ARTICLE 1. Qualifications of Attorney; Unauthorized Practice of Law.

Sec.

§ 84-1. Oaths taken in open court.

Attorneys before they shall be admitted to practice law shall, in open court before a justice or judge of the General Court of Justice, personally appear and take the oath prescribed for attorneys by G.S. 11-11, and also the oaths of allegiance to the State, and to support the Constitution of the United States, prescribed for all public officers by Article VI, Sec. 7 of the North Carolina Constitution and G.S. 11-7, and the same shall be entered on the records of the court; and, upon such qualification had, and oath taken may act as attorneys during their good behavior.

History

(1777, c. 115, s. 8; R.C., c. 9, s. 3; Code, s. 19; Rev., s. 209; C.S., s. 197; 1969, c. 44, s. 58; 1973, c. 108, s. 35; 1995, c. 431, s. 1.)

Editor's Note. - Session Laws 2020-3, s. 4.16(a), provides: "Notwithstanding G.S. 84-1, in response to the coronavirus emergency, a justice or judge of the General Court of Justice may administer the required oath prescribed for attorneys by G.S. 11-11 to an attorney remotely using a form of live video conferencing technology, provided the individual taking the oath is personally known to the justice or judge or provides satisfactory evidence of identity to the justice or judge." Session Laws 2020-3, s. 4.16(b), provides for the expiration of this provision on December 1, 2020.

Session Laws 2020-3, s. 5, is a severability clause.

Session Laws 2021-3, s. 2.23(a), (b), provides: "(a) Notwithstanding G.S. 84-1, in response to the coronavirus emergency, a justice or judge of the General Court of Justice may administer the required oath prescribed for attorneys by G.S. 11-11 to an attorney remotely using a form of live video conferencing technology, provided the individual taking the oath is personally known to the justice or judge or provides satisfactory evidence of identity to the justice or judge.

"(b) This section is effective when it becomes law and expires December 1, 2021."

Legal Periodicals. - For article, "The Learned Profession Exemption of the North Carolina Deceptive Trade Practices Act: The Wrong Bright Line?," see 15 Campbell L. Rev. 223 (1993).

For article, "Reginald Heber Smith and Justice and the Poor in the 21st Century," see 40 Campbell L. Rev. 73 (2018).

CASE NOTES

Nonresident Attorneys. - As this section requires the oath of allegiance to the State, it debars a citizen of another state from obtaining a license to practice law, and a nonresident attorney does not acquire the right to practice habitually in this State by having been previously allowed, through the courtesy of the courts, to appear in special cases. Manning v. Roanoke & T.R.R.R., 122 N.C. 824, 28 S.E. 963 (1898).


§ 84-2. Persons disqualified.

No justice, judge, magistrate, full-time district attorney, full-time assistant district attorney, full-time public defender, full-time assistant public defender, clerk, deputy or assistant clerk of the General Court of Justice, register of deeds, deputy or assistant register of deeds, sheriff or deputy sheriff shall engage in the private practice of law. As used in this section, the private practice of law shall not include the performance of pro bono legal services by a lawyer, other than a justice or judge of the general court of justice, who is otherwise disqualified by this section if the pro bono services are sponsored or organized by a professional association of lawyers or a nonprofit corporation rendering legal services pursuant to G.S. 84-5.1. Persons violating this provision shall be guilty of a Class 3 misdemeanor and only fined not less than two hundred dollars ($200.00).

History

(C.C.P., s. 424; 1870-1, c. 90; 1871-2, c. 120; 1880, c. 43; 1883, c. 406; Code, ss. 27, 28, 110; Rev., ss. 210, 3641; 1919, c. 205; C.S., s. 198; 1933, c. 15; 1941, c. 177; 1943, c. 543; 1965, c. 418, s. 1; 1969, c. 44, s. 59; 1973, c. 47, s. 2; c. 108, s. 36; 1981, c. 788, s. 1; 1993, c. 539, s. 596; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 431, s. 2; 2007-484, s. 28(a); 2017-158, s. 26.)

Local Modification. - Anson: 1951, c. 7; Burke: 1933, c. 135; Madison: 1935, c. 214; New Hanover: 1959, c. 483.

Effect of Amendments. - Session Laws 2007-484, s. 28.(a), effective December 1, 2007, and applicable to offenses committed on or after that date, inserted "magistrate," near the beginning of the section.

Session Laws 2017-158, s. 26, effective July 21, 2017, substituted "full-time public defender" for "public defender" and "full-time assistant public defender" for "assistant public defender" in the first sentence, and added the second sentence.

CASE NOTES

Bankruptcy. - Petition preparer engaged in the unauthorized practice of law under G.S. 84-2.1 by providing a debtor with advice and legal citations necessary to complete the debtor's bankruptcy schedules; thus, he committed an unfair or deceptive act under 11 U.S.C. § 110(i). In re Springs, 358 B.R. 236 (Bankr. M.D.N.C. 2006).

Cited in State v. Hunter, 290 N.C. 556, 227 S.E.2d 535 (1976).


§ 84-2.1. "Practice law" defined.

  1. The phrase "practice law" as used in this Chapter is defined to be performing any legal service for any other person, firm or corporation, with or without compensation, specifically including the preparation or aiding in the preparation of deeds, mortgages, wills, trust instruments, inventories, accounts or reports of guardians, trustees, administrators or executors, or preparing or aiding in the preparation of any petitions or orders in any probate or court proceeding; abstracting or passing upon titles, the preparation and filing of petitions for use in any court, including administrative tribunals and other judicial or quasi-judicial bodies, or assisting by advice, counsel, or otherwise in any legal work; and to advise or give opinion upon the legal rights of any person, firm or corporation: Provided, that the above reference to particular acts which are specifically included within the definition of the phrase "practice law" shall not be construed to limit the foregoing general definition of the term, but shall be construed to include the foregoing particular acts, as well as all other acts within the general definition.
  2. The phrase "practice law" does not encompass:
    1. The drafting or writing of memoranda of understanding or other mediation summaries by mediators at community mediation centers authorized by G.S. 7A-38.5 or by mediators of employment-related matters for The University of North Carolina or a constituent institution, or for an agency, commission, or board of the State of North Carolina.
    2. The selection or completion of a preprinted form by a real estate broker licensed under Chapter 93A of the General Statutes, when the broker is acting as an agent in a real estate transaction and in accordance with rules adopted by the North Carolina Real Estate Commission, or the selection or completion of a preprinted residential lease agreement by any person or Web site provider. Nothing in this subdivision or in G.S. 84-2.2 shall be construed to permit any person or Web site provider who is not licensed to practice law in accordance with this Chapter to prepare for any third person any contract or deed conveying any interest in real property, or to abstract or pass upon title to any real property, which is located in this State.
    3. The completion of or assisting a consumer in the completion of various agreements, contracts, forms, and other documents related to the sale or lease of a motor vehicle as defined in G.S. 20-286(10), or of products or services ancillary or related to the sale or lease of a motor vehicle, by a motor vehicle dealer licensed under Article 12 of Chapter 20 of the General Statutes.

History

(C.C.P., s. 424; 1870-1, c. 90; 1871-2, c. 120; 1880, c. 43; 1883, c. 406; Code, ss. 27, 28, 110; Rev., ss. 210, 3641; 1919, c. 205; C.S., s. 198; 1933, c. 15; 1941, c. 177; 1943, c. 543; 1945, c. 468; 1995, c. 431, s. 3; 1999-354, s. 2; 2004-154, s. 2; 2013-410, s. 32; 2016-60, s. 1.)

Effect of Amendments. - Session Laws 2004-154, s. 2, effective August 2, 2004, added "or by mediators of personnel matters for The University of North Carolina or a constituent institution" at the end of the last sentence.

Session Laws 2013-410, s. 32, effective August 23, 2013, in the last sentence, added "drafting or," substituted "employment-related" for "personnel," and added "or for an agency, commission, or board of the State of North Carolina."

Session Laws 2016-60, s. 1, effective June 30, 2016, inserted subsection (a) and (b) designations and the subdivision (b)(1) designation and added subdivisions (b)(2) and (b)(3).

Legal Periodicals. - For article, "Transferring North Carolina Real Estate Part I: How the Present System Functions," see 49 N.C.L. Rev. 413 (1971).

For note on the unauthorized practice of law by corporations, see 65 N.C.L. Rev. 1422 (1987).

For a comment on ethical and legislative considerations of multidisciplinary practices, see 36 Wake Forest L. Rev. 193 (2001).

For comment, "Sharing Their Piece of the Real Estate Pie: An Analysis of the Necessity of Lawyers at Residential Real Estate Closings in the Context of the Adoption of Recent Opinions of the North Carolina State Bar," see 26 Campbell L. Rev. 59 (2004).

CASE NOTES

What Constitutes Practicing Law. - To constitute the practice of law, within the prohibition of this section, it is necessary that the person charged with its violation shall have customarily or habitually held himself out to the public as a lawyer, or that he has demanded compensation for his services as such. State v. Bryan, 98 N.C. 644, 4 S.E. 522 (1887).

The fact that a person on one occasion acted as an attorney for a party to an action is some evidence for the jury to consider, but is not conclusive of the question. State v. Bryan, 98 N.C. 644, 4 S.E. 522 (1887). See G.S. 84-4.

Section Not Exhaustive. - The last sentence in this section makes it clear that the statute does encompass all the activities that could be considered the practice of law. Toms v. Lawyers Mut. Liab. Ins. Co., 104 N.C. App. 88, 408 S.E.2d 206 (1991), cert. denied, 330 N.C. 618, 412 S.E.2d 95 (1992).

Practice of law embraces the preparation of legal documents and contracts by which legal rights are secured. State v. Pledger, 257 N.C. 634, 127 S.E.2d 337 (1962).

Not All Activities Within Definition Are Unlawful for Lay Persons. - It was not the purpose and intent of this section to make unlawful all activities of lay persons which come within the general definition of practicing law. State v. Pledger, 257 N.C. 634, 127 S.E.2d 337 (1962). See note to G.S. 84-4.

The key as to whether attorney performed a professional service was not the act, but rather, the capacity in which he undertook the performance of the act. Toms v. Lawyers Mut. Liab. Ins. Co., 104 N.C. App. 88, 408 S.E.2d 206 (1991), cert. denied, 330 N.C. 618, 412 S.E.2d 95 (1992).

Solicitation and Acceptance of Money for Investment. - An attorney from outside the State coming to North Carolina and suggesting to the plaintiff that he be allowed to invest the plaintiff 's money is not acting in any legal capacity when he accepts the money from the plaintiff for investment. Smith v. Travelers Indem. Co., 343 F. Supp. 605 (M.D.N.C. 1972).

A licensed attorney who is a full-time employee of an insurance company may not ethically represent one of the company's insureds as counsel of record in an action brought by a third party for a claim covered by the terms of the insurance policy or appear as counsel of record for the insured in the prosecution of a subrogation claim for property damage. Gardner v. North Carolina State Bar, 316 N.C. 285, 341 S.E.2d 517 (1986).

Law Firm's Liability for Activities of Partner. - In order to determine whether members of a law firm should be held liable for the activities of one of its partners, the court should consider (1) the provisions of the instrument empowering the firm to practice law, such as partnership agreements and articles of incorporation, as well as statutory provisions; (2) the construction which our courts have historically given the questioned activity or related ones; (3) where the partner has acted, or seemed to act, with the firm's authority; this includes his position in the firm, the participation - if any - by the rest of the firm in the disputed activities, and any assurances given the client that this transaction would be handled through the firm; and finally, (4) whether the other members of the firm have assented to or ratified the acts. Shelton v. Fairley, 86 N.C. App. 147, 356 S.E.2d 917, cert. denied, 320 N.C. 634, 360 S.E.2d 94 (1987).

Bankruptcy Petition Preparers. - All of the bankruptcy petition preparer's services fell within G.S. 84-2.1 since it included preparing and filing of petitions for use in court; but under 11 U.S.C.S. § 110, the preparer's services had to be limited to typing the documents as directed by the preparer's customers - therefore, providing documents that contained legal advice, thereby giving the customers the impression that the documents contained all of the information necessary as to whether or not to file bankruptcy and how to complete the forms, was an unfair and deceptive practice. In re Moore, 290 B.R. 287 (Bankr. E.D.N.C. 2003).

By taking the information placed in the workbook by the customer and entering it by computer into the official forms, which differed from the workbook, the preparer and the company ceased to be mere scriveners, as allowed by 11 U.S.C.S. § 110, and, instead, engaged in "the preparation . . . of petitions for use in any court," which fell within the definition of practice of law contained in G.S. 84-2.1. In re Graham, - Bankr. - (Bankr. M.D.N.C. Feb. 10, 2004).

Where pro se bankruptcy debtors retained a petition preparer to complete their bankruptcy petition and accompanying schedules and forms, the preparer engaged in the unauthorized practice of law by advising the debtors concerning an unlisted creditor and by maintaining a website which explained legal options and concepts related to bankruptcy. In re Medley, - Bankr. - (Bankr. M.D.N.C. Nov. 10, 2005).

Paralegal violated 11 U.S.C.S. § 110 when she assisted two debtors in filing bankruptcy while she was not acting under the direct supervision of an attorney, and engaged in the unauthorized practice of law, in violation of G.S. 84-4, when she gave each debtor legal advice; although the court could have imposed sanctions on the paralegal for each violation of § 110 - including the fact that she did not disclose her fees to the court, signed documents on the debtors' behalf, and did not disclose her role in either case in any of the documents that were filed - her violations could be addressed by requiring her to disgorge her fees, to pay each debtor $2,000, and enjoining her from committing future violations of § 110. In re Bodrick, - Bankr. - (Bankr. W.D.N.C. Apr. 14, 2016).

Workbook Created by Bankruptcy Petition Preparers. - Where bankruptcy petition preparers provided customers with a workbook and guide that contained advice to the customer concerning bankruptcy law and how the blanks in the workbook should be completed, the preparers engaged in the unauthorized practice of law. In re Langford, - Bankr. - (Bankr. M.D.N.C. Nov. 9, 2005).

Scrivening. - Although the North Carolina courts apparently have not addressed the issue, most courts have concluded that although a non-attorney may not create a document for another person or advise on how the document should be prepared, merely typing or "scrivening" a petition or legal document for another person does not constitute the practice of law. This distinction has been made in dealing with petition preparers under 11 U.S.C.S. § 110. In re Lazarus, - Bankr. - (Bankr. M.D.N.C. Mar. 14, 2005).

Scrivener's exception to the practice of law applied because a taxpayer's director of financial support filled out blanks on a standardized, fill-in-the-blank appeal form and filed it with the North Carolina Property Tax Commission, which required no exercise of legal judgment; therefore, the taxpayer did not avail itself of nonattorney representation before the Commission requiring notice, and the Commission did not err in denying the county's motion to dismiss. In re Harris Teeter, LLC, - N.C. App. - , 845 S.E.2d 131 (2020).

Bail Agent Permitted To File Motion To Set Aside Forfeiture. - Trial court properly granted a bail agent's motion to set aside the forfeiture of a corporate surety's bond pursuant to G.S. 15A-544.5 because it did not err in concluding that a bail agent was permitted to file a motion to set aside; a bail agent may file a motion to set aside forfeiture as the filing of such motion does not constitute an appearance before a judicial body and therefore does not constitute a violation of G.S. 84-4 regarding the unauthorized practice of law, and filing a motion to set aside a bond forfeiture is not considered an appearance before a judicial body in the manner contemplated by G.S. 84-4 and, therefore, does not constitute the practice of law. State ex rel. Guilford County Bd. of Educ. v. Herbin, 215 N.C. App. 348, 716 S.E.2d 35 (2011).

Filing Notice of Appeal With North Carolina Property Tax Commission. - Filing the notice of appeal form constitutes neither an "appearance" before the North Carolina Property Tax Commission nor the practice of law; filing the Notice of Appeal and Application for Hearing does not constitute an appearance or legal representation requiring notice under G.S. 105-290(d2), and it does not violate the general purpose of North Carolina's prohibition on the corporate practice of law. In re Harris Teeter, LLC, - N.C. App. - , 845 S.E.2d 131 (2020).

Defendant Not Practicing Law. - Defendant was not engaged in the "practice of law" when defendant sent a letter and accompanying pages to a witness set to testify against a friend defendant made in jail, because defendant did not hold defendant out as an attorney or as having a law degree, and conceded that defendant's information on the law was acquired through 20 years of being in trouble. The letter did not constitute a "legal document," and defendant repeatedly urged the witness not to rely on defendant and seek advice from an attorney. State v. Williams, 186 N.C. App. 233, 650 S.E.2d 607 (2007).

Assisting In Unauthorized Practice. - Lawyer violated N.C. R. Prof. Conduct 5.5(d) because the lawyer knowingly assisted a corporation in engaging in the unauthorized practice of law. N.C. State Bar v. Livingston, 257 N.C. App. 121, 809 S.E.2d 183 (2017), cert. denied, 812 S.E.2d 853, 2018 N.C. LEXIS 380 (2018).

Cited in In re Gertzman, 115 N.C. App. 634, 446 S.E.2d 130, cert. denied, 337 N.C. 801, 449 S.E.2d 571 (1994); In re Stroh Brewery Co., 116 N.C. App. 178, 447 S.E.2d 803 (1994); RCDI Constr. v. Spaceplanrchitecture, Planning & Interiors, P.A., 148 F. Supp. 2d 607 (W.D.N.C. 2001); Dallaire v. Bank of Am., N.A., 224 N.C. App. 248, 738 S.E.2d 731 (2012), rev'd 760 S.E.2d 263, 2014 N.C. LEXIS 408 (2014).


§ 84-2.2. Exemption and additional requirements for Web site providers.

  1. The practice of law, including the giving of legal advice, as defined by G.S. 84-2.1 does not include the operation of a Web site by a provider that offers consumers access to interactive software that generates a legal document based on the consumer's answers to questions presented by the software, provided that all of the following are satisfied:
    1. The consumer is provided a means to see the blank template or the final, completed document before finalizing a purchase of that document.
    2. An attorney licensed to practice law in the State of North Carolina has reviewed each blank template offered to North Carolina consumers, including each and every potential part thereof that may appear in the completed document. The name and address of each reviewing attorney must be kept on file by the provider and provided to the consumer upon written request.
    3. The provider must communicate to the consumer that the forms or templates are not a substitute for the advice or services of an attorney.
    4. The provider discloses its legal name and physical location and address to the consumer.
    5. The provider does not disclaim any warranties or liability and does not limit the recovery of damages or other remedies by the consumer.
    6. The provider does not require the consumer to agree to jurisdiction or venue in any state other than North Carolina for the resolution of disputes between the provider and the consumer.
    7. The provider must have a consumer satisfaction process. All consumer concerns involving the unauthorized practice of law made to the provider shall be referred to the North Carolina State Bar. The consumer satisfaction process must be conspicuously displayed on the provider's Web site.
  2. A Web site provider subject to this section shall register with the North Carolina State Bar prior to commencing operation in the State and shall renew its registration with the State Bar annually. The State Bar may not refuse registration.
  3. Each Web site provider subject to this section shall pay an initial registration fee in an amount not to exceed one hundred dollars ($100.00) and an annual renewal fee in an amount not to exceed fifty dollars ($50.00).

History

(2016-60, s. 2.)

Editor's Note. - Session Laws 2016-60, s. 4, provides: "The General Assembly shall review the implementation of Section 2 of this act and consider whether the provision should be modified or discontinued by June 30, 2018."

Session Laws 2016-60, s. 5, made this section effective June 30, 2016.

§ 84-3: Repealed by Session Laws 1973, c. 108, s. 37.

§ 84-4. Persons other than members of State Bar prohibited from practicing law.

Except as otherwise permitted by law, it shall be unlawful for any person or association of persons, except active members of the Bar of the State of North Carolina admitted and licensed to practice as attorneys-at-law, to appear as attorney or counselor at law in any action or proceeding before any judicial body, including the North Carolina Industrial Commission, or the Utilities Commission; to maintain, conduct, or defend the same, except in his own behalf as a party thereto; or, by word, sign, letter, or advertisement, to hold out himself, or themselves, as competent or qualified to give legal advice or counsel, or to prepare legal documents, or as being engaged in advising or counseling in law or acting as attorney or counselor-at-law, or in furnishing the services of a lawyer or lawyers; and it shall be unlawful for any person or association of persons except active members of the Bar, for or without a fee or consideration, to give legal advice or counsel, perform for or furnish to another legal services, or to prepare directly or through another for another person, firm or corporation, any will or testamentary disposition, or instrument of trust, or to organize corporations or prepare for another person, firm or corporation, any other legal document. Provided, that nothing herein shall prohibit any person from drawing a will for another in an emergency wherein the imminence of death leaves insufficient time to have the same drawn and its execution supervised by a licensed attorney-at-law. The provisions of this section shall be in addition to and not in lieu of any other provisions of this Chapter. Provided, however, this section shall not apply to corporations authorized to practice law under the provisions of Chapter 55B of the General Statutes of North Carolina.

History

(1931, c. 157, s. 1; 1937, c. 155, s. 1; 1955, c. 526, s. 1; 1969, c. 718, s. 19; 1981, c. 762, s. 3; 1995, c. 431, s. 4.)

Cross References. - As to officers disqualified to practice law, see G.S. 84-2.

Legal Periodicals. - For note on unauthorized practice of law by corporations, see 41 N.C.L. Rev. 225 (1963).

For case law survey on unauthorized practice of law, see 41 N.C.L. Rev. 447 (1963).

For note on the unauthorized practice of law by corporations, see 65 N.C.L. Rev. 1422 (1987).

For a comment on ethical and legislative considerations of multidisciplinary practices, see 36 Wake Forest L. Rev. 193 (2001).

For comment, "Sharing Their Piece of the Real Estate Pie: An Analysis of the Necessity of Lawyers at Residential Real Estate Closings in the Context of the Adoption of Recent Opinions of the North Carolina State Bar," see 26 Campbell L. Rev. 59 (2004).

For comment, "Dropping Dropbox in your Law Practice to Maintain your Duty of Confidentiality," see 36 Campbell L. Rev. 175 (2013).

CASE NOTES

This section is constitutional and valid, the right to practice law being subject to legislative regulation within constitutional restrictions and limitations, and the statute not being in contravention of any provision of the State or federal Constitutions. State ex rel. Seawell v. Carolina Motor Club, Inc., 209 N.C. 624, 184 S.E. 540 (1936).

The purpose of this section is for the better security of the people against incompetency and dishonesty in an area of activity affecting general welfare. State v. Pledger, 257 N.C. 634, 127 S.E.2d 337 (1962), commented on in 41 N.C.L. Rev. 225 (1963).

A pleading filed by an attorney who is not authorized to practice law in this State is not a nullity. Theil v. Detering, 68 N.C. App. 754, 315 S.E.2d 789, cert. denied, 312 N.C. 89, 321 S.E.2d 908 (1984).

The right to practice law is personal and may not be exercised by a corporation either directly or indirectly by employing lawyers to practice for it. State ex rel. Seawell v. Carolina Motor Club, Inc., 209 N.C. 624, 184 S.E. 540 (1936).

The practice of law is not limited to the conduct of cases in court, but embraces, in its general sense, legal advice and counsel and the preparation of legal documents and contracts by which legal rights are secured, although such matter may or may not be pending in court. State ex rel. Seawell v. Carolina Motor Club, Inc., 209 N.C. 624, 184 S.E. 540 (1936).

Services of Motor Clubs Held to Violate Section. - Where defendant corporations, as a part of their services, were engaged in giving legal advice, in employing attorneys for members, in allowing lay members of the incorporated club to write letters on club stationery to persons involved in accidents with members of the club advising that such persons were liable in damages in law for negligence in causing such accidents, and in drawing up receipts stating that a certain sum was received as settlement of such damages when collections were made as a result of such letters, they were held to be engaged in the practice of law in violation of this section. State ex rel. Seawell v. Carolina Motor Club, Inc., 209 N.C. 624, 184 S.E. 540 (1936).

Right to Enjoin Unlawful Practice of Law. - A cemetery lot owner could not enjoin a cemetery corporation from practicing law without a license - a criminal offense, since he had an adequate remedy at law by having the corporation indicted and convicted by the State. Mills v. Carolina Cem. Park Corp., 242 N.C. 20, 86 S.E.2d 893 (1955).

Section Does Not Confer Absolute Monopoly in Preparation of Legal Documents. - This section was not enacted for the purpose of conferring upon the legal profession an absolute monopoly in the preparation of legal documents. State v. Pledger, 257 N.C. 634, 127 S.E.2d 337 (1962), commented on in 41 N.C.L. Rev. 225 (1963).

Persons Having Primary Interest in Transaction May Prepare Necessary Papers. - A person, firm or corporation having a primary interest, not merely an incidental interest, in a transaction, may prepare legal documents necessary to the furtherance and completion of the transaction without violating this section. State v. Pledger, 257 N.C. 634, 127 S.E.2d 337 (1962), commented on in 41 N.C.L. Rev. 225 (1963).

Automobile, furniture, and appliance dealers prepare conditional sale contracts. Banks prepare promissory notes, drafts and letters of credit. Many lending institutions prepare deeds of trust and chattel mortgages. Owner-vendors and purchasers of land prepare deeds. All such activities are legal and do not violate the statute so long as the actor has a primary interest in the transaction. State v. Pledger, 257 N.C. 634, 127 S.E.2d 337 (1962), commented on in 41 N.C.L. Rev. 225 (1963).

Corporations. - Although a corporate employee was allowed to prepare legal documents, and a corporation need not have been represented by an attorney in a small claims case, a corporation involved in litigation needed to be represented by a duly admitted and licensed attorney-at-law and was not allowed to proceed pro se unless doing so in accordance with certain specific exceptions; the trial court's decision to allow the corporation's president to file pleadings on behalf of the corporation was reversed. LexisNexis, Div. of Reed Elsevier v. Travishan Corp., 155 N.C. App. 205, 573 S.E.2d 547 (2002).

Although corporations were not required to be represented by attorneys in hearings before the Office of Administrative Hearings (OAH), pursuant to G.S. 150B-23 (referring to "attorney or representative" of a party), the DMV was exempted from the provisions of the Administrative Procedure Act authorizing contested cases to be brought in the OAH, G.S. 150B-1(e)(8), and therefore, in a hearing before the DMV, a corporation was required to be represented by an attorney. In re Twin County Motorsports, Inc., 230 N.C. App. 259, 749 S.E.2d 474 (2013).

Court of Appeals erred in affirming an order by trial court finding that a corporation engaged in the unauthorized practice of law by appearing through a corporate officer before the Department of Motor Vehicles because an administrative agency was not an "action or proceeding" and, thus, a nonattorney could appear or proceed on behalf of a corporation before an administrative hearing officer without engaging in the unauthorized practice of law. In re Twin County Motorsports, Inc., 367 N.C. 613, 766 S.E.2d 832 (2014).

Preparation of Documents by Employees of Corporations. - A person who, in the course of his employment by a corporation, prepares a legal document in connection with a business transaction in which the corporation has a primary interest, the corporation being authorized by law and its charter to transact such business, does not violate the statute, for his act in so doing is the act of the corporation in the furtherance of its own business. State v. Pledger, 257 N.C. 634, 127 S.E.2d 337 (1962), commented on in 41 N.C.L. Rev. 225 (1963).

Work Performed by Law Firm's Non-Attorney Staff Employees. - Censure was an appropriate discipline for an experienced attorney's conduct because the attorney did not exercise the proper supervisory authority sufficient to ensure that the work of a law firms' non-attorney staff employees with regards to a real estate closing was compatible with the attorney's professional obligations as the closing attorney. N.C. State Bar v. Scott, 241 N.C. App. 477, 773 S.E.2d 520 (2015).

Preparation of Bankruptcy Petition. - Where pro se bankruptcy debtors retained a petition preparer to complete their bankruptcy petition and accompanying schedules and forms, the preparer engaged in the unauthorized practice of law by advising the debtors concerning an unlisted creditor and by maintaining a website that explained legal options and concepts related to bankruptcy. In re Medley, - Bankr. - (Bankr. M.D.N.C. Nov. 10, 2005).

Assisting a debtor in choosing how to characterize exemptions fell directly within the definition of "unauthorized practice" of law in North Carolina. Therefore, the bankruptcy petition preparer engaged in the unauthorized practice of law in the State of North Carolina. In re Johnson, - Bankr. - (Bankr. E.D.N.C. Apr. 25, 2012).

Paralegal violated 11 U.S.C.S. § 110 when she assisted two debtors in filing bankruptcy while she was not acting under the direct supervision of an attorney, and engaged in the unauthorized practice of law, in violation of G.S. 84-4, when she gave each debtor legal advice; although the court could have imposed sanctions on the paralegal for each violation of § 110 - including the fact that she did not disclose her fees to the court, signed documents on the debtors' behalf, and did not disclose her role in either case in any of the documents that were filed - her violations could be addressed by requiring her to disgorge her fees, to pay each debtor $2,000, and enjoining her from committing future violations of § 110. In re Bodrick, - Bankr. - (Bankr. W.D.N.C. Apr. 14, 2016).

Non-attorney owner who created a web-based company that prepared Chapter 7 bankruptcy petitions violated 11 U.S.C.S. § 110 and engaged in the unlawful practice of law in violation of G.S. 84-4 when he used information that was provided by a debtor who lived in North Carolina to prepare the debtor's petition and schedules and gave the debtor advice about the Bankruptcy Code; although a Massachusetts attorney who worked for the owner was not a "petition preparer," he was subject to sanctions because he signed documents the owner prepared that contained misrepresentations and served copies of the debtor's petition on creditors and other parties, even though he was not licensed to practice law in North Carolina. In re Johnson, - Bankr. - (Bankr. W.D.N.C. Sept. 28, 2016).

Workbook Created by Bankruptcy Petition Preparers. - Where bankruptcy petition preparers provided customers with a workbook and guide that contained advice to the customer concerning bankruptcy law and how the blanks in the workbook should be completed, the preparers engaged in the unauthorized practice of law. In re Langford, - Bankr. - (Bankr. M.D.N.C. Nov. 9, 2005).

A deed of trust is a legal document. State v. Pledger, 257 N.C. 634, 127 S.E.2d 337 (1962), commented on in 41 N.C.L. Rev. 225 (1963).

The grantor or the beneficiary in a deed of trust may prepare the instrument with impunity if the latter is extending credit to the former; the named trustee may not do so, for his interest is only incidental. State v. Pledger, 257 N.C. 634, 127 S.E.2d 337 (1962), commented on in 41 N.C.L. Rev. 225 (1963).

Any adult person desiring to do so may prepare his own will. State v. Pledger, 257 N.C. 634, 127 S.E.2d 337 (1962), commented on in 41 N.C.L. Rev. 225 (1963).

A person involved in litigation, though not a lawyer, may represent himself and either defend or prosecute the action or proceeding in a tribunal or court, even in Supreme Court, and may prepare and file pleadings and other papers in connection with the litigation. State v. Pledger, 257 N.C. 634, 127 S.E.2d 337 (1962), commented on in 41 N.C.L. Rev. 225 (1963).

Bail Agent Permitted To File Motion To Set Aside Forfeiture. - Trial court properly granted a bail agent's motion to set aside the forfeiture of a corporate surety's bond pursuant to G.S. 15A-544.5 because it did not err in concluding that a bail agent was permitted to file a motion to set aside; a bail agent may file a motion to set aside forfeiture as the filing of such motion does not constitute an appearance before a judicial body and therefore does not constitute a violation of G.S. 84-4 regarding the unauthorized practice of law, and filing a motion to set aside a bond forfeiture is not considered an appearance before a judicial body in the manner contemplated by G.S. 84-4 and, therefore, does not constitute the practice of law. State ex rel. Guilford County Bd. of Educ. v. Herbin, 215 N.C. App. 348, 716 S.E.2d 35 (2011).

Bail agent who, as an agent for the corporate surety, is appointed by an insurance company by power of attorney to execute or countersign bail bonds for the insurance company in connection with judicial proceedings is not prohibited from filing a motion to set aside a bond forfeiture. G.S. 15A-531(3); a bail agent may appear pro se at a hearing on a motion to set aside forfeiture if the agent has a financial liability to the surety as a result of the bond, but a bail agent is prohibited from appearing at the motion hearing in court to represent the corporate surety. State ex rel. Guilford County Bd. of Educ. v. Herbin, 215 N.C. App. 348, 716 S.E.2d 35 (2011).

Evidence Insufficient to Support Conviction for Unauthorized Practice of Law. - Letter and accompanying pages defendant sent to a witness set to testify against a friend defendant made in jail did not constitute the unauthorized practice of law, because defendant did not hold defendant out as an attorney or as having a law degree, defendant conceded that defendant's information on the law was acquired through 20 years of being in trouble, the letter did not constitute a "legal document," and defendant repeatedly urged the witness not to rely on defendant and seek advice from an attorney. State v. Williams, 186 N.C. App. 233, 650 S.E.2d 607 (2007).

Violation Not Shown. - In a foreclosure action, the trial court did not err by finding the note evidenced a valid debt petitioners owed. While no attorney was present at closing, petitioners failed to prove that two individuals who advised them as to their rights and obligations under the mortgage engaged in the unauthorized practice of law under G.S. 84-4 so as to render the debt invalid. In re Gray, 225 N.C. App. 46, 741 S.E.2d 888 (2013).

Administrator's Wrongful Death Complaint Was Not a Nullity. - Fact that wrongful death complaint was signed by the estate administrator and not by an attorney did not render the complaint a nullity, and the denial of healthcare providers' motion to dismiss the complaint was proper; any defect in the administrator's complaint was cured by the subsequent appearance of a properly licensed and admitted counsel. Reid v. Cole, 187 N.C. App. 261, 652 S.E.2d 718 (2007).

Disqualification of Attorneys Acting Pro Se. - It was not an abuse of discretion to disqualify a law firm's attorneys from representing the firm in a fee collection case because (1) the attorneys would be necessary trial witnesses, the attorneys' testimony would encompass material, disputed issues, and none of N.C. R. Prof. Conduct 3.7's exceptions applied, (2) N.C. R. Prof. Conduct 3.7 literally supported disqualification, as the case did not involve the attorneys' ability to represent the attorneys but to represent the firm in a suit against a third party while serving as witnesses for the firm as to disputed fact issues, and (3) the North Carolina Court of Appeals had no authority to create an exception to the Rule. Harris & Hilton, P.A. v. Rassette, 252 N.C. App. 280, 798 S.E.2d 154 (2017).

Applied in Resort Dev. Co. v. Phillips, 9 N.C. App. 158, 175 S.E.2d 782 (1970); In re Graham, - Bankr. - (Bankr. M.D.N.C. Feb. 10, 2004); In re Lazarus, - Bankr. - (Bankr. M.D.N.C. Mar. 14, 2005).

Cited in North Carolina Bd. of Pharmacy v. Lane, 248 N.C. 134, 102 S.E.2d 832 (1958); In re Stroh Brewery Co., 116 N.C. App. 178, 447 S.E.2d 803 (1994); Beyer v. N.C. Div. of Mental Health, - F. Supp. 2d - (W.D.N.C. Oct. 16, 2001); Olvera v. Edmundson, - F. Supp. 2d - (W.D.N.C. Sept. 21, 2001); Price v. Beck, 153 N.C. App. 763, 571 S.E.2d 247, cert. denied, 356 N.C. 615, 575 S.E.2d 26 (2002).

Opinions of Attorney General

Federal Preemption of North Carolina's Unauthorized Practice of Law Statute. - North Carolina's unauthorized practice of law statutes probably fall under the savings provision set forth in 29 U.S.C. § 1144(b)(4) for "generally applicable" criminal law and are therefore probably not preempted by ERISA, due to the fact that violation of those statutes is a criminal offense; on the other hand, the unauthorized practice of law statutes are preempted by 31 C.F.R. §§ 10.2 and 10.3 to the extent that those statutes would restrict to licensed attorneys the preparation or the aiding in the preparation of documents necessary to establish ERISA plans qualified by the Internal Revenue Service. See opinion of Attorney General to Mr. David Johnson, Committee Counsel, The North Carolina State Bar, Authorized Practice Committee, Pension Plan Subcommittee, 2003 N.C.A.G. 4 (6/20/03).

§ 84-4.1. Limited practice of out-of-state attorneys.

Any attorney domiciled in another state, and regularly admitted to practice in the courts of record of and in good standing in that state, having been retained as attorney for a party to any civil or criminal legal proceeding pending in the General Court of Justice of North Carolina, the North Carolina Utilities Commission, the North Carolina Industrial Commission, the Office of Administrative Hearings of North Carolina, or any administrative agency, may, on motion, be admitted to practice in that forum for the sole purpose of appearing for a client in the proceeding. The motion required under this section shall be signed by the attorney and shall contain or be accompanied by:

  1. The attorney's full name, post-office address, bar membership number, and status as a practicing attorney in another state.
  2. A statement, signed by the client, setting forth the client's address and declaring that the client has retained the attorney to represent the client in the proceeding.
  3. A statement that unless permitted to withdraw sooner by order of the court, the attorney will continue to represent the client in the proceeding until its final determination, and that with reference to all matters incident to the proceeding, the attorney agrees to 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 the attorney were a regularly admitted and licensed member of the Bar of North Carolina in good standing.
  4. A statement that the state in which the attorney is regularly admitted to practice grants like privileges to members of the Bar of North Carolina in good standing.
  5. A statement to the effect that the attorney has associated and is personally appearing in the proceeding, with an attorney who is a resident of this State, has agreed to be responsible for filing a registration statement with the North Carolina State Bar, and is duly and legally admitted to practice in the General Court of Justice of North Carolina, upon whom service may be had in all matters connected with the legal proceedings, or any disciplinary matter, with the same effect as if personally made on the foreign attorney within this State.
  6. A statement accurately disclosing a record of all that attorney's disciplinary history. Discipline shall include (i) public discipline by any court or lawyer regulatory organization, and (ii) revocation of any pro hac vice admission.
  7. A fee in the amount of two hundred twenty-five dollars ($225.00), of which two hundred dollars ($200.00) shall be remitted to the State Treasurer for support of the General Court of Justice and twenty-five dollars ($25.00) shall be transmitted to the North Carolina State Bar to regulate the practice of out-of-state attorneys as provided in this section.

Compliance with the foregoing requirements does not deprive the court of the discretionary power to allow or reject the application.

History

(1967, c. 1199, s. 1; 1971, c. 550, s. 1; 1975, c. 582, ss. 1, 2; 1977, c. 430; 1985 (Reg. Sess., 1986), c. 1022, s. 8; 1991, c. 210, s. 2; 1995, c. 431, s. 5; 2003-116, s. 1; 2004-186, s. 4.2; 2005-396, s. 1; 2007-200, s. 4; 2007-323, s. 30.8(k).)

Editor's Note. - Session Laws 2007-323, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2007'."

Session Laws 2007-323, s. 32.5 is a severability clause.

Effect of Amendments. - Session Laws 2007-200, s. 4, effective July 8, 2007, inserted "has agreed to be responsible for filing a registration statement with the North Carolina State Bar," in the middle of subdivision (5).

Session Laws 2007-323, s. 30.8(k), effective August 1, 2007, and applicable to all costs assessed or collected on or after that date, substituted "two hundred twenty-five dollars ($225.00), of which two hundred dollars ($200.00)" for "one hundred twenty-five dollars ($125.00), of which one hundred dollars ($100.00)" near the beginning of subdivision (7).

Legal Periodicals. - For note on equal protection and residence requirements, see 49 N.C.L. Rev. 753 (1971).

CASE NOTES

Purpose. - The purpose of this section is to afford the courts a means to control out-of-state counsel and to assure compliance with the duties and responsibilities of attorneys practicing in this State. North Carolina Nat'l Bank v. Virginia Carolina Bldrs., Inc., 57 N.C. App. 628, 292 S.E.2d 135, rev'd on other grounds, 307 N.C. 563, 299 S.E.2d 629 (1982).

Conditions in the statute are mandatory; until they have been met, a court has no discretion to admit out-of-state counsel to practice before it. North Carolina Nat'l Bank v. Virginia Carolina Bldrs., Inc., 57 N.C. App. 628, 292 S.E.2d 135, rev'd on other grounds, 307 N.C. 563, 299 S.E.2d 629 (1982).

A pleading filed by an attorney not authorized to practice law in this State is not a nullity. Theil v. Detering, 68 N.C. App. 754, 315 S.E.2d 789, cert. denied, 312 N.C. 89, 321 S.E.2d 908 (1984).

When Attorneys Not Considered as Participating Attorneys. - Where two attorneys purportedly appearing for defendants in appeal from criminal conviction are not members of the North Carolina Bar and are not authorized to appear in a case in compliance with this section, they are not considered as participating attorneys. State v. Daughtry, 8 N.C. App. 318, 174 S.E.2d 76 (1970).

United States Constitution does not protect pro hac vice proceedings. Leonard v. Johns-Manville Sales Corp., 57 N.C. App. 553, 291 S.E.2d 828, cert. denied, 306 N.C. 558, 294 S.E.2d 371 (1982).

Procedural due process is not required in the granting or denial of petitions to practice pro hac vice in the courts of another state. Leonard v. Johns-Manville Sales Corp., 57 N.C. App. 553, 291 S.E.2d 828, cert. denied, 306 N.C. 558, 294 S.E.2d 371 (1982).

It is not a right but a discretionary privilege which allows out-of-state attorneys to appear pro hac vice in a state's courts without meeting the state's bar admission requirements. In re Smith, 301 N.C. 621, 272 S.E.2d 834 (1981).

Admission of counsel in this State pro hac vice is not a right but a discretionary privilege; it is permissive and subject to the sound discretion of the court. Leonard v. Johns-Manville Sales Corp., 57 N.C. App. 553, 291 S.E.2d 828, cert. denied, 306 N.C. 558, 294 S.E.2d 371 (1982).

When Court's Discretionary Power Invoked. - Unless and until an application under this section meets the requirements of the statute, the court's discretionary power is not invoked. Holley v. Burroughs Wellcome Co., 56 N.C. App. 337, 289 S.E.2d 393 (1982).

Proper Care Requires Employment of Licensed Counsel. - To exercise proper care a party must not only pay proper attention to the case himself, he must employ counsel who is licensed or entitled to practice in the court where the case is pending. North Carolina Nat'l Bank v. Virginia Carolina Bldrs., Inc., 57 N.C. App. 628, 292 S.E.2d 135, rev'd on other grounds, 307 N.C. 563, 299 S.E.2d 629 (1982).

Local Custom Does Not Abrogate Section. - The fact that a custom may have grown up among Virginia attorneys practicing near the North Carolina state line to ignore the requirements of this section in no way abrogates or excuses out-of-state counsel from complying with this section. North Carolina Nat'l Bank v. Virginia Carolina Bldrs., Inc., 57 N.C. App. 628, 292 S.E.2d 135, rev'd on other grounds, 307 N.C. 563, 299 S.E.2d 629 (1982).

Party cannot nullify this section merely by responding to actions of noncomplying out-of-state attorney in the courts of this State. North Carolina Nat'l Bank v. Virginia Carolina Bldrs., Inc., 57 N.C. App. 628, 292 S.E.2d 135, rev'd on other grounds, 307 N.C. 563, 299 S.E.2d 629 (1982).

No Right to Representation by Counsel Not Licensed in State. - Parties do not have a right to be represented in the courts of this State by counsel who are not duly licensed to practice in this State. Leonard v. Johns-Manville Sales Corp., 57 N.C. App. 553, 291 S.E.2d 828, cert. denied, 306 N.C. 558, 294 S.E.2d 371 (1982).

Appellate court found it necessary to strike the second child and wife's brief, as well as their motions to dismiss and for sanctions; their counsel, who was apparently admitted to practice in Florida, was not licensed to practice in North Carolina, counsel failed to comply with G.S. 84-4.1, and no other counsel appeared on their behalf. Hill v. Hill, 181 N.C. App. 69, 638 S.E.2d 601, appeal dismissed, cert. denied, 361 N.C. 427, 648 S.E.2d 502 (2007).

An out-of-state attorney has no absolute right to practice law in another forum. It is permissive and subject to the sound discretion of the court. State v. Hunter, 290 N.C. 556, 227 S.E.2d 535 (1976), cert. denied, 429 U.S. 1093, 97 S. Ct. 1106, 51 L. Ed. 2d 539 (1977).

Prohibition of Habitual Practice in Courts of State by Nonresident Counsel. - This section forbids the courts from allowing nonresident counsel, when citizens of other states and not holding license from the North Carolina Supreme Court, from practicing habitually in our courts, and they cannot acquire the right to do so. State v. Hunter, 290 N.C. 556, 227 S.E.2d 535 (1976), cert. denied, 429 U.S. 1093, 97 S. Ct. 1106, 51 L. Ed. 2d 539 (1977).

Effect of Partial Compliance with Section. - In a criminal prosecution the trial court did not err in permitting the defendant's retained counsel from Alabama to appear before the court in his behalf without complying strictly with the provisions of this section for two reasons. First, the defendant was allowed to have those counsel whom he wanted to defend him. They were retained by him and allowed to practice in the North Carolina courts on his motion. At no time during the proceedings did he express concern regarding their competency, and any such objection was waived. Secondly, the statute was not designed for his protection, and did not vest in him any rights to counsel other than what he would ordinarily possess in the absence of the statute. State v. Scarboro, 38 N.C. App. 105, 247 S.E.2d 273, cert. denied, 295 N.C. 652, 248 S.E.2d 256 (1978); 440 U.S. 938, 99 S. Ct. 1286, 59 L. Ed. 2d 497 (1979).

Conditional Application for Admission for Limited Purpose. - This section does not permit an out-of-state attorney to move for admission for a limited purpose in this State on a conditional basis. The requirement of subdivision (3) of this section calls for a firm commitment from the movant which is contrary in spirit to a conditional application for admission for a limited purpose. In re Smith, 45 N.C. App. 123, 263 S.E.2d 23 (1980), rev'd on other grounds, 301 N.C. 621, 272 S.E.2d 834 (1981).

Sufficiency of Declaration Under Subdivision (1). - A declaration by an applicant that he is a member in good standing of the Bar of another state and is duly licensed and admitted to practice in that state is sufficient to meet the requirements of subdivision (1) of this section. Holley v. Burroughs Wellcome Co., 56 N.C. App. 337, 289 S.E.2d 393 (1982).

Statement of North Carolina Counsel Insufficient Under Subdivision (2). - The requirement under subdivision (2) of this section cannot be met by substituting the statement of North Carolina counsel and the statement must be signed by the client. Holley v. Burroughs Wellcome Co., 56 N.C. App. 337, 289 S.E.2d 393 (1982).

Association with Local Attorney. - Subdivision (5) of this section allows courts to control out-of-state counsel and assure compliance with the duties and responsibilities of an attorney practicing in the courts of this State, and the association of out-of-state counsel with a local attorney satisfies a reasonable interest of the courts in having a member of the Bar of this State responsible for the litigation; thus, this statute is specifically designed to insure that the court has ready jurisdiction over those appearing only occasionally before it by insuring that counsel who appear regularly before it participate in the case. In re Smith, 301 N.C. 621, 272 S.E.2d 834 (1981).

Same - Requirement May Not Be Waived. - A trial judge cannot waive the requirement of subdivision (5) of this section which states that local counsel be associated before an out-of-state attorney is admitted to limited practice in the courts of this State because unless and until subdivisions (1) through (5) are complied with, the court has no discretion whatever. In re Smith, 301 N.C. 621, 272 S.E.2d 834 (1981).

Same - Ineligible Attorney May Not Be Held In Contempt. - An out-of-state attorney could not be held in and punished for willful contempt of court for failure to comply with an order of the trial court that he appear as an attorney in a criminal case where there had been no general appearance by local counsel as required by this section and the out-of-state attorney thus never acquired eligibility to appear in the case and was never an attorney in the case admitted to limited practice in North Carolina. In re Smith, 301 N.C. 621, 272 S.E.2d 834 (1981).

Withdrawal of Out-of-State Counsel Controlled. - It does not seem equitable to allow adequately compensated trial counsel to withdraw after they have exhausted defendant's resources and to cast the burden of court appointment upon new counsel. Conduct in this regard by out-of-state counsel is controllable under subdivision (3) of this section as an initial condition upon which he is allowed to appear for trial. State v. Nickerson, 13 N.C. App. 125, 185 S.E.2d 326 (1971), cert. denied, 280 N.C. 304, 186 S.E.2d 179; 408 U.S. 925, 92 S. Ct. 2503, 33 L. Ed. 2d 336 (1972).

Substantial Right to Representation by Attorney Properly Admitted Under Section. - Plaintiff had a substantial right to have attorney of her choice, who had been properly admitted pro hac vice under this section represent her in her lawsuit, and order removing him as counsel affected a substantial right of the plaintiff and was immediately appealable. Goldston v. AMC, 326 N.C. 723, 392 S.E.2d 735 (1990).

A judge's order removing counsel who was admitted pro hac vice affected a substantial right of plaintiffs and was immediately appealable. Smith v. Beaufort County Hosp. Ass'n, 141 N.C. App. 203, 540 S.E.2d 775 (2000), cert denied, 353 N.C. 381, 547 S.E.2d 435 (2001), aff'd, 354 N.C. 212, 552 S.E.2d 139 (2001).

Denial of Motion for Admission Pro Hac Vice Is Interlocutory. - Order denying plaintiff's motion to reconsider order denying attorney's motion for admission pro hac vice is an interlocutory order and is not immediately appealable; it does not come within the statutory appeals in G.S. 1-277(a) or 7A-27(d). Leonard v. Johns-Manville Sales Corp., 57 N.C. App. 553, 291 S.E.2d 828, cert. denied, 306 N.C. 558, 294 S.E.2d 371 (1982).

Prejudicial error not found where the reviewing court was unable to determine from the record whether local counsel appeared with the out-of-state counsel and there was no record of objection from petitioners. In re Bean, 132 N.C. App. 363, 511 S.E.2d 683 (1999).

Pro Hac Vice Status Properly Revoked. - Attorney's pro hac vice status was properly revoked because (1) the attorney did not disclose the attorney's prior discipline, and (2) such disclosure was mandatory. Ge Betz, Inc. v. Conrad, 231 N.C. App. 214, 752 S.E.2d 634 (2013).

Summary Revocation of Grant of Admission Allowed. - The express language of G.S. 84-4.2 allows a superior court judge the authority and discretion to summarily revoke an earlier order granting pro hac vice admission pursuant to G.S. 84-4.1. Smith v. Beaufort County Hosp. Ass'n, 141 N.C. App. 203, 540 S.E.2d 775 (2000), cert denied, 353 N.C. 381, 547 S.E.2d 435 (2001), aff'd, 354 N.C. 212, 552 S.E.2d 139 (2001).

Revocation of Pro Hac Vice Status Unwarranted. - Conduct of plaintiff's counsel in Kentucky had been found not to violate Kentucky Rules of Professional Conduct, and N.C. Rev. R. Prof. Conduct 8.5 could not be used to revoke counsel's pro hac vice status under G.S. 84-4.1; a finding that counsel violated N.C. R. Prof. Conduct 4.3 was improper under Revised Rule 8.5, and was a misapprehension of law that was material and changed the outcome. Sisk v. Transylvania Cmty. Hosp., 194 N.C. App. 811, 670 S.E.2d 352 (2009).

G.S. 84-4.1 and G.S. 84-4.2 do not require the trial court to make any findings of fact or conclusions of law. Smith v. Beaufort County Hosp. Ass'n, 141 N.C. App. 203, 540 S.E.2d 775 (2000), cert denied, 353 N.C. 381, 547 S.E.2d 435 (2001), aff'd, 354 N.C. 212, 552 S.E.2d 139 (2001).

Applied in Resort Dev. Co. v. Phillips, 9 N.C. App. 158, 175 S.E.2d 782 (1970); Pope v. Jacobs, 51 N.C. App. 374, 276 S.E.2d 487 (1981).

Cited in North Carolina Nat'l Bank v. Virginia Carolina Bldrs., 307 N.C. 563, 299 S.E.2d 629 (1983); In re Stroh Brewery Co., 116 N.C. App. 178, 447 S.E.2d 803 (1994); In re Stroh Brewery Co., 116 N.C. App. 178, 447 S.E.2d 803 (1994); State v. Cuevas, 121 N.C. App. 553, 468 S.E.2d 425 (1996); Smith v. Richmond County Bd. of Educ., 150 N.C. App. 291, 563 S.E.2d 258 (2002); Sisk v. Transylvania Cmty. Hosp., Inc., 364 N.C. 172, 695 S.E.2d 429 (June 17, 2010).


§ 84-4.2. Summary revocation of permission granted out-of-state attorneys to practice.

Permission granted under G.S. 84-4.1 may be summarily revoked by the General Court of Justice or any agency, including the North Carolina Utilities Commission, on its own motion and in its discretion.

History

(1967, c. 1199, s. 2; 1971, c. 550, s. 2; 1995, c. 431, s. 6.)

CASE NOTES

The express language of this section allows a superior court judge the authority and discretion to summarily revoke an earlier order granting pro hac vice admission pursuant to G.S. 84-4.1. Smith v. Beaufort County Hosp. Ass'n, 141 N.C. App. 203, 540 S.E.2d 775 (2000), cert denied, 353 N.C. 381, 547 S.E.2d 435 (2001), aff'd, 354 N.C. 212, 552 S.E.2d 139 (2001).

G.S. 84-4.1 and G.S. 84-4.2 do not require the trial court to make any findings of fact or conclusions of law. Smith v. Beaufort County Hosp. Ass'n, 141 N.C. App. 203, 540 S.E.2d 775 (2000), cert denied, 353 N.C. 381, 547 S.E.2d 435 (2001), aff'd, 354 N.C. 212, 552 S.E.2d 139 (2001).

The application of this section is purely discretionary; thus, this section allows revocation where there was no change in circumstances, no misconduct, and no other evidence to "warrant" the revocation. Smith v. Beaufort County Hosp. Ass'n, 141 N.C. App. 203, 540 S.E.2d 775 (2000), cert denied, 353 N.C. 381, 547 S.E.2d 435 (2001), aff'd, 354 N.C. 212, 552 S.E.2d 139 (2001).

Trial court did not abuse its discretion when it revoked the pro hac vice status of two out-of-state attorneys pursuant to G.S. 84-4.2 where there was evidence that the attorneys made ex parte contact with defendant's retained expert, an unrepresented person. Sisk v. Transylvania Cmty. Hosp., Inc., 364 N.C. 172, 695 S.E.2d 429 (June 17, 2010).

Remand of Revocation of Pro Hac Vice Admission Required. - Revocation of attorney's pro hac vice admission had to be remanded because the attorney was erroneously found in criminal contempt, requiring a reevaluation of the revocation. Ge Betz, Inc. v. Conrad, 231 N.C. App. 214, 752 S.E.2d 634 (2013).


§ 84-5. Prohibition as to practice of law by corporation.

  1. It shall be unlawful for any corporation to practice law or appear as an attorney for any person in any court in this State, or before any judicial body or the North Carolina Industrial Commission, Utilities Commission, or the Department of Commerce, Division of Employment Security, or hold itself out to the public or advertise as being entitled to practice law; and no corporation shall organize corporations, or draw agreements, or other legal documents, or draw wills, or practice law, or give legal advice, or hold itself out in any manner as being entitled to do any of the foregoing acts, by or through any person orally or by advertisement, letter or circular. The provisions of this section shall be in addition to and not in lieu of any other provisions of Chapter 84. Provided, that nothing in this section shall be construed to prohibit a banking corporation authorized and licensed to act in a fiduciary capacity from performing any clerical, accounting, financial or business acts required of it in the performance of its duties as a fiduciary or from performing ministerial and clerical acts in the preparation and filing of such tax returns as are so required, or from discussing the business and financial aspects of fiduciary relationships. Provided, however, this section shall not apply to corporations authorized to practice law under the provisions of Chapter 55B of the General Statutes of North Carolina.
    1. A corporation authorized and licensed to act in a fiduciary capacity shall not:
      1. Draw wills or trust instruments; provided that this shall not be construed to prohibit an employee of such corporation from conferring and cooperating with an attorney who is not a salaried employee of the corporation, at the request of such attorney, in connection with the attorney's performance of services for a client who desires to appoint the corporation executor or trustee or otherwise to utilize the fiduciary services of the corporation.
      2. Give legal advice or legal counsel, orally or written, to any customer or prospective customer or to any person who is considering renunciation of the right to qualify as executor or administrator or who proposes to resign as guardian or trustee, or to any other person, firm or corporation.
      3. Advertise to perform any of the acts prohibited herein; solicit to perform any of the acts prohibited herein; or offer to perform any of the acts prohibited herein.
    2. Except as provided in subsection (b) of this section, when any of the following acts are to be performed in connection with the fiduciary activities of such a corporation, said acts shall be performed for the corporation by a duly licensed attorney, not a salaried employee of the corporation, retained to perform legal services required in connection with the particular estate, trust or other fiduciary matter:
      1. Offering wills for probate.
      2. Preparing and publishing notice of administration to creditors.
      3. Handling formal court proceedings.
      4. Drafting legal papers or giving legal advice to spouses concerning rights to an elective share under Article 1A of Chapter 30 of the General Statutes.
      5. Resolving questions of domicile and residence of a decedent.
      6. Handling proceedings involving year's allowances of widows and children.
      7. Drafting deeds, notes, deeds of trust, leases, options and other contracts.
      8. Drafting instruments releasing deeds of trust.
      9. Drafting assignments of rent.
      10. Drafting any formal legal document to be used in the discharge of the corporate fiduciary's duty.
      11. In matters involving estate and inheritance taxes, gift taxes, and federal and State income taxes:
        1. Preparing and filing protests or claims for refund, except requests for a refund based on mathematical or clerical errors in tax returns filed by it as a fiduciary.
        2. Conferring with tax authorities regarding protests or claims for refund, except those based on mathematical or clerical errors in tax returns filed by it as a fiduciary.
        3. Handling petitions to the tax court.
      12. Performing legal services in insolvency proceedings or before a referee in bankruptcy or in court.
      13. In connection with the administration of an estate or trust:
        1. Making application for letters testamentary or letters of administration.
        2. Abstracting or passing upon title to property.
        3. Handling litigation relating to claims by or against the estate or trust.
        4. Handling foreclosure proceedings of deeds of trust or other security instruments which are in default.
    3. When any of the following acts are to be performed in connection with the fiduciary activities of such a corporation, the corporation shall comply with the following:
      1. The initial opening and inventorying of safe deposit boxes in connection with the administration of an estate for which the corporation is executor or administrator shall be handled by, or with the advice of, an attorney, not a salaried employee of the corporation, retained by the corporation to perform legal services required in connection with that particular estate.
      2. The furnishing of a beneficiary with applicable portions of a testator's will relating to such beneficiary shall, if accompanied by any legal advice or opinion, be handled by, or with the advice of, an attorney, not a salaried employee of the corporation, retained by the corporation to perform legal services required in connection with that particular estate or matter.
      3. In matters involving estate and inheritance taxes and federal and State income taxes, the corporation shall not execute waivers of statutes of limitations without the advice of an attorney, not a salaried employee of the corporation, retained by the corporation to perform legal services in connection with that particular estate or matter.
      4. An attorney, not a salaried employee of the corporation, retained by the corporation to perform legal services required in connection with an estate or trust shall be furnished copies of inventories and accounts proposed for filing with any court and proposed federal estate and North Carolina inheritance tax returns and, on request, copies of proposed income and intangibles tax returns, and shall be afforded an opportunity to advise and counsel the corporate fiduciary concerning them prior to filing.
  2. Nothing in this section shall prohibit an attorney retained by a corporation, whether or not the attorney is also a salaried employee of the corporation, from representing the corporation or an affiliate, or from representing an officer, director, or employee of the corporation or an affiliate in any matter arising in connection with the course and scope of the employment of the officer, director, or employee. Notwithstanding the provisions of this subsection, the attorney providing such representation shall be governed by and subject to all of the Rules of Professional Conduct of the North Carolina State Bar to the same extent as all other attorneys licensed by this State.

To further clarify the foregoing provisions of this section as they apply to corporations which are authorized and licensed to act in a fiduciary capacity:

History

(1931, c. 157, s. 2; 1937, c. 155, s. 2; 1955, c. 526, s. 2; 1969, c. 718, s. 20; 1971, c. 747; 1997-203, s. 1; 2000-178, s. 8; 2011-401, s. 3.5.)

Cross References. - As to right of elective share, see G.S. 30-3.1 et seq.

Effect of Amendments. - Session Laws 2011-401, s. 3.5, effective November 1, 2011, substituted "Department of Commerce, Division of Employment Security" for "Employment Security Commission" in the first sentence of subsection (a).

Legal Periodicals. - For comment on the 1955 amendment, see 33 N.C.L. Rev. 528 (1952).

For comment on tax and corporate aspects of professional incorporation in North Carolina, see 48 N.C.L. Rev. 573 (1970).

For note on the unauthorized practice of law by corporations, see 65 N.C.L. Rev. 1422 (1987).

For 1997 legislative survey, see 20 Campbell L. Rev. 389 (1998).

For a comment on ethical and legislative considerations of multidisciplinary practices, see 36 Wake Forest L. Rev. 193 (2001).

CASE NOTES

Constitutionality. - State prosecutors were properly granted summary judgment in action to enjoin enforcement of North Carolina's unauthorized practice of law statutes because statutes did not unconstitutionally restrict trade association's associational rights, statutes survived intermediate scrutiny and did not unlawfully burden association's freedom of speech as state had established reasonable fit between statutes and substantial government interest in regulating legal profession to protect clients, statutes did not deny association due process as there was rational basis to restrict corporate ownership of professional businesses to protect consumers, statutes were not vague, and statutes did not violate state constitution's Monopoly Clause. Capital Associated Indus. v. Stein, 922 F.3d 198 (4th Cir. 2019), cert. denied, 140 S. Ct. 666, 205 L. Ed. 2d 438, 2019 U.S. LEXIS 7540 (U.S. 2019).

Purpose. - The main purpose of this section is to prohibit corporations from performing legal services for others. Duke Power Co. v. Daniels, 86 N.C. App. 469, 358 S.E.2d 87 (1987).

A licensed attorney who is a full-time employee of an insurance company may not ethically represent one of the company's insureds as counsel of record in an action brought by a third party for a claim covered by the terms of the insurance policy or appear as counsel of record for the insured in the prosecution of a subrogation claim for property damage. Gardner v. North Carolina State Bar, 316 N.C. 285, 341 S.E.2d 517 (1986).

Signing of Complaint by Employee Was Not Unauthorized Practice of Law. - Electric utility company, by having its lay employee sign a complaint in a small claim action to collect an unpaid power bill, did not practice law in violation of the provisions of this section. Duke Power Co. v. Daniels, 86 N.C. App. 469, 358 S.E.2d 87 (1987).

A private cause of action did not exist for an alleged unauthorized practice of law by a corporation; therefore, decedent's heirs could not recover for an alleged breach of fiduciary duty by a university that had drafted a will for the decedent whereby the decedent transferred her assets to the university. Baars v. Campbell Univ., Inc., 148 N.C. App. 408, 558 S.E.2d 871, cert. denied, 355 N.C. 490, 563 S.E.2d 563 (2002).

Assisting In Unauthorized Practice. - Lawyer violated N.C. R. Prof. Conduct 5.5(d) because the lawyer knowingly assisted a corporation in engaging in the unauthorized practice of law. N.C. State Bar v. Livingston, 257 N.C. App. 121, 809 S.E.2d 183 (2017), cert. denied, 812 S.E.2d 853, 2018 N.C. LEXIS 380 (2018).

Motion to Set Aside Bail Forfeiture. - Because the appellate court concluded that a surety engaged in the unauthorized practice of law within the meaning of G.S. 84-5 by allowing a corporation's officer to sign and file a motion to set aside a bond forfeiture, it concluded that the trial court did not err by denying the motion. State v. Cash, - N.C. App. - , 841 S.E.2d 589 (2020).

Cited in In re Stroh Brewery Co., 116 N.C. App. 178, 447 S.E.2d 803 (1994); Dallaire v. Bank of Am., N.A., 224 N.C. App. 248, 738 S.E.2d 731 (2012), rev'd 760 S.E.2d 263, 2014 N.C. LEXIS 408 (2014); In re Twin County Motorsports, Inc., 367 N.C. 613, 766 S.E.2d 832 (2014).


§ 84-5.1. Rendering of legal services by certain nonprofit corporations.

  1. Subject to the rules and regulations of the North Carolina State Bar, as approved by the Supreme Court of North Carolina, a nonprofit corporation, tax exempt under 26 U.S.C. § 501(c)(3), organized or authorized under Chapter 55A of the General Statutes of North Carolina and operating as a public interest law firm as defined by the applicable Internal Revenue Service guidelines or for the primary purpose of rendering indigent legal services, may render such services provided by attorneys duly licensed to practice law in North Carolina, for the purposes for which the nonprofit corporation was organized. The nonprofit corporation must have a governing structure that does not permit an individual or group of individuals other than an attorney duly licensed to practice law in North Carolina to control the manner or course of the legal services rendered and must continually satisfy the criteria established by the Internal Revenue Service for 26 U.S.C. § 501(c)(3) status, whether or not any action has been taken to revoke that status.
  2. In no instance may legal services rendered by a nonprofit corporation under subsection (a) of this section be conditioned upon the purchase or payment for any product, good, or service other than the legal service rendered.

History

(1977, c. 841, s. 1; 2009-231, s. 1.)

Effect of Amendments. - Session Laws 2009-231, s. 1, effective June 30, 2009, in the section catchline, deleted "indigent" preceding "legal" and inserted "certain"; designated the previously existing provisions as subsection (a); rewrote subsection (a); and added subsection (b).

CASE NOTES

Constitutionality. - State prosecutors were properly granted summary judgment in action to enjoin enforcement of North Carolina's unauthorized practice of law statutes because statutes did not unconstitutionally restrict trade association's associational rights, statutes survived intermediate scrutiny and did not unlawfully burden association's freedom of speech as state had established reasonable fit between statutes and substantial government interest in regulating legal profession to protect clients, statutes did not deny association due process as there was rational basis to restrict corporate ownership of professional businesses to protect consumers, statutes were not vague, and statutes did not violate state constitution's Monopoly Clause. Capital Associated Indus. v. Stein, 922 F.3d 198 (4th Cir. 2019), cert. denied, 140 S. Ct. 666, 205 L. Ed. 2d 438, 2019 U.S. LEXIS 7540 (U.S. 2019).

§ 84-6. Exacting fee for conducting foreclosures prohibited to all except licensed attorneys.

It shall be unlawful to exact, charge, or receive any attorney's fee for the foreclosure of any mortgage under power of sale, unless the foreclosure is conducted by licensed attorney-at-law of North Carolina, and unless the full amount charged as attorney's fee is actually paid to and received and retained by such attorney, without being directly or indirectly shared with or rebated to anyone else, and it shall be unlawful for any such attorney to make any showing that he has received such a fee unless he has received the same, or to share with or rebate to any other person, firm, or corporation such fee or any part thereof received by him; but such attorney may divide such fee with another licensed attorney-at-law maintaining his own place of business and not an officer or employee of the foreclosing party, if such attorney has assisted in performing the services for which the fee is paid, or resides in a place other than that where the foreclosure proceedings are conducted, and has forwarded the case to the attorney conducting such foreclosure.

History

(1931, c. 157, s. 3.)

§ 84-7. District attorneys, upon application, to bring injunction or criminal proceedings.

The district attorney of any of the superior courts shall, upon the application of any member of the Bar, or of any bar association, of the State of North Carolina, bring such action in the name of the State as may be proper to enjoin any such person, corporation, or association of persons who it is alleged are violating the provisions of G.S. 84-4 to 84-8, and it shall be the duty of the district attorneys of this State to indict any person, corporation, or association of persons upon the receipt of information of the violation of the provisions of G.S. 84-4 to 84-8.

History

(1931, c. 157, s. 4; 1973, c. 47, s. 2.)

Cross References. - As to the power of the North Carolina State Bar to investigate and enjoin unauthorized practice of law, see G.S. 84-37.

CASE NOTES

Constitutionality. - State prosecutors were properly granted summary judgment in action to enjoin enforcement of North Carolina's unauthorized practice of law statutes because statutes did not unconstitutionally restrict trade association's associational rights, statutes survived intermediate scrutiny and did not unlawfully burden association's freedom of speech as state had established reasonable fit between statutes and substantial government interest in regulating legal profession to protect clients, statutes did not deny association due process as there was rational basis to restrict corporate ownership of professional businesses to protect consumers, statutes were not vague, and statutes did not violate state constitution's Monopoly Clause. Capital Associated Indus. v. Stein, 922 F.3d 198 (4th Cir. 2019), cert. denied, 140 S. Ct. 666, 205 L. Ed. 2d 438, 2019 U.S. LEXIS 7540 (U.S. 2019).

Cited in North Carolina Bd. of Pharmacy v. Lane, 248 N.C. 134, 102 S.E.2d 832 (1958); In re Medley, - Bankr. - (Bankr. M.D.N.C. Nov. 10, 2005).


§ 84-7.1. Legal clinics of law schools and certain law students and lawyers excepted.

The provisions of G.S. 84-4 through G.S. 84-6 shall not apply to any of the following:

  1. Any law school conducting a legal clinic and receiving as its clientage only those persons unable financially to compensate for legal advice or services rendered and any law student permitted by the North Carolina State Bar to act as a legal intern in such a legal clinic.
  2. Any law student permitted by the North Carolina State Bar to act as a legal intern for a federal, State, or local government agency.
  3. Any lawyer licensed by another state and permitted by the North Carolina State Bar to represent indigent clients on a pro bono basis under the supervision of active members employed by nonprofit corporations qualified to render legal services pursuant to G.S. 84-5.1. This provision does not apply to a lawyer whose license has been suspended or revoked in any state.

History

(2011-336, s. 5.)

Editor's Note. - Session Laws 2011-336, s. 9, made this section effective December 1, 2011, and applicable to offenses committed on or after that date.

Legal Periodicals. - For article, "Reginald Heber Smith and Justice and the Poor in the 21st Century," see 40 Campbell L. Rev. 73 (2018).

§ 84-8. Punishment for violations.

  1. Any person, corporation, or association of persons violating any of the provisions of G.S. 84-4 through G.S. 84-6 or G.S. 84-9 shall be guilty of a Class 1 misdemeanor.
  2. No person shall be entitled to collect any fee for services performed in violation of G.S. 84-4 through G.S. 84-6, G.S. 84-9, or G.S. 84-10.1.

History

(1931, c. 157, s. 5; c. 347; 1993, c. 539, s. 597; 1994, Ex. Sess., c. 24, s. 14(c); 2007-200, s. 3; 2011-336, s. 4.)

Effect of Amendments. - Session Laws 2007-200, s. 3, effective July 8, 2007, inserted "and certain law students and lawyers" in the section heading; in the first paragraph, substituted "G.S. 84-7" for "84-8" twice and substituted "The provisions of" for "Provided, that"; in subdivision (1), inserted the designation, substituted "Any law school" for "any law school or law schools," substituted "its" for "their," and added "and any law student permitted by the North Carolina State Bar to act as a legal intern in such a legal clinic"; added subdivisions (2) and (3); and made related changes.

Session Laws 2011-336, s. 4, effective December 1, 2011, and applicable to offenses committed on or after that date, in the section catchline, deleted "legal clinics of law schools and certain law students and lawyers excepted" from the end; added the subsection (a) designation, and therein inserted "any of" and substituted "G.S. 84-4 through G.S. 84-6 or G.S. 84-9" for "G.S. 84-4 to G.S. 84-7"; and rewrote subsection (b), which was a list of conditions for which the provisions of G.S. 84-4 to G.S. 84-7 did not apply.

CASE NOTES

Constitutionality. - State prosecutors were properly granted summary judgment in action to enjoin enforcement of North Carolina's unauthorized practice of law statutes because statutes did not unconstitutionally restrict trade association's associational rights, statutes survived intermediate scrutiny and did not unlawfully burden association's freedom of speech as state had established reasonable fit between statutes and substantial government interest in regulating legal profession to protect clients, statutes did not deny association due process as there was rational basis to restrict corporate ownership of professional businesses to protect consumers, statutes were not vague, and statutes did not violate state constitution's Monopoly Clause. Capital Associated Indus. v. Stein, 922 F.3d 198 (4th Cir. 2019), cert. denied, 140 S. Ct. 666, 205 L. Ed. 2d 438, 2019 U.S. LEXIS 7540 (U.S. 2019).

Cited in Beyer v. N.C. Div. of Mental Health, - F. Supp. 2d - (W.D.N.C. Oct. 16, 2001); Olvera v. Edmundson, - F. Supp. 2d - (W.D.N.C. Sept. 21, 2001); In re Medley, - Bankr. - (Bankr. M.D.N.C. Nov. 10, 2005); In re Langford, - Bankr. - (Bankr. M.D.N.C. Nov. 9, 2005); State v. Williams, 186 N.C. App. 233, 650 S.E.2d 607 (2007).


§ 84-9. Unlawful for anyone except attorney to appear for creditor in insolvency and certain other proceedings.

It shall be unlawful for any corporation, or any firm or other association of persons other than a law firm, or for any individual other than an attorney duly licensed to practice law, to appear for another in any bankruptcy or insolvency proceeding, or in any action or proceeding for or growing out of the appointment of a receiver, or in any matter involving an assignment for the benefit of creditors, or to present or vote any claim of another, whether under an assignment or transfer of such claim or in any other manner, in any of the actions, proceedings or matters hereinabove set out.

History

(1931, c. 208, s. 2.)

Cross References. - As to unlawful solicitation of claims of creditors in insolvency, etc., proceedings, see G.S. 23-46.


§ 84-10: Repealed by Session Laws 2011-336, s. 6, effective December 1, 2011, and applicable to offenses committed on or after December 1, 2011.

History

(1931, c. 208, s. 3; 1993, c. 539, s. 598; 1994, Ex. Sess., c. 24, s. 14(c); repealed by 2011-336, s. 6, effective December 1, 2011.)

Editor's Note. - Former G.S. 84-10 pertained to violation of G.S. 84-9 as a misdemeanor.


§ 84-10.1. Private cause of action for the unauthorized practice of law.

If any person knowingly violates any of the provisions of G.S. 84-4 through G.S. 84-6 or G.S. 84-9, fraudulently holds himself or herself out as a North Carolina certified paralegal by use of the designations set forth in G.S. 84-37(a), or knowingly aids and abets another person to commit the unauthorized practice of law, in addition to any other liability imposed pursuant to this Chapter or any other applicable law, any person who is damaged by the unlawful acts set out in this section shall be entitled to maintain a private cause of action to recover damages and reasonable attorneys' fees and other injunctive relief as ordered by court. No order or judgment under this section shall have any effect upon the ability of the North Carolina State Bar to take any action authorized by this Chapter.

History

(2011-336, s. 7; 2016-60, s. 3.)

Editor's Note. - Session Laws 2011-336, s. 9, made this section effective October 1, 2011.

Effect of Amendments. - Session Laws 2016-60, s. 3, effective June 30, 2016, added "and other injunctive relief as ordered by court. No order or judgment under this section shall have any effect upon the ability of the North Carolina State Bar to take any action authorized by this Chapter" at the end.

ARTICLE 2. Relation to Client.

Sec.

§ 84-11. Authority filed or produced if requested.

Every attorney who claims to enter an appearance for any person shall, upon being required so to do, produce and file in the clerk's office of the court in which he claims to enter an appearance, a power or authority to that effect signed by the persons or some one of them for whom he is about to enter an appearance, or by some person duly authorized in that behalf, otherwise he shall not be allowed so to do: Provided, that when any attorney claims to enter an appearance by virtue of a letter to him directed (whether such letter purport a general or particular employment), and it is necessary for him to retain the letter in his own possession, he shall, on the production of said letter setting forth such employment, be allowed to enter his appearance, and the clerk shall make a note to that effect upon the docket.

History

(R.C., c. 31, s. 57; Code, s. 29; Rev., s. 213; C.S., s. 200.)

Cross References. - As to appearance by attorney, see G.S. 1-11.

Legal Periodicals. - For essay, "Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy," see 65 N.C.L. Rev. 315 (1987).

CASE NOTES

Sufficiency of Writing. - The power of attorney which a lawyer may be required to file, pursuant to this section, is some writing addressed to him by the client or an agent for the client. Therefore, letters written by the client to third persons expressing gratification because of the employment of a particular attorney will not suffice to supply the want of power. Day v. Adams, 63 N.C. 254 (1869).

A power of attorney, signed by the purchaser of a note, in the name of the payee, is sufficient authority under this section for an attorney-at-law to appear in a cause in court, although the agent has no written authority to make the power. Johnson ex rel. Adams v. Sikes, 49 N.C. 70 (1856).

A power of attorney given by a married woman to dismiss an action need not be registered. Hollingsworth v. Harman, 83 N.C. 153 (1880).

Right to Question Authority of Attorney. - While an attorney who claims to enter an appearance for any party to an action may be required to produce and file a power or authority as provided in this section, once an attorney has entered an appearance and has been recognized by the court as an attorney in the cause, the opposite party may not call in question his authority. Henderson v. Henderson, 232 N.C. 1, 59 S.E.2d 227 (1950).

Time of Demand for Authority. - The defendant has the right, because of this section to demand the authority at the return term of a summons. Reece v. Reece, 66 N.C. 377 (1872).

If the demand for the power of attorney is made at the return term, it is the practice and within the discretion of the judge to extend the time; if, however, such demand is not made at the proper time, and before the right to appear has been recognized, it comes too late, unless there are peculiar circumstances tending to excuse the party for not making it in apt time. Reece v. Reece, 66 N.C. 377 (1872).

After an attorney has entered an appearance and has been recognized by the court as attorney in the cause, no written authority can be required of him at a subsequent time. This means that the opposite party shall not call in question his authority, unless he does so within the time and in accordance with the provision of this section. Day v. Adams, 63 N.C. 254 (1869); City of New Bern v. Jones, 63 N.C. 606 (1869).

When Client Present. - If a written authority is required under this section the attorney must produce the same, even if his client is present at the bar of the court. Day v. Adams, 63 N.C. 254 (1869).

Special Appearance for Nonresident. - Upon special appearance of the attorneys of a husband who was a nonresident and a fugitive from justice, and whose property had been attached by his wife, for the purpose of moving to dismiss the action, the court should, on motion made, have required them to file their written authority under this section. Walton v. Walton, 178 N.C. 73, 100 S.E. 176 (1919).

Cited in Byrd v. Trustees of Watts Hosp., 29 N.C. App. 564, 225 S.E.2d 329 (1976).


§ 84-12. Failure to file complaint, attorney liable for costs.

When a plaintiff is compelled to pay the costs of his suit in consequence of a failure on the part of his attorney to file his complaint in proper time, he may sue such attorney for all the costs by him so paid, and the receipt of the clerk may be given in evidence in support of such claim.

History

(1786, c. 253, s. 6; R.C., c. 9, s. 5; Code, s. 22; Rev., s. 214; C.S., s. 201.)

CASE NOTES

This section is not exhaustive, and the courts have power to order counsel to pay costs of cases in which they have been guilty of gross negligence (even of a kind not included in this section), such conduct being a sort of contempt. Ex parte Robins, 63 N.C. 309 (1869).


§ 84-13. Fraudulent practice, attorney liable in double damages.

If any attorney commits any fraudulent practice, he shall be liable in an action to the party injured, and on the verdict passing against him, judgment shall be given for the plaintiff to recover double damages.

History

(1743, c. 37; R.C., c. 9, s. 6; Code, s. 23; Rev., s. 215; C. S., s. 202.)

Legal Periodicals. - For article, "The Learned Profession Exemption of the North Carolina Deceptive Trade Practices Act: The Wrong Bright Line?," see 15 Campbell L. Rev. 223 (1993).

CASE NOTES

The elements of fraud are: (1) False representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party. Jordan v. Crew, 125 N.C. App. 712, 482 S.E.2d 735, cert. denied, 346 N.C. 279, 487 S.E.2d 548 (1997).

Constructive Fraud. - Constructive fraud differs from actual fraud in that the intent to deceive is not an essential element. Jordan v. Crew, 125 N.C. App. 712, 482 S.E.2d 735, cert. denied, 346 N.C. 279, 487 S.E.2d 548 (1997).

Constructive Fraud Shown. - Trustee had a fiduciary relationship to plaintiffs and in the performance of his obligation to file annual accountings defendant trustee did not act openly, fairly, and honestly, which was tantamount to constructive fraud; thus, the trial court did not err in awarding double damages. Estate of Smith ex rel. Smith v. Underwood, 127 N.C. App. 1, 487 S.E.2d 807, cert. denied, 347 N.C. 398, 494 S.E.2d 410 (1997).

Section Not Limited to Actual Fraud Cases. - This section does not limit its applicability to cases of actual fraud. Booher v. Frue, 98 N.C. App. 570, 394 S.E.2d 816 (1990).

Aliens Prevented from Practicing. - No one should be presented to the public under the panoply of such a license (to practice law), against whom an injured suitor would not have the full benefit of such remedy as the laws of the State provide, in the event of fraudulent or negligent practice. An alien could not be admitted to practice, as actions under this section would be removable to the United States courts. Ex parte Thompson, 10 N.C. 355 (1824).

Presumption of Fraud. - The relation of attorney and client is one of a fiduciary character, and gives rise to a presumption of fraud when the former, in dealing with the latter, obtains an advantage. Egerton v. Logan, 81 N.C. 172 (1879).

Fraud Not Found. - Any damages sustained by plaintiffs due to problems with trademarks they thought they were acquiring did not proximately result from any acts or omissions of defendants attorneys, where two corporate officers of plaintiffs companies were informed before the acquisition by a vice-president of defendant company that the trademarks, which were very similar to and thus conflicted with the marks of another company, were not federally registered and that applications for their registration had been rejected; the knowledge of the president or agent of a corporation is imputed to the corporation itself. Jay Group, Ltd. v. Glasgow, 139 N.C. App. 595, 534 S.E.2d 233 (2000), cert. denied, 353 N.C. 265, 546 S.E.2d 100 (2000).

When an attorney mishandles client funds, there is a presumption of fraud as a matter of law, and this section applies. Ehlenbeck v. Patton, 58 Bankr. 149 (W.D.N.C. 1986).

In consumers' putative class suit against companies and individuals that operated a debt elimination and credit repair scheme that allegedly engaged in fraud, the consumers' derivative damages claim failed because the consumers failed to state a viable claim for fraud or conspiracy to commit any fraud or fraudulent practice. Taylor v. Bettis, 976 F. Supp. 2d 721 (E.D.N.C. Sept. 30, 2013), aff'd, 2017 U.S. App. LEXIS 12626 (4th Cir. N.C. 2017).

In a bankruptcy proceeding in which client of bankrupt attorney filed a proof of claim relating to attorney's embezzlement of money delivered to him in trust, the bankruptcy judge did not err in finding client's actual damages, then doubling the damages pursuant to this section, and finding the entire amount nondischargeable. Ehlenbeck v. Patton, 58 Bankr. 149 (W.D.N.C. 1986).

Bankruptcy Trustee Standing. - G.S. 84-13 makes an attorney who commits any fraudulent practice liable for double damages to the party injured. One can safely assume that this would include a client corporation as well as its creditors; thus, as the debtor's legal successor, the bankruptcy trustee would have standing to sue. Mitchell v. Greenberg (In re Creative Entm't, Inc.), - Bankr. - (Bankr. W.D.N.C. May 27, 2003).

No Independent Basis for Relief. - As plaintiffs' substantive claims for constructive fraud and duress were dismissed, their causes of action for violation of G.S. 84-13, disallowance of claims, liens against property of the estate, and punitive damages were necessarily dismissed as well, as they were actually remedies and did not provide independent bases for relief. Outer Banks Ventures, Inc. v. Tinkham (In re Outer Banks Ventures, Inc.), 556 B.R. 199 (Bankr. E.D.N.C. 2016).

The provision for double damages applies only after a factual determination at trial of fraudulent practice by an attorney and, thus, did not apply where plaintiffs accepted defendant's offer of judgment tendered pursuant to G.S. 1A-1, Rule 68. Estate of Wells v. Toms, 129 N.C. App. 413, 500 S.E.2d 105 (1998).

Double Damages Awarded. - Where defendant was successor trustee and administrator of estate the trial court did not err in applying this section and allowing double compensatory damages against defendant. Melvin v. Home Fed. Sav. & Loan Ass'n, 125 N.C. App. 660, 482 S.E.2d 6 (1997), cert. denied, 346 N.C. 281, 487 S.E.2d 551 (1997).

Attorney breached the attorney's fiduciary duty to the two clients by converting funds, which caused a loss to the two clients. Since the attorney's conversion and breach of fiduciary duty were presumed to be fraudulent, the attorney was shown to have committed a fraudulent practice and the two clients were entitled to an award of compensatory damages and an award of double damages pursuant to G.S. 84-13. N.C. State Bar v. Gilbert, 189 N.C. App. 320, 663 S.E.2d 1 (2008), review denied, 362 N.C. 682, 670 S.E.2d 234 (2008).

Double Damages Not Awarded. - Defendants were entitled to summary judgment as to plaintiff's claim for statutory damages pursuant to G.S. 84-13 arising from legal representation, because without a prima facie showing of actual or constructive fraud or any fraudulent practice, no claim for double damages arose under G.S. 84-13. Wilkins v. Safran, 185 N.C. App. 668, 649 S.E.2d 658 (2007).

Interest Improper on Punitive Double Damages. - Trial court should not have awarded prejudgment interest and post-judgment interest on both the compensatory and the G.S. 84-13 punitive double damage award in the State bar's action against the attorney for reimbursement of funds paid to the two clients after the attorney breached the attorney's fiduciary duty to them and converted their funds. G.S. 24-5(b) only allowed interest to be awarded for compensatory damages. N.C. State Bar v. Gilbert, 189 N.C. App. 320, 663 S.E.2d 1 (2008), review denied, 362 N.C. 682, 670 S.E.2d 234 (2008).

Applied in Sigmon v. Miller-Sharpe, Inc., 197 Bankr. 810 (W.D.N.C. 1996).

Cited in Nobles v. First Carolina Communications, Inc., 108 N.C. App. 127, 423 S.E.2d 312 (1992); State v. Baldwin, 125 N.C. App. 530, 482 S.E.2d 1 (1997), cert. granted, 345 N.C. 756, 485 S.E.2d 299 (1997), discretionary review improvidently allowed, 347 N.C. 348, 492 S.E.2d 354 (1997); Gilbert v. N.C. State Bar, 363 N.C. 70, 678 S.E.2d 602 (2009).


ARTICLE 3. Arguments.

§ 84-14: Recodified as G.S. 7A-97 by Session Laws 1995, c. 431, s. 7.



ARTICLE 4. North Carolina State Bar.

Sec.

§ 84-15. Creation of North Carolina State Bar as an agency of the State.

There is hereby created as an agency of the State of North Carolina, for the purposes and with the powers hereinafter set forth, the North Carolina State Bar.

History

(1933, c. 210, s. 1.)

Legal Periodicals. - For review of this section and those immediately following, see 11 N.C.L. Rev. 191 (1933).

For article on "The Organized Bar in North Carolina," see 30 N.C.L. Rev. 337 (1952).

For article on administrative evidence rules, see 49 N.C.L. Rev. 635 (1971).

For survey of 1977 law on professional responsibility and the administration of justice, see 56 N.C.L. Rev. 871 (1978).

For article, "Wrongfully Discharged In-House Counsel: A Proposal to Give the Employer a Veto Over Reinstatement While Giving he Terminated Lawyer Front Pay," see 52 Wake Forest L. Rev. 649 (2017).

For article, "'They're Digging in the Wrong Place:' How Learning Outcomes Can Improve Bar Exams and Ensure Practice Ready Attorneys," see 10 Elon L. Rev. 239 (2018).

For article, "Lead Us Not into Temptation: Should Attorneys Who Contract to Provide Administrative Adjudication Services Be Insulated from Those Who Compensate Them?," see 68 Duke L.J. 24 (2019).

CASE NOTES

The purpose of the statute creating the North Carolina State Bar is to enable the Bar to render more effective service in improving the administration of justice, particularly in dealing with the problem of admission to the Bar, and of disciplining and disbarring attorneys-at-law. Baker v. Varser, 240 N.C. 260, 82 S.E.2d 90 (1954).

Effect of Proceedings Before State Bar. - Where the status of plaintiff's license as an attorney was at issue and was finally adjudicated in proceedings before the State Bar and the Bar Council, and plaintiff did not appeal the Bar's order of disbarment, that judgment was conclusive as to those matters which were at issue and determined in those proceedings, and plaintiff could not relitigate the identical issue considered and finally determined in the proceedings before the State Bar. Vann v. North Carolina State Bar, 79 N.C. App. 166, 339 S.E.2d 95 (1986).

Applied in Gilbert v. N.C. State Bar, 363 N.C. 70, 678 S.E.2d 602 (2009).

Cited in In re Parker, 209 N.C. 693, 184 S.E. 532 (1936); North Carolina State Bar v. Hall, 293 N.C. 539, 238 S.E.2d 521 (1977); North Carolina State Bar v. Frazier, 62 N.C. App. 172, 302 S.E.2d 648 (1983); In re Beasley, 151 N.C. App. 569, 566 S.E.2d 125 (2002); Cunningham v. Selman, 201 N.C. App. 270, 689 S.E.2d 517 (2009); In re McGee, 217 N.C. App. 325, 719 S.E.2d 222 (2011), review denied 365 N.C. 557, 722 S.E.2d 596, 2012 N.C. LEXIS 142 (2012); N.C. State Bar v. Tillett, 369 N.C. 264, 794 S.E.2d 743 (2016).


§ 84-16. Membership and privileges.

The membership of the North Carolina State Bar shall consist of two classes, active and inactive.

The active members shall be all persons who have obtained a license or certificate, entitling them to practice law in the State of North Carolina, who have paid the membership dues specified, and who have satisfied all other obligations of membership. No person other than a member of the North Carolina State Bar shall practice in any court of the State except foreign attorneys as provided by statute and natural persons representing themselves.

Inactive members shall be:

  1. All persons who have obtained a license to practice law in the State but who have been found by the Council to be not engaged in the practice of law and not holding themselves out as practicing attorneys and not occupying any public or private positions in which they may be called upon to give legal advice or counsel or to examine the law or to pass upon, adjudicate, or offer an opinion concerning the legal effect of any act, document, or law.
  2. Persons allowed by the Council solely to represent indigent clients on a pro bono basis under the supervision of an active member employed by a nonprofit corporation qualified to render legal services pursuant to G.S. 84-5.1.

All active members shall be required to pay annual membership fees, and shall have the right to vote in elections held by the district bar in the judicial district in which the member resides. If a member desires to vote with the bar of some district in which the member practices, other than that in which the member resides, the member may do so by filing with the Secretary of the North Carolina State Bar a statement in writing that the member desires to vote in the other district; provided, however, that in no case shall the member be entitled to vote in more than one district.

History

(1933, c. 210, s. 2; 1939, c. 21, s. 1; 1941, c. 344, ss. 1, 2, 3; 1969, c. 44, s. 60; c. 1190, s. 52; 1973, c. 1152, s. 1; 1981, c. 788, s. 2; 1983, c. 589, s. 1; 1985, c. 621; 1995, c. 431, s. 8; 2007-200, s. 1.)

Effect of Amendments. - Session Laws 2007-200, s. 1, effective July 8, 2007, in the second paragraph, substituted "have obtained a license or certificate" for "shall have heretofore obtained, or who shall hereafter obtain, a license or certificate, which shall at the time be valid and effectual," deleted "shall" preceding "have paid," substituted "specified, and who have satisfied all other obligations of membership" for "hereinafter specified, unless classified as an inactive member by the Council as hereinafter provided," and added "and natural persons representing themselves" at the end; in the third paragraph, inserted the (1) and (2) designations, inserted "who have obtained a license to practice law in the State but who have been" in subdivision (1) and added subdivision (2); and, in the fourth paragraph, deleted "Provided, that" at the beginning of the second sentence and made minor stylistic changes.

Legal Periodicals. - For comment on the 1939 and 1941 amendments, see 17 N.C.L. Rev. 341 (1939), and 19 N.C.L. Rev. 453 (1941).

For article, "Reginald Heber Smith and Justice and the Poor in the 21st Century," see 40 Campbell L. Rev. 73 (2018).

§ 84-17. Government.

The government of the North Carolina State Bar is vested in a council of the North Carolina State Bar referred to in this Chapter as the "Council." The Council shall be composed of a variable number of councilors equal to the number of judicial districts plus 16, 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. Notwithstanding any other provisions of the law, the North Carolina State Bar may borrow money and may acquire, hold, rent, encumber, alienate, lease, 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 borrowing of money and the acquisition, rental, encumbering, leasing and sale of real property. 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 borrowing of money, the acquisition, lease, sale, or mortgage of property, real or personal, the seeking of amendments to this Chapter, and all other matters. There shall be one councilor from each judicial district and 16 additional councilors. The additional councilors shall be allocated and reallocated by the North Carolina State Bar every six years based on the number of 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. A councilor whose judicial district is altered by the General Assembly during the councilor's term shall continue to serve on the Council until the expiration of the term and shall represent the district wherein the councilor resides or with which the councilor has elected to be affiliated. If before the alteration of the judicial district of the councilor the judicial district included both the place of residence and the place of practice of the councilor, and if after the alteration of the judicial district the councilor's place of residence and place of practice are located in different districts, the councilor must, not later than 10 days from the effective date of the alteration of the district, notify the Secretary of the North Carolina State Bar of an election to affiliate with and represent either the councilor's district of residence or district of practice.

In addition to the councilors, there shall be three public members not licensed to practice law in this or any other state who shall be appointed by the Governor. The public members may vote and participate in all matters before the Council to the same extent as councilors elected or appointed from the various judicial districts.

History

(1933, c. 210, s. 3; 1937, c. 51, s. 1; 1955, c. 651, s. 1; 1961, c. 641; 1973, c. 1152, s. 2; 1977, c. 841, s. 2; 1979, c. 570, ss. 1, 2; 1981, c. 788, s. 3; 1985, c. 60, s. 1; 1987, c. 316, s. 1; 1995, c. 431, s. 9; 2007-200, s. 2; 2009-82, s. 1.)

Effect of Amendments. - Session Laws 2007-200, s. 2, effective July 8, 2007, in the first paragraph, rewrote the former first sentence as the first two sentences, substituted "a variable number of councilors equal to the number of judicial districts plus 16" for "55 councilors exclusive of officers, except as hereinafter provided, to be appointed or elected as hereinafter set forth," in the second sentence, substituted "to this Chapter," for "hereto," in the fourth sentence, and substituted "16 additional councilors" for "additional councilors as are necessary to make the total number of councilors 55" in the fifth sentence; and deleted "55" preceding "councilors" in the first sentence of the last paragraph.

Session Laws 2009-82, s. 1, effective June 11, 2009, in the first paragraph, in the third sentence, inserted "borrow money and may", "lease" and "borrowing of money and the," and inserted "the borrowing of money" in the middle of the fourth sentence.

Legal Periodicals. - For article on the criminal defendant who proposes or commits perjury, see 17 N.C. Cent. L.J. 157 (1988).

CASE NOTES

Cited in In re Beasley, 151 N.C. App. 569, 566 S.E.2d 125 (2002); Cunningham v. Selman, 201 N.C. App. 270, 689 S.E.2d 517 (2009).


§ 84-18. Terms, election and appointment of councilors.

  1. Except as set out in this section, the terms of councilors are fixed at three years commencing on the first day of January in the year following their election. A year shall be the calendar year. No councilor may serve more than three successive three-year terms but a councilor may serve an unlimited number of three successive three-year terms provided a three-year period of nonservice intervenes in each instance. Any councilor serving a partial term of 18 months or more is considered to have served a full term and shall be eligible to be elected to only two successive three-year terms in addition to the partial term. Any councilor serving a partial term of less than 18 months is eligible to be elected to three successive three-year terms in addition to the partial term. This paragraph shall not apply to officers of the State Bar.
  2. The Council may promulgate rules to govern the election and appointment of councilors. The election and appointment of councilors shall be as follows:
  3. Public members shall serve three-year terms. No public member shall serve more than two complete consecutive terms. The Secretary of the North Carolina State Bar shall promptly inform the Governor when any seat occupied by a public member becomes vacant. The successor shall serve the remainder of the term. Any public member serving a partial term of 18 months or more is considered to have served a full term and is eligible to be elected to only one additional three-year term in addition to the partial term. Any public member serving a partial term of less than 18 months is eligible to be elected to two successive three-year terms in addition to the partial term.

The secretary of a judicial district bar shall notify the secretary-treasurer of the State Bar in writing of any additions to or deletions from the delegation of councilors representing the district within 90 days of the effective date of the change. No new councilor shall assume a seat until official notice of the election has been given to the secretary-treasurer of the State Bar.

Any active member of the North Carolina State Bar is eligible to serve as a councilor from the judicial district in which the member is eligible to vote.

Each judicial district bar shall elect one eligible North Carolina State Bar member for each Council vacancy in the district. Any vacancy occurring after the election, whether caused by resignation, death, reconfiguration of the district by the General Assembly, or otherwise shall be filled by the judicial district bar in which the vacancy occurs. The appointment shall be for the unexpired portion of the term and shall be certified to the Council by the judicial district bar. Any appointed councilor shall be subject to the terms set forth in subsection (a) of G.S. 84-18.

History

(1933, c. 210, s. 4; 1953, c. 1310, s. 1; 1979, c. 570, s. 3; 1981, c. 788, s. 4; 1985, c. 60, ss. 2, 3; 1987, c. 316, s. 2; 1995, c. 431, s. 10.)

§ 84-18.1. Membership and fees of district bars.

  1. The district bar shall be a subdivision of the North Carolina State Bar subject to the general supervisory authority of the Council and may adopt rules, regulations and bylaws that are not inconsistent with this Article. A copy of any rules, regulations and bylaws that are adopted, along with any subsequent amendments, shall be transmitted to the Secretary-Treasurer of the North Carolina State Bar.
  2. Any district bar may from time to time by a majority vote of the members present at a duly called meeting prescribe an annual membership fee to be paid by its active members as a service charge to promote and maintain its administration, activities and programs. The fee shall be in addition to, but shall not exceed, the amount of the membership fee prescribed by G.S. 84-34 for active members of the North Carolina State Bar. The district bar may also charge a late fee, which shall not exceed fifteen dollars ($15.00), for the failure to pay judicial district bar dues on time. The district bar shall mail a written notice to every active member of the district bar at least 30 days before any meeting at which an election is held to impose or increase mandatory district bar dues. Every active member of a district bar which has prescribed an annual membership fee shall keep its secretary-treasurer notified of his correct mailing address and shall pay the prescribed fee at the time and place set forth in the demand for payment mailed to him by its secretary-treasurer. The name of each active member of a district bar who is more than 12 full calendar months in arrears in the payment of any fee shall be furnished by the secretary-treasurer of the district bar to the Council. In the exercise of its powers as set forth in G.S. 84-23, the Council shall thereupon take disciplinary or other action with reference to the delinquent as it considers necessary and proper.

History

(1969, c. 241; 1983, c. 390, s. 1; 1995, c. 431, s. 11; 2005-396, s. 2.)

Opinions of Attorney General

The BarCARES Program could be a lawful use of mandatory bar dues imposed by local district bar organizations as long as the program was restricted to attorney members of the bar and was directly related to addressing identifiable problems that were affecting, or that might in the future affect, an attorney's competence to practice law or professional conduct. See opinion of Attorney General to L. Thomas Lunsford, II, Executive Director, North Carolina State Bar, 2001 N.C. AG LEXIS 24 (8/16/01).

§ 84-19. Judicial districts definition.

For purposes of this Article, the term "judicial district" refers to prosecutorial districts established by the General Assembly and includes the High Point Superior Court District as described under G.S. 7A-41(b)(13). The term "district bar" means the bar of a judicial district as defined by this section.

History

(1933, c. 210, s. 5; 1955, c. 651, s. 2; 1979, c. 570, s. 4; 1987, c. 316, s. 3; 1995, c. 431, s. 12; 2011-28, s. 1.)

Effect of Amendments. - Session Laws 2011-28, s. 1, effective April 7, 2011, subdivided the former section, creating two sentences; and inserted "includes the High Point Superior Court District as described under G.S. 7A-41(b)(13)" in the first sentence.


§ 84-20. Compensation of councilors.

The members of the Council and members of committees when actually engaged in the performance of their duties, including committees sitting upon disbarment proceedings, shall receive as compensation for the time spent in attending meetings an amount to be determined by the Council, subject to approval of the North Carolina Supreme Court, and shall receive actual expenses of travel and subsistence while engaged in their duties provided that for transportation by use of private automobile the expense of travel shall not exceed the business standard mileage rate set by the Internal Revenue Service per mile of travel. The Council shall determine per diem and mileage to be paid. The allowance fixed by the Council shall be paid by the secretary-treasurer of the North Carolina State Bar upon presentation of appropriate documentation by each member.

History

(1933, c. 210, s. 6; 1935, c. 34; 1953, c. 1310, s. 2; 1971, c. 13, s. 1; 1995, c. 431, s. 13; 2006-66, s. 22.23; 2006-221, s. 24.)

Editor's Note. - Session Laws 2006-66, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2006.'"

Session Laws 2006-66, s. 28.6 is a severability clause.

Effect of Amendments. - Session Laws 2006-66, s. 22.23, as added by Session Laws 2006-221, s. 24, effective July 1, 2006, substituted "the business standard mileage rate set by the Internal Revenue Service per mile of travel" for "the rate per mile allowed by G.S. 138.6" at the end of the first sentence.

§ 84-21. Organization of Council; publication of rules, regulations and bylaws.

  1. The Council shall adopt the rules pursuant to G.S. 45A-9.
  2. The rules and regulations adopted by the Council under this Article may be amended by the Council from time to time in any manner not inconsistent with this Article. Copies of all rules and regulations and of all amendments adopted by the Council shall be certified to the Chief Justice of the Supreme Court of North Carolina, entered by the North Carolina Supreme Court upon its minutes, and published in the next ensuing number of the North Carolina Reports and in the North Carolina Administrative Code: Provided, that the court may decline to have so entered upon its minutes any rules, regulations and amendments which in the opinion of the Chief Justice are inconsistent with this Article.

History

(1933, c. 210, s. 7; 1991, c. 418, s. 7; 1995, c. 431, s. 14; 2011-336, s. 8.)

Effect of Amendments. - Session Laws 2011-336, s. 8, effective January 1, 2012, added subsection (a); and added the subsection (b) designation.

Legal Periodicals. - For article on the criminal defendant who proposes or commits perjury, see 17 N.C. Cent. L.J. 157 (1988).

CASE NOTES

Promulgation of Rules. - A rule requiring a candidate for the bar exam to have graduated from an ABA-accredited law school was properly adopted, even though it was not promulgated as a rule under the Administrative Procedure Act, as this section gives the State Bar Council specific directions on how to adopt rules, which the Council complied with. Bring v. North Carolina State Bar, 348 N.C. 655, 501 S.E.2d 907 (1998).

North Carolina State Bar could not rely upon the felonious misconduct portion of N.C. St. Bar R. B.0111(e) to avoid dismissal of its claims for relief because that portion of the rule was not properly adopted under G.S. 84-21, the enabling statute governing the State bar's rulemaking authority; moreover, G.S. 84-21 did not contain a provision permitting only substantial compliance with its requirements, in contrast to G.S. 150B-18, and the more specific directions of G.S. 84-21 governed over the general rule-making provision of the North Carolina Administrative Procedures Act. N.C. State Bar v. Brewer, 183 N.C. App. 229, 644 S.E.2d 573 (2007).

Promulgation May Be Refused. - This section empowers the Chief Justice of the Supreme Court to determine whether rules of the Board of Law Examiners are in compliance with this Article, of which G.S. 84-24 is a part, and to refuse them promulgation if they do not so comply. Keenan v. Board of Law Exmrs., 317 F. Supp. 1350 (E.D.N.C. 1970).

Cited in In re Willis, 286 N.C. 207, 209 S.E.2d 457 (1974); In re Rogers, 297 N.C. 48, 253 S.E.2d 912 (1979); North Carolina State Bar v. DuMont, 52 N.C. App. 1, 277 S.E.2d 827 (1981); In re Beasley, 151 N.C. App. 569, 566 S.E.2d 125 (2002).


§ 84-22. Officers and committees of the North Carolina State Bar.

The officers of the North Carolina State Bar and the Council shall consist of a president, president-elect, vice-president and an immediate past president, who shall be deemed members of the Council in all respects. The president, president-elect and vice-president need not be members of the Council at the time of their election. There shall be a secretary-treasurer who shall also have the title of executive director, but who shall not be a member of the Council. All officers shall be elected annually by the Council at an election to take place at the annual meeting of the North Carolina State Bar. The regular term of all officers is one year. The Council is the judge of the election and qualifications of its members.

In addition to the committees and commissions as may be specifically established or authorized by law, the North Carolina State Bar may have committees, standing or special, as from time to time the Council deems appropriate for the proper discharge of the duties and functions of the North Carolina State Bar. The Council shall determine the number of members, composition, method of appointment or election, functions, powers and duties, structure, authority to act, and other matters relating to each committee. Any committee may, at the discretion of the appointing or electing authority, be composed of Council members or members of the North Carolina State Bar who are not members of the Council, or of lay persons, or of any combination.

History

(1933, c. 210, s. 8; 1941, c. 344, ss. 4, 5; 1973, c. 1152, s. 3; 1979, c. 570, s. 5; 1995, c. 431, s. 15.)

§ 84-23. Powers of Council.

  1. The Council is vested, as an agency of the State, with the authority to regulate the professional conduct of licensed lawyers and State Bar certified paralegals. Among other powers, the Council shall administer this Article; take actions that are necessary to ensure the competence of lawyers and State Bar certified paralegals; formulate and adopt rules of professional ethics and conduct; investigate and prosecute matters of professional misconduct; grant or deny petitions for reinstatement; resolve questions pertaining to membership status; arbitrate disputes concerning legal fees; certify legal specialists and paralegals and charge fees to applicants and participants necessary to administer these certification programs; determine whether a member is disabled; maintain an annual registry of interstate and international law firms doing business in this State; and formulate and adopt procedures for accomplishing these purposes. The Council may do all things necessary in the furtherance of the purposes of this Article that are not otherwise prohibited by law.
  2. The Council or any committee of the Council, including the Client Security Fund and the Disciplinary Hearing Commission or any committee of the Commission, may subpoena financial records of any licensed lawyers, lawyers whose licenses have been suspended, or disbarred lawyers, relating to any account into which client or fiduciary funds have been deposited.
  3. The Council may publish an official journal concerning matters of interest to the legal profession.
  4. The Council may acquire, hold, rent, encumber, alienate, lease, 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 Council may borrow money upon its bonds, notes, debentures, or other evidences of indebtedness sold through public or private sale pursuant to a loan agreement or a trust agreement or indenture with a trustee, with such borrowing either unsecured or secured by a mortgage on the Council's interest in real or personal property, and engage and contract with attorneys, underwriters, financial advisors, and other parties as necessary for such borrowing, with such borrowing and security subject to the approval of the Governor and the Council of State. The Council may utilize the services of the Purchase and Contract Division of the Department of Administration to procure personal property, in accordance with the provisions of Article 3 of Chapter 143 of the General Statutes. However, the Council shall: (i) submit all proposed contracts for supplies, materials, printing, equipment, and contractual services that exceed one million dollars ($1,000,000) authorized by this subsection to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3; and (ii) include in all contracts to be awarded by the Council under this subsection a standard clause which provides that the State Auditor and internal auditors of the Council may audit the records of the contractor during and after the term of the contract to verify accounts and data affecting fees and performance. The Council shall not award a cost plus percentage of cost agreement or contract for any purpose.

History

(1933, c. 210, s. 9; 1935, c. 74, s. 1; 1937, c. 51, s. 2; 1975, c. 582, s. 3; 1977, c. 841, s. 2; 1995, c. 431, s. 16; 2003-116, s. 2; 2004-174, s. 1; 2005-396, s. 4; 2009-82, s. 2; 2010-194, s. 12; 2011-326, s. 15( l ).)

Effect of Amendments. - Session Laws 2004-174, s. 1, effective October 1, 2004, in subsection (a), deleted "Subject to the superior authority of the General Assembly to legislate thereon by general law, and except as herein otherwise limited," at the beginning of the first sentence, substituted "lawyers and State Bar certified paralegals" for "attorneys" in the first sentence, inserted "and State Bar certified paralegals" following "lawyers" in the second sentence, inserted "and paralegals and charge fees to applicants and participants necessary to administer these certification programs" following "specialists" in the second sentence, and added the last sentence; in subsection (b), substituted "of the Council" for "thereof," substituted "of the Commission" for "thereof," substituted "may" for "shall have the authority to," substituted "lawyers, lawyers" for "attorneys, attorneys," and substituted "lawyers" for "attorneys"; deleted "and" following "profession" in subsection (c); in subsection (d), added "The Council" at the beginning of the first sentence, and in the last sentence, substituted "may" for "is authorized and empowered in its discretion to" and "to procure" for "for the procurement of" in the last sentence and deleted "and to do all things necessary in the furtherance of the purposes of this Article as are not prohibited by law" from the end.

Session Laws 2009-82, s. 2, effective June 11, 2009, in subsection (d), in the first sentence, inserted "lease", and added the second sentence.

Session Laws 2011-326, s. 15( l ), effective June 27, 2011, in the next-to-last sentence of subsection (d), deleted "statewide and agency term" following "proposed" and inserted "and after."

Legal Periodicals. - For article on rules, ethics and reform in connection with transferring North Carolina real estate, see 49 N.C.L. Rev. 593 (1971).

For article on the criminal defendant who proposes or commits perjury, see 17 N.C. Cent. L.J. 157 (1988).

CASE NOTES

Setting Aside Judgment of Disbarment. - The court is without authority to set aside a judgment of disbarment on motion, especially since the enactment of this and subsequent sections. State v. Hollingsworth, 206 N.C. 739, 175 S.E.2d 99 (1934).

Jurisdiction of Disciplinary Hearing Commission. - Proceedings before the North Carolina State Bar Disciplinary Hearing Commission to discipline a sitting judge were dismissed because only the North Carolina Supreme Court or the North Carolina Judicial Standards Commission had jurisdiction to discipline sitting judges for conduct in office. N.C. State Bar v. Tillett, 369 N.C. 264, 794 S.E.2d 743 (2016).

North Carolina State Bar Has Jurisdiction over Unethical Conduct of Counsel. - While the court has the inherent power to act whenever it is made to appear that the conduct of counsel in a cause pending in court is improper or unethical, questions of propriety and ethics are ordinarily for the consideration of the North Carolina State Bar which is now vested with jurisdiction over such matters. McMichael v. Proctor, 243 N.C. 479, 91 S.E.2d 231 (1956).

Error in Dismissing Grievance Filed with State Bar. - North Carolina State Bar and the trial courts of this State share concurrent jurisdiction over matters of attorney discipline; therefore, where individual filed a civil claim against attorney for alleged impropriety in handling an estate, and also filed a grievance with the State Bar alleging that the attorney's actions violated the Rules of Professional Conduct, the trial court erred in naming the State Bar as a party and dismissing the grievance proceeding against the defendant. North Carolina State Bar v. Randolph, 325 N.C. 699, 386 S.E.2d 185 (1989).

Confession of Guilt. - Where an attorney has confessed in open court to four crimes, all involving moral turpitude, and he has been disbarred from practicing in the district court of the United States, disbarment must ultimately result regardless of this and the following sections. In re Brittain, 214 N.C. 95, 197 S.E. 705 (1938).

North Carolina Court of Appeals Lacked Authority to Create Exception to Professional Conduct Rule. - It was not an abuse of discretion to disqualify a law firm's attorneys from representing the firm in a fee collection case because (1) the attorneys would be necessary trial witnesses, the attorneys' testimony would encompass material, disputed issues, and none of N.C. R. Prof. Conduct 3.7's exceptions applied, (2) N.C. R. Prof. Conduct 3.7 literally supported disqualification, as the case did not involve the attorneys' ability to represent the attorneys but to represent the firm in a suit against a third party while serving as witnesses for the firm as to disputed fact issues, and (3) the North Carolina Court of Appeals had no authority to create an exception to the Rule. Harris & Hilton, P.A. v. Rassette, 252 N.C. App. 280, 798 S.E.2d 154 (2017).

Applied in Gilbert v. N.C. State Bar, 363 N.C. 70, 678 S.E.2d 602 (2009).

Cited in In re Suspension of Right to Practice Law of Palmer, 32 N.C. App. 449, 232 S.E.2d 497 (1977); In re Garrison, 44 N.C. App. 158, 260 S.E.2d 445 (1979); North Carolina State Bar v. DuMont, 304 N.C. 627, 286 S.E.2d 89 (1982); North Carolina State Bar v. Frazier, 62 N.C. App. 172, 302 S.E.2d 648 (1983); In re Beasley, 151 N.C. App. 569, 566 S.E.2d 125 (2002); In re McGee, 217 N.C. App. 325, 719 S.E.2d 222 (2011), review denied 365 N.C. 557, 722 S.E.2d 596, 2012 N.C. LEXIS 142 (2012).


§ 84-23.1. Prepaid legal services.

  1. This section is in addition to and not a limitation of the powers and responsibilities of the council set out in G.S. 84-23. To the extent that this section deals with the same powers and responsibilities it shall be taken to be in amplification of those powers and not in derogation thereof.
  2. Repealed by Session Laws 1991, c. 210, s. 1.
  3. All organizations offering prepaid legal services plans shall register those plans with the North Carolina State Bar Council on forms provided by the Council. Each plan shall be registered prior to its implementation or operation in this State and shall renew its registration with the State Bar annually.
  4. Every plan shall pay an administrative fee to the Council for the initial registration and an annual renewal fee in amounts determined by the Council.
  5. Repealed by Session Laws 1991, c. 210, s. 1.
  6. Notwithstanding registration of the plan with the North Carolina State Bar Council pursuant to subsection (b1), any plan for prepaid legal services is subject to regulation under Chapter 58 of the General Statutes if offered by a company engaged in the insurance business or if the plan itself constitutes the offering of insurance.
  7. Repealed by Session Laws 1991, c. 210, s. 1.

History

(1975, c. 707, s. 1; 1991, c. 210, s. 1; 2005-396, ss. 5, 6.)

Legal Periodicals. - For article, "Student Legal Services at the University of North Carolina at Chapel Hill," see 7 N.C. Cent. L.J. 286 (1976).

For article, "The Advent of Prepaid Legal Services in North Carolina," see 13 Wake Forest L. Rev. 271 (1977).

§ 84-24. Admission to practice.

For the purpose of examining applicants and providing rules and regulations for admission to the Bar including the issuance of license therefor, there is hereby created the Board of Law Examiners, which shall consist of 11 members of the Bar, elected by the Council, who need not be members of the Council. No teacher in any law school, however, shall be eligible. The members of the Board of Law Examiners elected from the Bar shall each hold office for a term of three years.

The Board of Law Examiners shall elect a member of the Board as chair thereof, and the Board may employ an executive secretary and provide such assistance as may be required to enable the Board to perform its duties promptly and properly. The chair and any employees shall serve for a period of time determined by the Board.

The examination shall be held in the manner and at the times as the Board of Law Examiners may determine.

The Board of Law Examiners shall have full power and authority to make or cause to be made such examinations and investigations as may be deemed by it necessary to satisfy it that the applicants for admission to the Bar possess the qualifications of character and general fitness requisite for an attorney and counselor-at-law and to this end the Board of Law Examiners shall have the power of subpoena and to summons and examine witnesses under oath and to compel their attendance and the production of books, papers and other documents and writings deemed by it to be necessary or material to the inquiry and shall also have authority to employ and provide assistance as may be required to enable it to perform its duties promptly and properly. Records, papers, and other documents containing information collected and compiled by the Board or its members or employees as a result of investigations, inquiries, or interviews conducted in connection with examinations or licensing matters, are not public records within the meaning of Chapter 132 of the General Statutes.

All applicants for admission to the Bar shall be fingerprinted to determine whether the applicant has a record of criminal conviction in this State or in any other state or jurisdiction. The information obtained as a result of the fingerprinting of an applicant shall be limited to the official use of the Board of Law Examiners in determining the character and general fitness of the applicant.

The Department of Public Safety may provide a criminal record check to the Board of Law Examiners for a person who has applied for a license through the Board. The Board shall provide to the Department of Public Safety, along with the request, the fingerprints of the applicant, any additional information required by the Department of Public Safety, and a form signed by the applicant consenting to the check of the criminal record and to the use of the fingerprints and other identifying information required by the State or national repositories. The applicant's fingerprints shall be forwarded to the State Bureau of Investigation for a search of the State's criminal history record file, and the State Bureau of Investigation shall forward a set of the fingerprints to the Federal Bureau of Investigation for a national criminal history check. The Board shall keep all information pursuant to this subsection privileged, in accordance with applicable State law and federal guidelines, and the information shall be confidential and shall not be a public record under Chapter 132 of the General Statutes.

The Department of Public Safety may charge each applicant a fee for conducting the checks of criminal history records authorized by this section.

The Board of Law Examiners, subject to the approval of the Council, shall by majority vote, from time to time, make, alter, and amend such rules and regulations for admission to the Bar as in their judgment shall promote the welfare of the State and the profession: Provided, that no change in the educational requirements for admission to the Bar that establishes an additional or greater requirement shall become effective until two years after the date of the adoption of the change.

All rules and regulations, and modifications, alterations and amendments thereof, shall be recorded and promulgated as provided in G.S. 84-21 in relation to the certificate of organization and the rules and regulations of the Council.

Whenever the Council shall order the restoration of license to any person as authorized by G.S. 84-32, it shall be the duty of the Board of Law Examiners to issue a written license to the person, noting thereon that the license is issued in compliance with an order of the Council, whether the license to practice law was issued by the Board of Law Examiners or the Supreme Court in the first instance.

Appeals from the Board shall be had in accordance with rules or procedures as may be approved by the Supreme Court as may be submitted under G.S. 84-21 or as may be promulgated by the Supreme Court.

History

(1933, c. 210, s. 10; c. 331; 1935, cc. 33, 61; 1941, c. 344, s. 6; 1947, c. 77; 1951, c. 991, s. 1; 1953, c. 1012; 1965, cc. 65, 725; 1973, c. 13; 1977, c. 841, s. 2; 1983, c. 177; 1991, c. 210, s. 4; 1995, c. 431, s. 17; 2002-147, s. 5; 2014-100, s. 17.1(o); 2015-264, s. 47.)

Cross References. - As to discipline and disbarment, see G.S. 84-28.

As to restoration of license to practice law, see G.S. 84-32.

Editor's Note. - Session Laws 2002-147, s. 15, provides: "If the Private Security Officer Employment Standards Act of 2002 [S. 2238, 107th Cong. (2002)] is enacted by the United States Congress, the State of North Carolina declines to participate in the background check system authorized by that act as a result of the enactment of this act." Congress ultimately did not enact the Private Security Officer Employment Standards Act of 2002. Congress ultimately did not enact the Private Security Officer Employment Standards Act of 2002.

Effect of Amendments. - Session Laws 2014-100, s. 17.1(o), effective July 1, 2014, substituted "Department of Public Safety" for "Department of Justice" in the sixth and seventh paragraphs.

Session Laws 2015-264, s. 47, effective October 1, 2015, rewrote the proviso at the end of the eighth undesignated paragraph.

Legal Periodicals. - For note on "Admission to the Bar - 'Good Moral Character' - Constitutional Protections," see 45 N.C.L. Rev. 1008 (1967).

For article on administrative evidence rules, see 49 N.C.L. Rev. 635 (1971).

For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).

For comment, "You Can't Always Get What You Want: A Look at North Carolina's Public Records Law," see 72 N.C.L. Rev. 1527 (1994).

For article, "Improving the Fitness Inquiry of the North Carolina Bar Application," see 81 N.C.L. Rev. 2179 (2003).

For comment, "More Than Just a DREAM: The Legal and Practical Implications of a North Carolina DREAM Act," see 36 Campbell L. Rev. 359 (2014).

For article, "Moral Character and Fitness Means More Than Just a Passing Score to the Board of Law Examiners," see 7 Charlotte L. Rev. 157 (2016).

CASE NOTES

Constitutionality. - The "character and general fitness" requirement of this section and the "good moral character" requirement of the Rules Governing Admission to the Practice of Law are constitutionally permissible standards. In re Willis, 288 N.C. 1, 215 S.E.2d 771, appeal dismissed, 423 U.S. 976, 96 S. Ct. 389, 46 L. Ed. 2d 300 (1975).

While a state cannot exclude a person from the practice of law for reasons that contravene the Due Process or Equal Protection Clauses of U.S. Const., Amend. XIV, a state can require high standards for admission to the bar, including good moral character and proficiency in its laws, so long as the qualifying standards have a rational connection with the applicant's fitness or capacity to practice law. In re Willis, 288 N.C. 1, 215 S.E.2d 771, appeal dismissed, 423 U.S. 976, 96 S. Ct. 389, 46 L. Ed. 2d 300 (1975).

The term "good moral character," although broad, has been so extensively used as a standard that its long usage and the case law surrounding that usage have given the term well-defined contours which make it a constitutionally appropriate standard. In re Willis, 288 N.C. 1, 215 S.E.2d 771, appeal dismissed, 423 U.S. 976, 96 S. Ct. 389, 46 L. Ed. 2d 300 (1975).

This section does not unconstitutionally delegate legislative power by authorizing the Board of Law Examiners to make rules governing admission to the bar to "promote the welfare of the State and the profession." Bring v. North Carolina State Bar, 348 N.C. 655, 501 S.E.2d 907 (1998).

The constitutional power to establish the qualifications for admission to the bar rests in the legislature, which may delegate a limited portion of its power as to some specific subject matter if it prescribes the standards under which the agency is to exercise the delegated authority. Bowens v. Board of Law Exmrs., 57 N.C. App. 78, 291 S.E.2d 170 (1982).

Board Able to Establish Guidelines. - The requirement for a legal education would be of no importance if the Board were unable to establish guidelines to review whether a law school's curriculum satisfies the threshold requirement. Bring v. North Carolina State Bar, 126 N.C. App. 655, 486 S.E.2d 236 (1997), appeal denied, 347 N.C. 135, 492 S.E.2d 18 (1997), aff'd, 348 N.C. 655, 501 S.E.2d 907 (1998).

The Board of Law Examiners is an "administrative agency," with both judicial and delegated legislative powers. Keenan v. Board of Law Exmrs., 317 F. Supp. 1350 (E.D.N.C. 1970).

This section establishes the Board of Law Examiners as an administrative agency of the State, and its findings of fact are conclusive on appeal if properly supported by the evidence. In re Willis, 288 N.C. 1, 215 S.E.2d 771, appeal dismissed, 423 U.S. 976, 96 S. Ct. 389, 46 L. Ed. 2d 300 (1975).

Rule-Making Power Delegated. - The North Carolina General Assembly, in this section, has delegated its rule-making power to the Board of Law Examiners and has determined that the Board shall also apply its own rules "to the particular case." Keenan v. Board of Law Exmrs., 317 F. Supp. 1350 (E.D.N.C. 1970).

In licensing those who desire to engage in professions or occupations such as may be proper subjects of such regulation, the legislature may confer upon executive officers or bodies the power of granting or refusing to license persons to enter such trades or professions only when it has prescribed a sufficient standard for their guidance. In re Willis, 288 N.C. 1, 215 S.E.2d 771, appeal dismissed, 423 U.S. 976, 96 S. Ct. 389, 46 L. Ed. 2d 300 (1975).

The Legislature is not equipped to investigate law schools with graduates applying for admission to the bar to determine whether the schools meet the minimum requirement; thus, this ministerial task has properly been delegated to the Board of Law Examiners. Bring v. North Carolina State Bar, 126 N.C. App. 655, 486 S.E.2d 236 (1997), appeal denied, 347 N.C. 135, 492 S.E.2d 18 (1997), aff'd, 348 N.C. 655, 501 S.E.2d 907 (1998).

A person does not have a natural or constitutional right to practice law; it is a privilege or franchise to be earned by hard study and compliance with the qualifications for admission to practice law prescribed by law. By virtue of its police power a state is authorized to establish qualifications for admission to practice law in its jurisdiction. Baker v. Varser, 240 N.C. 260, 82 S.E.2d 90 (1954).

The determination of proficiency is a ministerial function, not a matter of managing public affairs. The Board of Law Examiners is, therefore, not required to make important policy choices which might just as easily be made by the elected representatives in the legislature, but merely to compile and administer examinations. Form, grading and logistics only are left to the board, which does no violence to constitutional principle. Bowens v. Board of Law Exmrs., 57 N.C. App. 78, 291 S.E.2d 170 (1982).

Purpose of Board. - The Board of Law Examiners was created for the purpose of examining applicants and providing rules and regulations for admission to the bar. In re Moore, 301 N.C. 634, 272 S.E.2d 826 (1981).

It is not arbitrary to limit permission to take the bar examination to a certain group of persons if the limitation is reasonably related to a legitimate objective, such as fitness to practice law. Bring v. North Carolina State Bar, 126 N.C. App. 655, 486 S.E.2d 236 (1997), appeal denied, 347 N.C. 135, 492 S.E.2d 18 (1997), aff'd, 348 N.C. 655, 501 S.E.2d 907 (1998).

Investigation of Individual Schools' Qualifications Unreasonable. - Requiring the Board of Law Examiners to investigate the individual qualifications of every nonaccredited law school each time a graduate from a nonaccredited law school applies for admission to the state's bar would place an unreasonable burden on the Board. Bring v. North Carolina State Bar, 126 N.C. App. 655, 486 S.E.2d 236 (1997), appeal denied, 347 N.C. 135, 492 S.E.2d 18 (1997), aff'd, 348 N.C. 655, 501 S.E.2d 907 (1998).

The policy requiring that applicants for admission to the North Carolina bar graduate from an ABA approved law school is a reasonable means of assuring that applicants have a competent legal education and facilitates the legislative goal of protection of the public interest by the maintenance of a competent Bar. Bring v. North Carolina State Bar, 126 N.C. App. 655, 486 S.E.2d 236 (1997), appeal denied, 347 N.C. 135, 492 S.E.2d 18 (1997), aff'd, 348 N.C. 655, 501 S.E.2d 907 (1998).

Character Evaluation and Examination Are Separate and Distinct Requirements. - In an action to obtain admission to the North Carolina Bar, it was found that the Board of Law Examiners properly advised the applicant for admission to the practice of law that he would be permitted to take the bar examination but that the result would be sealed until the board has concluded its character evaluation, and the board was not required subsequently to divulge applicant's examination result, since the result was irrelevant to the matter of applicant's character evaluation, and even if applicant failed the examination, this appeal would not be moot since it concerned applicant's character, a separate and distinct matter. In re Moore, 301 N.C. 634, 272 S.E.2d 826 (1981).

Applicant Has Burden of Showing Compliance with Residence Requirement. - The burden of showing that he has the qualifications to comply with requirements of Rule Five of the Rules Governing Admission to Practice of Law in North Carolina, adopted under authority of this Article, and specifying the resident requirement, rests upon the applicant, and if the proof offered by him fails to satisfy the Board of Law Examiners that he has the qualifications required by the rule, it is their duty to deny his application to take the examination for admission. Baker v. Varser, 240 N.C. 260, 82 S.E.2d 90 (1954).

The findings of fact made by the Board of Law Examiners supported by the evidence are conclusive upon a reviewing court, and are not within the scope of reviewing powers. Baker v. Varser, 240 N.C. 260, 82 S.E.2d 90 (1954).

As long as there is evidence in the record which rationally justifies a finding that the applicant has failed to establish his moral fitness to practice law, this court cannot substitute its judgment for that of the Board of Law Examiners. In re Willis, 288 N.C. 1, 215 S.E.2d 771, appeal dismissed, 423 U.S. 976, 96 S. Ct. 389, 46 L. Ed. 2d 300 (1975).

Board's Duty to Resolve Factual Disputes. - When a decision of the Board of Law Examiners rests on a specific fact or facts the existence of which is contested, the board's duty to resolve the factual dispute by specific findings is no less than that of other administrative agencies. In re Rogers, 297 N.C. 48, 253 S.E.2d 912 (1979).

Under this section the board is the primary investigatory and fact-finding agency in the bar admissions process. When factual disputes are fairly brought before it, it must resolve them. No other agency exists to make such resolutions. In re Rogers, 297 N.C. 48, 253 S.E.2d 912 (1979).

In determining an applicant's fitness to practice law, the Board of Law Examiners should not conduct a hearing to consider applicant's alleged commission of specific acts of misconduct and, without a finding that he committed the prior acts, use his denial that he committed them as substantive evidence of his lack of moral character; rather, the board should first determine whether in fact the applicant committed the prior acts of misconduct and, if it determines that he did, it must then say whether these acts so reflect on the applicant's character that they are sufficient to rebut his prima facie showing of good character. In re Moore, 301 N.C. 634, 272 S.E.2d 826 (1981).

Because the board is free "to make or cause to be made such examinations and investigations as may be deemed necessary," it was not improper for the board to question the witness before the 1987 hearing in the course of its investigation without first notifying applicant, and furthermore, the witness's adverse testimony at the hearing regarding the events surrounding the loan did not constitute a protest. In re Legg, 337 N.C. 628, 447 S.E.2d 353 (1994).

Detailing of Facts on Which Conclusion Is Based. - In cases in which all the essential facts either appear on the face of the application or are otherwise indisputably established, the board need only weigh the evidence and determine whether the applicant has shown his good moral character. However, even in such cases, while it might be permissible for the board not to make specific findings of fact, a detailing of the facts on which it bases its conclusions would facilitate judicial review. In re Rogers, 297 N.C. 48, 253 S.E.2d 912 (1979).

Where the only facts which could support a conclusion that the applicant did not show good moral character are in sharp dispute, the board must necessarily serve as the adjudicator of the facts in dispute and must ultimately find with regard to them what it believes the truth to be. Mere recitation of the testimony heard by the board will not suffice. Administrative agencies must find facts when factual issues are presented. They cannot fulfill this duty by merely summarizing the evidence. In re Rogers, 297 N.C. 48, 253 S.E.2d 912 (1979).

Burden of Proving Specific Acts of Misconduct. - When an applicant makes a prima facie showing of his good moral character and, to rebut the showing, the board relies on specific acts of misconduct the commission of which is denied by the applicant, the board must assume the burden of proving the specific acts by the greater weight of the evidence. The rule that applicant has the overall burden to prove his good moral character does not relieve the board from having to prove such specific acts of misconduct. In re Rogers, 297 N.C. 48, 253 S.E.2d 912 (1979).

To place the burden on the applicant to disprove acts of misconduct would be a distortion of the intended effect of the rule requiring the applicant to prove, overall, his good character. In order to avoid this distortion it is necessary to distinguish between applicant's overall burden of showing good moral character and the board's burden of proving particular instances of misconduct. In re Rogers, 297 N.C. 48, 253 S.E.2d 912 (1979).

When an applicant makes a prima facie showing of good moral character and the board, to rebut the showing, relies on specific acts of misconduct the commission of which are denied by the applicant, the board must prove the specific acts by the greater weight of the evidence. In re Moore, 301 N.C. 634, 272 S.E.2d 826 (1981).

In an action to obtain admission to the North Carolina Bar, it was found that a finding of fact by the Board of Law Examiners that applicant "made false statements under oath on matters material to his fitness of character" inadequately resolved the factual issue which it addressed and was too vague to permit appropriate judicial review because the board did not indicate which statements it considered to be untruthful; consequently, neither a reviewing court nor the applicant could be certain as to the content or materiality of the false statements referred to, and the board could not meet its burden of proving specific acts of misconduct without setting out with specificity what they were and that they had been proved by the greater weight of the evidence. In re Moore, 301 N.C. 634, 272 S.E.2d 826 (1981).

Applicant's Showing of Good Moral Character. - An applicant for admission to the bar has the burden of showing his good moral character. At the outset, he must come forward with sufficient evidence to make out a prima facie case. The board, or any other person wishing to contest an application, may then offer rebuttal evidence. If there are material factual disputes, the board must resolve them by making findings of fact. If the disputes arise out of charges initially made before the board, the board must determine whether the charges have been proved by a preponderance of the evidence before it can rely on them in concluding that an applicant has not shown his good moral character. In re Rogers, 297 N.C. 48, 253 S.E.2d 912 (1979).

Good moral character is something more than the absence of bad character. It is the good name which the applicant has acquired, or should have acquired, through association with his fellows. It means that he must have conducted himself as a man of upright character ordinarily would, should or does. Such character expresses itself, not in negatives nor in following the line of least resistance, but quite often in the will to do the unpleasant thing, if it is right, and the resolve not to do the pleasant thing, if it is wrong. In re Rogers, 297 N.C. 48, 253 S.E.2d 912 (1979).

Character encompasses both a person's past behavior and the opinion of members of his community arising from it. In re Rogers, 297 N.C. 48, 253 S.E.2d 912 (1979).

Whether a person is of good moral character is seldom subject to proof by reference to one or two incidents. In re Rogers, 297 N.C. 48, 253 S.E.2d 912 (1979).

An application for admission to the bar may not be denied on the basis of suspicions or accusations alone. In re Rogers, 297 N.C. 48, 253 S.E.2d 912 (1979).

Sufficiency of Findings. - Where an applicant for admission to the practice of law had been convicted of assault and murder, finding by the Board of Law Examiners that applicant did not disclose that he had been convicted of assault and battery on a female failed adequately to resolve the factual issue to which it was addressed where the factual issue before the board was whether the omission was a mere inadvertence caused by applicant's initial failure to recall the conviction as an incident separate from the murder or was instead a purposeful omission designed to mislead the board, the later correction of which was prompted only by notice of the hearing. In re Moore, 301 N.C. 634, 272 S.E.2d 826 (1981).

In an action to obtain admission to the North Carolina Bar, the court on appeal could not conclude that as a matter of law the Board of Law Examiners' evidence was insufficient to support findings of fact which could rebut a prima facie showing of good moral character by an applicant for admission to the bar where it was undisputed that applicant had committed and been convicted of murder and assault; the question before the board was whether these acts occurring 14 years ago continued to constitute evidence that applicant was presently morally unfit to practice law; and only the board through proper findings of fact and conclusions of law based thereon could answer the question as to whether events subsequent to the murder and assault demonstrated to the board that applicant had been fully rehabilitated so that the evidentiary force of the 14 year old offenses was spent or whether they led to a contrary conclusion. In re Moore, 301 N.C. 634, 272 S.E.2d 826 (1981).

Findings Not Prejudicial. - An applicant for admission to practice law was not prejudiced where the Board of Law Examiners found that applicant was paroled after serving a portion of his prison term but the board failed to find that applicant was completely discharged from parole, since the reviewing court would take into account, under a whole record review, undisputed facts which favored applicant's position including the fact of discharge from parole which applicant argued was unfairly omitted from the board's findings. In re Moore, 301 N.C. 634, 272 S.E.2d 826 (1981).

The "whole record" test is the proper scope of judicial review of findings of the Board of Law Examiners. In re Rogers, 297 N.C. 48, 253 S.E.2d 912 (1979).

Cited in In re Willis, 286 N.C. 207, 209 S.E.2d 457 (1974); In re Elkins, 308 N.C. 317, 302 S.E.2d 215 (1983); In re Moore, 308 N.C. 771, 303 S.E.2d 810 (1983).


§ 84-25. Fees of applicants.

All applicants before the Board of Law Examiners shall pay such fees as prescribed under the rules of said Board as may be promulgated under G.S. 84-21 and 84-24.

History

(1935, c. 33, s. 1; 1955, c. 651, s. 3.)

§ 84-26. Expenses of Board of Law Examiners.

Notwithstanding G.S. 93B-5(b), each member of the Board of Law Examiners shall receive the member's actual expenses of travel and subsistence while engaged in duties assigned to the member; provided, however, that for transportation by the use of private automobile the expense of that transportation shall be the same as paid other boards and commissions by the State.

History

(1935, c. 33, s. 2; 1937, c. 35; 1953, c. 1310, s. 3; 1971, c. 13, s. 2; 1973, c. 1368; 2013-9, s. 1.)

Cross References. - As to compensation, employment, and training of board members, see G.S. 93B-5.

Effect of Amendments. - Session Laws 2013-9, s. 1, effective March 13, 2013, substituted "Expenses" for "Pay" in the section heading; and added "Notwithstanding G.S. 93B-5(b)," substituted "the member's" for "the sum of fifty dollars ($50.00) for his services in connection with each examination and shall receive his," "the member; provided, however" for "him, provided" and "that transportation" for "travel."


§ 84-27: Repealed by Session Laws 1945, c. 782.

§ 84-28. Discipline and disbarment.

  1. Any attorney admitted to practice law in this State is subject to the disciplinary jurisdiction of the Council under such rules and procedures as the Council shall adopt as provided in G.S. 84-23.
  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:
    1. Conviction of, or a tender and acceptance of a plea of guilty or no contest to, a criminal offense showing professional unfitness;
    2. The violation of the Rules of Professional Conduct adopted and promulgated by the Council in effect at the time of the act;
    3. 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:
    1. Disbarment;
    2. Suspension for a period up to but not exceeding five years, any portion of which may be stayed upon reasonable conditions to which the offending attorney consents;
    3. Censure -. A censure is a written form of discipline more serious than a reprimand issued in cases in which an attorney has violated one or more provisions of the Rules of Professional Conduct and has caused significant harm or potential significant harm to a client, the administration of justice, the profession or members of the public, but the protection of the public does not require suspension of the attorney's license;
    4. Reprimand -. A reprimand is a written form of discipline more serious than an admonition issued in cases in which an attorney has violated one or more provisions of the Rules of Professional Conduct, but the protection of the public does not require a censure. A reprimand is generally reserved for cases in which the attorney's conduct has caused harm or potential harm to a client, the administration of justice, the profession, or members of the public; or
    5. Admonition -. An admonition is a written form of discipline imposed in cases in which an attorney has committed a minor violation of the Rules of Professional Conduct.
  4. Any attorney admitted to practice law in this State, who is convicted of or has tendered and has had accepted, a plea of guilty or no contest to, a criminal offense showing professional unfitness, may be disciplined based upon the conviction, without awaiting the outcome of any appeals of the conviction. An order of discipline based solely upon a conviction of a criminal offense showing professional unfitness shall be vacated immediately upon receipt by the Secretary of the North Carolina State Bar of a certified copy of a judgment or order reversing the conviction. The fact that the attorney's criminal conviction has been overturned on appeal shall not prevent the North Carolina State Bar from conducting a disciplinary proceeding against the attorney based upon the same underlying facts or events that were the subject of the criminal proceeding.
  5. An attorney who is disciplined as provided in subsection (d) of this section may petition the court in the trial division in the judicial district where the conviction occurred for an order staying the disciplinary action pending the outcome of any appeals of the conviction. The court may grant or deny the stay in its discretion upon such terms as it deems proper. A stay of the disciplinary action by the court shall not prevent the North Carolina State Bar from going forward with a disciplinary proceeding against the attorney based upon the same underlying facts or events that were the subject of the criminal proceeding.
  6. 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 (c) above and that the attorney was not deprived of due process in the other jurisdiction.
  7. 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 the conduct is pending. The 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.
  8. Any member of the North Carolina State Bar may be transferred to disability inactive status for mental incompetence, physical disability, or substance abuse interfering with the attorney's ability to competently engage in the practice of law under the rules and procedures the Council adopts pursuant to G.S. 84-23.
  9. There shall be an appeal of right by either party from any final order of the Disciplinary Hearing Commission to the North Carolina Court of Appeals. Review by the appellate division shall be upon matters of law or legal inference. The procedures governing any appeal shall be as provided by statute or court rule for appeals in civil cases. A final order which imposes disbarment or suspension for 18 months or more shall not be stayed except upon application, under the rules of the Court of Appeals, for a writ of supersedeas. A final order imposing suspension for less than 18 months or any other discipline except disbarment shall be stayed pending determination of any appeal of right.
  10. 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.
  11. The North Carolina State Bar may apply to appropriate courts for orders necessary to protect the interests of clients of missing, suspended, disbarred, disabled, or deceased attorneys.

Any order disbarring or suspending an attorney may impose reasonable conditions precedent to reinstatement. No attorney who has been disbarred by the Disciplinary Hearing Commission, the Council, or by order of any court of this State may seek reinstatement to the practice of law prior to five years from the effective date of the order of disbarment. Any order of the Disciplinary Hearing Commission or the Grievance Committee imposing an admonition, reprimand, censure, or stayed suspension may also require the attorney to complete a reasonable amount of continuing legal education in addition to the minimum amount required by the North Carolina Supreme Court.

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 orders necessary to protect the interests of the clients, including the authority to order the payment of compensation by the member or the estate of a deceased or disabled member to any attorney appointed to administer or conserve the law practice of the member. Compensation awarded to a member serving under this section awarded from the estate of a deceased member shall be considered an administrative expense of the estate for purposes of determining priority of payment.

History

(1933, c. 210, s. 11; 1937, c. 51, s. 3; 1959, c. 1282, ss. 1, 2; 1961, c. 1075; 1969, c. 44, s. 61; 1975, c. 582, s. 5; 1979, c. 570, ss. 6, 7; 1983, c. 390, ss. 2, 3; 1985, c. 167; 1987, c. 316, s. 4; 1989, c. 172, s. 2; 1991, c. 210, s. 5; 1995, c. 431, s. 18; 2005-237, s. 1.)

Cross References. - As to issuance of written license upon restoration of license, see G.S. 84-24.

As to restoration of license, see G.S. 84-32.

Legal Periodicals. - For article on rules, ethics and reform in connection with transferring North Carolina real estate, see 49 N.C.L. Rev. 593 (1971).

For article on administrative evidence rules, see 49 N.C.L. Rev. 635 (1971).

For survey of 1979 law on criminal procedure, see 58 N.C.L. Rev. 1404 (1980).

For survey of 1982 law relating to constitutional law, see 61 N.C.L. Rev. 1052 (1983).

For article, "Malpractice and Ethical Considerations," see 19 N.C. Cent. L.J. 165 (1991).

CASE NOTES

I. GENERAL CONSIDERATION.

Editor's Note. - Many of the cases cited under this section were decided under former statutes similar in subject matter to the present section.

Constitutionality. - Laws 1870-1, c. 216, s. 4, an early statute dealing with the same subject matter as this section, was constitutional. It did not take away any of the inherent rights which are absolutely essential in the administration of justice. Ex parte Schenck, 65 N.C. 353 (1871).

Construction with Fifth Amendment Rights. - The requirements of this section did not cause the defendant to be compelled, in violation of his constitutional rights, by the State bar to provide information which would later be used against him in a perjury case where he, acting of his own volition, made statements to the bar investigator. The record does not indicate that these statements were extracted under the power of a subpoena; and the defendant was not in custody at the time these statements were made. The defendant could have asserted his Fifth Amendment privilege during the bar proceedings, although the protection would not have extended to any records that he was required by law to maintain. State v. Linney, 138 N.C. App. 169, 531 S.E.2d 245 (2000).

Superior court has the inherent power to discipline members of the bar. It can require attorneys to appear and answer charges based on records of the court. There is not a plaintiff in such a proceeding and a complaint does not have to be filed. In re Delk, 336 N.C. 543, 444 S.E.2d 198, reh'g denied, 336 N.C. 785, 447 S.E.2d 419 (1994).

Jurisdiction to Impose Discipline Sitting Judge. - Proceedings before the North Carolina State Bar Disciplinary Hearing Commission to discipline a sitting judge were dismissed because only the North Carolina Supreme Court or the North Carolina Judicial Standards Commission had jurisdiction to discipline sitting judges for conduct in office. N.C. State Bar v. Tillett, 369 N.C. 264, 794 S.E.2d 743 (2016).

Conditional Order Was "Final." - Entry of an order vacating attorney's disbarment and granting a conditional reinstatement of his right to practice law was a "final order" as contemplated by G.S. 84-28(h), as any future action was dependent upon a decision of the federal court, and not upon a further decision or action by the Disciplinary Hearing commission of the North Carolina State Bar. N.C. State Bar v. Wood, 209 N.C. App. 454, 705 S.E.2d 782 (2011).

The practice of law is a property right requiring due process of law before it may be impaired. North Carolina State Bar v. DuMont, 52 N.C. App. 1, 277 S.E.2d 827 (1981), modified and aff'd, 304 N.C. 627, 286 S.E.2d 89 (1982).

But Due Process Does Not Require Trial by Jury. - Defendant was not deprived of due process of law by virtue of the elimination by the 1975 amendment to this section of the right to trial by jury in attorney disciplinary matters; due process does not require that a jury trial be afforded an attorney for disciplinary or disbarment procedures and the procedural safeguards provided by the 1975 amendments were sufficient to satisfy due process requirements. North Carolina State Bar v. DuMont, 304 N.C. 627, 286 S.E.2d 89 (1982).

When Due Process Requires Notice and Opportunity to Be Heard. - Where the attorney pleads guilty or is convicted in another court, or the conduct complained of is not related to litigation pending before the court investigating attorney's alleged misconduct, the procedure, to meet the test of due process, must be initiated by a sworn written complaint, and the court should issue a rule or order advising the attorney to the specific charges, directing him to show cause why disciplinary action should not be taken, and granting a reasonable time for answering and preparation of defense, and attorney should be given full opportunity to be heard and permitted to have counsel for his defense. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962); In re Palmer, 32 N.C. App. 449, 232 S.E.2d 497 (1977), rev'd on other grounds, 296 N.C. 638, 252 S.E.2d 784 (1979).

The doctrine of ex post facto laws does not apply to attorney disciplinary proceedings. North Carolina State Bar v. DuMont, 52 N.C. App. 1, 277 S.E.2d 827 (1981), modified and aff'd, 304 N.C. 627, 286 S.E.2d 89 (1982).

Application of the procedures included in the 1975 amendment to this section did not constitute an unconstitutional ex post facto application of the law. North Carolina State Bar v. DuMont, 304 N.C. 627, 286 S.E.2d 89 (1982).

Former Law a "Disabling Statute". - The act of 1871, upon which C.S., §§ 204 and 205, were based, failed to provide any power to take the place of the power formerly invested in the courts, and so was a disabling statute. Kane v. Haywood, 66 N.C. 1 (1872); In re Ebbs, 150 N.C. 44, 63 S.E. 190 (1908). See G.S. 84-36.

Right to Practice Law Not Interfered with. - This section only establishes procedures by which an attorney may be disciplined in the event that he violates the standards of professional conduct. Without some wrongful action on the part of an attorney, this section in no way interferes with an attorney's right to practice law. North Carolina State Bar v. DuMont, 52 N.C. App. 1, 277 S.E.2d 827 (1981), modified and aff'd, 304 N.C. 627, 286 S.E.2d 89 (1982).

While the practice of law is a property right requiring due process of law before it may be impaired, the 1975 amendment to this section in no way interfered with or impaired defendant's right to practice law. North Carolina State Bar v. DuMont, 304 N.C. 627, 286 S.E.2d 89 (1982).

Rule-Making Power of Council of North Carolina State Bar. - The 1937 amendment to this section, providing that the council of the North Carolina State Bar should have power to formulate rules of procedure governing disbarment proceedings which shall conform as near as may be to the procedure provided by law for hearings before referees in compulsory references, relates to the formulation of rules of procedure incident to hearings before the council or the trial committee and not to procedure upon appeal to the superior court. In re Gilliland, 248 N.C. 517, 103 S.E.2d 807 (1958).

Attorney's Ethics Ordinarily for Consideration of State Bar. - By virtue of this section and G.S. 84-29 to 84-32, questions relating to the propriety and ethics of an attorney are ordinarily for the consideration of the North Carolina State Bar. In re Northwestern Bonding Co., 16 N.C. App. 272, 192 S.E.2d 33, cert. denied, 282 N.C. 426, 192 S.E.2d 837 (1972).

The object of the regulations is to protect the public from unethical conduct by one vested with an attorney's license. A well-educated lawyer, whose position and achievement bring trusting persons to his office in a search of guidance and protection has the duty of conducting himself with the highest degree of honor, integrity and ethics. North Carolina State Bar v. Frazier, 269 N.C. 625, 153 S.E.2d 367, cert. denied, 389 U.S. 826, 88 S. Ct. 69, 19 L. Ed. 2d 81 (1967).

Disbarment Is to Protect Public. - An order disbarring an attorney upon his conviction of a felony is not entered as additional punishment, but as a protection to the public. State v. Spivey, 213 N.C. 45, 195 S.E. 1 (1938).

Civil Action. - Proceedings for disbarment are of a civil nature. In re Ebbs, 150 N.C. 44, 63 S.E. 190 (1908).

The proceedings under each method by which disciplinary action or disbarment may be imposed partake of the nature of civil actions. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962).

Disciplinary proceedings against attorneys in North Carolina are civil proceedings, not criminal. North Carolina State Bar v. DuMont, 52 N.C. App. 1, 277 S.E.2d 827 (1981), modified and aff'd, 304 N.C. 627, 286 S.E.2d 89 (1982).

In North Carolina there are two methods by which disciplinary action or disbarment may be imposed upon attorneys - statutory and judicial. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962); In re Northwestern Bonding Co., 16 N.C. App. 272, 192 S.E.2d 33, cert. denied, 282 N.C. 426, 192 S.E.2d 837 (1972).

The statutory method by which disciplinary action or disbarment may be imposed provides for written complaint, notice to accused, opportunity to answer and be represented by counsel, hearing before a committee conducting proceedings in the nature of a reference, and trial by jury unless waived. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962); In re Northwestern Bonding Co., 16 N.C. App. 272, 192 S.E.2d 33, cert. denied, 282 N.C. 426, 192 S.E.2d 837 (1972).

Inherent Powers of Court Not Abridged. - Nothing contained in the statutes concerning discipline or disbarment is to be construed as disabling or abridging the inherent powers of the court to deal with its attorneys. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962).

Complaint Need Not Be by Layman or Client. - It is not required that proceedings against an attorney for disbarment or suspension initiated by the council of the State Bar be based upon complaint of a layman or a client defrauded by the attorney. North Carolina State Bar v. Frazier, 269 N.C. 625, 153 S.E.2d 367, cert. denied, 389 U.S. 826, 88 S. Ct. 69, 19 L. Ed. 2d 81 (1967).

Council Is Not Limited to Any Particular Source for Information. - The duty of patrolling the conduct of licensed attorneys is placed on the council of the State Bar, and there are no requirements that it shall be limited to any particular source for its information or instigation of proceedings. North Carolina State Bar v. Frazier, 269 N.C. 625, 153 S.E.2d 367, cert. denied, 389 U.S. 826, 88 S. Ct. 69, 19 L. Ed. 2d 81 (1967).

Section provides for disbarment for the conviction of a criminal offense showing professional unfitness. It does not limit this penalty to cases brought by the State Bar. In re Delk, 336 N.C. 543, 444 S.E.2d 198, reh'g denied, 336 N.C. 785, 447 S.E.2d 419 (1994).

Committee to Investigate Facts. - Where issues of fact are raised the court may appoint a committee to investigate and make report. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962); In re Palmer, 32 N.C. App. 449, 232 S.E.2d 497 (1977), rev'd on other grounds, 296 N.C. 638, 252 S.E.2d 784 (1979).

Disciplinary Proceedings Not Barred by Limitations. - Disciplinary proceedings are not barred by the general statute of limitations. Nor is a disciplinary proceeding barred because it is grounded on acts that also constitute a crime that cannot be prosecuted in a criminal action because of limitations. North Carolina State Bar v. Temple, 2 N.C. App. 91, 162 S.E.2d 649 (1968), appeal dismissed, 6 N.C. App. 437, 170 S.E.2d 131 (1969), cert. denied, 397 U.S. 1023, 90 S. Ct. 1263, 25 L. Ed. 2d 532, reh'g denied, 397 U.S. 1081, 90 S. Ct. 1520 (1970).

Detention of Money or Property. - Under this section the detention of money received in his professional capacity without bona fide claim thereto is ground for the disbarment of an attorney. In re Escoffery, 216 N.C. 19, 3 S.E.2d 425 (1939).

Inexperience in the legal profession cannot excuse detention of money collected for a client under circumstances which amount to embezzlement. Dishonesty and breach of trust may be committed by anyone, and no person needs a law license or experience in the practice of law to know that dishonesty and crookedness are wrong. North Carolina State Bar v. Frazier, 269 N.C. 625, 153 S.E.2d 367, cert. denied, 389 U.S. 826, 88 S. Ct. 69, 19 L. Ed. 2d 81 (1967).

Findings Must Be Supported by Evidence. - In attorney discipline and disbarment proceedings, findings of fact must be supported by clear, cogent, and convincing evidence drawn from the whole record. North Carolina State Bar v. Speckman, 87 N.C. App. 116, 360 S.E.2d 129 (1987).

Substantial Evidence Supported Findings of Fact. - Substantial evidence supported the North Carolina State Bar Disciplinary Hearing Commission's findings that an attorney's misconduct created the potential for significant harm to clients and to the public's perception of the legal profession because the attorney's mismanagement of a trust account directly led to the potential misappropriation of client funds. N.C. State Bar v. Adams, 239 N.C. App. 489, 769 S.E.2d 406 (2015).

Failure to Comply with Grievance Committee Subpoena. - A subpoena is a type of "formal inquiry" contemplated by the General Assembly in defining the grounds for attorney discipline under subdivision (b)(3) of this section; thus, where the defendant attorney failed to produce documents as required by a Grievance Committee subpoena, he was subject to discipline as a result and the Hearing Committee did not err in concluding that defendant violated subdivision (b)(3) of this section. North Carolina State Bar v. Speckman, 87 N.C. App. 116, 360 S.E.2d 129 (1987).

Duty to Protect Clients' Interests Where Their Attorney Disappears. - Chapter 7 trustee's objection to the North Carolina State Bar's request for payment of the expenditures made to wind down a debtor lawyer's practice was sustained because the lawyer's disappearance and the appointment of a trustee to protect his clients occurred pre-petition, the rules governing the Bar and the Bankruptcy Code did not indicate that the filing of the bankruptcy petition transferred to the Chapter 7 trustee the Bar's duty to appoint a trustee to protect the clients when a lawyer disappeared, and the Bar's actions in preventing the filing of malpractice claims against the debtor did not confer actual benefit on the bankruptcy estate. In re McCormick, - Bankr. - (Bankr. M.D.N.C. June 18, 2007).

Entry of Sanction Prior to Judgment of Conviction. - Where the Disciplinary Hearing Commission of the North Carolina State Bar was only required to find that the attorney was convicted of a criminal offense to impose discipline, it did not err in imposing discipline prior to entry of a judgment of conviction. N.C. State Bar v. Wood, 209 N.C. App. 454, 705 S.E.2d 782 (2011).

Loss of Right to Claim Negligence of Attorney by Pursuing Initial Claim. - Where wife had a claim for permanent alimony which was lost by the negligence of her attorney, she then retained another attorney who filed a counterclaim for alimony, and the alimony agreement negotiated by the first attorney was rescinded and a second alimony agreement was signed, by pursuing her claim for alimony against her husband the wife lost her right to make a claim against the first attorney for his negligence in representing the plaintiff in her original alimony claim. Stewart v. Herring, 80 N.C. App. 529, 342 S.E.2d 566 (1986).

Acts Committed to Create Potential for Foreseeable Harm. - Disciplinary Hearing Commission did not err in concluding that an attorney intended to commit acts creating the potential for foreseeable harm because its findings supported the notion that the attorney's wrongful acts were not by mistake or accident but were instead intentionally committed; the attorney approved of emails being sent on her behalf with the intent of targeting small businesses in need of legal services, and she intended to communicate to a client that she was an attorney. N.C. State Bar v. Ely, 257 N.C. App. 651, 810 S.E.2d 346 (2018).

Multiple Offenses. - Disciplinary Hearing Commission did not err in finding that an attorney committed multiple offenses because it properly concluded that the attorney violated the North Carolina Rules of Professional Conduct by (1) holding herself out as legally able to provide legal services, (2) holding her law firm out on its website as authorized to provide legal services, (3) contacting a potential client via email, and (4) listing a lawyer as an attorney employed by her law firm on its website. N.C. State Bar v. Ely, 257 N.C. App. 651, 810 S.E.2d 346 (2018).

Refusal to Acknowledge Wrongful Nature of Conduct. - Disciplinary Hearing Commission's (DHC) conclusion of law that an attorney refused to acknowledge the wrongful nature of her conduct was supported by clear, cogent, and convincing evidence because the attorney continually refused to accept the fact that her conduct was in violation of North Carolina Rules of Professional Conduct; the DHC chairman repeatedly gave the attorney opportunities to acknowledge her violations, but she was unwilling to do so. N.C. State Bar v. Ely, 257 N.C. App. 651, 810 S.E.2d 346 (2018).

Applied in North Carolina State Bar v. Talman, 62 N.C. App. 355, 303 S.E.2d 175 (1983); North Carolina State Bar v. Sheffield, 73 N.C. App. 349, 326 S.E.2d 320 (1985); N.C. State Bar v. Gilbert, 151 N.C. App. 299, 566 S.E.2d 685 (2002), aff'd, 357 N.C. 502, 586 S.E.2d 89 (2003); Gilbert v. N.C. State Bar, 363 N.C. 70, 678 S.E.2d 602 (2009).

Cited in In re Gertzman, 115 N.C. App. 634, 446 S.E.2d 130, cert. denied, 337 N.C. 801, 449 S.E.2d 571 (1994); Glover v. North Carolina, 301 F. Supp. 364 (E.D.N.C. 1969); Swenson v. Thibaut, 39 N.C. App. 77, 250 S.E.2d 279 (1978); North Carolina State Bar v. Frazier, 62 N.C. App. 172, 302 S.E.2d 648 (1983); North Carolina State Bar v. Braswell, 67 N.C. App. 456, 313 S.E.2d 272 (1984); North Carolina State Bar v. Barrett, 132 N.C. App. 110, 511 S.E.2d 15 (1999); In re Beasley, 151 N.C. App. 569, 566 S.E.2d 125 (2002); N.C. State Bar v. McLaurin, 169 N.C. App. 144, 609 S.E.2d 491 (2005); N.C. State Bar v. Gilbert, 189 N.C. App. 320, 663 S.E.2d 1 (2008), review denied, 362 N.C. 682, 670 S.E.2d 234 (2008); Cunningham v. Selman, 201 N.C. App. 270, 689 S.E.2d 517 (2009); Sisk v. Transylvania Cmty. Hosp., Inc., 364 N.C. 172, 695 S.E.2d 429 (June 17, 2010); Ge Betz, Inc. v. Conrad, 231 N.C. App. 214, 752 S.E.2d 634 (2013); N.C. State Bar v. Merrell, 243 N.C. App. 356, 777 S.E.2d 103 (2015).

II. SANCTIONS.

Fine and imprisonment is not the appropriate remedy to be applied to an attorney who, by reason of moral delinquency or other cause, has shown himself to be an unworthy member of the profession. Kane v. Haywood, 66 N.C. 1 (1872).

Public Censure Held Appropriate. - An order of public censure was not arbitrary and unreasonably harsh punishment for defendant attorney's unprofessional conduct in encouraging a potential adverse witness not to testify against his client, in a prosecution for driving under the influence of alcohol, in return for an agreement by the client not to give any testimony which might incriminate the potential witness, and it did not violate the defendant's rights to due process and equal protection. North Carolina State Bar v. Graves, 50 N.C. App. 450, 274 S.E.2d 396 (1981).

There was no reversible error in the North Carolina State Bar Disciplinary Hearing Commission's imposition of a censure on an attorney where the attorney's failure to exercise due diligence in the representation of certain client matters, in violation of N.C. Rev. R. Prof. Conduct 1.3, constituted grounds for discipline under G.S. 84-28. Because of the attorney's inaction, her clients were unable to present claims and defenses to the court. Although any one act, standing alone, would not have been sufficient to constitute a violation of the rule, together, the attorney's actions constituted a failure to act with reasonable diligence in violation of Rule 1.3. N.C. State Bar v. Hunter, 217 N.C. App. 216, 719 S.E.2d 182 (2011), dismissed 365 N.C. 552, 722 S.E.2d 791, 2012 N.C. LEXIS 201 (2012).

Censure was an appropriate discipline for an experienced attorney's conduct because the attorney did not exercise the proper supervisory authority sufficient to ensure that the work of a law firms' non-attorney staff employees with regards to a real estate closing was compatible with the attorney's professional obligations as the closing attorney. The attorney was previously disciplined for similar conduct and refused to acknowledge the wrongful nature of the conduct. N.C. State Bar v. Scott, 241 N.C. App. 477, 773 S.E.2d 520 (2015).

The mere potential for harm to a client is a statutory factor that supports a reprimand, one of the lesser sanctions that may be imposed on an attorney by the North Carolina State Bar Disciplinary Hearing Commission; however, in order to justify the imposition of a more severe sanction, such as censure, suspension, or disbarment, the attorney's misconduct must show either significant harm or the potential for significant harm. N.C. State Bar v. Talford, 356 N.C. 626, 576 S.E.2d 305 (2003).

In order to impose a more severe sanction than reprimand under G.S. 84-28, such as censure, suspension, or disbarment, an attorney's misconduct must include attending circumstances that demonstrate: (1) a risk of significant potential harm, and (2) that the chosen sanction is necessary in order to protect the public. N.C. State Bar v. Talford, 356 N.C. 626, 576 S.E.2d 305 (2003).

Summary Disbarment by Court in Criminal Prosecution. - Where an attorney is on trial, charged with a criminal offense involving moral turpitude and amounting to a felony, and pleads guilty, or is convicted, or pleads nolo contendere with agreement that he will surrender his license, the court conducting the criminal trial has authority to disbar him summarily without further proceedings, and on appeal the Supreme Court may do likewise upon motion of the Attorney General. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962); In re Palmer, 32 N.C. App. 449, 232 S.E.2d 497 (1977), rev'd on other grounds, 296 N.C. 638, 252 S.E.2d 784 (1979).

Sanctions Authorized by Statute Not Subject to Review. - Where an attorney's sanction, a one-year suspension, was by her own admission authorized by statute, it was not subject to review. North Carolina State Bar v. Wilson, 74 N.C. App. 777, 330 S.E.2d 280 (1985).

So long as the punishment imposed is within the limits allowed by statute, the Court of Appeals does not have the authority to modify or change it. North Carolina State Bar v. Whitted, 82 N.C. App. 531, 347 S.E.2d 60 (1986), aff'd, 319 N.C. 354, 354 S.E.2d 501 (1987).

Disbarment for Crime - Entry of Judgment of Conviction on Plea of Nolo Contendere. - Defendant's plea of nolo contendere in the Federal District Court to a charge of receiving and possessing chattels valued at less than $100 knowing them to have been stolen or embezzled does not entitle the State Bar to summary judgment authorizing disciplinary action against the defendant. North Carolina State Bar v. Hall, 293 N.C. 539, 238 S.E.2d 521 (1977).

Same - Nature of Offense. - Under Laws 1870-1, c. 216, s. 4, upon which an action for disbarment was originally based, conviction of a "criminal offense" showing untrustworthiness was sufficient basis for disbarment; but by Laws 1907, c. 941, s. 1, conviction of a "felony" was necessary; construing these provisions together the court held that the two provisions were consistent and reconcilable (a view evidently adopted by the Revision Commission of 1920, as C.S., § 205 contained the language of both provisions), and further stated that the conviction of a criminal offense - the illegal sale of liquor - was sufficient grounds for disbarment as showing the attorney unfit for practice. State ex rel. Solicitor v. Johnson, 171 N.C. 799, 88 S.E. 437 (1916). See also State ex rel. McLean v. Johnson, 174 N.C. 345, 93 S.E. 847 (1917).

It having appeared to the court that the defendant was guilty of an infamous misdemeanor, converted to a felony by G.S. 14-1, G.S. 14-3, the court by virtue of its inherent power was authorized to order his name stricken from the rolls of attorneys and his license to practice law in the State of North Carolina returned to the Supreme Court, which issued it. State v. Spivey, 213 N.C. 45, 195 S.E. 1 (1938); State v. Beach, 283 N.C. 261, 196 S.E.2d 214 (1973).

Where attorney contended that there was not a finding that he was convicted of any crime because the order only said "the records of this Court disclose" that he was convicted, the fact that the records of the court disclosed he had been convicted of a crime showing he was unfit to practice law, was a sufficient finding of fact to support disbarment. In re Delk, 336 N.C. 543, 444 S.E.2d 198, reh'g denied, 336 N.C. 785, 447 S.E.2d 419 (1994).

Same - Confession of a Felony. - A plea of guilty to an indictment charging defendant with willfully, feloniously, secretly, and maliciously giving aid and assistance to his codefendant by manufacturing evidence, altering and destroying original records in the office of the Commissioner of Revenue (now Secretary of Revenue), etc., was held a confession of a felony, and ground for disbarment if defendant was a practicing attorney, under former G.S. 205 of the Consolidated Statutes. State v. Harwood, 206 N.C. 87, 173 S.E. 24 (1934).

Conviction or Confession of Guilt. - The words "conviction" and "confession," as used in a former statute providing that no attorney should be disbarred for crime unless upon conviction or confession in open court must be construed to convey the idea that the party had been convicted by a jury or had in open court declined to take issue by the plea of not guilty, and confessed himself guilty. Kane v. Haywood, 66 N.C. 1 (1872).

The admission of an attorney in an answer to a rule to show cause why he should not be attached for contempt for failure to pay money into court, not being voluntary, was not a confession in open court as contemplated by the statutes. Kane v. Haywood, 66 N.C. 1 (1872).

Indictment. - By a proper construction of the former statute, the court was shorn of its power to disbar an attorney, except in the single instance where he had been indicted for some criminal offense, showing him unfit to be trusted in the discharge of the duties of his profession, and upon such indictment had either been convicted or pleaded guilty. Kane v. Haywood, 66 N.C. 1 (1872).

Conviction in Foreign State. - Laws 1870-1, c. 216, s. 4, and Laws 1907, c. 941, s. 1, did not confer upon the court the power to disbar an attorney because he had been "convicted" in the courts of another state or of the United States. In re Ebbs, 150 N.C. 44, 63 S.E. 190 (1908).

Suspension. - Court of appeals rejected challenges which an attorney made to procedures used by the Disciplinary Hearing Commission (DHC) to hear allegations that the attorney made false statements, filed a motion for improper purposes, charged an excessive fee, and engaged in other misconduct, and it upheld the DHC's decision suspending the attorney's license to practice law for three years. N.C. State Bar v. Rogers, 164 N.C. App. 648, 596 S.E.2d 337 (2004).

Order of the Disciplinary Hearing Commission (DHC) of the North Carolina State Bar suspending an attorney fell short of containing clear, cogent, and convincing evidence supporting the discipline imposed upon the attorney because the DHC's findings of fact in the adjudicatory phase failed to support the conclusions made in the dispositional section of the order, and admonition was not considered by the DHC in making its determination with regard to lesser sanctions; the DHC must show a reviewing court that all potential lesser sanctions have been considered before discipline of a greater nature is imposed. N.C. State Bar v. Sossomon, 197 N.C. App. 261, 676 S.E.2d 910 (2009).

North Carolina State Bar Disciplinary Hearing Commission's order included findings of fact and conclusions of law that satisfied subsection (c) because the order explained how the attorney's actions resulted in significant potential harm and why suspension was the only sanction option that can adequately serve to protect the public from potential future transgressions by the attorney. N.C. State Bar v. Adams, 239 N.C. App. 489, 769 S.E.2d 406 (2015).

Attorney was suspended from practice of law for five years after the attorney violated various rules of professional conduct by interjecting questions and commentary into a deposition and coaching the deponent, leaving a deposition without filing a motion to terminate it, knowingly making a false statement to a court, spoke disrespectfully to a judge at a bench conference, and sending a demand letter to an individual he knew was represented by counsel. N.C. State Bar v. Sutton, 250 N.C. App. 85, 791 S.E.2d 881 (2016), appeal dismissed, 797 S.E.2d 296, 2017 N.C. LEXIS 223 (2017).

Disciplinary Hearing Commission properly suspended an attorney's license because its finding that she falsely held herself out as being able to provide legal services was supported by clear, cogent, and convincing evidence; the attorney's law firm website did not contain any statement or suggestion that the attorney was not currently licensed to practice law in North Carolina, and thus, any client would have been under the false impression that she was licensed to provide legal services. N.C. State Bar v. Ely, 257 N.C. App. 651, 810 S.E.2d 346 (2018).

Disciplinary Hearing Commission properly suspended an attorney's license because the attorney held herself out as a lawyer who was admitted to practice law in North Carolina; the attorney identified herself as a Chief Legal Officer on her law firm's website, provided her background as an attorney on the website with no indication that her license was suspended, and emailed a potential client a link to the website and used the title "Esq." in the signature line of her email. N.C. State Bar v. Ely, 257 N.C. App. 651, 810 S.E.2d 346 (2018).

Disciplinary Hearing Commission properly suspended an attorney's license because the attorney held her law firm out as a company that could provide legal services and advice to a client when lawyers advertised on the website as Chief Legal Officers were not licensed to practice law in North Carolina. N.C. State Bar v. Ely, 257 N.C. App. 651, 810 S.E.2d 346 (2018).

Disciplinary Hearing Commission properly suspended an attorney's license because the attorney violated the prohibition against soliciting professional employment via electronic contact; the attorney emailed a potential client for the express purpose of promoting her law firm's legal services and, therefore, increasing her opportunity to obtain pecuniary gain. N.C. State Bar v. Ely, 257 N.C. App. 651, 810 S.E.2d 346 (2018).

Disciplinary Hearing Commission properly suspended an attorney's license because the attorney falsely represented on her law firm's website that a lawyer could serve as an attorney on behalf of the law firm despite his status with the State Bar being "inactive" as well as the fact that he had never actually signed a contract with the law firm; the attorney included the hyperlink to the website in her emails to a potential client and other recipients. N.C. State Bar v. Ely, 257 N.C. App. 651, 810 S.E.2d 346 (2018).

Disciplinary Hearing Commission's (DHC) decision to suspend an attorney's license for five years did not exceed its statutory authority because DHC's order sufficiently linked the attorney's multiple instances of improper conduct to the potential for significant harm to the public; the DHC expressly weighed the other disciplinary options available to it before ultimately determining that a lesser sanction would fail to adequately address the severity of her misconduct. N.C. State Bar v. Ely, 257 N.C. App. 651, 810 S.E.2d 346 (2018).

Disciplinary Hearing Commission properly suspended an attorney's license because the clear implication from the attorney's inclusion of the abbreviation "Esq." following her signature in her emails to a potential client, the hyperlink to her law firm's website, and her testimony at the hearing was that she intended to convey to recipients of the email that she was able to provide legal services as an attorney. N.C. State Bar v. Ely, 257 N.C. App. 651, 810 S.E.2d 346 (2018).

Disciplinary Hearing Commission properly suspended an attorney's license because the attorney listed a lawyer as a Chief Legal Officer whose credentials could be viewed on her law firm's website even though the lawyer never signed an employment contract with the firm, and his license to practice law in North Carolina was inactive; a potential North Carolina client viewing the website would assume that the lawyer was authorized to provide legal services in North Carolina. N.C. State Bar v. Ely, 257 N.C. App. 651, 810 S.E.2d 346 (2018).

Trial court sanctioned a lawyer for characterizing her opposing counsel and their witnesses as liars; its order that she be suspended from practicing law pro hac vice in North Carolina for one year was not an abuse of discretion. Couch v. Private Diagnostic Clinic, 146 N.C. App. 658, 554 S.E.2d 356 (2001), cert. denied, cert. dismissed, 355 N.C. 348, 563 S.E.2d 562 (2002).

Disbarment Held Not Appropriate. - Though an attorney violated the disciplinary rules regarding trust accounts by commingling funds and failing to keep proper records, as there was no evidence that he benefitted from this misconduct, or that any client was harmed by it, the order disbarring him was reversed as an abuse of discretion. N.C. State Bar v. Talford, 147 N.C. App. 581, 556 S.E.2d 344 (2001).

Disbarment Held Proper. - Attorney was properly disbarred after the attorney failed to properly maintain a trust account and commingled client funds and operational funds; implicit in the finding that the attorney violated N.C. R. Prof. Conduct 8.4(b) and (c), was a determination that the attorney's misconduct posed a significant potential harm to clients. N.C. State Bar v. Leonard, 178 N.C. App. 432, 632 S.E.2d 183 (2006), review denied, - N.C. - , 641 S.E.2d 693 (2006), review denied, 361 N.C. 220, - S.E.2d - (2007).

Disciplinary Hearing Commission(DHC) properly disbarred an attorney for embezzling client funds because there was substantial evidence that the attorney knowingly and willfully misappropriated client funds, the Rules of Professional Conduct did not require a conviction, the attorney's actions harmed the attorney's clients, the administration of justice, the profession, and the public, and the DHC considered all lesser sanctions and explained why disbarment was the only adequate sanction. N.C. State Bar v. Simmons, 233 N.C. App. 669, 757 S.E.2d 357 (2014).

Attorney's disbarment was reversed since the statutory scheme in G.S. 84-28 clearly evidenced an intent to punish attorneys in an escalating fashion, keyed to the harm or potential harm created by the misconduct and a demonstrable need to protect the public; the North Carolina Disciplinary Hearing Commission did not expressly address how the attorney's failure to maintain accurate records might result in harm to a client, the public, or the legal profession, and therefore, the Commission exceeded its statutory authority when it disbarred the attorney. N.C. State Bar v. Talford, 356 N.C. 626, 576 S.E.2d 305 (2003).

Admonishment. - Disciplinary commission did not err by ordering the issuance of an admonition as opposed to a less serious sanction for the attorney's misconduct in stating on his letterhead and website that he had been published in the federal appellate court reporter; a showing of public harm was not required and such discipline was within the statutory limits of G.S. 84-28. N.C. State Bar v. Culbertson, 177 N.C. App. 89, 627 S.E.2d 644 (2006).

III. APPEALS.

.

Editor's Note. - Some of the cases below were decided prior to subsequent amendments to the provisions in this section relating to appeals.

Test on Appeal. - Due process does not require the "clear, cogent and convincing" test in determining whether plaintiff satisfied its burden of proof rather than the "greater weight of the evidence" rule. North Carolina State Bar v. DuMont, 304 N.C. 627, 286 S.E.2d 89 (1982).

"Whole Record" Test. - The test for determining whether the findings of the disciplinary committee are supported by the evidence is the "whole record" test. Under this test there must be substantial evidence, based on a review of the record, to support the committee's findings, conclusions and results. North Carolina State Bar v. Wilson, 74 N.C. App. 777, 330 S.E.2d 280 (1985).

Disciplinary commission's finding that the attorney's statements on his letterhead and website to the effect that the attorney had been published in the federal appellate court reporter were inherently misleading in multiple respects was supported by the "whole record" test; analysis of the whole record showed that the disciplinary commission's finding was supported by substantial evidence and no abuse of discretion was shown in thus ordering as discipline that he be admonished. N.C. State Bar v. Culbertson, 177 N.C. App. 89, 627 S.E.2d 644 (2006).

"Whole record test" is standard for judicial review of attorney discipline cases and requires the reviewing court to consider the evidence which in and of itself justifies or supports the administrative findings and also to take into account the contradictory evidence or evidence from which conflicting inferences can be drawn. The evidence is substantial if, when considered as a whole, it is such that a reasonable person might accept as adequate to support a conclusion. North Carolina State Bar v. Speckman, 87 N.C. App. 116, 360 S.E.2d 129 (1987).

Appeals from Decisions of State Bar Disciplinary Hearing Commission. - Article 4 of Chapter 150A (see now G.S. 150B-43 et seq.) is the controlling judicial review statute for appeals from decisions of the State Bar Disciplinary Hearing Commission. North Carolina State Bar v. DuMont, 304 N.C. 627, 286 S.E.2d 89 (1982).

Clear, cogent, and convincing evidence supported the Disciplinary Hearing Commission's findings and conclusions that the attorney violated N.C. Rev. R. Prof. Conduct Rule 1.16, regarding the termination of representation, Rule 1.3, about neglecting client matters, and Rule 8.4, prejudicing the administration of justice, in violation of an earlier Consent Order of Discipline resulting in the attorney's license suspension. The attorney's conduct violated those rules because the attorney stopped representing the client when the client notified the attorney that she could not pay an additional sum to represent the client on probation violation matters, and the attorney did not obtain permission from the trial court to withdraw from representing her after the attorney had appeared on her behalf. N.C. State Bar v. Key, 187 N.C. App. 616, 654 S.E.2d 55 (2007), aff'd on rehearing, 658 S.E.2d 493, 2008 N.C. App. LEXIS 425 (2008).

State Has Right to Appeal. - Under the statutory method of disciplinary attorneys any party, including the attorney in question and the State Bar, may appeal from a decision of the disciplinary hearing commission. In re Palmer, 296 N.C. 638, 252 S.E.2d 784 (1979).

The State may seek review by the appellate division of proceedings disciplining attorneys under the judicial method, not as a matter of right, but by petition for writ of certiorari. In re Palmer, 296 N.C. 638, 252 S.E.2d 784 (1979).

Duty of Judge on Appeal from Council. - It is the duty of the superior court judge, on appeal from the council, to consider the evidence and give his own opinion and conclusion, both upon the facts and the law. He is not permitted to do this in a perfunctory way, but he must deliberate and decide as in other cases, use his own faculties in ascertaining the truth, and form his own judgment as to fact and law. North Carolina State Bar v. Frazier, 269 N.C. 625, 153 S.E.2d 367, cert. denied, 389 U.S. 826, 88 S. Ct. 69, 19 L. Ed. 2d 81 (1967).

Power of Judge with Respect to Report of Council. - Since this section provides that the proceedings in the superior court shall be in accordance with the laws and rules relating to civil actions in which there has been a reference by consent, the judge of the superior court may affirm, amend, modify, set aside, make additional findings, and confirm in whole or in part, or disaffirm the report of the council. North Carolina State Bar v. Frazier, 269 N.C. 625, 153 S.E.2d 367, cert. denied, 389 U.S. 826, 88 S. Ct. 69, 19 L. Ed. 2d 81 (1967).

Power of Reviewing Court to Change Discipline. - Subsection (h) of this section does not give a reviewing court the authority to modify or change the discipline properly imposed by the commission. North Carolina State Bar v. DuMont, 304 N.C. 627, 286 S.E.2d 89 (1982).

Power of Reviewing Court to Modify or Change Imposed Punishment. - So long as the punishment imposed is within the limits allowed by the statute the court does not have the authority to modify or change it. North Carolina State Bar v. Nelson, 107 N.C. App. 543, 421 S.E.2d 163 (1992), aff'd per curiam, 333 N.C. 786, 429 S.E.2d 716 (1993).

Imposition of Greater Punishment on Appeal to Superior Court. - On appeal from disciplinary action taken by the State Bar, an attorney cannot complain that the punishment imposed by the superior court was greater than the punishment imposed by the council of the State Bar from which he had appealed. North Carolina State Bar v. Frazier, 269 N.C. 625, 153 S.E.2d 367, cert. denied, 389 U.S. 826, 88 S. Ct. 69, 19 L. Ed. 2d 81 (1967).

Jurisdiction Lacking - Court of Appeals of North Carolina lacked jurisdiction to hear the State Bar of North Carolina's appeal of a grant of summary judgment to an attorney in a disciplinary proceeding because G.S. 84-28(h) provided no appeal from a final order that did not impose discipline and in the instant case, no discipline had been imposed. N.C. State Bar v. Rudisill, 159 N.C. App. 704, 583 S.E.2d 413 (2003).

Collateral Attack on State Bar Decision to Disbar Attorney. - Former attorney's suit, alleging that the North Carolina State Bar's decision disbarring him was contrary to a State supreme court decision decided five years after his disbarment and seeking declaratory and injunctive relief on certain constitutional arguments, was properly dismissed because, while the Bar was not a court of competent jurisdiction, the attorney could not present his claims in superior court because they were a collateral attack on a final judgment properly entered by the Bar, and the attorney did not avail himself of his right of appeal to the court under G.S. 84-28(h); even assuming that the attorney's case was factually similar to the State supreme court's decision, nothing in the opinion indicated that the decision was retroactive to cases finalized prior to the decision. Clayton v. N.C. State Bar, 168 N.C. App. 717, 608 S.E.2d 821 (2005), cert. denied, - N.C. - , 615 S.E.2d 867 (2005).

Failure to Appeal Renders Order Final and Insulated from Collateral Attack. - Petitioner, a suspended lawyer, filed a motion for reinstatement of his license to practice law. However, the lawyer was required to petition for such relief in the form and subject to the substantive rules set out in 27 N.C. Admin. Code § 01B.0125(b); his motion also represented an impermissible collateral attack on the Disciplinary Hearing Commission's order refusing to reinstate his law license. When the lawyer failed to seek appellate review of the denial of his reinstatement petition in a timely manner, the order refusing to reinstate his license to practice law became final and thus was insulated from collateral attack. In re McGee, 217 N.C. App. 325, 719 S.E.2d 222 (2011), review denied 365 N.C. 557, 722 S.E.2d 596, 2012 N.C. LEXIS 142 (2012).


§ 84-28.1. Disciplinary hearing commission.

  1. There shall be a disciplinary hearing commission of the North Carolina State Bar which shall consist of 20 members. Twelve of these members shall be members of the North Carolina State Bar, and shall be appointed by the Council. The other eight shall be citizens of North Carolina not licensed to practice law in this or any other state, four of whom shall be appointed by the Governor, two by the General Assembly upon the recommendation of the President Pro Tempore of the Senate in accordance with G.S. 120-121, and two by the General Assembly upon the recommendation of the Speaker of the House of Representatives in accordance with G.S. 120-121. The Council shall designate one of its appointees as chair and another as vice-chair. The chair shall have actively practiced law in the courts of the State for at least 10 years. Except as set out herein, the terms of members of the commission are set at three years commencing on the first day of July of the year of their appointment. The Council, the Governor, and the General Assembly respectively, shall appoint members to fill unexpired terms when vacancies are created by resignation, disqualification, disability or death, except that vacancies in appointments made by the General Assembly may also be filled as provided by G.S. 120-122. No member may serve more than a total of seven years or a one-year term and two consecutive three-year terms: Provided, that any member or former member who is designated chair 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 of the disciplinary hearing commission, may hold hearings in discipline, incapacity and disability matters, make findings of fact and conclusions of law after these hearings, enter orders necessary to carry out the duties delegated to it by the Council, and tax the costs to an attorney who is disciplined or is found to be incapacitated or disabled.
  3. The disciplinary hearing commission of the North Carolina State Bar, or any committee thereof, acting through its chairman, shall have the power to hold persons, firms or corporations in contempt as provided in Chapter 5A.
  4. 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.

History

(1975, c. 582, s. 6; 1979, c. 570, s. 8; 1983, c. 390, s. 4; 1995, c. 431, s. 19; c. 490, s. 51; 2003-116, s. 3; 2005-396, s. 3.)

CASE NOTES

Jurisdiction. - Proceedings before the North Carolina State Bar Disciplinary Hearing Commission to discipline a sitting judge were dismissed because only the North Carolina Supreme Court or the North Carolina Judicial Standards Commission had jurisdiction to discipline sitting judges for conduct in office. N.C. State Bar v. Tillett, 369 N.C. 264, 794 S.E.2d 743 (2016).

Public Duty Doctrine Applied to Claim Against Disciplinary Hearing Commission. - Disbarred attorney's claim against the Disciplinary Hearing Commission for negligent infliction of emotional distress in the performance of its duties came under the public duty doctrine, since the Commission was acting within its statutory authority under this section when it held plaintiff in criminal contempt. Frazier v. Murray, 135 N.C. App. 43, 519 S.E.2d 525 (1999).

The Disciplinary Hearing Commission had contempt power over a plaintiff who has already been disbarred and the right to lawfully exercise that contempt power. Disciplinary Hearing Comm'n v. Frazier, 141 N.C. App. 514, 540 S.E.2d 758 (2000), cert. granted sub nom. North Carolina State Bar v. Frazier, 353 N.C. 378, 547 S.E.2d 434 (2001).

State Bar Disciplinary Hearing Commission did not have authority to discipline previously disbarred attorney or find him in criminal contempt for unauthorized practice of law because its authority was extinguished following disbarment; the process of seeking criminal sanctions for the unlawful practice of law was under the exclusive control of district attorneys. Disciplinary Hearing Comm'n of the N.C. State Bar v. Frazier, 354 N.C. 555, 556 S.E.2d 262 (2001).

Procedure. - Disciplinary Hearing Commission (DHC) properly denied an attorney's motion for separate hearings on charges that he made false statements and committed other acts of misconduct while representing a client in one case, and while he was involved in a dispute with his neighbors in a separate case, and the DHC did not err when it considered evidence that the attorney had two misdemeanor convictions and had previously received a letter of warning from the State Bar when it determined an appropriate sanction. N.C. State Bar v. Rogers, 164 N.C. App. 648, 596 S.E.2d 337 (2004).

Applied in North Carolina State Bar v. Braswell, 67 N.C. App. 456, 313 S.E.2d 272 (1984); Gilbert v. N.C. State Bar, 363 N.C. 70, 678 S.E.2d 602 (2009).

Cited in North Carolina State Bar v. DuMont, 298 N.C. 564, 259 S.E.2d 280 (1979); North Carolina State Bar v. DuMont, 304 N.C. 627, 286 S.E.2d 89 (1982); North Carolina State Bar v. Frazier, 62 N.C. App. 172, 302 S.E.2d 648 (1983); In re McGee, 217 N.C. App. 325, 719 S.E.2d 222 (2011), review denied 365 N.C. 557, 722 S.E.2d 596, 2012 N.C. LEXIS 142 (2012).


§ 84-28.2. 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 board, committee, officer, agent or employee thereof, or given in any investigation or proceedings, pertaining to alleged misconduct 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 this use.

History

(1975, c. 582, s. 4; 1995, c. 431, s. 20.)

CASE NOTES

Cited in Wallace v. Jarvis, 119 N.C. App. 582, 459 S.E.2d 44 (1995); Snyder v. Learning Servs. Corp., 187 N.C. App. 480, 653 S.E.2d 548 (2007).


§ 84-29. Evidence and witnesses.

In any investigation of charges of professional misconduct or disability or in petitions for reinstatement, 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 chair 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 or a hearing committee of the disciplinary hearing commission through its chair pursuant to the procedures set out in Chapter 5A of the General Statutes, 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, the party shall be taxed with the cost of the hearings: Provided, however, that the bill of costs shall not include any compensation to the members of the Council or committee before whom the hearings are conducted.

History

(1933, c. 210, s. 12; 1959, c. 1282, s. 2; 1975, c. 582, s. 7; 1983, c. 390, s. 6; 1995, c. 431, s. 21.)

CASE NOTES

Construction with Fifth Amendment Rights. - This section did not cause the defendant to be compelled in violation of his constitutional rights by the State bar to provide information which would later be used against him in a perjury case where he, acting of his own volition, made statements to the bar investigator. The record does not indicate that these statements were extracted under the power of a subpoena; and the defendant was not in custody at the time these statements were made. The defendant could have asserted his Fifth Amendment privilege during the bar proceedings although the protection would not have extended to any records that he was required by law to maintain. State v. Linney, 138 N.C. App. 169, 531 S.E.2d 245 (2000).

Cited in North Carolina State Bar v. Speckman, 87 N.C. App. 116, 360 S.E.2d 129 (1987).


§ 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.

History

(1933, c. 210, s. 13; 1959, c. 1282, s. 2; 1975, c. 582, s. 8.)

CASE NOTES

Deprivation of Right to Practice Is Judicial Act Requiring Due Process. - The granting of a license to engage in business or practice a profession is a right conferred by administrative act, but the deprivation of the right is a judicial act requiring due process. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962); In re Palmer, 32 N.C. App. 449, 232 S.E.2d 497 (1977), rev'd on other grounds, 296 N.C. 638, 252 S.E.2d 784 (1979).

Applied in Gilbert v. N.C. State Bar, 363 N.C. 70, 678 S.E.2d 602 (2009).

Cited in North Carolina State Bar v. Frazier, 62 N.C. App. 172, 302 S.E.2d 648 (1983).


§ 84-31. Counsel; investigators; powers; compensation.

The Council may appoint a member of the North Carolina State Bar to represent the North Carolina State Bar in any proceedings in which it has an interest including reinstatement and the prosecution of charges of misconduct or disability in the hearings that are held, including appeals, and may authorize counsel to employ assistant counsel, investigators, and administrative assistants in such numbers as it deems necessary. Counsel and investigators engaged in discipline, reinstatement, 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.

History

(1933, c. 210, s. 14; 1969, c. 44, s. 62; 1975, c. 582, s. 9; 1995, c. 431, s. 22.)

CASE NOTES

Cited in North Carolina State Bar v. Harris, 137 N.C. App. 207, 527 S.E.2d 728 (2000).


§ 84-32. Records and judgments and their effect; restoration of licenses.

  1. In cases heard by the disciplinary hearing commission or any committee thereof, the proceedings shall be recorded by a certified court reporter and an official copy of all exhibits introduced into evidence shall be made and preserved in the office of the secretary-treasurer. Final judgments of censure, whether issued by the State Bar Grievance Committee or the disciplinary hearing commission, and final orders of suspension or disbarment issued by the disciplinary hearing commission shall be entered upon the judgment docket of the superior court in the district wherein the respondent resides or practices law, and also upon the minutes of the Supreme Court of North Carolina; and the judgment shall be effective throughout the State. Final determinations of incapacity or disability, whether issued by the State Bar Grievance Committee or the disciplinary hearing commission, shall be entered upon the judgment docket of the superior court in the same manner as final judgments of censure, suspension, or disbarment, and the determination shall be effective throughout the State.
  2. Whenever any attorney desires to voluntarily surrender his license, the attorney must tender the license and a written resignation to the Council. The Council, in its discretion, may accept or reject the tender. If the tender is accepted, the Council shall enter an order of disbarment. A copy of any order of disbarment shall be filed with the clerk of the superior court of the county where the respondent resides, maintains an office, or practices law and also upon the minutes of the Supreme Court of North Carolina. The judgment shall be effective throughout the State.
  3. Whenever any attorney has been deprived of the attorney's license by suspension or disbarment, the Council or the disciplinary hearing commission or the secretary-treasurer may, in accordance with rules and regulations prescribed by the Council, restore the license upon due notice being given and satisfactory evidence produced of proper reformation of the suspended or disbarred attorney and of satisfaction of any conditions precedent to restoration.
  4. The Council has jurisdiction to determine any petition seeking the reinstatement of the license of any attorney disbarred or suspended by any court in its inherent power when requested by the court. The proceeding shall be governed by the rules and regulations adopted by the Council. The disbarred or suspended attorney shall satisfy all conditions precedent to reinstatement generally imposed upon attorneys disbarred or suspended by the disciplinary hearing commission or the Council, as well as any conditions imposed by the court. Under no circumstances shall an attorney disbarred by a court or by the North Carolina State Bar be reinstated prior to five years from the effective date of the order of disbarment.

History

(1933, c. 210, s. 15; 1935, c. 74, s. 2; 1953, c. 1310, s. 4; 1959, c. 1282, s. 2; 1975, c. 582, s. 10; 1983, c. 390, s. 5; 1995, c. 431, s. 23; 2019-243, s. 9.)

Cross References. - As to issuance of written license upon restoration of license to practice, see G.S. 84-24.

Effect of Amendments. - Session Laws 2019-243, s. 9, effective November 6, 2019, in subsection (a), in the second sentence, inserted "censure, whether issued by the State Bar Grievance Committee or the disciplinary hearing commission, and final orders of" and inserted "issued by the disciplinary hearing commission"; and added the last sentence.

CASE NOTES

Constitutionality. - This section, giving the State Bar Council the discretion to reinstate the license to practice law of a disbarred attorney is not an unconstitutional delegation of legislative power. In re Garrison, 44 N.C. App. 158, 260 S.E.2d 445 (1979), cert. denied, 299 N.C. 545, 265 S.E.2d 404 (1980).

The council did not err in the denial of petitioner's application for reinstatement of his license to practice law where there was evidence that petitioner had compromised four of the six civil judgments rendered against him but had failed to make restitution for two outstanding judgments against him in excess of $30,000, which he had been unable to compromise, and that petitioner also renounced funds which would have enabled him to help satisfy the judgments against him. Petitioner's willingness to satisfy only the judgments that could be compromised, while failing to satisfy those not the subject of compromise, is evidence of the lack of proper reformation required by the statute. In re Garrison, 44 N.C. App. 158, 260 S.E.2d 445 (1979), cert. denied, 299 N.C. 545, 265 S.E.2d 404 (1980).


§ 84-32.1. Confidentiality of records.

  1. All documents, papers, letters, recordings, electronic records, or other documentary materials, regardless of physical form or characteristic, in the possession of the State Bar or its staff, employees, legal counsel, councilors, and Grievance Committee advisory members concerning any investigation, inquiry, complaint, disability, or disciplinary matter in connection with the State Bar Grievance Committee, the State Bar's Trust Accounting Supervisory Program, or any audit of an attorney trust account shall not be considered public records within the meaning of Chapter 132 of the General Statutes.
  2. All documents, papers, letters, recordings, electronic records, or other documentary materials containing or reflecting the deliberations of the Disciplinary Hearing Commission in disciplinary or disability matters shall not be considered public records within the meaning of Chapter 132 of the General Statutes.
  3. Notwithstanding any other provision of this section, any record, paper, or other document containing information collected and compiled by or on behalf of the State Bar that is admitted as evidence in any hearing before the Disciplinary Hearing Commission, or any court or tribunal, shall be a public record within the meaning of Chapter 132 of the General Statutes unless it is admitted into evidence under seal by order of the Disciplinary Hearing Commission, or the court or tribunal in which the proceeding is held.
  4. All documents, papers, letters, recordings, electronic records, or other documentary materials in the possession of the State Bar or its staff, employees, legal counsel, and Lawyer Assistance Program volunteers, relating in any way to a member's participation or prospective participation in the Lawyer Assistance Program, including, but not limited to, any medical, counseling, substance abuse, or mental health records, shall not be considered public records within the meaning of Chapter 132 of the General Statutes. Neither the State Bar nor any person acting under the authority of the State Bar or of the Lawyer Assistance Program shall be required to produce or testify regarding the contents or existence of such documents.

History

(2011-267, s. 5.)

§ 84-33. Annual and special meetings.

The Council shall hold an annual meeting and other meetings necessary to conduct the business of the North Carolina State Bar.

History

(1933, c. 210, s. 16; 1969, c. 104; 1995, c. 431, s. 24.)

§ 84-34. Membership fees and list of members.

Every active member of the North Carolina State Bar shall, prior to the first day of July of each year, pay to the secretary-treasurer an annual membership fee in an amount determined by the Council but not to exceed three hundred dollars ($300.00), and every member shall notify the secretary-treasurer of the member's correct mailing address. Any member who fails to pay the required dues by the last day of June of each year shall be subject to a late fee in an amount determined by the Council but not to exceed thirty dollars ($30.00). All dues for prior years shall be as were set forth in the General Statutes then in effect. The membership fee shall be regarded as a service charge for the maintenance of the several services authorized by this Article, and shall be in addition to all fees required in connection with admissions to practice, and in addition to all license taxes required by law. The fee shall not be prorated: Provided, that no fee shall be required of an attorney licensed after this Article shall have gone into effect until the first day of January of the calendar year following that in which the attorney was licensed; but this proviso shall not apply to attorneys from other states admitted on certificate. The fees shall be disbursed by the secretary-treasurer on the order of the Council. The secretary-treasurer shall annually, at a time and in a law magazine or daily newspaper to be prescribed by the Council, publish an account of the financial transactions of the Council in a form to be prescribed by it. The secretary-treasurer shall compile and keep currently correct from the names and mailing addresses forwarded to the secretary-treasurer and from any other available sources of information a list of members of the North Carolina State Bar and furnish to the clerk of the superior court in each county, not later than the first day of October in each year, a list showing the name and address of each attorney for that county who has not complied with the provisions of this Article. The name of each of the active members who are in arrears in the payment of membership fees shall be furnished to the presiding judge at the next term of the superior court after the first day of October of each year, by the clerk of the superior court of each county wherein the member or members reside, and the court shall thereupon take action that is necessary and proper. The names and addresses of attorneys so certified shall be kept available to the public. The Secretary of Revenue is hereby directed to supply the secretary-treasurer, from records of license tax payments, with any information for which the secretary-treasurer may call in order to enable the secretary-treasurer to comply with this requirement.

The list submitted to several clerks of the superior court shall also be submitted to the Council at its October meeting of each year and it shall take the action thereon that is necessary and proper.

History

(1933, c. 210, s. 17; 1939, c. 21, ss. 2, 3; 1953, c. 1310, s. 5; 1955, c. 651, s. 4; 1961, c. 760; 1971, c. 18; 1973, c. 476, s. 193; c. 1152, s. 4; 1977, c. 841, s. 2; 1981, c. 788, s. 5; 1989, c. 172, s. 1; 1995, c. 431, s. 25; 2005-237, s. 2; 2005-276, s. 23A.1(a); 2013-360, s. 21.1(b); 2013-381, s. 38.1(d).)

Cross References. - As to who is an active member, see G.S. 84-16.

Editor's Note. - Session Laws 2005-276, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2005'."

Session Laws 2005-276, s. 46.5 is a severability clause.

This section was amended in 2013 by two different Session Laws that made identical changes, but which gave the amendment different effective dates. Session Laws 2013-360, s. 21.1(b), amended this section effective July 1, 2013. Session Laws 2013-381, s. 38.1(d), amended this section effective for taxable years beginning on or after January 1, 2013. The effective date for Session Laws 2013-381, s. 38.1(d), in s. 38.1(p) of that act, appears to have been intended to refer to s. 38.1(e) or (f), or both, as they pertain to tax provisions.

Session Laws 2013-360, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2013.'"

Session Laws 2013-360, s. 38.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium."

Session Laws 2013-360, s. 38.5 is a severability clause.

Session Laws 2013-381, s. 38.1(p), makes the amendments to this section by Session Laws 2013-381, s. 38.1(d), effective for taxable years beginning on or after January 1, 2013, and provides: "The fifty percent (50%) of the funds directed to be paid in 2013 under G.S. 163-278.41(c) (now repealed) in 2013 shall be disbursed as provided by law. Unexpended funds shall remain in the reserve until December 31, 2013, at which time those funds shall revert to the General Fund."

Effect of Amendments. - Session Laws 2005-276, s. 23A.1(a), effective January 1, 2006, and applicable to the membership fees due for 2006, inserted "plus a surcharge of fifty dollars ($50.00) for the implementation of Article 22D of Chapter 163 of the General Statutes" in the first sentence, and added the seventh sentence in the first paragraph.

Session Laws 2013-360, s. 21.1(b), effective July 1, 2013, deleted "plus a surcharge of fifty dollars ($50.00) for the implementation of Article 22D of Chapter 163 of the General Statutes" following "three hundred dollars ($300.00)" and deleted the former seventh sentence, which read "The fifty-dollar ($50.00) surcharge shall be sent on a monthly schedule to the State Board of Elections."

Session Laws 2013-381, s. 38.1(d), effective for taxable years beginning on or after January 1, 2013, deleted "plus a surcharge of fifty dollars ($50.00) for the implementation of Article 22D of Chapter 163 of the General Statutes" following "($300.00)" in the first sentence, and deleted the former seventh sentence, which read "The fifth-dollar ($50.00) surcharge shall be sent on a monthly schedule to the State Board of Elections."

CASE NOTES

Applied in N.C. Sch. Bds. Ass'n v. Moore, 160 N.C. App. 253, 585 S.E.2d 418 (2003).


§ 84-34.1. Deposits of the North Carolina State Bar.

Deposits of the North Carolina State Bar, its boards, agencies, and committees shall be secured as provided in G.S. 159-31(b).

History

(1991, c. 210, s. 3.)

§ 84-34.2. Specific statutory authority for certain fees.

In addition to fees the Council is elsewhere authorized to charge and collect, the Council may charge and collect the following fees in amounts determined by the Council:

  1. A reinstatement fee for any attorney seeking reinstatement from inactive status, administrative suspension, or suspension for failure to comply with the annual continuing legal education requirements.
  2. A registration fee and annual renewal fee for an interstate or international law firm.
  3. An attendance fee for continuing legal education programs that may include a fee to support the Chief Justice's Commission on Professionalism.
  4. A late fee for failing to file timely the continuing legal education annual report form, for failure to pay attendance fees, or failure to complete the annual continuing legal education requirements.
  5. An administrative fee for any attorney against whom discipline has been imposed.

History

(2005-396, s. 7.)

CASE NOTES

Authority to Order Payment of Administrative Costs. - Lawyer's sanction for professional misconduct properly included payment of administrative costs for disciplinary proceedings because such a sanction was statutorily authorized. N.C. State Bar v. Livingston, 257 N.C. App. 121, 809 S.E.2d 183 (2017), cert. denied, 812 S.E.2d 853, 2018 N.C. LEXIS 380 (2018).

Cited in N.C. State Bar v. Sutton, 250 N.C. App. 85, 791 S.E.2d 881 (2016), appeal dismissed, 797 S.E.2d 296, 2017 N.C. LEXIS 223 (2017).


§ 84-35. Saving as to North Carolina Bar Association.

Nothing in this Article contained shall be construed as affecting in any way the North Carolina Bar Association, or any local bar association.

History

(1933, c. 210, s. 18.)

§ 84-36. Inherent powers of courts unaffected.

Nothing contained in this Article shall be construed as disabling or abridging the inherent powers of the court to deal with its attorneys.

History

(1937, c. 51, s. 4.)

CASE NOTES

In North Carolina there are two methods by which disciplinary action or disbarment may be imposed upon attorneys - statutory and judicial. In re Northwestern Bonding Co., 16 N.C. App. 272, 192 S.E.2d 33, cert. denied, 282 N.C. 426, 192 S.E.2d 837 (1972).

Concurrent Power of Supreme Court and Bar to Regulate Conduct of Attorneys. - While questions of propriety and ethics are ordinarily for the consideration of the bar, because that organization was expressly created by the legislature to deal with such questions, nevertheless the power to regulate the conduct of attorneys is held concurrently by the Bar and the Supreme Court. Therefore, in a proper case, the Court may rule on questions concerning the conduct of attorneys. Gardner v. North Carolina State Bar, 316 N.C. 285, 341 S.E.2d 517 (1986).

Powers of Court Distinguished from Powers Granted to State Bar. - This inherent power is co-equal and co-extensive with the statutory grant of powers to the North Carolina State Bar, and, while the interests of the two entities having disciplinary jurisdiction may, and often do, overlap, they are not always identical and as the interests sought to be protected by the court's inherent power are distinct from those of the North Carolina State Bar, the action of a court in disciplining or disqualifying an attorney practicing before it is not in derogation or to the exclusion of similar action by the Bar. Swenson v. Thibaut, 39 N.C. App. 77, 250 S.E.2d 279 (1978), cert. denied and appeal dismissed, 296 N.C. 740, 254 S.E.2d 181, 296 N.C. 740, 254 S.E.2d 182, 296 N.C. 740, 254 S.E.2d 183 (1979).

The power of the court to regulate and discipline attorneys is an inherent one because it is an essential one for the court to possess in order for it to protect itself from fraud and impropriety and to serve the ends of the administration of justice which are, fundamentally, the raison d'etre for the existence and operation of the courts. Swenson v. Thibaut, 39 N.C. App. 77, 250 S.E.2d 279 (1978), cert. denied and appeal dismissed, 296 N.C. 740, 254 S.E.2d 181, 296 N.C. 740, 254 S.E.2d 182, 296 N.C. 740, 254 S.E.2d 183 (1979).

The court's inherent power is not limited or bound by the technical precepts contained in the Code of Professional Responsibility as administered by the Bar. Swenson v. Thibaut, 39 N.C. App. 77, 250 S.E.2d 279 (1978), cert. denied and appeal dismissed, 296 N.C. 740, 254 S.E.2d 181, 296 N.C. 740, 254 S.E.2d 182, 296 N.C. 740, 254 S.E.2d 183 (1979).

Suspension of Attorney as Sanction. - Trial judge had the authority, recognized in G.S. 84-36, to sanction an attorney, and the sanction of a one-year suspension imposed by the judge was not an abuse of discretion; the attorney willfully abandoned a client at the client's probation hearing, refused to represent the client when confronted with his ethical and legal obligations by the trial judge, made comments questioning the authority of the judge, made an obscene reference to the judge, and behaved rudely towards the courtroom clerk. In re Key, 182 N.C. App. 714, 643 S.E.2d 452 (2007), cert. denied, 361 N.C. 428, 648 S.E.2d 506 (2007).

General Assembly Cannot Abridge Inherent Power. - The existence of inherent judicial power is not dependent upon legislative action; however, the General Assembly has recognized the existence of the inherent power of the court and the General Assembly cannot abridge that power. Beard v. North Carolina State Bar, 320 N.C. 126, 357 S.E.2d 694 (1987).

The Judicial Method Is Not Dependent upon Statutory Authority. - It arises because of a court's inherent authority to take disciplinary action against attorneys licensed before it; an authority which extends even to matters which are not pending in the particular court exercising the authority. In re Northwestern Bonding Co., 16 N.C. App. 272, 192 S.E.2d 33, cert. denied, 282 N.C. 426, 192 S.E.2d 837 (1972); In re Paul, 84 N.C. App. 491, 353 S.E.2d 254, cert. denied, 319 N.C. 673, 356 S.E.2d 779 (1987).

Basis of Court's Power. - A court's power is based upon the relationship of the attorney to the court and the authority which the court has over its own officers to prevent them from, or punish them for, acts of dishonesty or impro- priety calculated to bring contempt upon the administration of justice. In re Northwestern Bonding Co., 16 N.C. App. 272, 192 S.E.2d 33, cert. denied, 282 N.C. 426, 192 S.E.2d 837 (1972).

Form of Disciplinary Action. - Judicial disciplinary action may take the form of an order of disbarment or suspension of the attorney's privilege to practice law. In re Paul, 84 N.C. App. 491, 353 S.E.2d 254, cert. denied, 319 N.C. 673, 356 S.E.2d 779 (1987).

Statutory Method of Disbarment Not Exclusive. - C.S., §§ 204 and 205, restricting the power of courts to disbar attorneys, were repealed by Laws 1933, c. 210, s. 20, and the statutory method of disbarment provided by the act of 1933 is not exclusive, but on the contrary the act recognizes the inherent power of the courts, and the courts have jurisdiction to order the disbarment of an attorney upon his conviction of an infamous misdemeanor, converted to a felony by G.S. 14-1 and 14-3. State v. Spivey, 213 N.C. 45, 195 S.E. 1 (1938). See also State ex rel. McLean v. Johnson, 174 N.C. 345, 93 S.E. 847 (1917).

Due Process Required. - While it is incontrovertible that the courts have inherent authority to take disciplinary action against attorneys practicing therein, even in relation to matters not pending in the particular court exercising that authority, it is not after the manner of the courts, however, to deprive a lawyer, any more than anyone else, of his constitutional guaranties or to revoke his license without due process of law. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962).

No statute provides for a jury trial when the judicial method is employed to seek disciplinary action against an attorney practicing in this State. In re Northwestern Bonding Co., 16 N.C. App. 272, 192 S.E.2d 33, cert. denied, 282 N.C. 426, 192 S.E.2d 837 (1972).

This State has never had a statute which expressly conferred upon an attorney the right to a trial by jury in a judicial disciplining or disbarment proceeding. Since no such right existed at common law, or by statute at the time our Constitution was adopted, and is not now provided for by statute, appellant's motion for a trial by jury was properly denied. In re Northwestern Bonding Co., 16 N.C. App. 272, 192 S.E.2d 33, cert. denied, 282 N.C. 426, 192 S.E.2d 837 (1972).

Due Process Procedures Under Judicial Method. - Under the judicial method, the procedure, to meet the test of due process, must be initiated by a sworn written complaint, and the court should issue a rule or order advising the attorney of the specific charges, directing him to show cause why disciplinary action should not be taken, and granting a reasonable time for answering and preparation of defense, and attorney should be given full opportunity to be heard and permitted to have counsel for his defense; where issues of fact are raised the court may appoint a committee to investigate and make report. In re Northwestern Bonding Co., 16 N.C. App. 272, 192 S.E.2d 33, cert. denied, 282 N.C. 426, 192 S.E.2d 837 (1972).

Disbarment Order Supported by Contempt Conviction. - The trial court's findings of fact supported order disbarring respondent attorney, where respondent was convicted of contempt for soliciting someone to disrupt a criminal trial in which he, respondent, represented the defendant. In re Paul, 84 N.C. App. 491, 353 S.E.2d 254, cert. denied, 319 N.C. 673, 356 S.E.2d 779 (1987).

Error in Dismissing Grievance Filed with State Bar. - North Carolina State Bar and the trial courts of this State share concurrent jurisdiction over matters of attorney discipline; therefore, where individual filed a civil claim against attorney for alleged impropriety in handling an estate, and also filed a grievance with the State Bar alleging that the attorney's actions violated the Rules of Professional Conduct, the trial court erred in naming the State Bar as a party and dismissing the grievance proceeding against the defendant. North Carolina State Bar v. Randolph, 325 N.C. 699, 386 S.E.2d 185 (1989).

Client Security Fund Constitutional. - The order of the North Carolina Supreme Court establishing the Client Security Fund and requiring annual payments by attorneys to the Fund is an essential corollary to the court's function, was required for the proper administration of justice, and did not violate the North Carolina Constitution. Beard v. North Carolina State Bar, 320 N.C. 126, 357 S.E.2d 694 (1987).

Fee Dispute Resolution Did Not Abridge Authority of Courts. - Trial court did not err by dismissing an attorney's claim against his client for fees for lack of subject matter jurisdiction under G.S. 1A-1, Rule 12(b)(1), because jurisdiction over the fee dispute was vested with the North Carolina State Bar under N.C. R. Prof. Conduct 1.5(f) and 27 N.C. Admin. Code 01D.0702, depriving the trial court of jurisdiction to the claims until the fee dispute resolution process had concluded. This conclusion did not impermissibly disable or abridge the courts' inherent authority over attorney conduct in violation of G.S. 84-36. Cunningham v. Selman, 201 N.C. App. 270, 689 S.E.2d 517 (2009).

Cited in State v. Beach, 283 N.C. 261, 196 S.E.2d 214 (1973); In re Palmer, 32 N.C. App. 449, 232 S.E.2d 497 (1977); In re Beasley, 151 N.C. App. 569, 566 S.E.2d 125 (2002); Sisk v. Transylvania Cmty. Hosp., Inc., 364 N.C. 172, 695 S.E.2d 429 (June 17, 2010).


§ 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.

History

(1975, c. 582, s. 11.)

§ 84-37. State Bar may investigate and enjoin unauthorized activities.

  1. The Council or any committee appointed by it for that purpose may inquire into and investigate any charges or complaints of (i) unauthorized or unlawful practice of law or (ii) the use of the designations, "North Carolina Certified Paralegal," "North Carolina State Bar Certified Paralegal," or "Paralegal Certified by the North Carolina State Bar Board of Paralegal Certification," by individuals who have not been certified in accordance with the rules adopted by the North Carolina State Bar. The Council may bring or cause to be brought and maintained in the name of the North Carolina State Bar an action or actions, upon information or upon the complaint of any person or entity against any person or entity that engages in rendering any legal service, holds himself or herself out as a North Carolina certified paralegal by use of the designations set forth in this subsection, or makes it a practice or business to render legal services that are unauthorized or prohibited by law. No bond for cost shall be required in the proceeding.
  2. In an action brought under this section, the final judgment if in favor of the plaintiff shall perpetually restrain the defendant or defendants from the commission or continuance of the unauthorized or unlawful act or acts. A temporary injunction to restrain the commission or continuance of the act or acts may be granted upon proof or by affidavit, that the defendant or defendants have violated any of the laws applicable to unauthorized or unlawful practice of law or the unauthorized use of the designations set forth in subsection (a) of this section or any other designation implying certification by the State Bar. The provisions of law relating generally to injunctions as provisional remedies in actions shall apply to a temporary injunction and the proceedings for temporary injunctions.
  3. The venue for actions brought under this section shall be the superior court of any county in which the relevant acts are alleged to have been committed or in which there appear reasonable grounds that they will be committed in the county where the defendants in the action reside, or in Wake County.
  4. The plaintiff in the action shall be entitled to examine the adverse party and witnesses before filing complaint and before trial in the same manner as provided by law for examining parties.
  5. This section shall not repeal or limit any remedy now provided in cases of unauthorized or unlawful practice of law. Nothing contained in this section shall be construed as disabling or abridging the inherent powers of the court in these matters.
  6. The Council or its duly appointed committee may issue advisory opinions in response to inquiries from members or the public regarding whether contemplated conduct would constitute the unauthorized practice of law.

History

(1939, c. 281; 1979, c. 570, s. 9; 1995, c. 431, s. 26; 2004-174, s. 2.)

Cross References. - As to the power of any district attorney of any of the superior courts to bring injunction or criminal proceedings, see G.S. 84-7.

Effect of Amendments. - Session Laws 2004-174, s. 2, effective October 1, 2004, substituted "activities" for "practice" in the section heading; rewrote subsections (a) and (b); in subsection (c), substituted "relevant acts" for "acts constituting unauthorized or unlawful practice of law" and deleted "or" following "committed"; in subsection (d), substituted "examine" for "examination of" and "examining" for "the examination of"; in subsection (e), substituted "limit" for "curtail," "law. Nothing" for "law, and nothing," and "in this section" for "herein"; substituted "may" for "has the authority to" in subsection (f); and made minor punctuation changes.

Legal Periodicals. - For comment on this section, see 17 N.C.L. Rev. 342 (1939).

CASE NOTES

Constitutionality. - State prosecutors were properly granted summary judgment in action to enjoin enforcement of North Carolina's unauthorized practice of law statutes because statutes did not unconstitutionally restrict trade association's associational rights, statutes survived intermediate scrutiny and did not unlawfully burden association's freedom of speech as state had established reasonable fit between statutes and substantial government interest in regulating legal profession to protect clients, statutes did not deny association due process as there was rational basis to restrict corporate ownership of professional businesses to protect consumers, statutes were not vague, and statutes did not violate state constitution's Monopoly Clause. Capital Associated Indus. v. Stein, 922 F.3d 198 (4th Cir. 2019), cert. denied, 140 S. Ct. 666, 205 L. Ed. 2d 438, 2019 U.S. LEXIS 7540 (U.S. 2019).

§ 84-38. Solicitation of retainer or contract for legal services prohibited; division of fees.

It shall be unlawful for any person, firm, corporation, or association or his or their agent, agents, or employees, acting on his or their behalf, to solicit or procure through solicitation either directly or indirectly, any legal business, whether to be performed in this State or elsewhere, or to solicit or procure through solicitation either directly or indirectly, a retainer or contract, written or oral, or any agreement authorizing an attorney or any other person, firm, corporation, or association to perform or render any legal services, whether to be performed in this State or elsewhere.

It shall be unlawful for any person, firm, corporation, or association to divide with or receive from any attorney-at-law, or group of attorneys-at-law, whether practicing in this State or elsewhere, either before or after action is brought, any portion of any fee or compensation charged or received by such attorney-at-law, or any valuable consideration or reward, as an inducement for placing or in consideration of being placed in the hands of such attorney or attorneys-at-law, or in the hands of another person, firm, corporation or association, a claim or demand of any kind, for the purpose of collecting such claim or instituting an action thereon or of representing claimant in the pursuit of any civil remedy for the recovery thereof, or for the settlement or compromise thereof, whether such compromise, settlement, recovery, suit, claim, collection or demand shall be in this State or elsewhere. This paragraph shall not apply to agreements between attorneys to divide compensation received in cases or matters legitimately, lawfully and properly received by them.

Any person, firm, corporation or association of persons violating the provisions of this section shall be guilty of a Class 1 misdemeanor.

The council of the North Carolina State Bar is hereby authorized and empowered to investigate and bring action against persons charged with violations of this section and the provisions as set forth in G.S. 84-37 shall apply. Nothing contained herein shall be construed to supersede the authority of district attorneys to seek injunctive relief or institute criminal proceedings in the same manner as provided for in G.S. 84-7. Nothing herein shall be construed as abridging the inherent powers of the courts to deal with such matters.

History

(1947, c. 573; 1973, c. 47, s. 2; 1993, c. 539, s. 599; 1994, Ex. Sess., c. 24, s. 14(c).)

Legal Periodicals. - For discussion of the purposes of this section, see 25 N.C.L. Rev. 379 (1947).

For article on lawyer advertising, see 18 Wake Forest L. Rev. 503 (1982).

CASE NOTES

No Civil Cause of Action. - Legislative codification of the common law offense of barratry in G.S. 84-38 does not provide a civil cause of action for the offense. DaimlerChrysler Corp. v. Kirkhart, 148 N.C. App. 572, 561 S.E.2d 276 (2002).

Cited in State v. Rogers, 68 N.C. App. 358, 315 S.E.2d 492 (1984).