GENERAL ASSEMBLY OF NORTH CAROLINA
1991 SESSION
CHAPTER 210
The General Assembly of North Carolina enacts:
Section 1. G.S. 84-23.1 reads as rewritten:
"§ 84-23.1. Prepaid legal services.
(a) 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.
(b) The council
has the responsibility and duty of discipline and regulation of the practice of
law in this State. Plans providing for prepaid legal services must be submitted
to the council and may not be implemented or operated without the prior and
continuing approval by the council as being proper under the statutes, rules
and regulations governing the practice of law in this State; provided, however,
the council shall not approve any plan for prepaid legal services which in any
way restricts the right of the client or person receiving prepaid legal
services to select his own attorney from the actual members of the North
Carolina State Bar, or a member of any other state bar in any other state where
the claim or cause of action may arise.
(b1) 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.
(c) The council
is authorized to initiate and cause the creation of a nonprofit corporation
pursuant to Chapter 55A of the General Statutes, for the purpose of providing
for prepayment for legal services. The corporation authorized by this section
shall have the following powers:
(1) To provide
for the collection of payments for the plan or plans it offers, the payment of
legal fees in accordance with its approved plans, and the investment and
safeguarding of funds held for such purposes.
(2) To contract
with insurance companies or other companies for actuarial services,
administrative and other services, use of facilities, underwriting and
reinsurance.
(3) All other
powers necessary and appropriate for the offering of plans for prepaid legal
services.
(4) All other
powers granted to nonprofit corporations by law or by virtue of their
charters and bylaws.
The corporation may not directly employ an attorney to
perform legal services for another person. It shall not be subject to
regulation under Articles 1 through 64 of Chapter 58 of the General Statutes or
other provisions relating to insurance companies, but it shall be subject to
regulation pursuant to subsection (b) of this section. Neither the
existence of this authorization, nor the creation of such a corporation shall
limit the authority of the council to approve other plans for prepaid legal
services. The council may cause funds of the North Carolina State Bar to be
contributed, advanced or loaned to, or used for the benefit of the corporation
so created upon such terms as the council deems appropriate, and pursuant to
such regulations as the council may promulgate to assure such funds are used
for the purposes herein provided.
(d) Notwithstanding approval
of the council pursuant to subsection (b), registration of the plan with
the North Carolina State Bar Council pursuant to subsection (b1), any plan
for prepaid legal services other than pursuant to subsection (c) is
subject to regulation under Articles 1 through 64 of 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.
(e) Notwithstanding
any other provision of this section or any other statute or law, no plan
providing for prepaid legal services shall be authorized to exist or function
in the State of North Carolina which in any way restricts or denies the client
or person receiving prepaid legal services the right to select an attorney of
his own choice from the active membership of the North Carolina State Bar, or a
member of any other state bar in any other state where the claim or cause of
action may arise to represent said person or client."
Sec. 2. G.S. 84-4.1 reads as rewritten:
"§ 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 another that state
and in good standing therein, having been retained as attorney for any party
to a legal proceeding, civil or criminal, a party to any civil or
criminal legal proceeding pending in the General Court of Justice of North
Carolina, or the North Carolina Utilities Commission or the North Carolina
Industrial Commission or the Office of Administrative Hearings of North
Carolina may, on motion, be admitted to practice in the General Court of
Justice or the North Carolina Utilities Commission or the North Carolina
Industrial Commission or the Office of Administrative Hearings of North
Carolina for the sole purpose of appearing for his client in said
litigation, but only upon compliance with the following conditions precedent: a
client in the litigation. The motion required under this section shall
contain or be accompanied by:
(1) The attorney's He
shall set forth in his motion his full name, post-office address and status
as a practicing attorney in such other another state.
(2) He shall attach to
his motion a 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. his client, in which the client
sets forth his post-office address and declares that he has retained the attorney
to represent him in such proceeding.
(3) He shall attach to
his motion a A statement that unless permitted to withdraw sooner by
order of the court, he the attorney will continue to represent his
the client in such the proceeding until the final
determination thereof, and that with reference to all matters incident to such
the proceeding, he the attorney agrees that he
shall 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 he the attorney were a
regularly admitted and licensed member of the Bar of North Carolina in good
standing.
(4) He shall attach to
his motion a A statement to the effect that the state in
which he the attorney is regularly admitted to practice grants
like privileges to members of the Bar of North Carolina in good standing.
(5) He shall attach to
his motion a A statement to the effect that he the
attorney has associated and has is personally appearing with
him in such proceeding in the proceeding, with an attorney
who is a resident of this State 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 such legal proceedings, or any disciplinary matter,
with the same effect as if personally made on such the foreign
attorney within this State.
(6) Compliance
with the foregoing requirements shall does not deprive the court
of the discretionary power to allow or reject the application."
Sec. 3. Chapter 84 of the General Statutes is amended by adding a new section to read:
"§ 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)."
Sec. 4. G.S. 84-24 reads as rewritten:
"§ 84-24. Admission to practice.
The provisions of the law now obtaining with reference to admission to the practice of law, as amended, and the rules and regulations prescribed by the Supreme Court of North Carolina with reference thereto, shall continue in force until superseded, changed or modified by or under the provisions of this Article.
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 of the North Carolina State Bar, 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: Provided, that the members first elected shall hold office, two for one year, two for two years, and two for three years.
The Board of Law Examiners shall elect a member of said Board as chairman thereof, and the Board may employ an executive secretary and provide such assistance as may be required to enable said Board to perform its duties promptly and properly. The chairman and any employees shall serve for such period as said Board may determine.
The examination shall be held in such manner and at such 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 such 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 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 any change in the educational requirements for admission to the Bar shall not become effective within two years from the date of the adoption of such change.
All such 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 such person, noting thereon that the same is issued in compliance with an order of the council of the North Carolina State Bar, 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."
Sec. 5. G.S. 84-28 reads as rewritten:
"§ 84-28. Discipline and disbarment.
(a) Any attorney admitted to practice law in this State is subject to the disciplinary jurisdiction of the council of the North Carolina State Bar under such rules and procedures as the council shall promulgate as provided in G.S. 84-21.
(b) 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 of the North Carolina State Bar 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.
(c) Misconduct by any attorney shall be grounds for:
(1) Disbarment; or
(2) Suspension for a
period up to but not exceeding three five years, any
portion of which may be stayed for a period not exceeding three years upon
reasonable conditions to which the offending attorney consents; or
(3) Public censureCensure
- 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; or
(4) Private reprimand. 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.
Any order disbarring or suspending an attorney may impose reasonable conditions precedent to reinstatement. Any order of the Disciplinary Hearing Commission or the Grievance Committee imposing a censure, reprimand, or admonition 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.
(d) 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 suspended from the practice of law, but this suspension shall not take place pending appeal of the conviction.
(e) 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.
(f) 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 such conduct is pending. Such 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.
(g) Any member of the North Carolina State Bar may be transferred to disability inactive status for mental incompetence or physical disability interfering with the attorney's ability to competently engage in the practice of law under such rules and procedures as the council shall promulgate as provided in G.S. 84-21.
(h) There shall be an
appeal of right from any final order imposing admonition, reprimand,
censure, suspension or disbarment upon an attorney, or involuntary involuntarily
transferring a member of the North Carolina State Bar to disability inactive
status for mental incompetence or physical disability, to the appellate
divisionto the North Carolina Court of Appeals. Review by the
appellate division shall be upon matters of law or legal inference. The
procedures governing any such 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 the appeal.
(i) 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.
(j) The North Carolina State Bar may apply to appropriate courts for orders necessary to protect the interests of clients of missing, disabled, incapacitated or deceased attorneys.
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 such orders as are necessary to protect the interests of such clients, including the authority to order the payment of counsel fees from the estate of the member to any attorney appointed to administer or conserve the law practice of the member."
Sec. 6. This act becomes effective October 1, 1991.
In the General Assembly read three times and ratified this the 4th day of June, 1991.
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James C. Gardner
President of the Senate
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Daniel Blue, Jr.
Speaker of the House of Representatives