North Carolina Administrative Code › Title 27 - STATE BAR › Chapter 01 - RULES AND REGULATIONS FOR THE NORTH CAROLINA STATE BAR › Subchapter B - DISCIPLINE AND DISABILITY RULES › Section .0100 - DISCIPLINE AND DISABILITY OF ATTORNEYS › Section 01B .0129 - REINSTATEMENT

Current through Register Vol. 39, No. 2, July 15, 2024
(a) After
				  Disbarment
(1) Reinstatement Procedure and
				  Costs - A person who has been disbarred may have his or her license restored
				  upon a verified petition for reinstatement, a hearing before a hearing panel of
				  the commission, and entry of an order of reinstatement by the council as
				  provided herein. The hearing will commence only if security for the costs of
				  such hearing has been deposited by the petitioner with the secretary in an
				  amount not to exceed $500.00.
(2)
				  Time Limits - A disbarred lawyer may petition for reinstatement upon the
				  expiration of at least five years from the effective date of the
				  disbarment.
(3) Burden of Proof and
				  Elements to be Proved - The petitioner will have the burden of proving by
				  clear, cogent, and convincing evidence that
(A) not more than six months or less than 60
				  days before filing the petition for reinstatement, a notice of intent to seek
				  reinstatement has been published by the petitioner in an official publication
				  of the North Carolina State Bar. The notice will inform members of the Bar
				  about the application for reinstatement and will request that all interested
				  individuals file with the secretary notice of opposition to or concurrence with
				  the petition within 60 days after the date of publication;
(B) not more than six months or less than 60
				  days before filing the petition for reinstatement, the petitioner has notified
				  the complainant(s) in the disciplinary proceeding which led to the lawyer's
				  disbarment of the notice of intent to seek reinstatement. The notice will
				  specify that each complainant has 60 days from the date of publication in which
				  to file with the secretary notice of opposition to or concurrence with the
				  petition;
(C) the petitioner has
				  reformed and presently possesses the moral qualifications required for
				  admission to practice law in this state taking into account the gravity of the
				  misconduct which resulted in the order of disbarment;
(D) permitting the petitioner to resume the
				  practice of law within the state will not be detrimental to the integrity and
				  standing of the bar, to the administration of justice, or to the public
				  interest, taking into account the gravity of the misconduct which resulted in
				  the order of disbarment;
(E) the
				  petitioner's citizenship has been restored if the petitioner has been convicted
				  of or sentenced for the commission of a felony;
(F) the petitioner has complied with Rule
				  .0128 of this subchapter;
(G) the
				  petitioner has complied with all applicable orders of the commission and the
				  council;
(H) the petitioner has
				  complied with the orders and judgments of any court relating to the matters
				  resulting in the disbarment;
(I)
				  the petitioner has not engaged in the unauthorized practice of law during the
				  period of disbarment;
(J) the
				  petitioner has not engaged in any conduct during the period of disbarment
				  constituting grounds for discipline under
				  G.S.
				  84-28(b);
(K) the petitioner understands the current
				  Rules of Professional Conduct. Participation in continuing legal education
				  programs in ethics and professional responsibility for each of the three years
				  preceding the petition date may be considered on the issue of the petitioner's
				  understanding of the Rules of Professional Conduct. Such evidence creates no
				  presumption that the petitioner has met the burden of proof established by this
				  section;
(L) the petitioner has
				  reimbursed the Client Security Fund of the North Carolina State Bar for all
				  sums, including costs other than overhead expenses, disbursed by the Client
				  Security Fund as a result of the petitioner's misconduct. The petitioner is not
				  permitted to collaterally attack the decision of the Client Security Fund Board
				  of Trustees regarding whether to reimburse losses occasioned by the misconduct
				  of the petitioner. This provision shall apply to petitions for reinstatement
				  submitted by petitioners who were disbarred after August 29, 1984;
(M) the petitioner has reimbursed all sums
				  which the Disciplinary Hearing Commission found in the order of disbarment were
				  misappropriated by the petitioner and which have not been reimbursed by the
				  Client Security Fund;
(N) the
				  petitioner paid all dues, Client Security Fund assessments, and late fees owed
				  to the North Carolina State Bar as well as all attendee fees and late penalties
				  due and owing to the Board of Continuing Legal Education at the time of
				  disbarment.
(O) if a trustee was
				  appointed by the court to protect the interests of the petitioner's clients,
				  the petitioner has reimbursed the State Bar all sums expended by the State Bar
				  to compensate the trustee and to reimburse the trustee for any expenses of the
				  trusteeship;
(P) the petitioner has
				  properly reconciled all trust or fiduciary accounts, and all entrusted funds of
				  which the petitioner took receipt have been disbursed to the beneficial
				  owner(s) of the funds or the petitioner has taken all necessary steps to
				  escheat the funds.
(4)
				  Petitions Filed Less than Seven Years After Disbarment
(A) Proof of Competency and Learning - If
				  less than seven years have elapsed between the effective date of the disbarment
				  and the filing date of the petition for reinstatement, the petitioner will also
				  have the burden of proving by clear, cogent, and convincing evidence that the
				  petitioner has the competency and learning in the law required to practice law
				  in this state.
(B) Factors which
				  may be considered in deciding the issue of competency include
(i) experience in the practice of
				  law;
(ii) areas of
				  expertise;
(iii) certification of
				  expertise;
(iv) participation in
				  continuing legal education programs in each of the three years immediately
				  preceding the petition date;
(v)
				  certification by three lawyers who are familiar with the petitioner's present
				  knowledge of the law that the petitioner is competent to engage in the practice
				  of law.
(C) The factors
				  listed in Rule .0129(a)(4)(B) above are provided by way of example only. The
				  petitioner's satisfaction of one or all of these factors creates no presumption
				  that the petitioner has met the burden of proof established by this
				  section.
(D) Passing Bar Exam as
				  Conclusive Evidence - Attainment of a passing score on a regularly scheduled
				  written Uniform Bar Examination prepared by the National Conference of Bar
				  Examiners and successful completion of the State-Specific Component prescribed
				  by the North Carolina Board of Law Examiners, no more than nine months before
				  filing the petition, and taken voluntarily by the petitioner, shall be
				  conclusive evidence on the issue of the petitioner's competence to practice
				  law.
(5) Bar Exam
				  Required for Petitions Filed Seven Years or More After Disbarment - If the
				  petition is filed seven years or more after the effective date of disbarment,
				  reinstatement will be conditioned upon:
(A)
				  attainment of a passing score, within nine months following an order
				  conditionally granting the petition, on a regularly-scheduled Uniform Bar
				  Examination prepared by the National Conference of Bar Examiners;
(B) attainment of a passing score, within
				  nine months following an order conditionally granting the petition, on a
				  regularly-scheduled Multistate Professional Responsibility Examination
				  administered by the National Conference of Bar Examiners; and
(C) successful completion, within nine months
				  following an order conditionally granting the petition, of the State-Specific
				  Component prescribed by the North Carolina Board of Law Examiners.
(6) Petition, Service, and Hearing
				  - The petitioner shall file a verified petition for reinstatement with the
				  secretary and shall contemporaneously serve a copy upon the counsel. The
				  petition must identify each requirement for reinstatement and state how the
				  petitioner has met each requirement. The petitioner shall attach supporting
				  documentation establishing satisfaction of each requirement. Upon receipt of
				  the petition, the secretary will transmit the petition to the chairperson of
				  the commission. The chairperson will within 14 days appoint a hearing panel as
				  provided in Rule .0108(a)(2) of this Subchapter and schedule a time and place
				  for a hearing to take place within 60 to 90 days after the filing of the
				  petition with the secretary. The chairperson will notify the counsel and the
				  petitioner of the composition of the hearing panel and the time and place of
				  the hearing, which will be conducted pursuant to the procedures set out in
				  Rules .0114 to .0118 of this subchapter. The secretary shall transmit to the
				  counsel and to the petitioner any notices in opposition to or concurrence with
				  the petition filed with the secretary pursuant to .0129(a)(3)(A) or
				  (B).
(7) Report of Findings - As
				  soon as possible after the conclusion of the hearing, the hearing panel will
				  file a report containing its findings, conclusions, and recommendations with
				  the secretary. The order may tax against the petitioner such costs and
				  administrative fees as it deems appropriate for the necessary expenses
				  attributable to the investigation and processing of the petition.
(8) Review by the Council - If the hearing
				  panel recommends that reinstatement be denied, the petitioner may file notice
				  of appeal to the council. The notice of appeal must be filed with the secretary
				  within 30 days after service of the panel report upon the petitioner. If no
				  appeal is timely filed, the recommendation of the hearing panel to deny
				  reinstatement will become a final order denying the petition. All cases in
				  which the hearing panel recommends reinstatement of a disbarred lawyer's
				  license shall be heard by the council and no notice of appeal need be filed by
				  the North Carolina State Bar.
(A) Transcript
				  of Hearing Panel Proceedings - Within 60 days of entry of the hearing panel's
				  report, the petitioner shall produce a transcript of the proceedings before the
				  hearing panel. The chairperson of the hearing panel, may, for good cause shown,
				  extend the time to produce the transcript.
(B) Composition of the Record - The
				  petitioner will provide a record of the proceedings before the hearing panel,
				  including a legible copy of the complete transcript, all exhibits introduced
				  into evidence, and all pleadings, motions, and orders, unless the petitioner
				  and the counsel agree in writing to shorten the record. The petitioner will
				  provide the proposed record to the counsel not later than 90 days after the
				  hearing before the hearing panel, unless an extension of time is granted by the
				  chairperson of the hearing panel for good cause shown. Any agreement regarding
				  the record will be in writing and will be included in the record transmitted to
				  the council.
(C) Settlement of the
				  Record
(i) By Agreement - At any time
				  following service of the proposed record upon the counsel, the parties may by
				  agreement entered in the record settle the record to the council.
(ii) By Counsel's Failure to Object to the
				  Proposed Record - Within 20 days after service of the proposed record, the
				  counsel may serve a written objection or a proposed alternative record upon the
				  petitioner. If the counsel fails to serve a notice of approval or an objection
				  or a proposed alternative record, the petitioner's proposed record will
				  constitute the record to the council.
(iii) By Judicial Settlement - If the counsel
				  raises a timely objection to the proposed record or serves a proposed
				  alternative record upon the petitioner, either party may request the
				  chairperson of the hearing panel which heard the reinstatement petition to
				  settle the record. Such request shall be filed in writing with the hearing
				  panel chairperson no later than 15 days after the counsel files an objection or
				  proposed alternative record. Each party shall promptly provide to the
				  chairperson a reference copy of the proposed record, amendments and objections
				  filed by that party in the case. The chairperson of the hearing panel shall
				  settle the record on appeal by order not more than 20 days after service of the
				  request for judicial settlement upon the chairperson. The chairperson may allow
				  oral argument by the parties or may settle the record based upon written
				  submissions by the parties.
(D) Filing and Service of the Settled Record
				  - No later than 30 days before the council meeting at which the petition is to
				  be considered, the petitioner will file the settled record with the secretary,
				  will make arrangements with the secretary for a copy of the settled record to
				  be transmitted to each member of the council, and will transmit a copy of the
				  settled record to the counsel.
(E)
				  Costs - The petitioner will bear the costs of transcribing, copying, and
				  transmitting a copy of the settled record to each member of the
				  council.
(F) Determination by the
				  Council - The council will review the report of the hearing panel and the
				  record and determine whether, and upon what conditions, the petitioner will be
				  reinstated. The council may tax against the petitioner such costs and
				  administrative fees as it deems appropriate for the necessary expenses
				  attributable to the investigation and processing of the petition.
(9) Failure to Comply with Rule
				  .0129(a) - If the petitioner fails to comply with any provisions of this Rule
				  .0129(a), the counsel may file a motion to dismiss the petition. The motion to
				  dismiss shall specify the alleged deficiencies of the petition. The counsel
				  shall serve the motion to dismiss upon the petitioner. The petitioner shall
				  have ten days in which to file a response to the motion to dismiss.
(10) Reapplication - No person who has been
				  disbarred and has unsuccessfully petitioned for reinstatement may reapply until
				  the expiration of one year from the date of the last order denying
				  reinstatement.