Proposed Rule Amendments

Amendments Pending Supreme Court Approval

At its meeting on July 19, 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 the Administrative Committee

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

Rule .0901, Transfer to Inactive Status

The proposed amendments create a clear process for lawyers to transfer directly from administrative suspension status to inactive status, and update the requirements for transfer from active status to inactive status.

Proposed Amendments to the North Carolina State Bar Discipline and Disability Rules

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

Rule .0132, Trust Accounts; Audit

The proposed amendments permit the specific criteria and procedures for eligibility to participate in the Trust Account Compliance (TAC) Program to be established by policy and guidelines of the council (rather than by rule), and facilitate referrals by the staff (the counsel, the director of the Trust Account Compliance Department, and the auditor) to the TAC Program of lawyers whose random audits have disclosed one or more violations of Rule 1.15 of the Rules of Professional Conduct.

Proposed Amendments

At its meeting on July 19, 2024, the council voted to publish for comment the following proposed rule amendments:

Proposed Amendments to the Rules Governing Discipline

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

To implement the legislative requirements of Senate Bill 790, improve clarity, and add new deferral procedures and programs, there are proposed amendments to three existing rules (1B.0111, 1B.0112, and 1B.0113) and two new proposed rules (Rule 1B.0136 & Rule 1B.0137).

Rule .0111, Grievances: Form and Filing

(a) Standing Requirements – To be considered by the State Bar, a grievance must

(1) allege conduct that, if true, constitutes attorney misconduct in violation of Chapter 84 of the North Carolina General Statutes and/or constitutes a violation of the North Carolina Rules of Professional Conduct; and

(2) be filed by a person with standing, defined as:

(A) An attorney or judge pursuant to the obligation to report misconduct in accordance with Rule of Professional Conduct 8.3;

(B) A judge, attorney, court employee, juror, party, or client in the legal matter that is the subject of the grievance; or

(C) A person who has a cognizable interest in or connection with the legal matter or facts alleged in the grievance, or that person’s representative.

(3) The State Bar may open and investigate a grievance upon its own initiative if it discovers facts that, if true, would constitute attorney misconduct.

(a) A grievance may be filed by any person against a member of the North Carolina State Bar. Such grievance may be written or oral, verified or unverified, and may be made initially to the counsel. The counsel may require that a grievance be reduced to writing in affidavit form and may prepare and distribute standard forms for this purpose.

(b) Grievance Filing Form. The counsel may require that a grievance be reduced to writing and may prepare and require use of standard forms for this purpose.

(c) The counsel may investigate any allegations of attorney misconduct coming to the counsel’s attention.

(b) Upon the direction of the council or the Grievance Committee, the counsel will investigate such conduct of any member as may be specified by the council or Grievance Committee.

(c4) The counsel may investigate any matter coming to the attention of the counsel involving alleged misconduct of a member upon receiving authorization from the chairperson of the Grievance Committee. If the counsel receives information that a member has used or is using illicit substances, the counsel will follow the provisions of Rule .0130 of this Subchapter.

(d) Confidential Reports of Attorney Misconduct. The North Carolina State Bar may keep confidential the identity of an attorney or judge who reports alleged misconduct of another attorney pursuant to Rule 8.3 of the Revised Rules Rule of Professional Conduct 8.3 and who requests to remain anonymous. Notwithstanding the foregoing, the North Carolina State Bar will reveal the identity of a reporting attorney or judge to the respondent attorney where when such disclosure is required by law, or by considerations of due process process, or where when identification of the reporting attorney or judge is essential to preparation of the respondent’s attorney’s defense to the grievance and/or or defense to a formal disciplinary complaint.

(e) Declining to Investigate. The counsel may decline to investigate the following allegations:

(1) that a member provided ineffective assistance of counsel in a criminal case, unless a court has granted a motion for appropriate relief based upon the member’s conduct;

(2) that a plea entered in a criminal case was not made voluntarily and knowingly, unless a court granted a motion for appropriate relief based upon the member’s conduct;

(3) that a member’s advice or strategy in a civil or criminal matter was inadequate or ineffective. ineffective; and

(4) that a criminal prosecutor improperly exercised discretion in declining to bring criminal charges.

(f) ...

Rule .0112, Investigations; Initial Determination; Notice and Response; Committee Referrals

(a) Investigation Authority - Subject to the policy supervision of the council and the supervision control of the chair of the Grievance Committee, the counsel, or other personnel under the authority of the counsel, will review investigate the grievance grievance, conduct any investigation the counsel determines to be necessary and appropriate, and submit to the chair a report detailing the findings of the investigation. facts established by the investigation and a recommendation for disposition of the grievance.

(b) Grievance Committee Action on Initial or Interim Reports - As soon as practicable after the receipt of the initial or any interim report of the counsel concerning any grievance, the chair of the Grievance Committee may

(1) treat the report as a final report;

(2) direct the counsel to conduct further investigation, including contacting the respondent in writing or otherwise; or

(3) direct the counsel to send a letter of notice to the respondent.

(cb) Letter of Notice, Respondent’s Response, and Request for Copy of Grievance - If the counsel serves a letter of notice upon the respondent, it will be served by certified mail or by personal service. If the respondent consents to accept service of the letter of notice by email, the letter of notice may be served by emailing the letter of notice to the respondent’s email address of record with the State Bar membership department. The respondent’s response to the letter of notice will be due direct a response be provided within 15 days of service of the letter of notice upon the respondent. The response to the letter of notice shall include a full and fair disclosure of all facts and circumstances pertaining to the alleged misconduct. The response must be in writing and signed by the respondent. If the respondent requests it, the counsel will provide the respondent with a copy of the written grievance unless the complainant requests anonymity pursuant to Rule .0111(d) of this subchapter.

(c) Provision of Written Grievance and Supporting Materials to Respondent - Upon request of the respondent, the counsel will provide to the respondent a copy of the written grievance and any supporting material the complainant submitted with the grievance; provided that, if the grievance was submitted by a judge or an attorney pursuant to the obligation to report professional misconduct in accordance with Rule of Professional Conduct 8.3, and if the judge or attorney requests anonymity pursuant to Rule .0111(f) of this subchapter, the State Bar may redact the judge’s or attorney’s identifying information.

(d) Request for Copy of Respondent’s Response - If the complainant requests it, and unless the respondent objects in writing, The the counsel may provide to the complainant a copy of the respondent’s response to the letter of notice. notice unless the respondent objects thereto in writing.

(e) Termination of Further Investigation - After the Grievance Committee receives the response to a letter of notice, the counsel may conduct further investigation or terminate the investigation, subject to the control of the chair of the Grievance Committee.

(fe) Subpoenas - For reasonable cause, the chair of the Grievance Committee may issue subpoenas to compel the attendance of witnesses, including the respondent, for examination concerning the grievance and to may compel the production of documents, records, writings, communications, and other data of any kind that the chair determines are books, papers, and other documents or writings which the chair deems necessary or material to the inquiry. Each subpoena will be issued by the chair or by the secretary at the direction of the chair. The counsel, deputy counsel, investigator, or any members of the Grievance Committee designated by the chair may examine any such witness under oath or otherwise.

(gf) Grievance Committee Action on Final Reports – The Grievance Committee will consider the grievance as soon as practicable after it receives the final report of the counsel, except as otherwise provided in these rules.

(hg) Failure of Complainant to Sign and Dismissal Upon Request of Complainant - The investigation into alleged misconduct of the respondent will not be abated by failure of the complainant to sign a grievance, by settlement or compromise of a dispute between the complainant and the respondent, or by the respondent’s payment of restitution. The chair of the Grievance Committee may dismiss a grievance upon request of the complainant and with consent of the counsel where it appears that there is no probable cause to believe that the respondent violated the Rules of Professional Conduct.

(hi) Referral to Law Office Management Training

(1) If, at any time before a finding of probable cause, the Grievance Committee determines that the alleged misconduct is primarily attributable to the respondent’s failure to employ sound law office management techniques and procedures, the committee may offer the respondent an opportunity to voluntarily participate in a law office management training program approved by the State Bar before the committee considers discipline.

If the respondent accepts the committee’s offer to participate in the program, the respondent will then be required to complete a course of training in law office management prescribed by the chair which may include a comprehensive site audit of the respondent’s records and procedures as well as attendance at continuing legal education seminars. The respondent must participate personally in the program, must communicate directly with the program staff, and must provide required documentation directly to the program staff. If the respondent does not accept the committee’s offer, the grievance will be returned to the committee’s agenda for consideration of imposition of discipline.

(2) Completion of Law Office Management Training Program – If the respondent successfully completes the law office management training program, the committee may consider the respondent’s successful completion of the law office management training program as a mitigating circumstance and may, but is not required to, dismiss the grievance for good cause shown. If the respondent fails to successfully complete the law office management training program as agreed, the grievance will be returned to the committee’s agenda for consideration of imposition of discipline. The requirement that a respondent complete law office management training pursuant to this rule shall be in addition to the respondent’s obligation to satisfy the minimum continuing legal education requirements contained in 27 NCAC 01D .1517.

(ji) Referral to Lawyer Assistance Program

(1) If, at any time before a finding of probable cause, the Grievance Committee determines that the alleged misconduct is primarily attributable to the respondent’s substance use disorder abuse or mental health condition, problem, the committee may offer the respondent an opportunity to voluntarily participate in a rehabilitation program under the supervision of the Lawyer Assistance Program Board before the committee considers imposition of discipline.

If the respondent accepts the committee’s offer to participate in a rehabilitation program, the respondent must provide the committee with a written acknowledgement of the referral on a form approved by the chair. The acknowledgement of the referral must include the respondent’s waiver of any right of confidentiality that might otherwise exist to permit the Lawyer Assistance Program to provide the committee with the information necessary for the committee to determine whether the respondent is in compliance with the rehabilitation program. The respondent must participate personally in the program, must communicate directly with the program staff, and must provide required documentation directly to the program staff. If the respondent does not accept the committee’s offer, the grievance will be returned to the committee’s agenda for consideration of imposition of discipline.

(2) Completion of Rehabilitation Program – If the respondent successfully completes the rehabilitation program, the committee may consider successful completion of the program as a mitigating circumstance and may, but is not required to, dismiss the grievance for good cause shown. If the respondent fails to complete the rehabilitation program or fails to cooperate with the Lawyer Assistance Program Board, the Lawyer Assistance Program will report that failure to the counsel and the grievance will be returned to the committee’s agenda for consideration of imposition of discipline.

(kj) Referral to Trust Accounting Compliance Program

(1) Voluntary Deferral to Trust Account Compliance Program. If, at any time before a finding of probable cause, the Grievance Committee determines that the alleged misconduct is primarily attributable to the respondent’s failure to employ sound trust accounting techniques, the committee may offer the respondent an opportunity to participate voluntarily in the Trust Account Compliance Program of the State Bar’s Trust Account Compliance Department (the program) for up to two years before the committee considers imposition of discipline.

Policies governing the criteria and procedures for eligibility to participate in the program, participation in, and completion of the program shall be established by the council.

If the respondent accepts the committee’s offer to participate in the compliance program, the respondent must fully cooperate with the staff of the Trust Account Compliance Department and must produce to the staff all documentation and proof of compliance requested by the staff. The respondent must participate personally in the program, must communicate directly with the program staff, and must provide required documentation directly to the program staff. If the respondent does not accept the committee’s offer, the grievance will be returned to the committee’s agenda for consideration of imposition of discipline.

(2) Completion of Trust Account Compliance Program. If the respondent successfully completes the program, the committee may consider successful completion of the program as a mitigating circumstance and may, but is not required to, dismiss the grievance for good cause shown. If the respondent does not fully cooperate with the staff of the Trust Account Compliance Department and/or does not successfully complete the program, the grievance will be returned to the committee’s agenda for consideration of imposition of discipline.

(3) Ineligible for Referral. The committee will not refer to the program:

(A) any respondent whose grievance file involves possible misappropriation of entrusted funds, criminal conduct, dishonesty, fraud, misrepresentation, or deceit, or any other alleged misconduct the committee determines to be inappropriate for referral;

(B) any respondent who has not cooperated fully and timely with the committee’s investigation;

(C) any respondent who has already participated in the program as the result of the conduct in issue; or

(D) any respondent who declined an offer to participate in the program before the conduct at issue was referred to the Grievance Committee.

(4) Termination of Deferral Upon Discovery of Evidence of Serious Misconduct. If the Office of Counsel or the committee learns of evidence that a respondent who is participating in the program may have misappropriated entrusted funds, engaged in criminal conduct, or engaged in conduct involving dishonesty, fraud, misrepresentation, or deceit, the chair will terminate the respondent’s participation in the program and the disciplinary process will proceed.

(5) Referral Not a Defense to Allegations of Professional Misconduct. Referral to the Trust Accounting Compliance Program is not a defense to allegations of professional misconduct and does not immunize a lawyer from the disciplinary consequences of such conduct.

(1) If, at any time before a finding of probable cause, the Grievance Committee determines that the alleged misconduct is primarily attributable to the respondent’s failure to employ sound trust accounting techniques, the committee may offer the respondent an opportunity to voluntarily participate in the State Bar’s Trust Account Compliance Program for up to two years before the committee considers discipline.

If the respondent accepts the committee’s offer to participate in the compliance program, the respondent must fully cooperate with the Trust Account Compliance Counsel and must provide to the Office of Counsel quarterly proof of compliance with all provisions of Rule 1.15 of the Rules of Professional Conduct. Such proof shall be in a form satisfactory to the Office of Counsel. If the respondent does not accept the committee’s offer, the grievance will be returned to the committee’s agenda for consideration of imposition of discipline.

(2) Completion of Trust Account Compliance Program - If the respondent successfully completes the program, the committee may consider successful completion of the program as a mitigating circumstance and may, but is not required to, dismiss the grievance for good cause shown. If the respondent does not fully cooperate with the Trust Account Compliance Counsel and/or does not successfully complete the program, the grievance will be returned to the committee’s agenda for consideration of imposition of discipline.

(3) The committee will not refer to the program any case involving possible misappropriation of entrusted funds, criminal conduct, dishonesty, fraud, misrepresentation, or deceit, or any other case the committee deems inappropriate for referral. The committee will not refer to the program any respondent who has not cooperated fully and timely with the committee’s investigation. If the Office of Counsel or the committee discovers evidence that a respondent who is participating in the program may have misappropriated entrusted funds, engaged in criminal conduct, or engaged in conduct involving dishonesty, fraud, misrepresentation, or deceit, the chair will terminate the respondent’s participation in the program and the disciplinary process will proceed. Referral to the Trust Accounting Compliance Program is not a defense to allegations that a lawyer misappropriated entrusted funds, engaged in criminal conduct, or engaged in conduct involving dishonesty, fraud, misrepresentation, or deceit, and it does not immunize a lawyer from the disciplinary consequences of such conduct.

(k) Individualized Deferrals Program

(1) If, at any time before a finding of probable cause, the Grievance Committee, the chair of the Grievance Committee, or a representative of the Grievance Committee chair appointed by the chair determines that, due to the nature of the respondent’s alleged misconduct, the respondent should be offered a deferral agreement as an alternative to discipline, the Grievance Committee may defer disposition of the grievance and offer the respondent an opportunity to comply voluntarily with a deferral agreement. If the respondent rejects the offer, the grievance shall proceed as otherwise provided in this chapter.

(2) The deferral agreement shall impose specific conditions the respondent must satisfy during a specified period not to exceed one year. For good cause shown, the committee may extend the time during which compliance with the conditions is required. The respondent shall collaborate with the Office of Counsel to develop the conditions to include in the deferral agreement that address the underlying misconduct. However, the Grievance Committee shall determine all conditions to be included in the deferral agreement. Deferral agreement conditions may include, but are not limited to, the following:

(A) Appointment of a practice monitor for the respondent’s practice;

(B) Successful completion of specified continuing legal education courses, or other courses of study;

(C) Successful completion of an educational or other consulting program including, but not limited to, a program offered by the respondent’s malpractice insurance carrier;

(D) Attainment of a passing score on the Multistate Professional Responsibility Exam;

(E) Restitution, if practicable;

(F) Written statement of reconciliation or apology to the court, client, or other person or institution adversely affected by the respondent’s conduct.

(3) If the respondent accepts the Grievance Committee’s offer to enter into a deferral agreement, the terms of the deferral agreement shall be set forth in writing. The written deferral agreement shall include the following:

(A) The respondent’s admission to the misconduct at issue in the grievance investigation;

(B) The respondent’s agreement that, should the respondent fail to comply with the deferral agreement, the respondent’s admission to the misconduct at issue in the grievance investigation may be considered by the Grievance Committee and/or offered into evidence without objection in any subsequent proceeding arising from the underlying grievance;

(C) A statement by the respondent that the respondent is participating in the deferral agreement freely and voluntarily and understands the nature and consequences of participation;

(D) A statement that the respondent accepts responsibility for the costs of the deferral conditions;

(E) An agreement by the respondent not to violate the Rules of Professional Conduct of this or any other jurisdiction while the deferral agreement is in effect;

(F) A statement specifying the general purpose of the deferral agreement;

(G) A specific and complete list of all conditions of the deferral agreement;

(H) A description of how the respondent’s compliance with the deferral agreement’s conditions will be monitored;

(I) The date by which the conditions of the deferral agreement must be completed;

(J) A description of how the respondent will provide evidence of the successful completion of the deferral agreement;

(K) The respondent’s signature.

(4) A respondent is eligible to participate in a deferral agreement as an alternative to discipline when there is little likelihood of harm to the public, the respondent’s participation in the deferral agreement is likely to benefit the respondent, and the deferral agreement conditions are likely to accomplish the goals of the deferral agreement. A respondent is not eligible for a deferral agreement as an alternative to discipline if any of the following circumstances are present:

(A) The respondent’s alleged misconduct, standing alone, is likely to result in discipline that is more severe than a reprimand;

(B) The respondent’s alleged misconduct is part of a pattern of misconduct that is unlikely to be changed by a deferral;

(C) The respondent’s alleged misconduct is of the same nature as misconduct for which the respondent has been previously disciplined;

(D) The respondent’s alleged misconduct involves dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer’s fitness as a lawyer;

(E) The respondent’s alleged misconduct resulted in substantial harm to a client or other person or entity;

(F) The respondent’s alleged misconduct involves misappropriation of funds or other property;

(G) The respondent’s alleged misconduct involves a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects;

(H) The respondent’s alleged misconduct involves sexual activity with a client, sexual communications with a client, or request, requirement, or demand for sexual activity or sexual communications with a client as a condition of any professional representation.

(5) The respondent shall pay all costs incurred in connection with completing the conditions of the deferral agreement.

(6) The respondent must participate personally in the deferral program, must communicate directly with the deferral program staff, and must provide required documentation directly to the deferral program staff.

(7) Upon the respondent’s successful completion of the conditions in the deferral agreement, the Grievance Committee, the chair of the Grievance Committee, or a representative of the Grievance Committee chair appointed by the chair shall dismiss the underlying grievance. If the grievance is dismissed, the respondent shall not be considered to have been disciplined; however, the respondent’s participation in a deferral agreement as an alternative to discipline may be considered by the Grievance Committee in reviewing any subsequent grievance and offered into evidence without objection in any subsequent disciplinary proceeding within three years after the expiration of the deferral agreement.

(8) If the respondent fails to comply with the terms of the deferral agreement, the Office of Counsel shall notify the respondent of the apparent noncompliance and shall provide the respondent an opportunity to respond to those allegations. The respondent shall be given an opportunity to respond to the allegations in the same manner as prescribed by Rule .0112(b) of this subchapter. If the Grievance Committee determines that the respondent has failed to comply with the deferral agreement, the Grievance Committee may modify the deferral agreement or terminate the deferral agreement and proceed with the matter as otherwise provided in this chapter.

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 30 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 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 respondent will have to address the subcommittee.

(f) Disclosure of Matters Before the Grievance Committee ...

...

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 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 the petitioner has been rehabilitated by certifying the following:

(A) The admonition was not issued for violation of Rules of Professional Conduct 1.19, 3.3(a), 8.4(b), or 8.4(c);

(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) There are no grievances pending against the petitioner; and

(E) There are no disciplinary complaints pending in the Disciplinary Hearing Commission or in any court against the petitioner.

(2) Expungement of Reprimand or Censure by the Grievance Committee. A respondent 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 by certifying the following:

(A) The reprimand or censure was not issued for violation of Rule of Professional Conduct 1.19, 3.3(a), 8.4(b), or 8.4(c);

(B) 10 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) There are no grievances pending against the petitioner; and

(E) There are no disciplinary complaints pending in the Disciplinary Hearing Commission or in any court against the petitioner.

(3) Determination by the Chair of the Grievance Committee. 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 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 the petitioner has been rehabilitated by certifying the following:

(A) The admonition was not issued for violation of Rule of Professional Conduct 1.19, 3.3(a), 8.4(b), or 8.4(c);

(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) There are no grievances pending against the petitioner; and

(E) There are no disciplinary complaints pending in the Disciplinary Hearing Commission or in any court against the petitioner.

(2) Expungement of Reprimand or Censure Entered by the Disciplinary Hearing Commission. A defendant 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 has been rehabilitated by certifying the following:

(A) The reprimand or censure was not issued for violation of Rule of Professional Conduct 1.19, 3.3(a), 8.4(b), or 8.4(c);

(B) 10 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) There are no grievances pending against the petitioner; and

(E) There are no disciplinary complaints pending in the Disciplinary Hearing Commission or in any court against the petitioner.

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

(c) Effect of Expungement of Admonition, Reprimand, or Censure. 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.

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

(1) A defendant in whose case the Disciplinary Hearing Commission entered an order imposing a stayed suspension of the defendant’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 shall show that the petitioner has been rehabilitated by certifying the following:

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

(B) 10 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) There are no grievances pending against the petitioner;

(E) There are no disciplinary complaints pending in the Disciplinary Hearing Commission or in any court against the petitioner; and

(F) The stayed suspension was not activated by the commission.

(2) Determination by Chair of the Commission. 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.

(3) Effect of Sealing an Order of Stayed Suspension. 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 the publicly accessible records of the commission. The State Bar shall maintain a confidential record of the stayed suspension 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.

(e) Order of Active Suspension, Activated Order of Stayed Suspension, and Order 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 imposing disbarment shall not be expunged or sealed.

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

Rule .0137, Vexatious Complainants [NEW RULE]

(a) Designation as a Vexatious Complainant.

(1) A person who submits to the State Bar grievances asserting allegations that, even if proven, would not constitute violations of the Rules of Professional Conduct or asserting allegations that are conclusively disproven by available evidence, and does so in a manner or in a volume amounting to abuse of the State Bar disciplinary process, may be designated by the chair of the Grievance Committee to be a vexatious complainant. Abuse of the State Bar disciplinary process includes repetitive, abusive, or frivolous allegations or communications by the complainant. Allegations that are contentious or are found to be without merit are not, standing alone, an abuse of the State Bar disciplinary process.

(2) The Office of Counsel shall mail a notice of the designation to the complainant at the complainant’s last known address. The notice shall contain a statement describing the factual basis for the designation. If the complainant does not request review of the designation pursuant to paragraph (a)(3) of this rule, the designation by the chair of the Grievance Committee shall be final and not subject to further review or reversal.

(3) A complainant designated as vexatious may seek review of the designation by filing a request for review with the clerk of the Disciplinary Hearing Commission and addressed to the chair of the commission. The complainant shall serve a copy of the request upon the State Bar Counsel. The request for review must be filed within 30 days after the Office of Counsel mailed the notice issued under paragraph (a)(2) of this rule.

(4) The Office of Counsel may file a response to the request for review within 15 days of the State Bar’s receipt of the request for review.

(5) Based upon the written submissions by the complainant and the Office of Counsel, the chair of the commission may either uphold or vacate the designation.

(6) Pursuant to GS 84-28.3(b), designation of a complainant as vexatious under this rule shall be final and conclusive and not subject to further review.

(b) Consequences of Designation as Vexatious Complainant.

(1) The State Bar may decline to review and process any grievance initiated by a person who has been designated a vexatious complainant, unless

(A) the grievance is submitted with a verification signed by the complainant under penalty of perjury that the allegations are true; and

(B) the grievance is submitted on the complainant’s behalf by a member of the North Carolina State Bar who

(i) has an active North Carolina law license;

(ii) is not currently designated as a vexatious complainant; and

(iii) is not currently the respondent in a pending grievance investigation or the defendant in a pending attorney disciplinary proceeding.

Proposed Amendments to the Rules Governing the Specialization Program

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

The proposed amendments reduce the CLE requirements for initial certification and for recertification.

Rule .2605, Standards for Certification as a Specialist in Immigration Law

Each applicant for certification as a specialist in immigration 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 immigration law:

(a) ...

...

(c) Continuing Legal Education - An applicant must earn no less than 48 44 hours of accredited continuing legal education (CLE) credits in topics relating to immigration law during the four years preceding application. At least 20 of the 48 CLE credit hours must be earned during the first and second year preceding application and at least 20 of the CLE hours must be earned during the third and fourth years preceding application. Of the 48 hours, at least 42 must be in immigration law; the balance may be in the related areas of federal administrative procedure, trial advocacy, evidence, taxation, family law, employment law, and criminal law and procedure.

(d) ...

...

Rule .2606, Standards for Continued Certification as a Specialist

The period of certification is five years. Prior to the expiration of the certification period, a certified specialist who desires continued certification must apply for continued certification within the time limit described in Rule .2606(d) below. No examination will be required for continued certification. However, each applicant for continued certification as a specialist shall comply with the specific requirements set forth below in addition to any general standards required by the board of all applicants for continued certification.

(a) ...

(b) Continuing Legal Education - The specialist must have earned no less than 60 55 hours of accredited continuing legal education credits in topics relating to immigration law as accredited by the board. At least 30 of the 60 CLE credit hours must be earned during the first three years after certification or recertification, as applicable. Of the 60 hours, at least 52 must be in immigration law; the balance may be in the related areas of federal administrative procedure, trial advocacy, evidence, taxation, family law, employment law, and criminal law and procedure.

(c) ...

...