State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_84 > GS_84-28

§ 84‑28.  Discipline anddisbarment.

(a)        Any attorneyadmitted to practice law in this State is subject to the disciplinaryjurisdiction of the Council under such rules and procedures as the Councilshall adopt as provided in G.S. 84‑23.

(b)        The following actsor omissions by a member of the North Carolina State Bar or any attorneyadmitted for limited practice under G.S. 84‑4.1, individually or inconcert with any other person or persons, shall constitute misconduct and shallbe grounds for discipline whether the act or omission occurred in the course ofan attorney‑client relationship or otherwise:

(1)        Conviction of, or atender and acceptance of a plea of guilty or no contest to, a criminal offenseshowing professional unfitness;

(2)        The violation of theRules of Professional Conduct adopted and promulgated by the Council in effectat the time of the act;

(3)        Knowingmisrepresentation of any facts or circumstances surrounding any complaint,allegation or charge of misconduct; failure to answer any formal inquiry orcomplaint issued by or in the name of the North Carolina State Bar in anydisciplinary matter; or contempt of the Council or any committee of the NorthCarolina State Bar.

(c)        Misconduct by anyattorney shall be grounds for:

(1)        Disbarment;

(2)        Suspension for aperiod up to but not exceeding five years, any portion of which may be stayedupon reasonable conditions to which the offending attorney consents;

(3)        Censure – A censureis a written form of discipline more serious than a reprimand issued in casesin which an attorney has violated one or more provisions of the Rules ofProfessional Conduct and has caused significant harm or potential significantharm to a client, the administration of justice, the profession or members ofthe public, but the protection of the public does not require suspension of theattorney's license;

(4)        Reprimand – Areprimand is a written form of discipline more serious than an admonitionissued in cases in which an attorney has violated one or more provisions of theRules of Professional Conduct, but the protection of the public does notrequire a censure. A reprimand is generally reserved for cases in which theattorney's conduct has caused harm or potential harm to a client, theadministration of justice, the profession, or members of the public; or

(5)        Admonition – Anadmonition is a written form of discipline imposed in cases in which anattorney has committed a minor violation of the Rules of Professional Conduct.

Any order disbarring orsuspending an attorney may impose reasonable conditions precedent toreinstatement. No attorney who has been disbarred by the Disciplinary HearingCommission, the Council, or by order of any court of this State may seekreinstatement to the practice of law prior to five years from the effectivedate of the order of disbarment. Any order of the Disciplinary HearingCommission or the Grievance Committee imposing an admonition, reprimand,censure, or stayed suspension may also require the attorney to complete areasonable amount of continuing legal education in addition to the minimumamount required by the North Carolina Supreme Court.

(d)        Any attorneyadmitted to practice law in this State, who is convicted of or has tendered andhas had accepted, a plea of guilty or no contest to, a criminal offense showingprofessional unfitness, may be disciplined based upon the conviction, withoutawaiting the outcome of any appeals of the conviction. An order of disciplinebased solely upon a conviction of a criminal offense showing professional unfitnessshall be vacated immediately upon receipt by the Secretary of the NorthCarolina State Bar of a certified copy of a judgment or order reversing theconviction. The fact that the attorney's criminal conviction has beenoverturned on appeal shall not prevent the North Carolina State Bar fromconducting a disciplinary proceeding against the attorney based upon the sameunderlying facts or events that were the subject of the criminal proceeding.

(d1)      An attorney who isdisciplined as provided in subsection (d) of this section may petition thecourt in the trial division in the judicial district where the convictionoccurred for an order staying the disciplinary action pending the outcome ofany appeals of the conviction. The court may grant or deny the stay in itsdiscretion upon such terms as it deems proper. A stay of the disciplinaryaction by the court shall not prevent the North Carolina State Bar from goingforward with a disciplinary proceeding against the attorney based upon the sameunderlying facts or events that were the subject of the criminal proceeding.

(e)        Any attorneyadmitted to practice law in this State who is disciplined in anotherjurisdiction shall be subject to the same discipline in this State: Provided,that the discipline imposed in the other jurisdiction does not exceed thatprovided for in subsection (c) above and that the attorney was not deprived ofdue process in the other jurisdiction.

(f)         Upon applicationby the North Carolina State Bar, misconduct by an attorney admitted to practicein this State may be restrained or enjoined where the necessity for promptaction exists regardless of whether a disciplinary proceeding in the matter ofthe conduct is pending. The application shall be filed in the Superior Court ofWake County and shall be governed by the procedure set forth in G.S. 1A‑1,Rule 65.

(g)        Any member of theNorth Carolina State Bar may be transferred to disability inactive status formental incompetence, physical disability, or substance abuse interfering withthe attorney's ability to competently engage in the practice of law under therules and procedures the Council adopts pursuant to G.S. 84‑23.

(h)        There shall be anappeal of right by either party from any final order of the DisciplinaryHearing Commission to the North Carolina Court of Appeals. Review by theappellate division shall be upon matters of law or legal inference. Theprocedures governing any appeal shall be as provided by statute or court rulefor appeals in civil cases. A final order which imposes disbarment orsuspension 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 finalorder imposing suspension for less than 18 months or any other disciplineexcept disbarment shall be stayed pending determination of any appeal of right.

(i)         The North CarolinaState Bar may invoke the process of the General Court of Justice to enforce thepowers of the Council or any committee to which the Council delegates itsauthority.

(j)         The North CarolinaState Bar may apply to appropriate courts for orders necessary to protect theinterests of clients of missing, suspended, disbarred, disabled, or deceasedattorneys.

The senior regular residentjudge of the superior court of any district wherein a member of the NorthCarolina State Bar resides or maintains an office shall have the authority andpower to enter orders necessary to protect the interests of the clients,including the authority to order the payment of compensation by the member orthe estate of a deceased or disabled member to any attorney appointed toadminister or conserve the law practice of the member. Compensation awarded toa member serving under this section awarded from the estate of a deceasedmember shall be considered an administrative expense of the estate for purposesof determining priority of payment. (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.)