Section .0100 - Discipline and Disability of Attorneys
27 NCAC 01B .0112 Investigations: Initial Determination;
Notice and Response; Committee Referrals
(a) Investigation Authority - Subject to the policy
supervision of the council and the control of the chair of the Grievance
Committee, the counsel, or other personnel under the authority of the counsel,
will investigate the grievance and submit to the chair a report detailing the
findings of the investigation.
(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.
(c) 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 and will direct that 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.
(d) Request for Copy of Respondent's Response - The counsel
may provide to the complainant a copy of the respondent’s response to the
letter of 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.
(f) 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 may
compel the production of 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.
(g) 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.
(h) 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.
(i) 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. 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.
(j) 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 abuse or mental health
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 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. 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.
(k) Referral to Trust Accounting Compliance 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 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.
History Note: Authority G.S. 84-23;
Readopted Eff. December 8, 1994;
Amended Eff. March 5, 2015; August 23, 2012; August 25,
2011; March 10, 2011; March 6, 2002; December 20, 2000; December 30, 1998;
March 6, 1997; February 20, 1995.