27 NCAC 01B .0113. PROCEEDINGS BEFORE THE GRIEVANCE COMMITTEE

(a)  The Grievance Committee or any of its panels acting as the Grievance Committee with respect to grievances referred to it by the chairperson of the Grievance Committee will determine whether there is probable cause to believe that a respondent 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 chairperson 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)  The chairperson of the Grievance Committee will have the power to administer oaths and affirmations.

(c)  The chairperson will keep a record of the Grievance Committee's determination concerning each grievance and file the record with the secretary.

(d)  The chairperson 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 chairperson may designate the secretary to issue such subpoenas.

(e)  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.

(f)  The results of any deliberation by the Grievance Committee will be disclosed to the counsel and the secretary for use in the performance of their duties. Otherwise, a member of the committee, the staff of the North Carolina State Bar, any interpreter, stenographer, operator of a recording device, or any typist who transcribes recorded testimony may disclose matters occurring before the committee only when so directed by the committee or a court of record.

(g)  At any preliminary hearing held by the Grievance Committee, a quorum of one-half of the members will be required to conduct any business.  Affirmative vote of a majority of members present will be necessary to find that probable cause exists.  The chairperson will not be counted for quorum purposes and will be eligible to vote regarding the disposition of any grievance only in case of a tie among the regular voting members.

(h)  If probable cause is found and the committee determines that a hearing is necessary, the chairperson will direct the counsel to prepare and file a complaint against the respondent.  If the committee finds probable cause but determines that no hearing is necessary, it will direct the counsel to prepare for the chairperson's signature an admonition, reprimand, or censure.  If no probable cause is found, the grievance will be dismissed or dismissed with a letter of warning or a letter of caution.

(i)  If no probable cause is found but it is determined by the Grievance Committee that the conduct of the respondent is unprofessional or not in accord with accepted professional practice, the committee may issue a letter of caution to the respondent recommending that the respondent be more professional in his or her practice in one or more ways which are to be specifically identified.

(j)  Letters of warning

(1)           If no probable cause is found but it is determined by the Grievance Committee that the conduct of the respondent is an unintentional, minor, or technical violation of the Rules of Professional Conduct, the committee may issue a letter of warning to the respondent.  The letter of warning will advise the respondent that he or she may be subject to discipline if such conduct is continued or repeated.  The letter will specify in one or more ways the conduct or practice for which the respondent is being warned.  The letter of warning will not constitute discipline of the respondent.

(2)           A copy of the letter of warning will be maintained in the office of the counsel for three years.  If relevant, a copy of the letter of warning may be offered into evidence in any proceeding filed against the respondent before the commission within three years after the letter of warning is issued to the respondent.  In every case filed against the respondent before the commission within three years after the letter of warning is issued to the respondent, the letter of warning may be introduced into evidence as an aggravating factor concerning the issue of what disciplinary sanction should be imposed.  A copy of the letter of warning may be disclosed to the Grievance Committee if another grievance is filed against the respondent within three years after the letter of warning is issued to the respondent.

(3)           A copy of the letter of warning will be served upon the respondent in person or by certified mail.  A respondent who cannot, with due diligence, be served by certified mail or personal service shall be deemed served by the mailing of a copy of the letter of warning to the respondent's last known address on file with the NC State Bar.  Service shall be deemed complete upon deposit of the letter of warning in a postpaid, properly addressed wrapper in a post office or official depository under the exclusive care and custody of the United States Postal Service.  Within 15 days after service the respondent may refuse the letter of warning and request a hearing before the commission to determine whether a violation of the Rules of Professional Conduct has occurred.  Such refusal and request will be in writing, addressed to the Grievance Committee, and served on the secretary by certified mail, return receipt requested.  The refusal will state that the letter of warning is refused.  If a refusal and request are not served within 15 days after service upon the respondent of the letter of warning, the letter of warning will be deemed accepted by the respondent.  An extension of time may be granted by the chairperson of the Grievance Committee for good cause shown.

(4)           In cases in which the respondent refuses the letter of warning, the counsel will prepare and file a complaint against the respondent for a hearing pursuant to Rule .0114 of this Subchapter.

(k)  Admonitions, Reprimands, and Censures

(1)           If probable cause is found but it is determined by the Grievance Committee that a complaint and hearing are not warranted, the committee shall issue an admonition in cases in which the respondent has committed a minor violation of the Rules of Professional Conduct, a reprimand in cases in which the respondent's conduct has violated one or more provisions of the Rules of Professional Conduct and caused harm or potential harm to a client, the administration of justice, the profession, or members of the public, or a censure in cases in which the respondent has violated one or more provisions of the Rules of Professional Conduct and the harm or potential harm caused by the respondent is significant and protection of the public requires more serious discipline.  To determine whether more serious discipline is necessary to protect the public or whether the violation is minor and less serious discipline is sufficient to protect the public, the committee shall consider the factors delineated in Subparagraphs (2) and (3) below.

(2)           Factors that shall be considered in determining whether protection of the public requires a censure include, but are not limited to, the following:

(A)          prior discipline for the same or similar conduct;

(B)          prior notification by the North Carolina State Bar of the wrongfulness of the conduct;

(C)          refusal to acknowledge wrongful nature of conduct;

(D)          lack of indication of reformation;

(E)           likelihood of repetition of misconduct;

(F)           uncooperative attitude toward disciplinary process;

(G)          pattern of similar conduct;

(H)          violation of the Rules of Professional Conduct in more than one unrelated matter;

(I)            lack of efforts to rectify consequences of conduct;

(J)            imposition of lesser discipline would fail to acknowledge the seriousness of the misconduct and would send the wrong message to members of the Bar and the public regarding the conduct expected of members of the Bar;

(K)          notification contemporaneous with the conduct at issue of the wrongful nature of the conduct and failure to take remedial action.

(3)           factors that shall be considered in determining whether the violation of the Rules is minor and warrants issuance of an admonition include, but are not limited to, the following:

(A)          lack of prior discipline for same or similar conduct;

(B)          recognition of wrongful nature of conduct;

(C)          indication of reformation;

(D)          indication that repetition of misconduct not likely;

(E)           isolated incident;

(F)           violation of the Rules of Professional Conduct in only one matter;

(G)          lack of harm or potential harm to client, administration of justice, profession, or members of the public;

(H)          efforts to rectify consequences of conduct;

(I)            inexperience in the practice of law;

(J)            imposition of admonition appropriately acknowledges the minor nature of the violation(s) of the Revised Rules of Professional Conduct;

(K)          notification contemporaneous with the conduct at issue of the wrongful nature of the conduct resulting in efforts to take remedial action;

(L)           personal or emotional problems contributing to the conduct at issue;

(M)         successful participation in and completion of contract with Lawyer's Assistance Program where mental health or substance abuse issues contributed to the conduct at issue.

(l)  Procedures for Admonitions and Reprimands

(1)           A record of any admonition or reprimand issued by the Grievance Committee will be maintained in the office of the secretary.

(2)           A copy of the admonition or reprimand will be served upon the respondent in person or by certified mail.  A respondent who cannot, with due diligence, be served by certified mail or personal service shall be deemed served by the mailing of a copy of the admonition or reprimand to the respondent's last known address on file with the NC State Bar.  Service shall be deemed complete upon deposit of the admonition or reprimand in a postpaid, properly addressed wrapper in a post office or official depository under the exclusive care and custody of the United States Postal Service.

(3)           Within 15 days after service the respondent may refuse the admonition or reprimand and request a hearing before the commission.  Such refusal and request will be in writing, addressed to the Grievance Committee, and served upon the secretary by certified mail, return receipt requested.  The refusal will state that the admonition or reprimand is refused.

(4)           In cases in which the respondent refuses an admonition or reprimand, the counsel will prepare and file a complaint against the respondent pursuant to Rule .0114 of this Subchapter.  If a refusal and request are not served upon the secretary within 15 days after service upon the respondent of the admonition or reprimand, the admonition or reprimand will be deemed accepted by the respondent.  An extension of time may be granted by the chairperson of the Grievance Committee for good cause shown.

(m)  Procedure for Censures

(1)           If the Grievance Committee determines that the imposition of a censure is appropriate, the committee will issue a notice of proposed censure and a proposed censure to the respondent.

(2)           A copy of the notice and the proposed censure will be served upon the respondent in person or by certified mail.  A respondent who cannot, with due diligence, be served by certified mail or personal service shall be deemed served by the mailing of a copy of the notice and proposed censure to the respondent's last known address on file with the NC State Bar.  Service shall be deemed complete upon deposit of the notice and proposed censure in a postpaid, properly addressed wrapper in a post office or official depository under the exclusive care and custody of the United States Postal Service. The respondent must be advised that he or she may accept the censure within 15 days after service upon him or her or a formal complaint will be filed before the commission.

(3)           The respondent's acceptance must be in writing, addressed to the Grievance Committee, and served on the secretary by certified mail, return receipt requested.  Once the censure is accepted by the respondent, the discipline becomes public and must be filed as provided by Rule .0123(a)(3) of this Subchapter.

(4)           If the respondent does not accept the censure, the counsel will file a complaint against the defendant pursuant to Rule .0114 of this Subchapter.

(n)  Formal complaints will be issued in the name of the North Carolina State Bar as plaintiff and signed by the chairperson of the Grievance Committee. Amendments to complaints may be signed by the counsel alone, with the approval of the chairperson of the Grievance Committee.

 

History Note:        Authority G.S. 84-23; 84-28;

Readopted Eff. December 8, 1994;

Amended Eff. October 8, 2009; February 3, 2000; March 3, 1999.