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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 adress them to ethicscomments@ncbar.gov

Highlights

  • At its meeting on July 16, 2021, the council adopted an aspirational statement on the equal, courteous, and respectful treatment of all persons encountered in a professional capacity, for inclusion in the Preamble to the Rules of Professional Conduct.
  • The proposed new comment to Rule 1.1, Competence, which identifies awareness of implicit bias and cultural differences that might affect a representation as an element of competency, was sent back to subcommittee for further study.
  • The council approved for publication new standards for the criminal law specialty, including the creation of a federal criminal law sub-specialty.

AMENDMENTS PENDING SUPREME COURT APPROVAL

At its meetings on April 16, 2021, and July 16, 2021, 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 2020, Spring 2021, and Summer 2021 editions of the Journal or visit the State Bar website.)

Proposed Amendments to the Rules on Organization of the North Carolina State Bar

27 N.C.A.C. 1A, Section .0800, Election and Appointment of State Bar Councilors

The proposed amendments permit notices for district bar elections for State Bar councilors to be sent via email.

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 amendments add “Diversity, Inclusion, and Elimination of Bias Training” to the definitions in Rule .1501 and, in Rule .1518, include such training in the 2022 CLE requirements for active members of the State Bar.  

The proposed rule amendments were originally published for comment in the Winter 2020 edition of the Journal. During publication, comments were received. At the January 2021 Quarterly Meeting of the council, the Executive Committee sent the proposed rule amendments, together with the comments, to the Board of Continuing Legal Education for reconsideration. The CLE Board reviewed the comments and recommended no revisions to the proposed amendments. Therefore, the proposed amendments were not re-published prior to adoption by the council.

Proposed Amendments to the Rules for Legal Specialization

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

The proposed amendments eliminate a designated time of year for the Board of Legal Specialization’s annual meeting, permit notice of meetings by email, and correct references to the Rules of Professional Conduct.

Proposed Amendments to the Rules for Certain Specialty Certifications

27 N.C.A.C. 1D, Section .2700, Certification Standards for the Workers’ Compensation Law Specialty; Section .2800, Certification Standards for the Social Security Disability Law Specialty; Section .2900, Certification for the Elder Law Specialty; Section .3000, Certification Standards for the Appellate Practice Specialty; Section .3100, Certification Standards for the Trademark Law Specialty; Section .3200, Certification Standards for the Utilities Law Specialty; Section .3300, Certification Standards for the Privacy and Information Security Law Specialty.

The rules for some of the specialty certifications require peer references to be mailed. The proposed amendments will make the rules for the various specialties consistent with each other and enable the specialization program to send peer reference forms for all specialties by email.

Proposed Amendments to the Plan of Legal Specialization

27 N.C.A.C. 1D, Section .3400, Certification Standards for the Child Welfare Law Specialty [NEW Section]

The proposed rules create a new specialty certification in child welfare law. The standards are comparable to the standards for the other specialty certifications.

Proposed Amendments to the Discipline and Disability Rules

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

The proposed amendments provide that a petitioner for reinstatement seven years or more after the effective date of suspension or disbarment must (1) attain the passing score required in North Carolina on the Uniform Bar Examination; (2) successfully complete the North Carolina state-specific component of the bar examination; and (3) attain a passing score on the Multistate Professional Responsibility Examination. A petitioner for reinstatement from disability inactive status may be required to do the same. The proposed amendments also provide the following: (1) failure to comply with any requirement of the rule can result in dismissal of the petition; (2) a petitioner for reinstatement from disbarment or suspension must have reimbursed the State Bar for fees and expenses paid by the State Bar to any trustee appointed by the court to protect the petitioner’s clients, and a petitioner for reinstatement from disability inactive status may be required to do so; and (3) a petitioner for reinstatement from disbarment or suspension must have properly reconciled all trust or fiduciary accounts, and all entrusted funds of which the petitioner took receipt must have been disbursed to the beneficial owner(s) of the funds or the petitioner must have taken all necessary steps to escheat the funds, and a petitioner for reinstatement from disability inactive status may be required to do so. The proposed amendments also modernize and clarify language in the existing rule.

Proposed Amendments to the Rules for the Administrative Committee

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

As a condition of reinstatement, if a petition for reinstatement is filed seven years or more after the effective date of the order transferring the petitioner to inactive status or administrative suspension, the proposed amendments require, as a condition of reinstatement, a petitioner for reinstatement from inactive status or from administrative suspension to (1) attain the passing score required in North Carolina on the Uniform Bar Examination; (2) successfully complete the North Carolina state-specific component of the bar examination; and (3) attain a passing score on the Multistate Professional Responsibility Examination.

Proposed Amendments to the Rules and Regulations Governing the Continuing Legal Education Program

27 N.C.A.C. 1D, Section .1500, Rules Governing the Administration of the Continuing Legal Education Program; Section .1600, Regulations Governing the Continuing Legal Education Program

The proposed rule amendments require sponsors of CLE programs to remit sponsor fees within 90 days following the completion of a program or risk having future applications for program approval denied.

Proposed Amendment to the Preamble of the Rules of Professional Conduct

27 N.C.A.C. 2, Rules of Professional Conduct, Rule 0.1, Preamble

The proposed amendment adds a paragraph to the Preamble on equal treatment of all persons encountered when acting in a professional capacity.

Proposed Amendments 

At its meeting on July 16, 2021, the council voted to publish for comment the following proposed rule amendments:

Proposed Amendments to the Standards for Certification in Criminal Law

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

The proposed amendments adjust the criminal law specialty rules to recognize separate subspecialties in federal criminal law, state criminal law, and juvenile delinquency law. Currently, the rules recognize a combined federal/state criminal law specialty, a state criminal law subspecialty, and a juvenile delinquency law subspecialty. Specialists currently certified in the federal/state criminal law specialty will remain so until their next recertification when they will have to qualify for recertification in federal criminal law or state criminal law or in both subspecialties.

.2501, Establishment of Specialty Field

The North Carolina State Bar Board of Legal Specialization (the board) hereby designates criminal law (encompassing both federal and state criminal law), including the subspecialtyies of state criminal law, and juvenile delinquency law, and federal criminal law, as a field of law for which certification of specialists under the North Carolina Plan of Legal Specialization (see Section .1700 of this Subchapter) is permitted.

.2502, Definition of Specialty

The specialty of criminal law is the practice of law dealing with the defense or prosecution of those charged with misdemeanor and felony crimes criminal offenses in state and or federal trial courts. The subspecialtyies in the field is are identified and defined as follows:

(a) State Criminal Law. The practice of criminal law in state trial and appellate courts. The standards for the subspecialty are set forth in Rules .2505-.2506.

(b) Juvenile Delinquency Law. The practice of law in state juvenile delinquency courts. The standards for the subspecialty are set forth in Rules .2508-.2509.

(c) Federal Criminal Law. The practice of criminal law in federal trial and appellate courts. The standards for the subspecialty are set forth in Rules .2510-.2511.

.2503, Recognition as a Specialist in Criminal Law

A lawyer may qualify as a specialist by meeting the standards for criminal law or any of the subspecialties of state criminal law, or juvenile delinquency law, or federal criminal law. If a lawyer qualifies as a specialist by meeting the standards for the criminal law specialty, the lawyer shall be entitled to represent that he or she is a “Board Certified Specialist in Criminal Law.” If a lawyer qualifies as a specialist by meeting the standards set for the subspecialty of state criminal law, ...If a lawyer qualifies as a specialist by meeting the standards for the subspecialty of juvenile delinquency law...If a lawyer qualifies as a specialist by meeting the standards set for the subspecialty of federal criminal law, the lawyer shall be entitled to represent that he or she is a “Board Certified Specialist in Federal Criminal Law.” Effective [Supreme Court approval date to be added], any lawyer previously certified as a specialist in the state/federal criminal law specialty may continue to represent that he or she is a “Board Certified Specialist in State/Federal Criminal Law” until the specialist’s next recertification period, at which point he or she must satisfy the requirements for continued certification as a specialist in state criminal law, federal criminal law, or both.

.2505, Standards for Certification as a Specialist in State Criminal Law

Each applicant for certification as a specialist in state criminal law or the subspecialty of state criminal 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:

(a) Licensure and Practice - ...

(b) Substantial Involvement - An applicant shall affirm to the board that the applicant has experience through substantial involvement in the practice of state criminal law.

(1) Substantial involvement shall mean during the five years immediately preceding the application, the applicant devoted an average of at least 500 hours a year to the practice of state criminal law, ...

(2) “Practice equivalent” shall mean:

(A) ...;

(B) Service as a federal, state or tribal court judge for one year or more,...;

(3) For the specialty of criminal law and the subspecialty of state criminal law, the board shall require an applicant to show substantial involvement by providing information that demonstrates the applicant’s significant criminal trial experience such as:

(A) ...;

...

(D) ...

(c) Continuing Legal Education

In the specialty of criminal law and the state criminal law subspecialty, an applicant must have earned no less than 40 hours of accredited continuing legal education credits in criminal law during the three years preceding the application, which 40 hours must include the following:

(1) ...;

(2) at least 6 hours in the area of ethics and criminal law.

(d) Peer Review

(1) Each applicant for certification as a specialist in criminal law and the subspecialty of state criminal law must make a satisfactory showing of qualification through peer review.

(2) ...

...

(4) Each applicant must provide for reference and independent inquiry the names and addresses of the following: (i) ten lawyers and/or judges...and (ii)...

(5) A reference may not be related by blood or marriage to the applicant nor may the reference be a partner or associate of the applicant at the time of the application A reference may not be related by blood or marriage to the applicant, may not be a partner or associate of the applicant, and may not work in the same government office as the applicant at the time of the application.

(e) Examination - The applicant must pass a written examination designed to test the applicant’s knowledge and ability.

(1) Terms - ...

(2) Subject Matter - The examination shall cover the applicant’s knowledge in the following topics in criminal law, and/or in the subspecialty of state criminal law, as the applicant has elected:

(A) the North Carolina and Federal Rules of Evidence;

(B) state and federal criminal procedure and state and federal laws affecting criminal procedure;

...

(E) trial procedure and trial tactics; and

(F) criminal substantive law;.

(3) Required Examination Components - .

(A) Criminal Law Specialty.

An applicant for certification in the specialty of criminal law must pass part I of the examination on general topics in criminal law and part II of the examination (federal and state criminal law).

(B) State Criminal Law Subspecialty.

An applicant for certification in the subspecialty of state criminal law must pass part I of the examination on general topics in criminal law and part III of the examination on state criminal law.

.2506, Standards for Continued Certification as a Specialist in State Criminal Law

The period of certification is five years. A certified specialist who desires continued certification must apply for continued certification within the time limit described in Rule .2506(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) Substantial Involvement - The specialist must demonstrate that for the five years preceding reapplication he or she has had substantial involvement in the specialty or subspecialty as defined in Rule .2505(b).

(b) Continuing Legal Education - The specialist must have earned no less than 650 hours of accredited continuing legal education credits in criminal law as defined in Rule .2505(c)(1), with not less than 6 credits earned in any one year.

(c) Peer Review - The applicant must provide, as references, the names of at least six lawyers or judges,...Each applicant also must provide the names and addresses of the following: (i) five lawyers and/or judges who practice in the field of criminal law and who are familiar with the applicant’s practice, and (ii) ...

(d) Time for Application - ...

...

.2507, Applicability of Other Requirements

The specific standards set forth herein for certification of specialists in the criminal law the subspecialtyies of state criminal law, and the subspecialty of juvenile delinquency law, and federal criminal law are subject to any general requirement, standard, or procedure adopted by the board applicable to all applicants for certification or continued certification.

.2508, Standards for Certification as a Specialist in Juvenile Delinquency Law

Each applicant for certification as a specialist in juvenile delinquency 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:

(a) Licensure and Practice - ...

...

(d) Peer Review -

(1) ...

...

(4) Each applicant must provide for reference and independent inquiry the names and addresses of ten lawyers and/or judges...

(5) A reference may not be related by blood or marriage to the applicant nor may the reference be a partner or associate of the applicant at the time of the application A reference may not be related by blood or marriage to the applicant, may not be a partner or associate of the applicant, and may not work in the same government office as the applicant at the time of the application.

(e) Examination - An applicant must pass a written examination designed to demonstrate sufficient knowledge, skills, and proficiency in the field of juvenile delinquency law to justify the representation of special competence to the legal profession and the public.

(1) ...

...

(3) Examination Components - An applicant for certification in the subspecialty of juvenile delinquency law must pass part I of the criminal law examination on general topics in criminal law and part IV of the examination on juvenile delinquency law.

.2510, Standards for Certification as a Specialist in Federal Criminal Law [NEW RULE]

Each applicant for certification as a specialist in the subspecialty of federal criminal 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:

(a) Licensure and Practice - An applicant shall be licensed and in good standing to practice law in North Carolina as of the date of the application. During the period of certification an applicant shall continue to be licensed and in good standing to practice law in North Carolina.

(b) Substantial Involvement - An applicant shall affirm to the board that the applicant has experience through substantial involvement in the practice of criminal law in the federal courts of the United States.

(1) Substantial involvement shall mean during the five years immediately preceding the application, the applicant devoted an average of at least 600 hours a year to the practice of criminal law, but not less than 400 hours in any one year. “Practice” shall mean substantive legal work, specifically including the handling of matters in federal district court criminal cases, the pre-charge representation of clients in matters being investigated by federal law enforcement agencies, in federal criminal appeals, or otherwise providing legal advice or representation regarding such matters, or a practice equivalent.

(2) “Practice equivalent” shall mean:

(A) Service as a law professor concentrating in the teaching of criminal law for one year or more, which may be substituted for one year of experience to meet the five-year requirement set forth in Rule .2510(b)(1) above;

(B) Service as an Article III or federal magistrate judge for one year or more, which may be substituted for one year of experience to meet the five-year requirement set forth in Rule .2510(b)(1) above;

(3) For the subspecialty of federal criminal law, the board shall require an applicant to show substantial involvement by providing information that demonstrates the applicant’s significant federal criminal trial experience such as:

(A) representation during the applicant’s entire legal career as principal counsel of record in federal criminal trials, whether concluded by jury verdict or not;

(B) court appearances in other substantive criminal proceedings in the U.S. District Courts of any jurisdiction;

(C) pre-charge representation in matters being investigated by federal law enforcement agencies; and

(D) representation as principal counsel of record in criminal appeals to any federal appellate court.

(c) Continuing Legal Education

In the federal criminal law subspecialty, an applicant must have earned no less than 40 hours of accredited continuing legal education credits in criminal law during the three years preceding the application, which must include the following:

(1) at least 34 hours in skills pertaining to federal criminal law, such as evidence, substantive criminal law, federal criminal procedure, criminal trial tactics, pre-trial or pre-charge advocacy, criminal appeals (including any annual update pertaining to the docket of a federal appellate or the U.S. Supreme Court); and

(2) at least 6 hours in the area of ethics.

(d) Peer Review

(1) Each applicant for certification as a specialist in the subspecialty of federal criminal law must make a satisfactory showing of qualification through peer review.

(2) All references must be licensed and in good standing to practice in North Carolina and must be familiar with the competence and qualifications of the applicant in the specialty field. The applicant consents to the confidential inquiry by the board or the specialty committee of the submitted references and other persons concerning the applicant’s competence and qualifications.

(3) Written peer reference forms will be sent by the board or the specialty committee to the references. Completed peer reference forms must be received from at least five of the references. The board or the specialty committee may contact in person or by telephone any reference listed by an applicant.

(4) Each applicant must provide for reference and independent inquiry the names and addresses of the following: (i) ten lawyers and/or judges who practice in the field of criminal law and who are familiar with the applicant’s practice, and (ii) opposing counsel and the judge in eight recent cases tried by the applicant to verdict or entry of order.

(5) A reference may not be related by blood or marriage to the applicant, may not be a partner or associate of the applicant, and may not work in the same government office as the applicant at the time of the application.

(e) Examination - The applicant must pass a written examination designed to test the applicant’s knowledge and ability.

(1) Terms - The examination shall be in written form and shall be given at such times as the board deems appropriate. The examination(s) shall be administered and graded uniformly by the specialty committee.

(2) Subject Matter - The examination shall cover the applicant’s knowledge in the following topics in federal criminal law:

(A) the Federal Rules of Evidence;

(B) federal criminal procedure and federal laws/federal case law affecting criminal procedure;

(C) federal constitutional law;

(D) the United States Sentencing Guidelines, and the calculation and application thereof;

(E) trial procedure and trial tactics;

(F) pre-charge advocacy and tactics;

(G) substantive federal criminal law; and

(H) federal appellate procedure and tactics.

(3) Required Examination Components - An applicant for certification in the subspecialty of federal criminal law must pass the examination on general topics in criminal law and the examination on federal criminal law.

.2511, Standards for Continued Certification as a Federal Criminal Law Specialist [NEW RULE]

The period of certification is five years. A certified specialist who desires continued certification must apply for continued certification within the time limit described in Rule .2511(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) Substantial Involvement - The specialist must demonstrate that for the five years preceding reapplication he or she has had substantial involvement in the subspecialty as defined in Rule .2510(b).

(b) Continuing Legal Education - The specialist must have earned no less than 60 hours of accredited continuing legal education credits as described in .2510(c)(1), with not less than 6 credits earned in any one year.

(c) Peer Review - The applicant must provide, as references, the names of at least six lawyers or judges, all of whom are licensed and currently in good standing to practice law in this state and familiar with the competence and qualification of the applicant as a specialist. For an application to be considered, completed peer reference forms must be received from at least three of the references. Each applicant also must provide the names and addresses of the following: (i) five lawyers and/or judges who practice in the field of criminal law and who are familiar with the applicant’s practice, and (ii) opposing counsel and the judge in four recent cases tried by the applicant to verdict or entry of order. All other requirements relative to peer review set forth in Rule .2510(d) of this subchapter apply to this standard.

(d) Time for Application - Application for continuing certification shall be made not more than 180 days nor less than 90 days prior to the expiration of the prior period of certification.

(e) Lapse of Certification - Failure of a specialist to apply for continued certification in a timely fashion will result in a lapse of certification. Following such lapse, recertification will require compliance with all requirements of Rule .2510 of this subchapter, including the examination.

(f) Suspension or Revocation of Certification - If an applicant’s certification has been suspended or revoked during the period of certification, then the application shall be treated as if it were for initial certification under Rule .2510 of this subchapter. 

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