S.L. 1975-582

NORTH CAROLINA GENERAL ASSEMBLY

1975 SESSION

CHAPTER 582

SENATE BILL 156

AN ACT TO AMEND CHAPTERS 84 AND 7A RELATIVE TO THE NORTH CAROLINA STATE BAR REGARDING ATTORNEY DISCIPLINE AND DISABILITY CASES.

The General Assembly of North Carolina enacts:

Section 1. G.S. 84-4.1(3) is amended by deleting the last portion thereof which now reads:

"he agrees that he shall be subject to the orders and amenable to the disciplinary actions and the civil jurisdiction of the General Court of Justice in all respects as if he were a regularly admitted and licensed member of the Bar of North Carolina in good standing."

and the same is rewritten as follows:

"he agrees that he shall be subject to the orders and amenable to the disciplinary action and the civil jurisdiction of the General Court of Justice and The North Carolina State Bar in all respects as if he were a regularly admitted and licensed member of the Bar of North Carolina in good standing."

Sec. 2. G.S. 84-4.1(5) is amended by deleting the last portion thereof which now reads:

"upon whom service may be had in all matters connected with such legal proceedings, with the same effect as if personally made on such foreign attorney within this State."

and the same is rewritten as follows:

"upon whom service may be had in all matters connected with such legal proceedings, or any disciplinary matter, with the same effect as it personally made on such foreign attorney within this State."

Sec. 3. G.S. 84-23 is rewritten to read as follows:

"§ 84-23. Powers of council. — Subject to the superior authority of the General Assembly to legislate thereon by general law, and except as herein otherwise limited, the Council is hereby vested, as an agency of the State, with the control of the discipline, disbarment and restoration of attorneys practicing law in this State. The Council shall have power to administer this Article; to formulate and adopt rules of professional ethics and conduct; to formulate and adopt rules and procedures for discipline, incapacity and disability hearings; to publish an official journal concerning matters of interest to the legal profession; and to do all such things necessary in the furtherance of the purposes of this Article as are not prohibited by law."

Sec. 4. G.S. 84-27 is added to read as follows:

"§ 84-27. Persons immune from suit. — Persons shall be immune from suit for all statements made without malice, and intended for transmittal to The North Carolina State Bar or any committee, officer, agent or employee thereof, or given in any investigation or proceedings, pertaining to alleged misconduct, incapacity or disability or to reinstatement of an attorney. The protection of this immunity does not exist, however, as to statements made to others not intended for such use."

Sec. 5. G.S. 84-28 is rewritten to read as follows:

"§ 84-28. Discipline and disbarment. — (1) Any attorney admitted to practice law in this State is subject to the disciplinary jurisdiction of the Council of The North Carolina State Bar under such rules and procedures as the Council shall promulgate as provided in G.S. 84-21.

(2) The following acts or omissions by a member of The North Carolina State Bar or any attorney admitted for limited practice under G.S. 84-4.1, individually or in concert with any other person or persons, shall constitute misconduct and shall be grounds for discipline whether the act or omission occurred in the course of an attorney-client relationship or otherwise:

(a) conviction of a criminal offense showing professional unfitness;

(b) the violation of the Code of Professional Responsibility adopted and promulgated by the Council of The North Carolina State Bar in effect at the time of the act;

(c) knowing misrepresentation of any facts or circumstances surrounding any complaint, allegation or charge of misconduct; failure to answer any formal inquiry or complaint issued by or in the name of The North Carolina State Bar in any disciplinary matter; or contempt of the Council or any committee of The North Carolina State Bar.

(3) Misconduct by any attorney shall be grounds for:

(a) disbarment; or

(b) suspension for a period not exceeding three years; or

(d) private reprimand.

(4) Any attorney admitted to practice law in this State who is convicted of a criminal offense showing professional unfitness may be suspended from the practice of law, but such suspension shall not take effect pending any appeal of the conviction.

(5) Any attorney admitted to practice law in this State who is disciplined in another jurisdiction shall be subject to the same discipline in this State: Provided, that the discipline imposed in the other jurisdiction does not exceed that provided for in subsection (3) above and that the attorney was not deprived of due process in the other jurisdiction.

(6) Upon application by The North Carolina State Bar, misconduct by an attorney admitted to practice in this State may be restrained or enjoined where the necessity for prompt action exists regardless of whether a disciplinary proceeding in the matter of such conduct is pending. Such application shall be filed in the Superior Court of Wake County and shall be governed by the procedure set forth in G.S. 1A-1, Rule 65.

(7) Any member of The North Carolina State Bar may be transferred to inactive status for mental incompetence or physical disability interfering with the attorney's ability to competently engage in the practice of law under such rules and procedures as the Council shall promulgate as provided in G.S. 84-21.

(8) There shall be an appeal of right from any final order imposing reprimand, censure, suspension or disbarment upon an attorney, or involuntary transferring a member of The North Carolina State Bar to inactive status for mental incompetence or physical disability, to the appellate division. Review by the appellate division shall be upon matters of law or legal inference. The procedures governing any such appeal shall be as provided by statute or court rule for appeals in civil cases. Any discipline imposed by such final order shall be stayed pending determination of the appeal.

(9) The North Carolina State Bar may invoke the process of the General Court of Justice to enforce the powers of the Council or any committee to which the Council delegates its authority.

(10) The North Carolina State Bar may apply to appropriate courts for orders necessary to protect the interests of clients of missing, disabled, incapacitated or deceased attorneys.

The senior regular resident judge of the superior court of any district wherein a member of The North Carolina State Bar resides or maintains an office shall have the authority and power to enter such orders as are necessary to protect the interests of such clients, including the authority to order the payment of counsel fees from the estate of the member to any attorney appointed to administer or conserve the law practice of the member."

Sec. 6. G.S. 84-28.1 is added to read as follows:

"§ 84-28.1. Disciplinary Hearing Commission. — (1) There shall be a Disciplinary Hearing Commission of The North Carolina State Bar which shall consist of 15 members. Ten of these members shall be members of The North Carolina State Bar, and shall be appointed by the Council. The other five shall be citizens of North Carolina not licensed to practice law in this or any other state, three of whom shall be appointed by the Governor, one by the Lieutenant Governor, and one by the Speaker of the House of Representatives. The Council shall designate one of its appointees as chairman and another as vice-chairman.

The chairman shall have actively practiced law in the courts of the State for at least 10 years. When the Commission is first selected, five members, including three appointed by the Council, one appointed by the Governor and the one appointed by the Speaker of the House of Representatives, shall be appointed for terms of one year; five members, including three appointed by the Council, one appointed by the Governor and the one appointed by the Lieutenant Governor, shall be appointed for terms of two years; and the remaining live members shall be appointed tor terms of three years. All such initial terms shall commence July 1, 1975. Thereafter five members shall be appointed each year to three-year terms to fill the positions of the terms then expiring. The Council, the Governor, the Lieutenant Governor and the Speaker of the House of Representatives, respectively, shall appoint members to fill the unexpired term when any vacancy is created by resignation, disqualification, disability or death. No member may serve more than a total of six years or two consecutive terms: Provided, that any member or former member who is designated chairman may serve one additional three-year term in that capacity. No member of the Council may be appointed to the Commission.

(2) The Disciplinary Hearing Commission of The North Carolina State Bar, or any committee thereof, is authorized to hold hearings in discipline, incapacity and disability matters, to make findings of fact and conclusions of law after such hearings, and to enter orders necessary to carry out the duties delegated to it by the Council.

(3) Members of the Disciplinary Hearing Commission shall receive the same per diem and travel expenses as are authorized for members of State Commissions under G.S. 138-5."

Sec. 7. G.S. 84-29 is rewritten to read as follows:

"§ 84-29. Evidence and witnesses. — In any investigation of charges of professional misconduct, incapacity or disability the Council and any committee thereof, and the Disciplinary Hearing Commission, and any committee thereof, may administer oaths and affirmations and shall have the power to subpoena and examine witnesses under oath, and to compel their attendance, and the production of books, papers and other documents or writings deemed by it necessary or material to the inquiry. Each subpoena shall be issued under the hand of the secretary-treasurer or the president of the Council or the chairman of the committee appointed to hear the charges, and shall have the force and effect of a summons or subpoena issued by a court of record, and any witness or other person who shall refuse or neglect to appear in obedience thereto, or to testify or produce the books, papers, or other documents or writings required, shall be liable to punishment for contempt either by the Council or its committee, but with the right to appeal therefrom. Depositions may be taken in any investigations of professional misconduct as in civil proceedings, but the Council or the committee hearing the case may, in its discretion, whenever it believes that the ends of substantial justice so require, direct that any witness within the State be brought before it. Witnesses giving testimony under a subpoena before the Council or any committee thereof, or the Disciplinary Hearing Commission or any committee thereof, or by deposition, shall be entitled to the same fees as in civil actions.

In cases heard before the Council or any committee thereof or the Disciplinary Hearing Commission or any committee thereof, if the party shall be convicted of the charges against him, he shall be taxed with the cost of the hearings: Provided, however, that such bill of costs shall not include any compensation to the members of the Council or committee before whom the hearings are conducted."

Sec. 8. G.S. 84-30 is rewritten to read as follows:

"§ 84-30. Rights of accused person. — Any person who shall stand charged with an offense cognizable by the Council or any committee thereof or the Disciplinary Hearing Commission or any committee thereof shall have the right to invoke and have exercised in his favor the powers of the Council or any committee, in respect of compulsory process for witnesses and for the production of books, papers, and other writings and documents, and shall also have the right to be represented by counsel."

Sec. 9. G.S. 84-31 is rewritten to read as follows:

"§ 84-31. Counsel; investigators; powers; compensation. — The Council may appoint a member of The North Carolina State Bar to prosecute charges of misconduct, incapacity or disability in such hearings as may be held, including appeals, and may authorize such counsel to employ assistant counsel, investigators, and administrative assistants in such numbers as it deems necessary. Counsel and investigators engaged in discipline, incapacity and disability matters shall have the authority throughout the State to serve subpoenas or other process issued by the Council or any committee thereof or the Disciplinary Hearing Commission or any committee thereof, in the same manner and with the same effect as an officer authorized to serve process of the General Court of Justice. The Council may allow counsel, assistant counsel, investigators and administrative assistants such compensation as it deems proper."

Sec. 10. G.S. 84-32 is rewritten to read as follows:

"§ 84-32. Records and judgments and their effect; restoration of licenses. — In cases heard by the Disciplinary Hearing Commission or any committee thereof, a complete record of the proceedings and evidence shall be made and preserved in the office of the secretary-treasurer. Final judgments of suspension or disbarment shall be entered upon the judgment docket of the superior court in the district wherein the accused resides or practices law, and also upon the minutes of the Supreme Court of North Carolina; and such judgment shall be effective throughout the State.

Whenever an attorney desires to voluntarily surrender his license to the Council and the Council consents to accept the same, he shall make such request and surrender in writing directed to the Council and the Council shall enter an order containing the conditions of acceptance of said license, and a copy of such order shall be filed with the clerk of the Supreme Court and with the clerk of the superior court of the county of residence or prior residence of the licensee or the county wherein the attorney maintains an office for the practice of law; provided, however, that the Council may refuse to accept surrender of license in any case.

Whenever any attorney has been deprived of his license, the Council, in its discretion, may restore said license upon due notice being given and satisfactory evidence produced of proper reformation of the licentiate before restoration. The Council may prescribe rules and procedures for the conduct of any hearing regarding restoration and may require the Disciplinary Hearing Commission or a committee thereof to conduct such hearing."

Sec. 11. G.S. 84-36.1 is added to read as follows:

"§ 84-36.1. Clerks of Court to certify orders. — The clerk of any court of this State in which a member of the North Carolina State Bar is convicted of any criminal offense, disciplined, found to be in contempt of the court or adjudged incompetent shall transmit a certified copy of the order or judgment to the secretary-treasurer of The North Carolina State Bar within 10 days of the entry of such judgment or order."

Sec. 12. G.S. 7 A- 29 is rewritten to read as follows:

"§ 7A-29. Appeals to Court of Appeals. — From any final order or decision of the North Carolina Utilities Commission, the North Carolina Industrial Commission, The North Carolina State Bar pursuant to G.S. 84-28 or an appeal from the Commissioner of Insurance pursuant to G.S. 58-9.4, appeal lies of right directly to the Court of Appeals."

Sec. 13. This act shall become effective on July 1, 1975, and shall apply to all cases, actions and proceedings arising on and after said date.

In the General Assembly read three times and ratified, this the 13th day of June. 1975.