Proposed Amendments to the Rules of Professional Conduct

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 your written comments by January 3, 2025, to Peter Bolac, The North Carolina State Bar, PO Box 25908, Raleigh, NC 27611, or ethicscomments@ncbar.gov.

Amendments Pending Supreme Court Approval

At its meeting on November 1, 2024, the council voted to adopt the following rule amendments for transmission to the North Carolina Supreme Court for its approval. (For the complete text of the rule amendments, see the Summer 2024 edition of the Journal or visit the State Bar website: ncbar.gov.)

Proposed Amendments to the Rules Governing Discipline

27 N.C.A.C. 1B, Section .0100, Rule .0111, Grievances: Form and Filing

27 N.C.A.C. 1B, Section .0100, Rule .0112, Investigations; Initial Determination; Notice and Response; Committee Referrals

27 N.C.A.C. 1B, Section .0100, Rule .0137, Vexatious Complainants

The rule amendments and new Rule .0137 implement the provisions of Session Law 2024-25 (Senate Bil 790) that establish standing requirements for a person filing a complaint and allow the chair of the Grievance Committee to designate a person as a vexatious complainant. In addition, proposed amendments to Rule .0112 will (i) create a voluntary, individualized grievance deferral program in which respondents collaborate with the Office of Counsel to create a deferral agreement that is tailored to address the respondent’s underlying misconduct, and (ii) specify that a participant in a deferral program must participate personally and communicate directly with Office of Counsel staff.

Proposed Amendments to the Rules Governing the Specialization Program

27 N.C.A.C. 1D, Section .2600, Rule .2605, Certification Standards as a Specialist in Immigration Law

27 N.C.A.C. 1D, Section .2600, Rule .2606, Standards for Continued Certification as a Specialist

The rule amendments proposed by the Board of Legal Specialization reduce the CLE requirements for initial certification and for recertification as an immigration law specialist.

Proposed Amendments for Re-publication

At its meeting on November 1, 2024, the council voted to publish for comment the following revisions to proposed rule amendments originally published during the third quarter:

Proposed Amendments to the Rules Governing Discipline

27 N.C.A.C. 1B, Section .0100, Rule .0113, Proceedings before the Grievance Committee

27 N.C.A.C. 1B, Section .0100, Rule .0136, Expungement or Sealing of Discipline [New Rule]

The proposed amendments to Rule .0113 and new Rule .0136 implement the provisions of Session Law 2024-25 (Senate Bil 790) that require the State Bar to produce certain records to a respondent; to provide an opportunity for a respondent to address the Grievance Committee; and to adopt a rule on expungement. After publication, comments were received on both rules.

In response to comment on Rule .0113, revisions to subsection (e) of the rule, relative to respondent appearances before the Grievance Committee, are proposed. Revisions to Rule .0136 are proposed to address eligibility, the procedure for seeking expungement, and the agency’s maintenance of a confidential record of expungements

Rule .0113 Proceedings before the Grievance Committee

(a) Probable Cause - The Grievance Committee or any of its subcommittees acting as the Grievance Committee with respect to grievances referred to it by the chair of the Grievance Committee will determine whether there is probable cause to believe that a respondent committed is guilty of misconduct justifying disciplinary action. In its discretion, the Grievance Committee or a panel thereof may find probable cause regardless of whether the respondent has been served with a written letter of notice. The respondent may waive the necessity of a finding of probable cause with the consent of the counsel and the chair of the Grievance Committee. A decision of a panel of the committee may not be appealed to the Grievance Committee as a whole or to another panel (except as provided in 27 N.C.A.C. 1A, .0701(a)(3)).

(b) Oaths and Affirmations - The chair of the Grievance Committee will have the power to administer oaths and affirmations.

(c) Record of Grievance Committee’s Determination - The chair will keep a record of the Grievance Committee’s determination concerning each grievance and file the record with the secretary.

(d) Subpoenas - The chair will have the power to subpoena witnesses, to compel their attendance, and compel the production of books, papers, and other documents deemed necessary or material to any preliminary hearing. The chair may designate the secretary to issue such subpoenas.

(ed) Closed Meetings - The counsel and deputy counsel, the witness under examination, interpreters when needed, and, if deemed necessary, a stenographer or operator of a recording device may be present while the committee is in session and deliberating, but no persons other than members may be present while the committee is voting.

(e) Procedure When Counsel Recommends Admonition, Reprimand, Censure, or Referral to the Disciplinary Hearing Commission. If the counsel recommends admonition, reprimand, censure, or referral to the Disciplinary Hearing Commission,

(1) At least thirty days before the committee’s consideration of the counsel’s recommendation, the counsel shall provide to the respondent:

(A) all financial audits and all other materials provided to the committee that are not privileged and are not work product; and

(B) any evidence in the possession of the State Bar that indicates the respondent did not engage in the alleged misconduct, or a certification that no such evidence is in the State Bar’s possession.

(2) The respondent shall have the opportunity to hear the counsel’s presentation of the factual basis for the recommendation and to address the subcommittee to which the grievance is assigned. The chair of the Grievance Committee shall have discretion to offer respondents the option of participating via video conference determine whether the respondent will hear the counsel’s presentation of the factual basis in person or via video conference, to determine whether the respondent will address the subcommittee in person or via video conference, and to determine the amount of time the counsel and the respondent will have to address the subcommittee, ensuring the respondent is allowed at least the same amount of time as is granted to the counsel for its recitation of factual basis.

(f) …

Rule .0136, Expungement or Sealing of Discipline [NEW RULE]

(a) By the Chair of the Grievance Committee.

(1) Expungement of Admonition by the Grievance Committee. A lawyer respondent who accepted an admonition from the Grievance Committee may petition the chair of the committee to expunge the admonition as set forth herein. The petition shall be served upon the State Bar Counsel. and shall show that Thepetitioner shall show rehabilitation has been rehabilitated by executing and attaching to the petition an affidavit certifying the following requirements for expungement of an admonition:

(A) The admonition was not issued for (i) did not involve violation of Rules of Professional Conduct 1.19, 3.3(a), 8.4(b), or 8.4(c) or attempted violation of Rule 1.19, or (ii) did involve violation of Rule 8.4(c) but the admonition was solely related to the contents of the lawyer’s advertising or marketing materials;

(B) Five years have elapsed since the effective date of the admonition;

(C) The petitioner has not been the subject of any order of professional discipline since the effective date of the admonition;

(D) The petitioner has not been convicted of violating the laws of the United States or any state or local government other than minor traffic violations since the effective date of the admonition and no criminal charges other than minor traffic violations are currently pending against the petitioner;

(DE) There are no grievances pending against the petitioner with the North Carolina State Bar and no allegations of professional misconduct against the petitioner are currently under investigation in any other jurisdiction; and

(EF) There are no disciplinary complaints proceedings pending against the petitioner in the Disciplinary Hearing Commission, or in any court, against the petitioner. or in any other jurisdiction; and

(G) The petitioner has not previously been granted expungement or sealing of a disciplinary action.

(2) Expungement of Reprimand or Censure by the Grievance Committee. A respondent lawyer who accepted a reprimand or a censure from the Grievance Committee may petition the chair of the committee to expunge the reprimand or the censure as set forth herein. The petition shall be served upon the State Bar Counsel. and shall show that The petitioner has been rehabilitated shall show rehabilitation by executing and attaching to the petition an affidavit certifying the following requirements for expungement of a reprimand or censure:

(A) The reprimand or censure was not issued for (i) did not involve violation of Rule of Professional Conduct 1.19, 3.3(a), 8.4(b), or 8.4(c) or attempted violation of Rule 1.19, or (ii) did involve violation of Rule 8.4(c) but the reprimand or censure was solely related to the contents of the lawyer’s advertising or marketing materials;

(B) Ten years have elapsed since the effective date of the reprimand or censure;

(C) The petitioner has not been the subject of any order of professional discipline since the effective date of the reprimand or censure;

(D) The petitioner has not been convicted of violating the laws of the United States or any state or local government other than minor traffic violations since the effective date of the reprimand or censure and no criminal charges other than minor traffic violations are currently pending against the petitioner;

(EF) There are no disciplinary complaints proceedings pending against the petitioner in the Disciplinary Hearing Commission, or in any court against the petitioner, or in any other jurisdiction; and

(G) The petitioner has not previously been granted expungement or sealing of a disciplinary action.

(3) Determination by the Chair of the Grievance Committee.

(A) The Office of Counsel shall have 30 days from the date of service of the petition to produce any information or documentation concerning whether the requirements for expungement are satisfied. Such information shall be transmitted to the petitioner and the chair of the committee.

(B) If the chair of the Grievance Committee concludes that the requirements in Rule .0136(a)(1) have been satisfied by the petitioner, the chair shall enter an order expunging the admonition. If the chair of the Grievance Committee concludes that the requirements in Rule .0136(a)(2) have been satisfied by the petitioner, the chair shall enter an order expunging the reprimand or censure.

(b) By the Chair of the Disciplinary Hearing Commission.

(1) Expungement of Admonition Entered by the Disciplinary Hearing Commission. A defendant lawyer in whose case the Disciplinary Hearing Commission entered an order of discipline imposing an admonition may petition the chair of the commission to expunge the admonition as set forth herein. The petition shall be filed with the commission and served upon the State Bar Counsel. and shall show that tThe petitioner shall show rehabilitationhas been rehabilitated by executing and attaching to the petition an affidavit certifying the following requirements for expungement of an admonition:

(A) The admonition was not issued for (i) did not involve violation of Rule of Professional Conduct 1.19, 3.3(a), 8.4(b), or 8.4(c) or attempted violation of Rule 1.19 or (ii) did involve violation of Rule 8.4(c) but the admonition was solely related to the contents of the lawyer’s advertising or marketing materials;

(B) Five years have elapsed since the effective date of the admonition;

(C) The petitioner has not been the subject of any order of professional discipline since the effective date of the admonition;

(DE) There are no grievances pending against the petitioner with the North Carolina State Bar and no allegations of professional misconduct against the petitioner are currently under investigation in any other jurisdiction; and

(EF) There are no disciplinary complaints proceedings pending against petitioner in the Disciplinary Hearing Commission, or in any court, against the petitioner. or in any other jurisdiction; and

(G) The petitioner has not previously been granted expungement or sealing of a disciplinary action.

(2) Expungement of Reprimand or Censure Entered by the Disciplinary Hearing Commission. A defendant lawyer in whose case the Disciplinary Hearing Commission entered an order of discipline imposing a reprimand or a censure may petition the chair of the commission to expunge the reprimand or censure as set forth herein. The petition shall be filed with the commission and served upon the State Bar Counsel. and shall show that The petitioner shall show rehabilitation has been rehabilitated by executing and attaching an affidavit certifying the following requirements for expungement of a reprimand or censure:

(A) The reprimand or censure was not issued for (i) did not involve violation of Rule of Professional Conduct 1.19, 3.3(a), 8.4(b), or 8.4(c) or attempted violation of Rule 1.19 or (ii) did involve violation of Rule 8.4(c) but the reprimand or censure was solely related to the contents of the lawyer’s advertising or marketing materials;

(B) Ten years have elapsed since the effective date of the reprimand or censure;

(C) The petitioner has not been the subject of any order of professional discipline since the effective date of the reprimand or censure;

(D) The petitioner has not been convicted of violating the laws of the United States or any state or local government other than minor traffic violations since the effective date of the reprimand or censure and no criminal charges other than minor traffic violations are currently pending against the petitioner;

(EF) There are no disciplinary complaints proceedings pending against the petitioner in the Disciplinary Hearing Commission, or in any court against the petitioner, or in any other jurisdiction; and

(G) The petitioner has not previously been granted expungement or sealing of a disciplinary action.

(3) Determination by the Chair of the Disciplinary Hearing Commission.

(A) The Office of Counsel shall have 30 days from the date of service of the petition to file a response with information or documentation concerning whether the requirements for expungement are satisfied. The response shall be transmitted to the petitioner.

(B) If the chair of the commission concludes that the requirements in Rule .0136(b)(1) have been satisfied by the petitioner, the chair shall enter an order expunging the admonition. If the chair of the commission concludes that the requirements in Rule .0136(b)(2) have been satisfied by the petitioner, the chair shall enter an order expunging the reprimand or censure.

(1) An admonition, reprimand, or censure that is expunged by the chair of the Grievance Committee or by the chair of the Disciplinary Hearing Commission shall be removed from the petitioner’s disciplinary record and from the State Bar website and cannot be used in any future disciplinary proceedings against the petitioner. For disciplinary actions expunged by the Disciplinary Hearing Commission, all filings in the case shall be removed from the publicly accessible records of the commission.

(2) In determining the disposition of any future grievances against the petitioner, the State Bar’s Grievance Committee will not consider expunged discipline.

(3) The State Bar shall maintain a confidential record of expunged discipline, including all filings in the Disciplinary Hearing Commission case that resulted in the discipline, which will not be available for public inspection and will not be disclosed except as provided in subsection (h) of this rule.

(4) The petitioner will not be held thereafter to have made a false statement by reason of failing to recite or acknowledge the expunged discipline. This subsection shall not apply in a DHC or judicial disciplinary proceeding in which the petitioner has been found to have engaged in misconduct and the tribunal is determining what discipline should be imposed.

(d) Sealing Order of Stayed Suspension Entered by the Disciplinary Hearing Commission.

(1) A defendant lawyer in whose case the Disciplinary Hearing Commission entered an order imposing a stayed suspension of the defendant lawyer’s law license may petition the chair of the commission to seal the order of discipline as set forth herein. The petition shall be filed with the commission and served upon the State Bar Counsel. and tThe petitioner shall show rehabilitation that the petitioner has been rehabilitated by executing and attaching to the petition an affidavit certifying the following requirement for sealing an order of discipline:

(A) The order of discipline imposing the stayed suspension was not issued for (i) did not involve violation of Rule of Professional Conduct 1.19, 3.3(a), 8.4(b), or 8.4(c) or attempted violation of Rule 1.19, or (ii) the stayed suspension was issued for did involve violation of Rule 8.4(b) or (c) but those violations the order of discipline was related solely to the defendant lawyer’s failure to file and/or pay personal income taxes;

(B) Ten years have elapsed since the effective date of the stayed suspension;

(C) The petitioner has not been the subject of any order of professional discipline since the effective date of the stayed suspension;

(D) The petitioner has not been convicted of violating the laws of the United States or any state or local government other than minor traffic violations since the effective date of the order of discipline and no criminal charges other than minor traffic violations are currently pending against the petitioner;

(EF) There are no disciplinary complaints proceedings pending in the Disciplinary Hearing Commission, or in any court, against the petitioner or in any other jurisdiction; and

(FG) The stayed suspension imposed in the order of discipline was entirely stayed, no portion of the suspensionwas not activated by the commission., and the period of the stay was not extended by the commission due to noncompliance with conditions; and

(H) The petitioner has not previously been granted expungement or sealing of a disciplinary action.

(2) Determination by Chair of the Commission.

(A) The Office of Counsel shall have 30 days from the date of service of the petition to file a response with information or documentation concerning whether the requirements for sealing a disciplinary order are satisfied. The response shall be transmitted to the petitioner.

(B) If the chair of the commission concludes that the requirements of Rule .0136(d)(1) have been satisfied by the petitioner, the chair shall enter an order sealing the order of stayed suspension and all other filings in the case, including the filings related to the petition to seal the disciplinary order.

(3) Effect of Sealing an Order of Stayed Suspension.

(A) An order of stayed suspension that has been sealed by the chair of the Disciplinary Hearing Commission shall be removed from the State Bar website and all filings in the case shall be removed from the publicly accessible records of the commission.

(B) The State Bar shall will maintain a confidential record of the sealed order of stayed suspension and other filings in the case, which that shall not be available for public inspection. The sealed order of stayed suspension may be introduced into evidence and considered in any future disciplinary action against the petitioner. Otherwise, the sealed order shall not be disclosed except as provided in subsection (h) of this rule.

(e) Orders of Active Suspension, Activated or Extended Orders of Stayed Suspension, and Orders of Disbarment Shall Not Be Expunged or Sealed. An order of discipline imposing an active suspension, imposing a stayed suspension that was subsequently activated or extended due to noncompliance, or imposing disbarment shall not be expunged or sealed.

(f) Eligibility Limited to Single Disciplinary Action. A lawyer who is granted expungement or sealing of professional discipline pursuant to this rule is not eligible for expungement or sealing of additional professional discipline.

(g) Rescission of Expungement or Sealing of Discipline. Upon receipt of information indicating that a certification in the affidavit supporting a petition to expunge or seal a disciplinary action was false, the Office of Counsel may submit a written request to the chair of the Grievance Committee or file a motion in the Disciplinary Hearing Commission requesting that the expungement or sealing of the disciplinary action be rescinded. The request or motion shall be served upon the lawyer who made the certification and the lawyer shall have 30 days from the date of service to submit a written response. If the chair of the Grievance Committee or the Disciplinary Hearing Commission concludes that the expungement or sealing of the disciplinary action was based upon a false certification by the petitioner, the order of expungement or order sealing the disciplinary order shall be rescinded.

(h) Confidential State Bar Records. The State Bar shall maintain confidential records of expunged discipline, sealed disciplinary orders, petitions to expunge or seal, and orders granting expungement or sealing pursuant to this rule. These confidential records may be disclosed only as follows:

(1) Upon request of a judge of the North Carolina General Court of Justice for the purpose of ascertaining whether a lawyer has previously been granted an expungement or sealing of professional discipline.

(2) Upon request of a lawyer seeking confirmation that disciplinary action against the requesting lawyer has been expunged or sealed.

(3) Pursuant to a search warrant, grand jury subpoena, or court order directing or authorizing the State Bar to provide records to any law enforcement or national security agency.

(4) In response to a petition for expungement by a lawyer to whom expungement or sealing was previously granted and who is therefore ineligible for expungement or sealing of additional disciplinary actions pursuant to section (f) of this rule.

(5) In a request to rescind the expungement or sealing of a disciplinary action pursuant to section (g) of this rule.

(6) In a DHC or judicial disciplinary proceeding in which the petitioner has been found to have engaged in misconduct and the tribunal is determining what discipline should be imposed.

(fi) Removal of Disciplinary Record of Deceased Lawyer from State Bar Website. One year after the State Bar is notified of a lawyer’s death, the State Bar shall remove from the State Bar website any orders of discipline entered against the lawyer.

(j) Removal of Orders of Dismissal from State Bar Website. Three years after the entry of an order by the Disciplinary Hearing Commission dismissing all charges of misconduct against a lawyer, the lawyer against whom the dismissed charges were filed may request that the order of dismissal be removed from the State Bar website. Requests for removal under this section shall be directed to the State Bar Counsel, who shall direct that the order be removed from the website if the order dismissed all charges of misconduct against the lawyer and three years have elapsed since entry of the order.

Proposed Amendments

At its meeting on November 1, 2024, the council voted to publish for comment the following proposed rule amendments:

Proposed Amendments to the Rules Governing the Continuing Legal Education Program

27 N.C.A.C. 01D, Section .1500, Rules Governing the Continuing Legal Education Program

The proposed amendments expand the types of live, in-house programs that can be presented by a person or organization that is not affiliated with the lawyers attending the program or their law firm.

Rule .1523, Credit for Non-traditional Programs and Activities

(a)…

(d) In-House CLE and Self-Study. No approval will be provided for in-house CLE or self-study by lawyers, except, in the discretion of the Board, as follows:

(1) programs to be conducted by public or quasi-public organizations or associations for the education of their employees or members;

(2) programs to be concerned with areas of legal education not generally offered by sponsors of programs attended by lawyers engaged in the private practice of law; or

(3) live ethics ethics, professional well-being, or technology training programs presented by a person or organization that is not affiliated with the lawyers attending the program or their law firms and that has demonstrated qualification to present such programs through experience and knowledge.

…

Proposed Amendments to the Discipline and Disability Rules

27 N.C.A.C. 01B, Section .0100, Discipline and Disability Rules

The proposed amendments empower the chair of the Disciplinary Hearing Commission to review vexatious complainant designations and to rule on requests to expunge or seal discipline. The amendments are necessary to implement provisions of Session Law 2024-25 (Senate Bill 790) that require the State Bar to establish both a process for declaring a complainant “vexatious,” resulting in limitations on the filing of further complaints, and a process for expunging certain disciplinary records.

Rule .0108, Chairperson of the Hearing Commission: Powers and Duties

(a) The chairperson of the Disciplinary Hearing Commission of the North Carolina State Bar will have the power and duty...

(7) to enter an order suspending a member pending disposition of a disciplinary proceeding when the member has been convicted of a serious crime or has pled no contest to a serious crime and the court has accepted the plea.plea;

(8) to review decisions by the chair of the State Bar’s Grievance Committee to designate a complainant as vexatious and to enter orders upholding or vacating the

designation;

(9) to receive and rule upon petitions to expunge orders of the commission that imposed admonition, reprimand, or censure;

(10) to receive and rule upon petitions to seal orders of the commission that imposed a stayed suspension.

Proposed Rule Amendments