GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

H	1 

HOUSE BILL 863

Short Title:  Attorney Grievance Procedure.	(Public)

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Sponsors: Representatives Capps; and Pate.

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Referred to:  Judiciary I.

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April 12, 1995

A BILL TO BE ENTITLED
AN ACT TO INCREASE THE NUMBER OF PUBLIC MEMBERS OF THE NORTH CAROLINA STATE BAR, TO MAKE ATTORNEY GRIEVANCE PROCEEDINGS AND RECORDS BASED ON CHARGES OF ATTORNEY MISCONDUCT OPEN TO THE PUBLIC, TO ESTABLISH THE RIGHTS OF COMPLAINANTS, AND TO MAKE OTHER CHANGES TO THE GRIEVANCE PROCEDURES.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 84-17 reads as rewritten:
"§ 84-17.  Government.
The government of the North Carolina State Bar is vested in a council of the North Carolina State Bar hereinafter referred to as the 'council', which shall be composed of 50 councilors exclusive of officers, except as hereinafter provided, to be appointed or elected as hereinafter set forth, the officers of the North Carolina State Bar, who shall be councilors during their respective terms of office, and each retiring president of the North Carolina State Bar who shall be a councilor for one year from the date of expiration of his term as president, whose term of office expires at the 1973 annual meeting or after. Notwithstanding any other provisions of the law, the North Carolina State Bar shall have the power and authority to acquire, hold, rent, encumber, alienate, and otherwise deal with real or personal property in the same manner as any private person or corporation, subject only to the approval of the Governor and the Council of State as to the acquisition, rental, encumbering, leasing and sale of real property. The North Carolina State Bar Council is authorized and empowered in its discretion to utilize the services of  the Purchase and Contract Division of the Department of Administration for the procurement of personal property, in accordance with the provisions of Article 3 of Chapter 143 of the General Statutes. Notwithstanding any provisions of this Article as to the voting powers of members, the council shall be competent to exercise the entire powers of the North Carolina State Bar in respect of the interpretation and administration of this Article, the acquisition, lease, sale, or mortgage of property, real or personal, the seeking of amendments hereto, and all other matters, except as otherwise directed or overruled, as in G.S. 84-33 provided. There shall be one councilor from each judicial district and additional councilors as are necessary to make the total number of councilors 50. The additional councilors shall be allocated and reallocated by the North Carolina State Bar every six years on the basis of the number of the active members of each judicial district bar according to the records of the North Carolina State Bar and in accordance with a formula to be adopted by the North Carolina State Bar, to insure an allocation based on lawyer population of each judicial district bar as it relates to the total number of active members of the State Bar.
A councilor whose seat has been eliminated due to a reallocation shall continue to serve on the council until expiration of the remainder of the current term.
In addition to the 50 councilors, there shall be nine public members not licensed to practice law in this or any other state, three of whom shall be appointed by the Governor, three of whom shall be appointed by the General Assembly upon recommendation of the Speaker of the House of Representatives, and three of whom shall be appointed by the General Assembly upon recommendation of the President of the Senate."
Sec. 2.  Article 4 of Chapter 84 of the General Statutes is amended by adding the following new sections to read:
"§ 84-28.3.  Public proceedings; open records.
(a)	All deliberations and decision making of the Grievance Committee of the North Carolina State Bar involving allegations of misconduct by a member shall be conducted in hearings, proceedings, or meetings open to the public, including deliberations regarding termination of an investigation, dismissal of a grievance, probable cause, pretrial motions, motions for a new trial or to amend a judgment, and requests for reconsideration of decisions of the Committee.  Neither the Grievance Committee nor the Disciplinary Hearing Commission shall exclude any member of the public from a hearing on a grievance.
(b)	The Secretary-Treasurer of the North Carolina State Bar shall maintain a permanent file of each grievance filed with the North Carolina State Bar that shall be open to the public and available for inspection during normal business hours.  The file of each grievance shall contain (i) the grievance, (ii) any answer or response of the member, (iii) motions, (iv) a complete record of all proceedings, (v) investigative data, (vi) rulings, orders, and decisions of the Grievance Committee or Disciplinary Hearing Commission, (vii) any letter of notice, letter of caution, letter of warning, admonition, reprimand or censure, and (viii) all other papers and permanent documents that the North Carolina State Bar either received, considered, or issued in the process of the grievance and of related complaints filed by the North Carolina State Bar.  The Grievance Committee and the Disciplinary Hearing Commission shall make written findings of fact and legal conclusions supporting all rulings and decisions of the Committee, and those rulings and decisions shall be placed in the permanent file of each case.
(c)	Copies of all letters of notice, letters of caution, letters of warning, admonitions, reprimands, and censures may be disclosed to the Grievance Committee or introduced into evidence in any proceeding filed against the member within 10 years after issuance.
(d)	This section does not apply to grievances based on charges of mental incompetence or physical disability of a member.
"§ 84-28.4.  Rights of the complainant.
(a)	As used in this section, 'complainant' means any person who has filed a grievance alleging misconduct of a member of the North Carolina State Bar with the North Carolina State Bar.  'Complainant' does not include a person who has filed a grievance against a member of the North Carolina State Bar based on mental incompetence or physical disability.
(b)	A complainant shall be sent by first-class mail copies of all affidavits, answers, responses of the member, motions, orders, and decisions of the Grievance Committee and the Disciplinary Hearing Commission, including any letter of notice, letter of caution, letter of warning, admonition, reprimand, or censure.
(c)	The Grievance Committee shall give a complainant at least 10 days' notice of all proceedings and meetings of the Grievance Committee or the hearing committee of the Disciplinary Hearing Commission that relate to the complainant's grievance, including pretrial and posttrial motions.
(d)	A complainant shall be timely notified of all interviews, conferences, and discussions of the council of the North Carolina State Bar or State Bar personnel with the member against whom the grievance or complaint has been filed or with the member's representative, and the complainant may be present during the interviews, conferences, and discussions.  Neither the complainant, the member charged with misconduct, nor the member's representative shall have ex parte conferences or discussions with the Commission, Grievance Committee, or the staff of the North Carolina State Bar after the complainant has filed the grievance.
(e)	The complainant may reply to the member's response to a letter of notice of the grievance by submitting a reply to the North Carolina State Bar within 30 days of the date postmarked on the response and sending a copy by first-class mail to the member.
(f)	The complainant may submit supplemental documentation that supports the charge to the North Carolina State Bar for use in any hearing or proceeding up to 10 days prior to the hearing or proceeding, including hearings on pretrial or posttrial motions.
(g)	The Commission shall conduct a prehearing conference prior to the formal grievance hearing.  The complainant shall be notified and may be present at the prehearing conference and may be represented by counsel at the formal grievance hearing. The complainant may request a new trial or amendment of the final order and may file a motion for relief with the Disciplinary Hearing Commission pursuant to rules adopted by the North Carolina State Bar.
"§ 84-28.5.  Role of counsel.
Counsel to the North Carolina State Bar shall investigate the conduct of members charged with misconduct without the supervision or control of the chair of the Grievance Committee or the council of the North Carolina State Bar and may amend complaints and petitions related to grievances based on charges of misconduct without the approval of the chair of the Grievance Committee.  Counsel shall not make recommendations to the Committee that a grievance complaint charging misconduct be dismissed prior to the hearing on the grievance by the Grievance Committee.
"§ 84-28.6.  Standard of proof; entry of default; mitigating factors.
(a)	The Disciplinary Hearing Commission shall discipline a member charged with misconduct if the charges are proved by a preponderance of the evidence and shall dismiss the complaint if the charges are not proved by a preponderance of the evidence.
(b)	Neither an entry of default nor an order imposing discipline pursuant to a default may be set aside unless there is substantial evidence presented no later than one year after the default that the member has a mental or physical disability that was the cause of the member's default.
(c)	The only mitigating factors that may be considered in imposing discipline are (i) whether the member has made timely good faith efforts to make restitution or to rectify the consequences of the acts of misconduct for which the member is charged, (ii) whether the member made a full and free disclosure to the Disciplinary Hearing Commission or was cooperative during the investigation and all proceedings, and (iii) whether the member has a physical or mental disability or impairment that caused the misconduct."
Sec. 3.  The North Carolina State Bar shall amend the Rules of Professional Conduct or adopt new rules consistent with section 2 of this act within 30 days of the effective date of this act.
Sec. 4.  This act becomes effective October 1, 1995, and applies to grievances filed on or after that date.