Necessary Reform or Blurring Transparency: A Look into The New State Bar Review Committee

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The Creation of the State Bar Review Committee and Its Purpose

This past October of 2023, House Bill 259 became law.  Included in this Bill was the creation of the State Bar Review Committee.  The Committee is charged with the duty to “review and examine the grievance review process of the North Carolina State Bar … in an effort to improve the effectiveness, fairness, and process of disciplinary and grievance review procedures.”

The Minds Behind the Committee

The Committee is composed of seven members who are appointed under the following provisions:

• One member is appointed by the President Pro Tempore of the North Carolina Senate, Senator Phil Berger, to serve as a Co-Chair on the Committee:
  • Woody White, Co-Chair
    • Criminal Defense Attorney in Wilmington, NC
    • Former New Hanover County Commissioner
    • Former North Carolina Senator
  • One member is appointed by the North Carolina Speaker of the House of Representatives, Speaker Tim Moore, to serve as a Co-Chair on the Committee:
    • Larry Shaheen, Co-Chair
      • Commercial Real Estate Transaction Attorney in Charlotte, NC
      • Political Consultant
    • One member is appointed by the Governor of North Carolina, Governor Roy Cooper:
      • Colon Willoughby, Public Member
        • Solo Practitioner
        • Former Wake County District Attorney
      • Three members are appointed by the Chief Justice of the Supreme Court of North Carolina, Chief Justice Paul Newby, one of which shall be an Associate Justice of the Supreme Court of North Carolina, and one shall be a Judge of the North Carolina Court of Appeals:
        • Justice Tamara Patterson Barringer, Public Member
          • Associate Justice, Supreme Court of North Carolina
          • Former North Carolina Senator
        • Andrew Heath, Public Member
          • Government Relations Partner at Nelson Mullins
          • Lobbyist
          • Former Director, North Carolina Administrative Office of the Courts
          • Former Superior Court Judge
          • Former State Budget Director, Officer of the Governor
        • Judge Valerie Zachary, Public Member
          • Judge, North Carolina Court of Appeals
        • The President of the North Carolina State Bar at the time House Bill 259 was enacted as law:
          • Marcia Armstrong, Ex-Officio
            • Family Law and Divorce Attorney in Smithfield, NC
            • Former President of the North Carolina State Bar

Members are to serve until the Committee expires, which is set to be April 1, 2024.

The State Bar Review Committee’s Task at Hand

In order to carry out the Committee’s duty, the legislation states that the Committee “shall review and examine the grievance and complaint process of the North Carolina State Bar.”  The legislation then lists several areas that are believed to have issues of concern and mandates that the Committee review all rules, procedures, and policies related to these areas.

The areas include:

• The grievance process, including the roles of the Grievance Committee, Grievance Review Panel, and the Disciplinary Hearing Commission in this process.
• Several rights afforded to accused individuals, including the right to due process, the right to be heard, and any rights under C. Gen. Stat. § 84-30.
• The extent of thoroughness exercised when screening, decision-making, and reviewing filed grievances and complaints.
• The selection and composition of members and the roles they play on the Grievance Review Panel, Grievance Committee, and the Disciplinary Hearing Commission.
• The North Carolina State Bar Office of Counsel’s role in the grievance process.
• Any other area of concern to the Committee.

Further, Co-Chairmans White and Shaheen posed several other concerns/discussion topics in the Committee’s January 24, 2024 meeting, including:

• The creation of an expunction process for lawyers who have been disciplined for “non-nefarious” conduct.
• The creation of an expunction process for posthumous expunctions.
• The public’s weaponizing of the Bar to cancel lawyers and affect their First Amendment rights.
• The Disciplinary Hearing Commission’s evidentiary hearing process and who is involved in it.
• Allegations that the Bar punishes lawyers for their political beliefs. (No examples have been provided to show this has occurred.)

After concluding their investigations, the Committee must submit a report to the Joint Legislative Commission on Government Operations that states the Committee’s findings, conclusions, recommendations, and a proposed draft bill.  This report is due by April 1, 2024.

The Committee’s Report

On March 14, 2024, the Committee held its final meeting, during which it adopted the committee report.  The 63-page report includes the Committee’s minutes, its findings and recommendations, supporting documentation that was analyzed throughout the Committee’s investigation, and more.

In its report, the Committee made the following recommendations to the General Assembly:

(1) Due Process Legislation

The Committee recommended that the General Assembly enact legislation to provide respondent attorneys with fair and equal access to materials acquired during grievance investigations and the State Bar Grievance Committee.

(2) Vexatious Complainant Legislation

The Committee recommended that the General Assembly enact legislation that would discourage or prevent individuals from abusing the disciplinary process by filing repetitive and meritless grievances.

(3) Standing Requirement Legislation

The Committee recommended that the General Assembly enact legislation that would limit who may file a grievance against a member of the State Bar.

(4) Expungement Rulemaking

The Committee recommended that the General Assembly direct the State Bar to adopt an expungement procedure that would make certain disciplinary actions eligible for expunction.

(5) Continued Discussion on the Composition of the Disciplinary Hearing Commission and Certain Other Topics

The Committee recommended that the General Assembly continue to discuss the composition of the Disciplinary Hearing Commission and consider whether the current method of selection creates potential bias and, therefore, whether reform would be necessary to eliminate that bias.

The Committee further recommended that the General Assembly investigate the following issues further:

• Confidentiality – specifically, implementing changes to the notification a complainant receives when a member of the State Bar is privately disciplined.
• How different types of violations (civil, criminal, trust account) are handled.
• The costs and expenses associated with the grievance process.

Collaboration Between the State Bar and the Defense Bar

In many of their recommendations, the Committee suggested that the General Assembly consider the working proposals created through the collaboration of the State Bar and the Defense Bar.

The collaboration resulted in proposals for:

• Adopting an expungement process.
• Implementing standing requirements for filing grievances.
• Modifying the administrative rules so the Grievance Committee shall consider the complainant’s motive for filing a grievance.
• Implementing legislation to deal with vexatious complainants.
• Modifying complainant notification to maintain confidentiality of private discipline.
• Providing access for the Defense Bar to address the Grievance Committee.

Under the proposed expunction process, misconduct that would not be eligible for expunction includes:

• Sexual conduct with clients.
• False statements of material fact or law to a tribunal.
• Criminal acts that reflect adversely on the lawyer’s honesty, trustworthiness, or fitness.
• Conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer’s fitness.

So What? A Threat Posed to Transparency

The North Carolina State Bar is the sole government agency responsible for regulating the legal profession in North Carolina.  The mission of the State Bar is to safeguard the public by preventing unethical conduct on the part of lawyers and to maintain the integrity of our justice system and profession.  In order to achieve these objectives, the Bar’s key regulatory responsibility is to investigate and prosecute lawyers who have allegedly violated the Rules of Professional Conduct.

An essential aspect of the State Bar’s grievance process is the transparency it provides for the public.  Limiting public access to disciplinary actions against lawyers diminishes that transparency and may even be said to go against the purpose of the State Bar to protect the public and maintain the integrity of our profession.  If a prospective client is trying to find an attorney, they should be able to see that attorney’s discipline record regardless of the severity of it.  From another point of view, as an attorney looking for employment, an attorney may likely want to make sure they are working under a reputable supervising attorney who puts ethics at the forefront of their practice.

In response to this WRAL article, 15 lawyers from the House Democratic Caucus released the following statement to WRAL on January 26, 2024:

”We read with great concern the WRAL article on the State Bar Review Committee and its meeting Wednesday. The article suggests the Committee is focused on reducing public transparency around attorney discipline.

The purpose of the State Bar’s attorney discipline process is to protect the citizens of North Carolina, not to protect lawyers. Attorneys accused of misconduct are entitled to due process but the ultimate results of the process must be transparent to the public.

If any legislative attempt is made to reduce transparency and accountability to the people of North Carolina or to compromise the State Bar’s independence, we will oppose it.”

Following this, four lawyers from the Senate Democratic Caucus released the following statement to WRAL on February 9, 2024:

“The State Bar’s attorney discipline process is intended to protect citizens, not attorneys. Every attorney accused of misconduct should be afforded the right to due process. The State Bar Grievance Review Committee is rightfully tasked with conducting a thorough review of the claims; and, importantly, that process must be transparent to the public.”

Further, if, as discussed, an expunction process is created for “non-nefarious” conduct, who will define what is or is not nefarious?

What Do Other Agencies Do?

Co-Chairman White, regarding the modernization of the Bar’s disciplinary process and privacy issues, questioned how the Medical Board, among other agencies and the states, “ensure that the public is protected while also ensuring that the membership of this profession is protected?”

The North Carolina Medical Board’s website states that information about a disciplinary case becomes public when the Board issues a notice of charges and allegations.  Further, it states that even cases that are resolved prior to the Board issuing formal charges and allegations become public when the Board attorneys and the Licensee’s counsel present the conditions of the consent order to the Board for consideration and approval.

Further, the website states that medical professionals licensed through the Medical Board have a duty to report any final public disciplinary order or action by any regulatory board or agency.  The orders are then published on the website, and all public actions by state medical or osteopathic boards remain on the website indefinitely.  In contrast, actions by other agencies remain on the website for seven years.  This information is also found throughout N.C. Gen. Stat. Chapter 90 – Article 1.

At no point is an expunction process for medical professionals through the North Carolina Medical Board mentioned on the Board’s website or in Chapter 90.  This directly contrasts with the State Bar’s recent willingness to implement an expunction process for attorneys.

Carefully Striking the Balance

While there are concerns about ensuring fairness and due process for our fellow lawyers, ultimately, we must remember that the State Bar was created to protect the public and maintain the integrity of the legal profession.  A careful balancing test must be applied when considering changes to the Bar’s disciplinary process to ensure that the purpose it is supposed to serve is preserved.