N.C. General Stat. amended, the N.C. State Bar will adopt new regulations on July 8, 2022. SSSS 84-32.1 and 84-28. The N.C. Supreme Court has not yet certified these regulations. They create a new type of appeal process. A lawyer who is subject to a proposed public discipline by the Grievance Committee can now request that a panel of Grievance Committee Members review this decision. The five members of the Grievance Committee would not have previously heard Bar Counsel or the grievance committee deliberations.
It is important to understand the grievance process in order to fully grasp what this means.
The Grievance Process
A complaint filed with the State Bar usually starts the grievance process. The attorney will receive written notification of the grievance if the alleged conduct would, if presumed true, constitute a violation of Rules of Professional Conduct. This notice includes a summary of all the allegations, as well as the possible rules involved, in a document known by the name Substance of Grievance. The attorney has 15 days to respond in writing to the allegations (unless an extension was granted). This is the only chance the attorney has to tell their side of story.
The investigation can begin once Bar Counsel has received the response. Bar Counsel will create a Report Of Counsel that includes the findings and any recommendations for the Grievance Committee. The Report is then presented orally in closed sessions to the Grievance Committee. The Respondent Attorney is not allowed to attend or participate in any proceedings. He does not have a copy, does not know what materials were provided to the Grievance Committee and does not get a copy. The Respondent Attorney is not allowed to present any additional evidence, challenge witnesses or argue the case. It has been likened to a grand juries.
Proposed Public Disciplinary
The new regulation allows attorneys to appeal a decision made by the Grievance Committee. I have noted some of the key aspects and observations from the Review Panel.
- The panel is not composed of any member of the Grievance Committee who has previously heard about this matter.
- Bar Counsel gives the Review Panel copies of all the information that was reviewed by the Grievance Committee, including the Report of Counsel as well as any other attorney-client confidential information. The Respondent Attorney is not given access to privileged information.
- The Respondent Attorney can speak directly to a panel, with or without the presence of counsel, in order to give him an opportunity to be heard.
- Confidentiality is maintained throughout the proceedings.
- I have found that the Panel members, in my experience, are extremely engaged, knowledgable about the facts and ask many good questions. These individuals are charged with conducting an impartial review.
- Both Bar Counsel and Respondent Attorneys have the chance to present additional material to the Review Panel prior to the hearing. This is not something that was previously done before the Grievance Committee. At the hearing, no live testimony will be allowed.
- The Panel will give each side 30 minutes to make their argument and answer any questions they may have.
What to Remember
- The State Bar released a memo in January 2023 that explains their procedures more thoroughly.
- On the Panel’s request, the memorandum allows Bar Counsel to communicate privately with the Panel after the hearing.
- The Review Panel is only able to make a suggestion to the Grievance Committee.
- The Grievance Committee is not required to follow the recommendation of the Review Panel.
The Review Panel will likely alleviate many of the concerns lawyers have regarding the process. However, some details still need to be clarified. We will probably learn more about the Review Panel process as we attend more hearings and see how it unfolds.
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