NC Flashcards
BoP in disciplinary case
clear, cogent, convincing
Lawyer has burden to get in (8.1)
- Must prove L has good moral character
State Bar has burden to kick L out (8.4)
-Must prove L does NOT have good moral character
Inherent Powers Doctrine
Both general court of justice AND the NC State Bar can discipline Ls, and they have concurrent jx
E.g., Superior Court of Buncombe County can disbar w/o waiting on NC State Bar
What jx has authority to discipline L? 8.5(a)
(1) Jx where L is admitted to practice (regardless of where conduct occurs);
AND
(2) Jx where L provides or offers to provide any legal services
A lawyer may be subject to the disciplinary authority of both this jx and another jx for the same conduct.
What authority does NC Grievance Committee have?
Grievance Committee (like a grand jury) reviews; if conduct proven, L may be disciplined
Lacks auth to suspend or disbar
What happens if NC Grievance Committee finds probable cause when reviewing grievance?
Grievance is referred to Disciplinary Hearing Commission (DHC) for public trial and possible sanctions; sits in panels of 3 (2 lawyers and 1 nonlawyer)
-DHC = judge + jury
-State bar = plaintiff
-Lawyer whose case is brought = defendant
Admonition
permanent, private discipline that does not appear on the judgment docket of state bar, but may be considered in later disciplinary proceedings
Reprimands and censures
permanent discipline; recorded against NC State Bar’s judgment book and sent to complainant
Notices of reprimands and censures appear in SB’s quarterly magazine <3
Time limit to file grievance in NC?
within six years after the last act giving rise to the grievance
BUT there is no time limit for any grievance based upon (1) plea of guilty to a felony or upon conviction of a felony; (2) based upon allegations of conduct that constitutes a felony, w/o regard to whether the lawyer is charged, prosecuted, or convicted of a crime for the conduct; or (3) based upon conduct that violates the Rules of Professional Conduct and has been found by a court to be intentional conduct by the lawyer.
What does L do if receives letter from NC Bar’s Office of Counsel?
L must submit a written response within 15 days from receipt of the Letter of Notice, although extensions of time to respond are regularly granted.
What are the potential outcomes for grievances reviewed by NC Grievance Committee?
(1) Dismissal, Letter of Caution, Letter of Warning
(2) [Discipline] Admonition, Reprimand, Censure
(3) Referral to DHC
What types of discipline does misconduct earn?
Disbarment
Suspension
Censure
Reprimand
Admonishment
When the L determines that an error that may constitute legal malpractice has occurred, is the lawyer required to disclose the error to the client?
Yes if:
(1) L determines that the error materially prejudices the client’s interests; or
(2) the error will result in financial loss to the client, substantial delay in achieving the client’s objectives for the representation, or material disadvantage to the client’s legal position
Note –> err on the side of disclosure
If an error must be disclosed to a client, what must the lawyer tell the client?
Candidly disclose:
(1) all material facts surrounding the error (nature and effects)
(2) ways to mitigate error
(3) inform C of his right to terminate representation
Note –> does NOT have to advise on whether malpractice claim exists
What social media can L view online?
Public portions of an UN-represented person’s social media presence, but can’t engage in repetitive viewing that violates 4.4(a)
Repetitive viewing that results in multiple notifications might be a violation of 4.4(a) bc might embarrass, delay, or burden a 3rd person
Can L request access to restricted portions of a REPRESENTED person’s social media account?
NO
UNLESS L has the consent of the other L or is authorized by law or court order (4.2(a))
