Admission to the Bar
Proposed Rule Amendments
The Process and Your Comments
Proposed amendments to the Rules of the North Carolina State Bar are published for comment during the quarter after the council of the North Carolina State Bar approves their publication. The proposed amendments are published in the North Carolina State Bar's Journal and on this website. After publication for comment, the proposed rule amendments are considered for adoption by the council at its next quarterly meeting. If adopted, the rule amendments are submitted to the North Carolina Supreme Court for approval. Amendments become effective upon approval by the court. Unless otherwise noted, proposed additions to rules appear in in bold and underlined print, deletions are interlined. Proposed amendments to the Rules of Professional Conduct appear at the end of the page.
The State Bar welcomes your comments regarding proposed amendments to the rules. Please send a written response to L. Thomas Lunsford II, The North Carolina State Bar, PO Box 25908, Raleigh, NC 27611, or comments@ncbar.gov, by September 30, 2010.
Below are the rule amendments from the most recent meeting of the State Bar Council in October 2010.
Proposed Amendments to Reinstatement Rules to Make Disciplinary Suspension Supersede Administrative Suspension
27 N.C.A.C. 1B, Discipline and Disability Rules, Section .0100 Discipline and Disability of Attorneys
27 N.C.A.C. 1D, Rules of the Standing Committees of the
Presently, when a member of the State Bar seeking reinstatement to active practice is subject to both an administrative order of suspension and a disciplinary order of suspension, it is unclear which order takes precedence. The proposed amendments provide that an administrative suspension order dissolves when an order of reinstatement is granted from a disciplinary suspension, and require the petitioner to pay the administrative reinstatement fee ($125 for membership fees suspension; $250 for CLE suspension) as a condition of reinstatement from a disciplinary suspension.
Subchapter 1B, Section .0100 Discipline and Disability of Attorneys
.0125 Reinstatement
(a) After disbarment ....
(b) After suspension
(1) Restoration ....
(3) Reinstatement Requirements - Any suspended attorney seeking reinstatement must file a verified petition with the secretary, a copy of which the secretary will transmit to the counsel. The petitioner will have the burden of proving the following by clear, cogent, and convincing evidence:
(A) ....
(J) Payment of Fees and Assessments - payment of all membership fees, Client Security Fund assessments, and late fees due and owing to the North Carolina State Bar, including any reinstatement fee due under Rule .0904 or Rule .1524 of subchapter 1D of these rules, as well as all attendee fees and late penalties due and owing to the Board of Continuing Legal Education at the time of suspension.
(4) Investigation and Response ....
(8) Reinstatement Order - The hearing panel will determine whether the petitioner’s license should be reinstated and enter an appropriate order, which may include additional sanctions in the event violations of the petitioner’s order of suspension are found. In any event, the hearing panel must include in its order findings of fact and conclusions of law in support of its decision and tax such costs as it deems appropriate for the necessary expenses attributable to the investigation and processing of the petition against the petitioner.
(c) ....
Subchapter 1D, Section .0900 Procedures for Administrative Committee
.0904 Compliance After Suspension for Failure to Fulfill Obligations of Membership
(a) Reinstatement Within 30 Days of Service of Suspension Order ....
(f) Reinstatement from Disciplinary Suspension. Notwithstanding the procedure for reinstatement set forth in the preceding paragraphs of this Rule, if an order of reinstatement from disciplinary suspension is granted to a member pursuant to Rule .0125 of subchapter 1B of these rules, any outstanding order granting inactive status or suspending the same member for failure to fulfill the obligations of membership under this section shall be dissolved and the member shall be reinstated to active status.
Proposed Amendments to Reinstatement Rules to Rationalize the Procedures and Requirements for Reinstatement
27 N.C.A.C. 1D, Rules of the Standing Committees of the
To ensure the competency and fitness of a lawyer who is returned to active status from inactive status or administrative suspension, proposed amendments to the reinstatement rules require a petitioner for reinstatement who has been inactive or suspended for a year or more to take 12 CLE credit hours for each year of inactivity or suspension. In addition, a petitioner who has been inactive or suspended for seven years or more will be required to take the bar examination. (A year or more of active status in another state where the petitioner is licensed offsets the seven years.) The CLE and bar exam requirements will not apply to a member who is on inactive status at the time these amendments become effective; however, the requirements will apply to any member who transfers to inactive status after the effective date of the amendments and to any suspended member regardless of the date of suspension. The proposed rule amendments allow the chair of the Administrative Committee to appoint a panel of committee members to consider a petition for reinstatement and make a recommendation to the council on behalf of the committee, thereby preserving the impartiality of other members of the committee who might be required to serve on a hearing panel in the event the petition is denied and the member appeals. Finally, the proposed rule amendments create a procedure whereby the secretary of the State Bar may reinstate an inactive member to active status upon petition by the member for reinstatement if the member has fulfilled all of the obligations of membership required for reinstatement, including payment of fees, and there are no issues relating to the inactive member’s character or fitness.
.0902 Reinstatement from Inactive Status
(a) Eligibility to Apply for Reinstatement
…
(b) Contents of Reinstatement Petition
The petition shall set out facts showing the following:
(1) that the member has provided all information requested in an application form prescribed by the council and has signed the form under oath;
(2) unless the member was exempt from such requirements pursuant to Rule .1517 of this subchapter or is subject to the requirements in paragraph (b)(6) of this rule, that the member satisfied the minimum continuing legal education requirements, as set forth in Rule .1518 of this subchapter, for the calendar year immediately preceding the year in which the member was transferred to inactive status (the “subject year”), including any deficit from a prior year that was carried forward and recorded in the member’s CLE record for the subject year,
(3) ....
(4) [this provision shall be effective for all members who are transferred to inactive status on or after January 1, 1996 through the effective date of these amendments] if 2 or more than 2 years (as used in this rule, a year is measured in 12-month increments and does not refer to a calendar year) have elapsed between the date of the entry of the order transferring the member to inactive status and the date the petition is filed with the secretary of the State Bar, that within one year prior to filing the petition, the member completed 15 hours of continuing legal education (CLE) approved by the Board of Continuing Legal Education pursuant to Rule .1519 of this subchapter. Of the required 15 CLE hours, 3 hours must be earned by attending courses in the areas of professional responsibility and/or professionalism; and
(5) [this provision shall be effective for all members who are transferred to inactive status on or after the effective date of these amendments] if more than 1 but less than 7 years have elapsed between the date of the entry of the order transferring the member to inactive status and the date that the petition is filed, that during the period of inactivity and within 2 years prior to filing the petition, the member has completed 12 hours of approved CLE for each year that the member was inactive. For each 12-hour increment, 4 hours may be taken online; 2 hours must be earned by attending courses in the areas of professional responsibility and/or professionalism; and 5 hours must be earned by attending courses determined to be practical skills courses by the Board of Continuing Legal Education or its designee; provided, if during the period of inactivity the member complied with mandatory CLE requirements of another state where the member is licensed, those CLE credit hours may be applied to the requirements under this provision;
(6) [this provision shall be effective for all members who are transferred to inactive status on or after the effective date of these amendments] if 7 years or more have elapsed between the date of the entry of the order transferring the member to inactive status and the date that the petition is filed, the member has obtained a passing grade on a regularly scheduled North Carolina bar examination; provided, each year of active licensure in another state during the period of suspension shall offset one year of suspension for the purpose of calculating the 7 years necessary to actuate this provision; and
(5)
(c) Service of Reinstatement Petition….
(e) Recommendation of Administrative Committee
After any investigation of the petition by the counsel is complete, the Administrative Committee will consider the petition at its next meeting and shall make a recommendation to the council regarding whether the petition should be granted. The chair of the Administrative Committee may appoint a panel composed of at least three members of the committee to consider any petition for reinstatement and, on behalf of the Administrative Committee, to make a recommendation to the council regarding whether the petition should be granted.
(f) Hearing Upon Denial of Petition for Reinstatement ....
(g) Reinstatement by Secretary of the State Bar. Notwithstanding paragraph (e) of this rule, an inactive member may petition for reinstatement pursuant to paragraphs (a) and (b) of this rule and may be reinstated by the secretary of the State Bar upon a finding that the inactive member has complied with or fulfilled the conditions for reinstatement set forth in this rule; there are no issues relating to the inactive member’s character or fitness; and the inactive member has paid all fees owed to the State Bar including the reinstatement fee. Reinstatement by the secretary is discretionary. If the secretary declines to reinstate a member, the member’s petition shall be submitted to the Administrative Committee at its next meeting and the procedure for review of the reinstatement petition shall be as set forth in paragraph (e) of this rule.
.0904 Compliance After Suspension for Failure to Fulfill Obligations of Membership
(a) Reinstatement Within 30 Days of Service of Suspension Order.
....
(b) Reinstatement More than 30 Days after Service of Suspension Order.
....
(c) Contents of Reinstatement Petition
The petition shall set out facts showing the following:
(1) that the member has provided all information requested in a form to be prescribed by the council and has signed the form under oath;
(2) unless the member was exempt from such requirements pursuant to Rule .1517 of this subchapter or is subject to the requirements in paragraph (c)(4) of this rule, that the member satisfied the minimum continuing legal education (CLE) requirements, as set forth in Rule .1518 of this subchapter, for the calendar year immediately preceding the year in which the member was suspended (the “subject year”), including any deficit from a prior year that was carried forward and recorded in the member’s CLE record for the subject year and;
(3) if two or more than 1 years but less than 7 years (as used in this rule, a year is measured in 12-month increments and does not refer to a calendar year) have elapsed between the effective date of the suspension order and the date upon which the reinstatement petition is filed, that during the period of suspension and within one year 2 years prior to filing the petition, the member has completed 15 12 hours of approved CLE accredited pursuant to Rule .1519 of this subchapter, including at least 3 hours of instruction in the areas of professional responsibility and/or professionalism for each year that the member was suspended. For each 12-hour increment, 4 hours may be taken online; 2 hours must be earned by attending courses in the areas of professional responsibility and/or professionalism; and 5 hours must be earned by attending courses determined to be practical skills courses by the Board of Continuing Legal Education or its designee; provided, if during the period of suspension the member complied with mandatory CLE requirements of another state where the member is licensed, those CLE credit hours may be applied to the requirements under this provision;
(4) if 7 years or more have elapsed between the effective date of the suspension order and the date that the petition is filed, the member has obtained a passing grade on a regularly scheduled North Carolina bar examination; provided, each year of active licensure in another state during the period of suspension shall offset one year of suspension for the purpose of calculating the 7 years necessary to actuate this provision;
(3)
(4)
(5) that the member has filed a certificate of insurance coverage for the current year;
[re-numbering remaining paragraphs]
Proposed Amendment to the Plan of Legal Specialization
27 N.C.A.C. 1D, Rules of the Standing Committees of the North Carolina State Bar, Section .1700, The Plan of Legal Specialization
The proposed amendments to the Plan of Legal Specialization will allow the Board of Legal Specialization to appoint five advisory members to a specialty committee for the purpose of enhancing the ability of a specialty committee to develop, administer, or give a specialty exam or to create a new subspecialty. The board may waive the peer review and examination requirements for certification for any initial advisory member of a specialty committee.
.1719 Specialty Committees
(a) The board shall establish a separate specialty committee for each specialty in which specialists are to be certified.…
(b) Each specialty committee shall advise and assist the board in carrying out the board’s objectives and in the implementation and regulation of this plan in that specialty… Each specialty committee shall be charged with actively administering the plan in its specialty and with respect to that specialty shall:
(1) after public hearing on due notice, recommend to the board reasonable and nondiscriminatory standards applicable to that specialty;
(2) ….
(c) The board may appoint advisory members to a specialty committee to assist with the development, administration, and grading of the examination, the drafting of standards for a subspecialty, and any other activity set forth in paragraph (b) of this rule. Advisory members shall be non-voting except as to any specific activity delegated to the advisory members by the board or by the chair of the specialty committee, including the evaluation of applications for certification. No more than five advisory members may be appointed to a specialty committee. Advisory members shall be lawyers licensed and currently in good standing to practice law in this state who, in the judgment of the board, are competent in the field of law to be covered by the specialty. Advisory members shall hold office for an initial term of three years and shall thereafter serve at the discretion of the board for not more than two additional three-year terms. Appointment by the board to a vacancy shall be for the remaining term of the advisory member.
.1720 Minimum Standards for Certification of Specialists
(a) To qualify for certification as a specialist, a lawyer applicant must pay any required fee, comply with the following minimum standards, and meet any other standards established by the board for the particular area of specialty.
(1) ….
(4) The applicant must make a satisfactory showing, as determined by the board after advice from the appropriate specialty committee, of qualification in the specialty through peer review by providing, as references, the names of at least five lawyers, all of whom are licensed and currently in good standing to practice law in this state, or in any state, or judges, who are familiar with the competence and qualification of the applicant as a specialist. None of the references may be persons related to the applicant or, at the time of application, a partner of or otherwise associated with the applicant in the practice of law. The applicant by his or her application consents to confidential inquiry by the board or appropriate disciplinary body and other persons regarding the applicants competence and qualifications to be certified as a specialist.
(5) The applicant must achieve a satisfactory score on a written examination designed to test the applicant’s knowledge and ability in the specialty for which certification is applied. The examination must be applied uniformly to all applicants within each specialty area. The board shall assure that the contents and grading of the examination are designed to produce a uniform level of competence among the various specialties.
(b) …
(c) The board may adopt uniform rules waiving the requirements of Rules .1720(a)(4) and (5) above for members of a specialty committee, including advisory members, at the time that the initial written examination for that specialty or any subspecialty of the specialty is given, and permitting said members to file applications to become a board certified specialist in that specialty upon compliance with all other required minimum standards for certification of specialists.
(d) ....
Proposed Amendments to the Standards for the Workers’ Compensation Law Specialty
27 N.C.A.C. 1D, Rules of the Standing Committees of the
The proposed amendments to the standards for the workers’ compensation specialty clarify the CLE requirements for certification and continued certification as a specialist and add the law relating to long-term disability or Medicaid/Medicare claims to the list of related fields for the purpose of satisfying the CLE requirements for certification and continued certification as a specialist.
.2705 Standards for Certification as a Specialist in Workers’ Compensation Law
Each applicant for certification as a specialist in workers’ compensation law shall meet the minimum standards set forth in Rule .1720 of this subchapter. In addition, each applicant shall meet the following standards for certification in workers’ compensation law:
(a) Licensure and Practice ....
(c) Continuing Legal Education - An applicant must earn no less than 36 hours of accredited continuing legal education (CLE) credits in workers’ compensation law and related fields during the three years preceding application, with not less than six credits earned in courses on workers’ compensation law in any one year. Of the 36 hours of CLE, at least 18 hours shall be in workers’ compensation law, and the balance The remaining 18 hours may be earned in courses on workers’ compensation law or any of may be in the following related fields: civil trial practice and procedure; evidence; mediation; medical injuries, medicine, or anatomy; labor and employment law; and Social Security disability law; and the law relating to long-term disability or Medicaid/Medicare claims.
(d) Peer Review ....
.2706 Standards for Continued Certification as a Specialist
The period of certification is five years….each applicant for continued certification as a specialist shall comply with the specific requirements set forth below in addition to any general standards required by the board of all applicants for continued certification.
(a) Substantial Involvement ....
(b) Continuing Legal Education - The specialist must earn no less than 60 hours of accredited continuing legal education (CLE) credits in workers’ compensation law and related fields during the five years preceding application. Not less than six credits may be earned in any one year. Of the 60 hours of CLE, at least 30 hours shall be in workers’ compensation law, and the balance may be in the following related fields: civil trial practice and procedure; evidence; mediation; medical injuries, medicine, or anatomy; labor and employment law; and Social Security disability law; and the law relating to long-term disability or Medicaid/Medicare claims. Effective [date of adoption], the specialist must earn not less than six credits in courses on workers’ compensation law each year and the balance of credits may be earned in courses on workers’ compensation law or any of the related fields previously listed.
Proposed Amendments to the Standards for the Social Security Disability Law Specialty
27 NCAC 1D, Rules of the Standing Committees of the North Carolina State Bar, Section .2800, Certification Standards for the Social Security Disability Law Specialty
The proposed amendments add veterans’ disability law to the list of related fields for the purpose of satisfying the CLE requirements for certification and continued certification as a Social Security disability law specialist.
.2805 Standards for Certification as a Specialist in Social Security Disability Law
Each applicant for certification as a specialist in Social Security disability law shall meet the minimum standards set forth in Rule .1720 of this subchapter. In addition, each applicant shall meet the following standards for certification in Social Security disability law:
(a) Licensure and Practice ....
(b) Substantial Involvement ....
(c) Continuing Legal Education - An applicant must earn no less than 36 hours of accredited continuing legal education (CLE) credits in Social Security disability law and related fields during the three years preceding application, with not less than six credits earned in any one year. Of the 36 hours of CLE, at least 18 hours shall be in Social Security disability law, and the balance may be in the following related fields: trial skills and advocacy; practice management; medical injuries, medicine, or anatomy; ERISA; labor and employment law; elder law; workers’ compensation law; veterans’ disability law; and the law relating to long term disability or Medicaid/Medicare claims.
(d) Peer Review ....
.2806 Standards for Continued Certification as a Specialist
The period of certification is five years….each applicant for continued certification as a specialist shall comply with the specific requirements set forth below in addition to any general standards required by the board of all applicants for continued certification.
(a) Substantial Involvement ....
(b) Continuing Legal Education - The specialist must earn no less than 60 hours of accredited continuing legal education credits in Social Security disability law and related fields during the five years preceding application. Not less than six of the credits may be earned in any one year. Of the 60 hours of CLE, at least 20 hours shall be in Social Security disability law, and the balance may be in the following related fields: trial skills and advocacy; practice management; medical injuries, medicine, or anatomy; ERISA; labor and employment law; elder law; workers’ compensation law; veterans’ disability law; and the law relating to long term disability or Medicaid/Medicare claims.
Proposed Amendments to the Standards for the Criminal Law Specialty and to Create a New Specialty in Appellate Practice
27 N.C.A.C. 1D, Rules of the Standing Committees of the
27 N.C.A.C. 1D, Rules of the Standing Committees of the
A new specialty certification in appellate practice is proposed. It is believed that certification of lawyers as appellate practice specialists will improve the quality of appellate representation by helping to establish standards of practice and encouraging specialists to share their knowledge and skill with other lawyers. The proposed standards are consistent with the other specialties in requiring a successful applicant to demonstrate substantial involvement, attendance at CLE seminars in the specialty, adequate peer review, and passage of an examination.
At present, the criminal law specialty includes a subspecialty for certification in criminal appellate practice. A single specialty in appellate practice that encompasses both criminal and civil law is appropriate as the skills and knowledge necessary for appellate practice remain constant regardless of practice area. Therefore, all existing criminal appellate practice specialists will be transitioned to appellate practice specialists and the criminal law appellate subspecialty will be eliminated. Below, the proposed rule amendments deleting the criminal appellate practice subspecialty precede the proposed standards for the new specialty in appellate practice.
Section .2500 Certification Standards for the Criminal Law Specialty
.2501 Establishment of Specialty Field
The North Carolina State Bar Board of Legal Specialization (the board) hereby designates criminal law, including the subspecialties of criminal appellate practice and subspecialty of state criminal law, as a field of law for which certification of specialists under the North Carolina Plan of Legal Specialization (see Section .1700 of this subchapter) is permitted.
.2502 Definition of Specialty
The specialty of criminal law is the practice of law dealing with the defense or prosecution of those charged with misdemeanor and felony crimes in state and federal trial and appellate courts. Subspecialties The subspecialty in the field are is identified and defined as follows:
(a)Criminal Appellate Practice - The practice of criminal law at the appellate court level;
(b)
.2503 Recognition as a Specialist in Criminal Law
A lawyer may qualify as a specialist by meeting the standards set for criminal law or the subspecialties of criminal appellate practice or subspecialty of state criminal law. If a lawyer qualifies as a specialist by meeting the standards set for the criminal law specialty, the lawyer shall be entitled to represent that he or she is a “Board Certified Specialist in Criminal Law.” If a lawyer qualifies as a specialist by meeting the standards set for the subspecialty of criminal appellate practice, the lawyer shall be entitled to represent that he or she is a “Board Certified Specialist in Criminal Appellate Practice.” If a lawyer qualifies as a specialist by meeting the standards set for the subspecialty of state criminal law, the lawyer shall be entitled to represent that he or she is a “Board Certified Specialist in State Criminal Law.” If a lawyer qualifies as a specialist by meeting the standards set for both criminal law and the subspecialty of criminal appellate practice, the lawyer shall be entitled to represent that he or she is a “Board Certified Specialist in Criminal Law and Criminal Appellate Practice.”
.2505 Standards for Certification as a Specialist
Each applicant for certification as a specialist in criminal law, or the subspecialty of state criminal law, or the subspecialty of criminal appellate practice shall meet the minimum standards set forth in Rule .1720 of this subchapter. In addition, each applicant shall meet the following standards for certification:
(a) Licensure and Practice….
(b) Substantial Involvement - An applicant shall affirm to the board that the applicant has experience through substantial involvement in the practice of criminal law.
(1) ....
(4) For the subspecialty of criminal appellate practice, the applicant must have been engaged in the active practice of criminal appellate law for at least five years prior to certification during which the applicant devoted an average of at least 500 hours a year to the practice of criminal law (in both trial and appellate courts), but not less than 400 hours in any one year. The board may require an applicant to show substantial involvement in criminal appellate law by providing information regarding the applicant’s participation, during the five years prior to application, in activities such as brief writing, motion practice, oral arguments, and the preparation and argument of extraordinary writs.
(c) Continuing Legal Education
(1) In the specialty of criminal law, and the state criminal law subspecialty, and the criminal appellate practice subspecialty, an applicant must have earned no less than 40 hours of accredited continuing legal education credits in criminal law during the three years preceding the application, which 40 hours must include the following:
(A) at least 34 hours in skills pertaining to criminal law, such as evidence, substantive criminal law, criminal procedure, criminal trial advocacy, and criminal trial tactics, and appellate advocacy;
(B) ....
(2) In order to be certified as a specialist in both criminal law and the subspecialty of criminal appellate law, an applicant must have earned no less than 46 hours of accredited continuing legal education credits in criminal law during the three years preceding application, which 46 hours must include the following:
(A) at least 40 hours in skills pertaining to criminal law, such as evidence, substantive criminal law, criminal procedure, criminal trial advocacy, and criminal trial tactics, and appellate advocacy;
(B) ....
(d) Peer Review
(1) Each applicant for certification as a specialist in criminal law, and the subspecialty of state criminal law, and the subspecialty of criminal appellate practice, must make a satisfactory showing of qualification through peer review.
(2) ….
(e) Examination - The applicant must pass a written examination designed to test the applicant’s knowledge and ability.
(1) Terms ....
(2) Subject Matter
The examination shall cover the applicant’s knowledge in the following topics in criminal law, in the subspecialty of state criminal law, and/or in the subspecialty of criminal appellate practice, as the applicant has elected:
(A) the
(B) …
(G) the
(3) Required Examination Components.
(A) Criminal Law Specialty ....
(B) State Criminal Law Subspecialty ....
(C) Criminal Appellate Practice Subspecialty
An applicant for certification in the subspecialty of criminal appellate practice must pass the criminal appellate practice examination in addition to passing part I of the criminal law examination (on general topics in criminal law) and passing part II (on federal and state criminal law) or part III (on state criminal law) of the examination. If an applicant for certification in criminal appellate practice is already certified as a specialist in the specialty of criminal law or the subspecialty of state criminal law, the applicant is only required to take and pass the criminal appellate practice examination.
.2507 Applicability of Other Requirements
The specific standards set forth herein for certification of specialists in criminal law, and the subspecialty of state criminal law and the subspecialty of criminal appellate practice are subject to any general requirement, standard, or procedure adopted by the board applicable to all applicants for certification or continued certification.
Section .3000 Certification Standards for the Appellate Practice Specialty
Note: All rules in Section .3000 are new. Therefore, bold, understrikes, and overstrikes are not used to show changes in the text.
.3001 Establishment of Specialty Field
The North Carolina State Bar Board of Legal Specialization (the board) hereby designates appellate practice as a field of law for which certification of specialists under the North Carolina Plan of Legal Specialization (see Section .1700 of this subchapter) is permitted.
.3002 Definition of Specialty
The specialty of appellate practice is the practice of law relating to appeals to the Appellate Division of the North Carolina General Courts of Justice, as well as appeals to appellate-level courts of any state or territory of the United States, the Supreme Court of the United States, the United States Courts of Appeals, the United States Court of Appeals for the Armed Forces and the United States Courts of Criminal Appeals for the armed forces, and any tribal appellate court for a federally recognized Indian tribe (hereafter referred to as a “state or federal appellate court” or collectively as “state and federal appellate courts”).
.3003 Recognition as a Specialist in Appellate Practice
If a lawyer qualifies as a specialist in appellate practice by meeting the standards for the specialty, the lawyer shall be entitled to represent that he or she is a “Board Certified Specialist in Appellate Practice.” Any lawyer who is entitled to represent that he or she is a “Board Certified Specialist in Criminal Appellate Practice” (having been certified as such under the standards set forth in Section .2500 of this subchapter) at the time of the adoption of these standards shall also be entitled to represent that he or she is a “Board Certified Specialist in Appellate Practice” and shall thereafter meet the standards for continued certification under Rule .3006 of this section in lieu of the standards for continued certification under Rule .2506 of Section .2500 of this subchapter.
.3004 Applicability of Provisions of the
Certification and continued certification of specialists in appellate practice shall be governed by the provisions of the North Carolina Plan of Legal Specialization (see Section .1700 of this subchapter) as supplemented by these standards for certification.
.3005 Standards for Certification as a Specialist in Appellate Practice
Each applicant for certification as a specialist in appellate practice shall meet the minimum standards set forth in Rule .1720 of this subchapter. In addition, each applicant shall meet the following standards for certification in appellate practice:
(a) Licensure and Practice - An applicant shall be licensed and in good standing to practice law in
Substantial Involvement - An applicant shall affirm to the board that the applicant has experience through substantial involvement in appellate practice.
(1) Substantial involvement shall mean that during the five years immediately preceding the application, the applicant devoted an average of at least 400 hours a year, and not less than 100 hours in any one year, to appellate practice. “Practice” shall mean substantive legal work done primarily for the purpose of providing legal advice or representation including activities described in paragraph (2) below, or a practice equivalent as described in paragraph (3) below.
(2) Substantive legal work in appellate practice includes, but is not limited to, the following: preparation of a record on appeal or joint appendix for filing in any state or federal appellate court; researching, drafting, or editing of a legal brief, motion, petition, or response for filing in any state or federal appellate court; participation in or preparation for oral argument before any state or federal appellate court; appellate mediation, either as the representative of a party or as a mediator, in any state or federal appellate court; consultation on issues of appellate practice including consultation with trial counsel for the purpose of preserving a record for appeal; service on a committee or commission whose principal focus is the study or revision of the rules of appellate procedure of the North Carolina or federal courts; authoring a treatise, text, law review article, or other scholarly work relating to appellate practice; teaching appellate advocacy at an ABA accredited law school; and coaching in appellate moot court programs.
(3) “Practice equivalent” shall include the following activities:
(A) Service as a trial judge for any North Carolina General Court of Justice, United States Bankruptcy Court, or United States District Court, including service as a magistrate judge, for one year or more may be substituted for one year of experience toward the five-year requirement set forth in Rule .3005(b)(1).
(B) Service as a full-time, compensated law clerk for any North Carolina or federal appellate court for one year or more may be substituted for one year of experience toward the five-year requirement set forth in Rule .3005(b)(1).
(C) Service as an appellate judge for any North Carolina or federal appellate court may be substituted for the equivalent years of experience toward the five-year requirement set forth in Rule .3005(b)(1) as long as the applicant’s experience, before the applicant took the bench, included substantial involvement in appellate practice (as defined in paragraph (b)(1)) for two years before the applicant’s service as an appellate judge.
(4) An applicant must also demonstrate substantial involvement in appellate practice by providing information regarding the applicant’s participation during his or her legal career in the following:
(A) Five (5) oral arguments to any state or federal appellate court; and
(B) Principal authorship of ten (10) briefs submitted to any state or federal appellate court.
(c) Continuing Legal Education - An applicant must earn no fewer than 36 hours of accredited continuing legal education (CLE) credits in appellate practice and related fields during the three years preceding application, with no less than six credits to be earned in any one year. Of the 36 hours of CLE, at least 18 hours shall be in appellate practice, and the balance may be in the following related fields: trial advocacy; civil trial practice and procedure; criminal trial practice and procedure; evidence; legal writing; legal research; and mediation. An applicant may ask the specialty committee to recognize an additional field as related to appellate practice for the purpose of meeting the CLE standard. An applicant who uses authorship of a treatise, text, law review article, or other scholarly work relating to appellate practice or the teaching of appellate advocacy at an ABA-accredited law school to satisfy the substantial involvement requirement in paragraph (b) of this rule may not use the same experience to satisfy the CLE requirements of this paragraph (c).
(d) Peer Review - An applicant must make a satisfactory showing of qualification through peer review. An applicant must provide the names of ten lawyers or judges who are familiar with the competence and qualification of the applicant in the specialty field. Written peer reference forms will be sent by the board or the specialty committee to each of the references. Completed peer reference forms must be received from at least five of the references. All references must be licensed and in good standing to practice law and must have significant legal or judicial experience in appellate practice. An applicant consents to confidential inquiry by the board or the specialty committee to the submitted references and other persons concerning the applicant’s competence and qualification.
(1) A reference may not be related by blood or marriage to the applicant nor may the reference be a colleague at the applicant’s place of employment at the time of the application.
(2) The references shall be given on standardized forms mailed by the board to each reference. These forms shall be returned to the board and forwarded by the board to the specialty committee.
(e) Examination - An applicant must pass an examination designed to allow the applicant to demonstrate sufficient knowledge, skills, and proficiency in the field of appellate practice to justify the representation of special competence to the legal profession and the public. The examination shall be given annually and shall be administered and graded uniformly by the specialty committee. The exam shall include a written component which may be take-home and may include an oral argument before a moot court.
(1) Subject Matter – The examination shall cover the applicant’s knowledge and application of the following:
(A) The
(B) North Carolina General Statutes relating to appeals;
(C) The Federal Rules of Appellate Procedure;
(D) Federal statutes relating to appeals;
(E) The Local Rules and Internal Operating Procedures of the
(F) The Rules of the
(G) Brief writing;
(H) Oral argument; and
(I) Principles of appellate jurisdiction.
.3006 Standards for Continued Certification as a Specialist
The period of certification is five years. Prior to the expiration of the certification period, a certified specialist who desires continued certification must apply for continued certification within the time limit described in Rule .3006(d) below. No examination will be required for continued certification. However, each applicant for continued certification as a specialist shall comply with the specific requirements set forth below in addition to any general standards required by the board of all applicants for continued certification.
(a) Substantial Involvement - The specialist must demonstrate that, for each of the five years preceding application for continuing certification, he or she has had substantial involvement in the specialty as defined in Rule .3005(b) of this subchapter.
(b) Continuing Legal Education - The specialist must earn no less than 60 hours of accredited CLE credits in appellate practice and related fields during the five years preceding application for continuing certification. No less than six of the credits may be earned in any one year. Of the 60 hours of CLE, at least 20 hours shall be in appellate practice, and the balance may be in the related fields set forth in Rule .3005(c).
(c) Peer Review - The specialist must comply with the requirements of Rule .3005(d) of this subchapter.
(d) Time for Application - Application for continued certification shall be made not more than 180 days, nor less than 90 days, prior to the expiration of the prior period of certification.
(e) Lapse of Certification - Failure of a specialist to apply for continued certification in a timely fashion will result in a lapse of certification. Following such a lapse, recertification will require compliance with all requirements of Rule .3005 of this subchapter, including the examination.
(f) Suspension or Revocation of Certification - If an applicant’s certification has been suspended or revoked during the period of certification, the application shall be treated as if it were for initial certification under Rule .3005 of this subchapter.
.3007 Applicability of Other Requirements
The specific standards set forth herein for certification of specialists in appellate practice are subject to any general requirement, standard, or procedure, adopted by the board, that applies to all applicants for certification or continued certification.
.3008 Advisory Members of the Appellate Practice Specialty Committee
Proposed Amendments to the Rules of Professional Conduct
27 N.C.A.C. 2, Rules of Professional Conduct
The proposed amendment to the Preamble of the Rules of Professional Conduct that was published in the last edition of the Journal was revised by the Ethics Committee at its meeting on July 22, 2010, and approved for publication by the council at its meeting on July 23, 2010. The proposed amendment adds a statement to the Preamble urging lawyers not to discriminate in their practices on the basis of race, gender, national origin, religion, age, disability, sexual orientation, or gender identity. The second sentence in the proposed amendment was modified by the Ethics Committee to substitute the words “does not limit” for “prohibit,” thereby reinforcing the aspirational character of the Preamble.
The Preamble is the introduction to the Rules and is never the basis for professional discipline. To clarify this point, amendments to the Scope section of the Rules of Professional Conduct are also proposed.
0.1 Preamble: A Lawyer’s Responsibilities
[1] …
[6] While employed or engaged in a professional capacity, a lawyer should not discriminate on the basis of a person’s race, gender, national origin, religion, age, disability, sexual orientation, or gender identity. This responsibility of non-discrimination does not limit a lawyer’s right to advocate on any issue.
[7] [6] …
[re-numbering remaining paragraphs]
0.2 Scope
[1] …
Proposed Amendment to Membership Requirements
27 N.C.A.C. 1A, Section .0200, Membership – Annual Membership Fees
The proposed amendment requires a State Bar member to update the member's address, including e-mail address, each year.
Amendment Pending Approval of the Supreme Court
.0202 Register of Members
(a) Initial Registration with State Bar.
...
(d) Updating Membership Information.
Each year on or before July 1, every member shall provide or verify the member's current name, mailing address, and e-mail address.
Proposed Amendment to Eliminate a Standing Committee of the Council
27 N.C.A.C. 1A, Section .0700, Standing Committees of the Council
The Justice System Committee of the State Bar Council has been defunct for many years. The proposed amendment would eliminate this standing committee of the council.
Amendment Pending Approval of the Supreme Court
.0701 Standing Committees and Boards
(a) Standing Committees. Promptly after his or her election, the president shall appoint members to the standing committees identified below to serve for one year beginning January 1 of the year succeeding his or her election. ...
(1) Executive Committee.
...
(6) Justice System Committee. It shall be the duty of the Justice System Committee to assist the council in identifying and advancing the appropriate role of the State Bar in connection with initiatives, programs, legislation and other actions intended to improve access to justice, simplify the law and judicial procedures, and enhance the justice system and the public's confidence in that system; to consider means and methods of enhancing the degree of professionalism exhibited in the practice and conduct of the lawyers of this State; and to perform such other duties and consider such other matters as the council or the president may designate.
(6) (7) Legal Assistance for Military Personnel (LAMP) Committee.
...
[Renumbering remaining paragraphs]
...
Proposed Amendment to Model Bylaws for Judicial District Bars
27 N.C.A.C. 1A, Section .1000, Model Bylaws for Use by Judicial District Bars
Amendment Pending Approval of the Supreme Court
The proposed amendment to the model bylaw incorporates the statutory requirement (N.C. Gen. Stat. A784-18.1(b)) that thirty (30) days notice be given of any meeting at which there will be a vote on mandatory district bar dues.
.1007 Meetings
(a) Annual meetings:
...
(c) Notice for meeting to vote on annual membership fee: Notwithstanding the notice periods set forth in paragraphs (a) and (b) above, the written notice for any meeting at which the active members will vote on whether to impose or increase an annual membership fee shall be mailed or delivered to each active member of the district bar at the member's last known mailing address on file with the district bar at least 30 days before the date of the meeting.
(d) (c) Quorum:
...
Proposed Amendment to the Rules Governing the Practical Training of Law Students 27 N.C.A.C. 1C, Section .0200, Rules Governing the Practical Training of Law Students .0207 Use of Student's Name (a) A legal intern's name may properly (1)... (2) ...; and (b) A student's name may not appear
Amendment Pending Approval of the Supreme Court
The proposed amendment will authorize the identification of a law student practicing under the auspices of the rules on a business card issued by the supervising lawyer provided the student's status as a nonlawyer is affirmatively disclosed.
(3) be printed on a business card provided the name of the supervising attorney also appears on the business card and there appears below the legal intern's name a clear identification that the legal intern is certified under these rules. An appropriate designation is "Certified Legal Intern under the Supervision of [supervising attorney]."
(1),.
(2) on a business card bearing the name of a supervising attorney, legal aid clinic, or government agency; or
(3) on a business card identifying the legal intern as certified under these rules.
Proposed Amendments to the Rules and Regulations Governing the CLE Program
27 N.C.A.C. 1D, Section .1500, Rules Governing the Administration of the Continuing Legal Education Program, and Section .1600, Regulations Governing the Administration of the Continuing Legal Education Program
Amendment Pending Approval of the Supreme Court
The proposed amendments will do the following: (1) require a lawyer to be a nonresident for at least six months in a given year to qualify for the nonresident exemption from mandatory CLE; (2) increase the number of days for submission and for processing of a request for approval of a course or program; and (3) permit the Board of Continuing Legal Education to waive interest on delinquent payments of sponsor fees upon a showing of good cause.
.1517 Exemptions
(a) Notification of Board.
...
(d) Nonresidents. Any active member residing outside of
(e) Law Teachers.
...
.1520 Accreditation of Sponsors and Programs
(a) Accreditation of Sponsors.
(b) Presumptive Approval for Accredited Sponsors.
(1) ...
(2) The board may evaluate a program presented by an accredited sponsor and, upon a determination that the program does not satisfy the requirements of Rule .1519, notify the accredited sponsor that any presentation of the same program, the date for which was not included in the announcement required by Rule .1520(e) below, is not approved for credit. Such notice shall be sent by the board to the accredited sponsor within 30 45 days after the receipt of the announcement. The accredited sponsor may request reconsideration of such a decision by submitting a letter of appeal to the board within 15 days of receipt of the notice of disapproval. The decision by the board on an appeal is final.
...
(e) Program Announcements of Accredited Sponsors. At least 30 50 days prior to the presentation of a program, an accredited sponsor shall file an announcement, on a form prescribed by the board, notifying the board of the dates and locations of presentations of the program and the sponsor's calculation of the CLE credit hours for the program.
(f) ...
.1601 General Requirements for Course Approval
(a) Approval.
CLE activities may be approved upon the written application of a sponsor, other than an accredited sponsor, or of an active member on an individual program basis. An application for such CLE course approval shall meet the following requirements:
(1) If advance approval is requested by a sponsor, the application and supporting documentation, including one substantially complete set of the written materials to be distributed at the course or program, shall be submitted at least 45 50 days prior to the date on which the course or program is scheduled. If advance approval is requested by an active member, the application need not include a complete set of written materials.
(2) In all other cases, the application and supporting documentation shall be submitted by the sponsor not later than 45 50 days after the date the course or program was presented or prior to the end of the calendar year in which the course or program was presented, whichever is earlier. Active members requesting credit must submit the application and supporting documentation within 45 50 days after the date the course or program was presented or, if the 45 50 days have elapsed, as soon as practicable after receiving notice from the board that the course accreditation request was not submitted by the sponsor.
(3)
...
(b) Course Quality and Materials. .... Any sponsor, including an accredited sponsor, who expects to conduct a CLE activity for which suitable written materials will not be made available to all attendees may obtain approval for that activity only by application to the board at least 45 50 days in advance of the presentation showing why written materials are not suitable or readily available for such a program.
(c) Facilities.
...
(e) Records. Sponsors, including accredited sponsors, shall within 30 days after the course is concluded
(1) ...
(2) remit to the board the appropriate sponsor fee; and, if payment is not received by the board within 30 days after the course is concluded, interest at the legal rate shall be incurred; provided, however, the board may waive such interest upon a showing of good cause by a sponsor; and
(3) ...
Proposed Amendments to the Rules for Prepaid Legal Services Plans
27 N.C.A.C. 1E, Section .0300, Rules Concerning Prepaid Legal Services Plans
Amendment Pending Approval of the Supreme Court
The proposed amendments authorize a member of the State Bar's legal staff to review and pass upon initial applications for registration of a prepaid legal services plan.
.0304 Registration Procedures
To register with the North Carolina State Bar, a prepaid legal services plan must comply with all of the following procedures for initial registration:
(a) ...
(c) The Authorized Practice Committee ("committee"), as a duly authorized standing committee of the North Carolina State Bar Council, shall review the initial oversee the registration statements submitted by each of prepaid legal services plan plans in accordance with these rules. to determine if the plan, as represented in its registration statement, meets the definition of a prepaid legal services plan as defined in Rule .0303, and therefore should be registered in North Carolina. The committee may appoint a subcommittee to conduct an initial review and to recommend to the committee whether the plan meets the definition of a prepaid legal services plan. The committee shall also establish any deadlines by when registrations may be submitted for review and any additional, necessary rules and procedures regarding the initial and annual registrations, and the revocation of registrations, of prepaid legal services plans.
.0305 Registration
Proposed Amendments to the Rules of Professional Conduct
27 N.C.A.C. 2, Rules of Professional Conduct
Amendment Pending Approval of the Supreme Court
The proposed amendment to the Preamble of the Rules of Professional Conduct adds a statement urging lawyers not to discriminate in their practices on the basis of race, gender, national origin, religion, age, disability, sexual orientation, or gender identity. The Preamble is the introduction to the Rules and is never the basis for professional discipline.
The proposed amendments to Rule 8.3, Reporting Professional Misconduct, exempts a lawyer acting as a mediator from reporting professional misconduct if information relative to the misconduct is protected from disclosure by the North Carolina Supreme Court Standards of Professional Conduct for Mediators.
0.1 Preamble: A Lawyer's Responsibilities
[1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.
[2] ...
[6] While employed or engaged in a professional capacity, a lawyer should not discriminate on the basis of a person's race, gender, national origin, religion, age, disability, sexual orientation, or gender identity. This responsibility of non-discrimination does not prohibit a lawyer's advocacy on any issue.
[7] [6] ....
[Renumbering remaining paragraphs]
Rule 8.3 Reporting Professional Misconduct
(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the North Carolina State Bar or the court having jurisdiction over the matter.
(b) ...
(e) A lawyer who is serving as a mediator and who is subject to the North Carolina Supreme Court Standards of Professional Conduct for Mediators (the Standards) is not required to disclose information learned during a mediation if the Standards do not allow disclosure. If disclosure is allowed by the Standards, the lawyer is required to report professional misconduct consistent with the duty to report set forth in paragraph (a).
Comment
[1] ...
[7] The
Editor's Note:
Amendments to the IOLTA Rules Approved by the Supreme Court on January 28, 2010.
27 N.C.A.C. 1D, Section .1300, Rules Governing the Administration of the Plan for Interest on Lawyers' Trust Accounts
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