance with the committee's recommendation. The notification must specify the reason for the recommendation of rejection of the application~~. In addition, the notification~~ and shall inform the applicant of ~~his or her~~ the right to petition pursuant to paragraph (c) of this rule ~~the board~~ for ~~review of the application or request a hearing before the board.~~ reconsideration of the recommendation of the specialty committee.

(c5) Petition for ~~Review by the Board~~ Reconsideration. Within 21 14 days of the ~~mailing~~ date of the notice from the executive director that an application has been recommended for rejection by ~~the~~ a specialty committee, the applicant may petition the board for ~~review~~ reconsideration. The petition ~~may be informal (e.g., by letter), but~~ shall be in writing and ~~should~~ shall include the following information: ~~date on which notice of the recommendation of rejection was received~~ the applicant's election between a reconsideration hearing on the written record or in-person and the reasons for which the applicant believes the specialty committee's recommendation ~~of rejection~~ should not be accepted.

(d6) ~~Review of Petition by the Board~~ Reconsideration Procedure. Upon receipt of a petition filed pursuant to paragraph (c) of this rule, aA three-member panel of the board, to be appointed by the chairperson of the board, shall ~~review and~~ reconsider an application pursuant to the following procedures: take action by a majority of the panel upon the petition :and notify the applicant of the board's decision. The notification shall inform the applicant of his or her right to appeal the decision to the North Carolina State Bar Council (the council) if the board's action is unfavorable to the applicant.

(7) Request for Hearing - In lieu of a petition for review, an applicant may request a hearing before the board. The applicant shall notify the board through its executive director in writing of such request for a hearing within 21 days of the mailing of the notice regarding the specialty committee's recommendation of rejection of the application. The applicant shall set forth the grounds for the hearing before the board. In such a request, the applicant shall list the names of prospective witnesses and identify documentation and other evidence to be introduced at the hearing before the board. The applicant shall be notified of the board's decision, and if the board's decision is unfavorable to the applicant, the applicant will be notified of his or her right to appeal the board's decision to the council.

~~(8) Hearing Procedures~~

(1) ~~(A)~~ Notice. ~~Time and Place of Hearing~~ The chairperson of the ~~board~~ panel shall ~~fix~~ set the time and place of the hearing to reconsider the applicant's application as soon as practicable after the applicant's request for ~~hearing~~ reconsideration is received. The applicant shall be notified of the ~~hearing~~ date~~. Such notice shall be given to the applicant~~ at least 10 days prior to the time ~~fixed~~ set for the hearing.

(B) Quorum - A panel of three members of the board, as appointed by the chairperson, shall be necessary to conduct the hearing with the majority of those in attendance necessary to decide upon the matter.

(2) Reconsideration on the Written Record. ~~(C) Representation by Counsel and Witnesses~~ If the ~~The~~ applicant ~~may~~ elects to have the matter decided on the written record, the applicant will not be present at the hearing and no witnesses will appear before the panel except the executive director of the specialization program, or a staff designee, who shall provide administrative support to the panel. At least 10 days prior to the hearing, the applicant shall provide the panel with copies of any documents that the applicant would like to be considered by the panel.

(3) Reconsideration In-Person. If the applicant elects to be present at the hearing, the applicant may be represented by counsel or represent himself or herself at such hearing. The applicant may offer witnesses and documents and may ~~cross-examine~~ question any witness. At least 10 days prior to the hearing, the applicant shall provide the panel with copies of any documents that the applicant wants considered by the panel and, if the reconsideration is in-person, with the names of prospective witnesses. At least ten days prior to the hearing, the applicant shall be provided with copies of any documents that the executive director will submit to the panel, except confidential peer review forms or information, and with the names of prospective witnesses. Additional documents may be considered at the discretion of the panel.

(D) Written Briefs - The applicant is urged to submit a written brief (in quadruplicate) 10 days prior to the hearing to the executive director for distribution to the panel in support of his or her position. However, written briefs are not required.

(E) Depositions - Should the applicant or executive director desire to take a deposition prior to the board hearing of any voluntary witness who cannot attend the board hearing, such intention to take, and request to take, the deposition of a witness may be applied for in writing to the chairperson of the board together with a written consent signed by the potential witness that he or she will give a deposition for one party and a statement to the effect that the witness cannot attend the hearing along with the reason for such unavailability. The party seeking to take the deposition of a witness shall state in detail as to what the witness is expected to testify. If the chairperson is satisfied that such deposition from a possible witness will be relevant to the issue in question before the board, then the chairperson will authorize said taking of the deposition. The chairperson will also designate the executive director or a member of the specialty committee to be present at the deposition. The deposition may be taken orally or by video. Any refusal of the taking of the deposition by the chairperson shall be reviewed by the board at the request of the applicant. The cost connected with taking the deposition shall be borne by the party requesting the deposition.

~~(F) Continuances - Motions for continuance of the hearing should be made to the chairperson of the board and such motions will be granted or denied by the chairperson of the board.~~

(4G) Burden of Proof. ~~- Preponderance of the Evidence -~~ The applicant must make a clear and convincing showing that the application satisfies the standards for certification in the applicable specialty. ~~The panel of the board shall apply the preponderance of the evidence rule in determining whether or not to accept the application for certification The burden of proof is upon the applicant.~~

(5) ~~(H)~~ Conduct of ~~Hearings: Rights of Parties -–~~ Reconsideration Hearing.

(Ai) Preservation of Record. ~~Hearings~~ The hearing shall be recorded unless the applicant agrees in writing that the hearing shall not be recorded or, if the applicant wants an official transcript, the applicant ~~reported by a certified court reporter‘s. The applicant shall pay~~ pays the costs associated with obtaining ~~the~~ a court reporter and makes all arrangements for the court reporter's services and for the preparation of the transcript. services for the hearing. The applicant shall pay the costs of the transcript and shall arrange for the preparation of the transcript with the court reporter. The applicant shall be taxed with all other costs of the hearing, but such costs shall not include any compensation to the members of the board before whom the hearing is conducted. The board in its discretion may refund to the applicant all or some portion of the necessary costs incurred as a result of the hearing.

~~(ii) The applicant may retain counsel at all stages of the investigation and at all meetinghearings. The applicant and his or her counsel shall have the right to attend all hearings.~~

(B~~iii~~) Procedural Rules. Oral evidence at hearings shall be taken only on oath or affirmation. The applicant shall have the right to testify unless he or she specifically waives such right or fails to appear at the hearing. If the applicant does not testify on his or her behalf, the applicant may be called and examined by the panel of the board, the executive director, and any member of the specialty committee. The applicant's failure to appear at the hearing ordered by the board, after receipt of written notice, shall constitute a waiver of the applicant's right to a hearing before the board.

~~(iv) At any hearing, the panel of the board, the executive director, any member of the appropriate specialty committee, and the applicant shall have these rights:~~

~~(a) to call and examine witnesses;~~

~~(b) to offer exhibits;~~

~~(c) to cross-examine witnesses on any matter relevant to the issues even thought that matter was not covered in the direct examination; and~~

~~(d) to impeach any witness regardless of who first called such witness to testify and to rebut any evidence.~~

~~(v) Hearings~~ The reconsideration hearing shall ~~need~~ not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted and may be considered by the panel according to its probative value if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions.

(C) Decision of the Panel. ~~(vi) Any hearing may be recessed or adjourned from time to time at the discretion of the panel.~~

The decision of the panel shall be by a majority of the members of the panel and shall be binding upon the board. Written notification of the decision shall be sent to the applicant. If the board's decision is unfavorable, the notification shall set forth the grounds for the decision and shall notify the applicant of the right to appeal the decision to the North Carolina State Bar Council (the council) pursuant to Rule .1804 of this subchapter

(e 9) Failure of Applicant to Petition the Board for ~~Review or Request a Hearing Before the Board~~ Reconsideration Within the Time Allowed by These Rules. If the applicant does not petition the board for ~~review or request a hearing before the board regarding~~ reconsideration of the specialty committee's recommendation of rejection of the application within the time allowed by these rules, the board shall act on the matter at its next board meeting.

~~(b) Failure of a Written Examination Prepared and Administered by a Certification Committee~~

(1) Review of Examination - Within 30 days of the mailing of the notice from the board's executive director that the applicant has failed the written examination, the applicant may review his or her examination at the office of the board at a time designated by the executive director. The applicant will be given the applicant's scores for each question on the examination. The applicant shall not remove the examination from the board's office.

(2) Petition for Grade Review - If, after reviewing the examination, the applicant feels an error or errors were made in the grading, the applicant may file with the executive director a petition for grade review. The petition must be filed within 45 days of the mailing of the notice of failure and should set out in detail the examination questions and answers which, in the opinion of the applicant, have been incorrectly graded. Supporting information may be filed to substantiate the applicant's claim.

(3) Review Procedure - The applicant's examination and petition shall be submitted to a panel consisting of a minimum of at least three members of the specialty committee (the review committee of the specialty committee). All information will be submitted in blind form, the staff being responsible for deleting any identifying information on the examination or the petition. The review committee of the specialty committee shall review the petition of the applicant and determine whether the grade of the examination should remain the same or be changed. The review committee shall make a written report to the board setting forth its recommendation relative to the grade on the applicant's examination and an explanation of its recommendation.

(4) Decision of the Board - The board shall consider the petition and the report and recommendation of the review committee and shall certify the applicant if it determines that the applicant has satisfied all of the standards for certification.

~~(c) Failure of a Written Examination Prepared and Administered by a Testing Organization on Behalf of the Board.~~

~~The applicant shall comply with the review and appeal procedures of any testing organization retained by the board to prepare and administer the certification examination.~~

.1802 Denial, Revocation, or Suspension of Continued Certification as a Specialist

(a) ...

(c) Notification of Board Action. The executive director shall notify the lawyer of the board's action to grant or deny continued certification as a specialist upon application for continued certification pursuant to Rule .1721(a) of this subchapter, or to revoke or suspend continued certification pursuant to Rule .1723(a) or (b) of this subchapter. If the board's action is unfavorable, the notification shall set forth the grounds for the action and shall notify ~~The~~ the lawyer ~~will also be notified of his or her~~ of the right to a hearing if ~~a hearing is~~ allowed by these rules.

(d) Request for Hearing. Within 21 14 days of the ~~mailing~~ date of the of notice from the executive director of the board that the lawyer has been denied continued certification pursuant to Rule .1721(a) of this subchapter or that certification has been revoked or suspended pursuant to Rule .1723(b) of this subchapter, the lawyer must request a hearing before the board in writing. There is no right to a hearing upon automatic revocation pursuant to Rule .1723(a).

(e) Hearing Procedure. Except as set forth in Rule .1802(f) below, the procedures ~~rules~~ set forth in Rule .1801(ad)~~(8)~~ of this subchapter shall be followed when a lawyer requests a hearing regarding the denial of continued certification pursuant to Rule .1721(a) of this subchapter or the revocation or suspension of certification under Rule .1723(b) of this subchapter.

(f) Burden of Proof: Preponderance of the Evidence. A three-member panel of the board shall apply the preponderance of the evidence rule in determining whether the lawyer's certification should be continued, revoked, or suspended. ~~In cases of denial of an application for continued certification under Rule .1721(a), the~~ The burden of proof is upon the lawyer. ~~In cases of revocation or suspension under Rule .1723(b), the burden of proof is upon the board.~~

(g) Notification of Board's Decision. After the hearing, the board shall timely notify the lawyer of its decision regarding continued certification as a specialist. If the board's decision is unfavorable, the notification shall set forth the grounds for the decision and the lawyer's appeal rights under Rule .1804 of this subsection.

.1803 ~~RESERVED~~ Reconsideration of Failed Examination

(a) Review of Examination. Within 30 days of the date of the notice from the board's executive director that the applicant has failed the written examination, the applicant may review his or her examination at the office of the board at a time designated by the executive director. The applicant will be given the applicant's scores for each question on the examination. The applicant shall not copy, transcribe, or remove the examination from the board's office (or any other location established by the board for the review of the examination) and shall be subject to such other restrictions as the board deems necessary to protect the content of the examination.

(b) Petition for Grade Review. If, after reviewing the examination, the applicant feels an error or errors were made in the grading, the applicant may file with the executive director a petition for grade review. The petition must be filed within 45 days of the date of the notice of failure and should set out in detail the examination questions and answers which, in the opinion of the applicant, have been incorrectly graded. Supporting information may be filed to substantiate the applicant's claim.

(c) Review Procedure. The applicant's examination and petition shall be submitted to a panel consisting of three members of the specialty committee (the grade review panel). All identifying information shall be redacted from the examination and petition prior to submission to the grade review panel. The grade review panel shall review the petition of the applicant and determine whether the grade of the examination should be changed. The grade review panel shall make a written report to the board setting forth its recommendation relative to the grade on the applicant's examination and an explanation of its recommendation.

(d) Decision of the Board. The board shall consider the petition and the report of the grade review panel and shall certify the applicant if it determines by majority vote that the applicant has satisfied all of the standards for certification.

(e) Failure of Examination Prepared and Administered by a Testing Organization on Behalf of the Board. Notwithstanding paragraphs (a) – (d) of this rule, if the board is utilizing a qualified organization to prepare and administer the certification examination for a specialty pursuant to Rule .1716(10) of this subchapter, an applicant for such specialty shall only be entitled to the review and appeal procedures of the organization.

.1804 Appeal to the Council

(a) Appealable Decisions. An appeal may be taken to the council from a decision of the board which denies an applicant certification (i.e., when an applicant's application has been rejected because ~~it is incomplete and/or~~ it is not in compliance with the standards for certification or when an applicant fails the written specialty examination), denies an applicant continued certification as a specialist, or suspends or revokes a specialist's certification. The rejection of an application because it is incomplete shall not be appealable. (Persons who appeal the board's decision are referred to herein as appellants.)

(b) Filing the Appeal. An appeal from a decision of the board as described in paragraph ~~Rule .1804~~ (a) may be taken by filing with the executive director of the North Carolina State Bar (the State Bar) a written notice of appeal not later than 21 days after the ~~mailing~~ date of the notice of the board's decision to the applicant who is denied certification or continued certification or to a lawyer whose certification is suspended or revoked.

(c) Time and Place of Hearing. The appeal will be scheduled for hearing at a time set by the council. The executive director of the State Bar shall notify the appellant and the board of the time and place of the hearing before the council.

(d) Record on Appeal to the Council.

(1) The record on appeal to the council shall consist of all ~~the evidence~~ documents and oral statements by witnesses offered at ~~the hearing before the board~~ any reconsideration hearing. The executive director of the board shall assemble the record and certify it to the executive director of the State Bar and notify the appellant of such action.

(2) If a court reporter was present at a reconsideration hearing at the election of the appellant, Tthe appellant shall make prompt arrangement with the court reporter to obtain and have filed with the executive director of the State Bar a complete transcript of the hearing. Failure of the appellant to make such arrangements and pay the costs shall be grounds for dismissal of the appeal.

(e) Parties Appearing Before the Council. The appellant may request to appear, with or without counsel, before the council and make oral argument. The board may appear on its own behalf or by counsel.

(f) Appeal Procedure. The council shall consider the appeal en banc. The council shall consider only the record on appeal, briefs, and oral arguments. The decision of the council shall be by a majority of those members voting. All council members present at the ~~meeting~~ hearing may participate in the discussion and deliberation of the appeal. Members of the board who also serve on the council are recused from voting on the appeal.

(g) Scope of Review. Review by the council shall be limited to whether the appellant was provided with procedural rights and whether the board, or the reconsideration panel where applicable, applied the correct procedural standards and State Bar rules in rendering its decision. The appellant shall have the burden of making a clear and convincing showing of arbitrary, capricious, or fraudulent denial of procedural rights or misapplication of the procedural standards or State Bar rules.

(h) Notice of the Council's Decision. The appellant shall receive written notice of the council's decision.

.1806 Additional Rules Pertaining to Hearing and Appeals

(a) Notices. Every notice required by these rules shall be deemed sufficient if ~~mailed~~ sent to the applicant at the address listed on the applicant's last application to the board or the address in the official membership records of the State Bar.

(b) Expenses Related to Hearings and Appeals. In its discretion, the board may direct that the necessary expenses incurred in any investigation, processing, and hearing of any matter to the board or appeal to the council be paid by the board or appeal to the council be paid by the board. However, all expenses related to travel to any hearing or appeal for the applicant, his or her attorney, and witnesses called by the applicant shall be ~~home~~ paid by the applicant ~~and shall not be paid by the board~~.

.2905, Standards for Certification as a Specialist in Elder Law

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

(a) Licensure and Practice.

...

(1) ...

(3) Experience Categories:

(A) ...

(F) Special Needs Counseling, including the planning, drafting, and administration of special/supplemental needs trusts, housing, employment, education, and related issues.

[Reletter subparagraphs (F) to (I)]

~~(J) income, Estate, and Gift Tax Advice, including consequences of plans made and advice offered.~~

~~(K) public Benefits Advice, including planning for and assisting in obtaining Medicare, social security, and food stamps.~~

[Reletter remaining subparagraphs]

Proposed Amendments to the Rules of Professional Conduct

27 N.C.A.C. 2, Rules of Professional Conduct, Rule 8.3, Reporting Professional Misconduct

At the request of the North Carolina Dispute Resolution Commission, the Ethics Committee proposes an amendment to Rule 8.3 that will exempt a lawyer serving as a mediator and who is subject to the North Carolina Supreme Court Standards of Professional Conduct for Mediators from reporting information learned during a mediation relative to another lawyer's misconduct.

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) This Rule does not require disclosure of information learned during a mediation by a lawyer who is serving as a certified mediator and who is subject to the North Carolina Supreme Court Standards of Professional Conduct for Mediators unless disclosure is allowed by such standards.

Comment

[1] ...

[7] The North Carolina Supreme Court has adopted Standards of Professional Conduct for Mediators to regulate the conduct of all certified mediators. Mediators governed by those 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.

Proposed Amendments to Rules Governing Judicial District Grievance Committees

27 N.C.A.C. 1B, Section .0200, Rules Governing Judicial District Grievance Committees

The proposed amendments will increase the members of a district grievance committee.

.0201 Organization of Judicial District Grievance Committees

(a) ...

(1) Members of District Committees - Each district grievance committee shall be composed of not fewer than five nor more than 13 21 members, all of whom shall be active members in good standing both of the judicial district bar to which they belong and of the North Carolina State Bar. In addition to the attorney members, each district grievance committee may also include one to ~~three~~ five public members who have never been licensed to practice law in any jurisdiction. Public members shall not perform investigative functions regarding grievances but in all other respects shall have the same authority as the attorney members of the district grievance committee.

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