On July 8, 2022, The N.C. State Bar adopted new regulations, pursuant to amended N.C. Gen. Stat. §§ 84-28 and 84-32.1. These regulations, which have yet to be certified by the N.C. Supreme Court, create a new appeal process of sorts. An attorney who receives proposed public discipline from the Grievance Committee may now request a review of that decision by a panel of five Grievance Committee members. These five members would not have heard Bar Counsel’s presentation or the grievance committee’s deliberations on the matter previously.
To fully appreciate what this means, it helps to have a basic understanding of the Grievance proceedings.
The Grievance Process
The grievance process generally begins when a complaint is filed with the State Bar. If the alleged conduct, when presumed to be true, would constitute a violation of the Rules of Professional Conduct, the attorney receives written notice of the complaint, along with a summary of the pertinent allegations and the potential rules implicated in a document called the Substance of Grievance. The attorney then has 15 days (unless an extension is granted) to respond to the allegations in writing. The written response has been the attorney’s only bite at the apple – the only opportunity to present their side of the story at this informal stage.
Once Bar Counsel receives the response, then the investigation can continue. Once the investigation is complete, Bar Counsel creates a Report of Counsel, which includes findings and recommendations to the Grievance Committee, and then presents the Report orally to the Grievance Committee in closed proceedings. The Respondent Attorney does not receive a copy of the Report, does not know exactly what materials have been provided to the Grievance Committee, and is not permitted to be present for or participate in the proceedings. There is no opportunity to argue the matter, impeach witnesses, or present additional contrary evidence. The process has been compared to a grand jury.
Proposed Public Discipline
Under this new regulation, when an attorney receives proposed public discipline by the Grievance Committee, the attorney has the opportunity to request review of the decision. Here are some key aspects of the Review Panel proceedings and my observations:
- The Panel is not made up of any Grievance Committee member who has heard the matter before.
- Bar Counsel provides to the Review Panel a copy of everything that the Grievance Committee reviewed, including the Report of Counsel and any other attorney-client privileged information. Privileged information is not shared with the Respondent
- In the review proceedings, the Respondent Attorney has an opportunity to speak directly to the Panel, either with or without counsel present, giving the Respondent Attorney an opportunity to be heard.
- The proceedings are confidential.
- In my experience, the Panel members are very engaged in this process, knowledgeable about the facts, and ask many questions. These are individuals charged with conducting an independent review.
- Prior to the hearing, both Bar Counsel and Respondent Attorney have the opportunity to provide the Review Panel with additional materials, not previously before the Grievance Committee. No live testimony is permitted at the hearing.
- Each side gets 30 minutes to present argument, including any questions the Panel may ask during the argument.
Things to Keep in Mind
- In January 2023, the State Bar issued a memorandum which more fully explains its procedures.
- The memorandum permits Bar Counsel to have private communications with the Panel following the Review Panel hearing at the request of the Panel members.
- The Review Panel can only make a recommendation to the Grievance Committee.
- There is no requirement that the Grievance Committee follow the Review Panel’s recommendation.
While the Review Panel process likely will alleviate many concerns that lawyers have about the process, there are some details about the process that still need to be fleshed out. Perhaps we will learn more as more Review Panel hearings are held and we can see how these processes unfold.