Section .0100 - Discipline and Disability of Attorneys

Link to law: http://reports.oah.state.nc.us/ncac/title 27 - state bar/chapter 01 - rules and regulations for the north carolina state bar/subchapter b/27 ncac 01b .0112.html
Published: 2015

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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.