Proposed Rule Amendments

Highlights

• On October 18, 2023, the Supreme Court approved additional amendments to CLE rules that change fundamental aspects of the way mandatory CLE is enforced. The changes to the CLE rules will be implemented beginning March 1, 2024. 

Amendments Approved by the Supreme Court

On October 18, 2023, the North Carolina Supreme Court approved the following rule amendments. (For the complete text of the amendments, see the Spring and Summer 2023 editions of the Journal.)

Amendments to the Discipline and Disability Rules

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

The proposed amendment is a technical correction that clarifies that the procedure for refusing a letter of warning is distinct from the requirements for service of process for a letter of warning.

Amendments to the CLE Rules and Regulations

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

The amendments extend the existing exemption from CLE for members of the judiciary and their law clerks, and add an exemption from CLE for lawyers who are full-time employees in the General Assembly. They also add an annual renewal fee for on-demand programs; create a “registered sponsor” status that can be granted by the CLE Board to sponsors that meet certain requirements; and limit the organizations that may present PNA programs to registered sponsors and judicial district bars approved by the board to offer such programs.

Amendments to the Rules Governing the Specialization Program

27 N.C.A.C. 1D, Section .1700, The Plan of Legal Specialization; Section .3400, Certification Standards for the Child Welfare Specialty

The amendments clarify a specialist’s duty to report professional misconduct to the board, and make technical corrections to rules relating to the new specialty in child welfare law.

Transmitted on Behalf of the Board of Law Examiners

NC BLE Rule .0501, Requirements for Military Spouse Comity Applicants

The rule amendment proposed by the North Carolina Board of Law Examiners eliminates the application fee for military spouse comity applicants.

Amendments Pending Supreme Court Approval

At its meetings on January 20, 2023, July 21, 2023, and October 27, 2023, the North Carolina State Bar 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 Winter 2022, Spring 2023, and Fall 2023 editions of the Journal or visit the State Bar website.)

Proposed Amendments to the Duties of the Secretary

27 N.C.A.C. 1A, Section .0400, Election, Succession, and Duties of Officers

The proposed amendments permit the secretary of the State Bar to delegate ministerial tasks, such as the certification of copies of court records, to other State Bar employees.

Proposed Amendments to the Discipline and Disability Rules

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

Proposed amendments to Discipline and Disability Rules .0105, .0106, and .0113 provide the procedural framework for grievance reviews for discipline issued to a respondent by the Grievance Committee. Statutory amendments enacted in 2022 required the establishment of the review procedure.         

Proposed Amendments to the Rules Governing the Continuing Legal Education Program

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

The proposed revisions amend the definition of an ethics program and add a new “Registered Sponsor” definition.

Proposed Amendments to the Rules Governing the Specialization Program

27 N.C.A.C. 1D, Section .3500, Certification Standards for the Employment Law Specialty

The proposed amendments create a specialty in employment law. The proposed rules, which are all new, establish the standards for the new specialty.

Proposed Amendments to the Rules of Professional Conduct

27 N.C.A.C. 2, Section .0100, Client-Lawyer Relationship

The proposed amendments allow a lawyer to provide modest gifts to the client for basic living expenses if the lawyer is representing an indigent client pro bono, a court-appointed client, an indigent client pro bono through a non-profit legal services or public interest organization, or an indigent client pro bono through a law school clinic or pro bono program, subject to certain conditions. The proposed rule amendments were submitted to the Supreme Court on September 18, 2023; however, the Court took no action on the submission and requested further information on the proposed amendments.

Proposed Amendments

At its meeting on October 27, 2023, the council voted to publish for comment the following proposed rule amendments:

Proposed Amendments to the Rules Governing the Authorized Practice Committee

27 N.C.A.C. 1D, Section .0200, Procedures for the Authorized Practice Committee

The proposed amendments clarify the rules and ensure that the rules reflect the current procedures of the Authorized Practice Committee.

Rule .0201, General Provisions

(a) The Authorized Practice Committee is a standing committee of the council. The committee is comprised of councilors and advisory members appointed by the president. All members may vote on all matters coming before the committee unless prohibited by other rules of the State Bar.

(b) The purpose of the committee on the authorized practice of law Authorized Practice Committee is to protect the public from being unlawfully advised and represented in legal matters by unqualified persons. the unauthorized or unlawful practice of law by investigating information received about the possible unauthorized practice of law, by seeking compliance with the law, and by seeking enforcement of the law when necessary.

(c) The Authorized Practice Committee may issue advisory opinions concerning questions of significant interest to the public, the bar, and the courts on what constitutes the unauthorized practice of law.

(d) The Authorized Practice Committee oversees the counsel’s administration of the rules for registration of prepaid legal services plans and for online document providers, and directs the counsel to take such action as is necessary to enforce those rules.

 

Rule .0202, Procedure

The Authorized Practice Committee operates under the procedures set forth in these rules.

(a) The procedure to prevent and restrain the unauthorized practice of law shall be in accordance with the provisions hereinafter set forth.

(b) District bars shall not conduct separate proceedings into unauthorized practice of law matters but shall assist and cooperate with the North Carolina State Bar in reporting and investigating matters of alleged unauthorized practice of law.

 

Rule .0203, Definitions

Subject to additional definitions contained in other provisions of this subchapter, the following words and phrases, when used in this subchapter, have the meanings set forth in this Rule, unless the context clearly indicates otherwise.

 (1) Appellate division - the appellate division of the General Court of Justice.

(21) Chairperson of the Authorized Practice Committee Chair - the councilor appointed by the president to serve as chairperson chair of the Authorized Practice Committee of the North Carolina State Bar.

(32) Complainant or the complaining witness - any person who has complained of to the North Carolina State Bar alleging that the conduct of any person, firm firm, or corporation as relates to alleged constitutes the unauthorized practice of law. law in North Carolina.

(43) Complaint - a formal pleading filed in the name of information submitted to the North Carolina State Bar in the superior court against a person, firm or corporation after a finding of probable cause. alleging the unauthorized practice of law.

(54) Council - the Council of the North Carolina State Bar.

(65) Councilor - a member of the Council of the North Carolina State Bar.

(76) Counsel - the counsel of the North Carolina State Bar appointed by the council. or any attorney appointed by the counsel to provide legal services to the North Carolina State Bar.

(87) Court or courts of this state - a court authorized and established by the Constitution or laws of the state State of North Carolina.

(9) Defendant - any person, firm or corporation against whom a complaint is filed after a finding of probable cause.

(108) Investigation - the gathering of information with respect to alleged unauthorized practice of law. a complaint.

(119) Investigator - any person designated by the committee or the counsel to assist in the investigation of alleged unauthorized practice of law. a complaint.

(1210) Letter of notice - a communication sent by the committee to an accused individual or corporation a respondent setting forth the substance a summary of alleged conduct involving that is alleged to constitute the unauthorized practice of law. law seeking a response to the allegations.

(1311) Office of the counsel - the office and staff maintained by the counsel of the North Carolina State Bar.

(1412) Office of the secretary - the office and staff maintained by the secretary of the North Carolina State Bar.

(15) Party - after a complaint has been filed, the North Carolina State Bar as plaintiff and the accused individual or corporation as defendant.

(16) Plaintiff - after a complaint has been filed, the North Carolina State Bar.

(17) Preliminary Hearing - hearing by the Authorized Practice Committee to determine whether probable cause exists.

(1813) Probable Cause - a finding by the Authorized Practice Committee that there is reasonable cause to believe that a person or corporation respondent has engaged in the unauthorized practice of law law. justifying legal action against such person or corporation.

(14) Respondent - any person, firm, or corporation alleged to have engaged in the unauthorized practice of law.

(1915) Secretary - the secretary of the North Carolina State Bar.

(20) Supreme Court - the Supreme Court of North Carolina.

(16) Vice-chair - the councilor appointed by the president to serve as the vice-chair of the Authorized Practice Committee of the North Carolina State Bar.

 

Rule .0204, State Bar Council - Powers and Duties

The Council of the North Carolina State Bar shall have the power and duty: to supervise the conduct of the Authorized Practice Committee in accordance with the provisions of this subchapter.

(1) to supervise the administration of the Authorized Practice Committee in accordance with the provisions of this Subchapter;

(2) to appoint a counsel. The counsel shall serve at the pleasure of the council. The counsel shall be a member of the North Carolina State Bar but shall not be permitted to engage in the private practice of law.

 

Rule .0205, Chair of the Authorized Practice Committee - Powers and Duties

(a) The chairperson of the Authorized Practice Committee chair shall have the power and duty:

(1) to supervise the activities of the counsel; related to the conduct of the committee;

(2) to recommend to the Authorized Practice Committee that an investigation be initiated; authorize the counsel to initiate investigations upon receipt of a complaint; information indicating the possible unauthorized practice of law in North Carolina;

(3) to recommend to the Authorized Practice Committee that a complaint be dismissed;

(3) to authorize the counsel to forego an investigation under such circumstances as the chair deems appropriate;

(4) to recommend, or authorize the counsel to recommend, an appropriate disposition of a complaint;

(45) to direct letter letters of notice to an accused person or corporation respondents or direct to authorize the counsel to issue letters of notice in such cases or under such circumstances as the chairperson chair deems appropriate;

(56) to notify notify, the accused and or authorize the counsel to notify, any complainant that complainant, and any respondent who was notified of any investigation, of the committee’s disposition of a complaint complaint; has been dismissed;

(6) to call meetings of the Authorized Practice Committee for the purpose of holding preliminary hearings;

(7) to issue subpoenas in the name of the North Carolina State Bar or to direct the secretary to issue such subpoenas;

(8) to administer oaths or affirmations to witnesses;

(9) to file and verify complaints and petitions in the name of court pleadings filed by the North Carolina State Bar. Bar seeking enforcement of the prohibitions on the unauthorized practice of law.

(b) The president, vice-chairperson or senior council member of the Authorized Practice Committee vice-chair shall perform the functions of the chairperson chair of the committee in any matter when the chairperson chair or vice-chairperson is absent or disqualified. If both the chair and the vice-chair are absent or disqualified, a councilor designated by the president shall serve as acting chair.

 

Rule .0206, Authorized Practice Committee - Powers and Duties

The Authorized Practice Committee shall have the power and duty duty:

(1) to direct the counsel to investigate any alleged unauthorized practice of law in this State by any person, firm, or corporation corporation; in this State;

(2) to hold preliminary hearings, find probable cause, and recommend to the Executive Committee that a complaint for injunction be filed in the name of the State Bar against respondent; the counsel file a lawsuit against a respondent seeking to enjoin the unauthorized practice of law;

(3) to dismiss allegations of the unauthorized practice of law upon a finding of no probable cause; a complaint when there is insufficient evidence to show a violation of the law prohibiting the unauthorized practice of law;

(4) to issue a letters letter of caution, caution which may include a demand to cease and desist, to a respondent respondents in a case cases in which where the Committee committee concludes either that:

(a) there is probable cause established to believe respondent has engaged in the unauthorized practice of law in North Carolina, but

(i) respondent has agreed to refrain from engaging in the conduct in the future; future or the committee believes respondent will stop engaging in the conduct as a result of receiving the letter of caution;

(ii) respondent is unlikely to engage in the conduct again; or

(iii) either neither referral to a district attorney or nor complaint for injunction proceedings are is not warranted under the circumstances; or

(b) there is no the evidence is insufficient to establish probable cause established to believe that respondent has engaged in the unauthorized practice of law in North Carolina, but the committee finds it appropriate to caution the respondent because the conduct could potentially lead to a violation of the law;

(i) the conduct of the respondent may be improper and may become the basis for injunctive relief if continued or repeated; or

(ii) the Committee otherwise finds it appropriate to caution the respondent.

(5) to direct the counsel to stop an investigation and take no action;

(6) to refer a matter to another regulatory or licensing authority; to a law enforcementagency, including the a district attorney attorney, for criminal prosecution prosecution; and or to other committees the Grievance Committee of the North Carolina State Bar; and

(7) to issue proposed advisory opinions in accordance with procedures adopted for adoption by the council concerning as to whether the actual or contemplated conduct  identified activities of nonlawyers significant public interest would constitute the unauthorized practice of law in North Carolina.

 

Rule .0207, Counsel - Powers and Duties

The counsel shall have the power and duty:

(1) to initiate an investigation concerning the alleged unauthorized practice of law; law upon receipt of a complaint or upon receiving information from any other source indicating the possible unauthorized practice of law;

(2) to direct a letter of notice to a respondent respondent; when authorized by the chairperson of the Authorized Practice Committee;

(3) to make a recommendation to the committee on the disposition of a complaint;

(3) to investigate all matters involving alleged unauthorized practice of law whether initiated by the filing of a complaint or otherwise;

(4) to recommend to the chairperson of the Authorized Practice Committee that a matter be dismissed because the complaint is frivolous or falls outside the council’s jurisdiction; that a letter of notice be issued; or that the matter be considered by the Authorized Practice Committee to determine whether probable cause exists;

(54) to prosecute before the courts all actions to enjoin the unauthorized practice of law proceedings as may be authorized by the Executive Committee or the council; before the Authorized Practice Committee and the courts;

(6) to represent the State Bar in any trial or other proceedings concerned with the alleged unauthorized practice of law;

(7) to employ assistant counsel, investigators, and other administrative personnel in such numbers as the council may from time to time authorize;

(85) to maintain permanent records of all matters processed by the counsel on behalf of the committee and of the disposition of such matters; thereof, pursuant to the records retention policies of the North Carolina State Bar; and

(96) to perform such other duties as the council may from time to time direct. incident to the operation of the committee as the president, the chair, the committee, or the council may direct.

 

Rule .0208, Suing for Injunctive Relief

(a) Upon receiving a recommendation from If the Authorized Practice Committee recommends that a complaint seeking the North Carolina State Bar seek injunctive relief be filed, to prevent the unauthorized practice of law, the chair will report the recommendation to the Executive Committee Committee. shall review the matter at the same quarterly meeting and determine whether the recommended action is necessary to protect the public interest and ought to be prosecuted.

(b) If the Executive Committee decides to follow adopt the recommendation of theAuthorized Practice Committee, Committee’s recommendation, it shall direct the counsel to prepare and file the necessary pleadings as soon as practical for signature by the chairperson and filing with in the appropriate tribunal.

(c) If the Executive Committee decides not to follow adopt the recommendation of the Authorized Practice Committee, Committee’s recommendation, the matter shall go before the council at the same quarterly meeting will decide to determine whether the recommended action is necessary to protect the public interest and ought to be prosecuted. to authorize prosecution of the matter.

(d) If the council decides not to follow adopt the recommendation of the Authorized Practice Committee, Committee’s recommendation, the matter file shall be referred back to the Authorized Practice Committee for alternative disposition.

(e) If probable cause exists to believe that a respondent is engaged in the unauthorized practice of law and the harmful nature of the conduct is such that immediate action is needed to protect the public interest before the next quarterly meeting of the Authorized Practice Committee, the chairperson, chair, with the approval of the president, may direct the counsel to file and verify a complaint or petition in the name of the North Carolina State Bar. Bar in with the appropriate tribunal seeking such temporary, preliminary, and permanent relief as is warranted.

Proposed Amendments to the Procedures for Fee Dispute Resolution

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

The proposed amendments will permit multiple methods for service of process of a letter of notice on a fee dispute respondent.

Rule .0708, Settlement Conference Procedure

(a) ...

(b) The State Bar will send serve a letter of notice to upon the respondent lawyer. lawyer by certified mail notifying the respondent that the petition was filed and notifying the respondent of the obligation to provide a written response to the letter of notice, signed by the respondent, within 15 days of service of the letter of notice upon the respondent, and enclosing copies of the petition and of any relevant materials provided by the petitioner.

(1) The letter of notice shall be served by one of the following methods:

(A) mailing a copy thereof by registered or certified mail, return receipt requested, to the last known address of the member contained in the records of the North Carolina State Bar or such later address as may be known to the person attempting service;

(B) mailing a copy thereof by designated delivery service (such as Federal Express or UPS), return receipt requested, to the last known address of the member contained in the records of the North Carolina State Bar or such later address as may be known to the person attempting service;

(C) personal service by the State Bar counsel or deputy counsel or by a State Bar investigator;

(D) personal service by any personauthorized by Rule 4 of the North Carolina Rules of Civil Procedure to serve process; or

(E) email sent to the email address of the member contained in the records of the North Carolina State Bar if the member sends an email from that same email address to the State Bar agreeing to accept service of the letter of notice by email. Service of the letter of notice will be deemed complete on the date that the letter of notice is sent by email.

A member who cannot, with reasonable diligence, be served by one of the methods identified in subparagraphs (A)–(E) above shall be deemed served upon publication of the notice in the State Bar Journal.

(2) The letter of notice shall enclose copies of the petition and of any relevant materials provided by the petitioner.

(3) The letter of notice shall notify the respondent (i) that the petition was filed and (ii) of the respondent’s obligation to provide to the State Bar a written response to the letter of notice, signed by the respondent, within 15 days of service of the letter of notice.

...

(e) The facilitator will may conduct a telephone settlement conference. ...

(f) The facilitator will explain the following to the parties:

(1) ...;

...

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

(g) ...