Defending a State Bar Formal Complaint Before the Disciplinary Hearing Commission
Perhaps the only thing an attorney fears more than a certified letter from the State Bar is notice of a formal complaint. If you have received such a formal complaint, you may feel that your life, professionally and personally, has been turned upside down. You also may be wondering how the formal process works, what are the potential results and whether you need to hire an attorney or law firm experienced in defending State Bar matters. We regularly represent attorneys in defending State Bar formal complaints. In the sections below, we attempt to address some of your questions about the formal process and possible results.
Disciplinary Hearing Commission and General Procedures
Formal complaints are heard before the Disciplinary Hearing Commission (DHC). The DHC is an independent tribunal that hears all contested disciplinary cases brought by the State Bar. The DHC is composed of twelve lawyers appointed by the State Bar Council and eight non-lawyers appointed by the Governor and the General Assembly. In addition to disciplinary cases, the DHC also hears cases involving contested allegations that a lawyer is disabled and petitions from disbarred or suspended lawyers seeking reinstatement.
The DHC sits in panels of three — two lawyers and one non-lawyer — to decide each case. These DHC panels are generally referred to as the Hearing Committee for a particular matter.
In general, proceedings before the DHC follow the procedures contained in the North Carolina Rules of Civil Procedure, with minor exceptions. Discovery procedures are available to both parties. Both parties have the right to compel the production of documents and the attendance of witnesses by subpoena. DHC complaints and other documents filed in the proceeding are public records and are posted on the Bar’s website. DHC formal evidentiary hearings or trials are open to the public and generally are conducted according to the North Carolina Rules of Evidence. Generally, DHC proceedings typically last between six months to a year on average and can last longer in some cases.
Answering a State Bar Complaint, Representation by Counsel and Potential Settlements
The State Bar’s complaint must allege the charges with sufficient precision to clearly apprise the defendant of the conduct which is the subject of the complaint.
The defendant attorney must file an answer within 20 days of service of the complaint. An answer must be filed or the attorney is subject to default, as in civil proceedings. This requirement is different than in disciplinary proceedings before many other professional boards under the Administrative Procedure Act, which do not require an answer or response.
Defendants in DHC cases are entitled to be represented by counsel and many elect to have counsel experienced before the State Bar and DHC defend them.
Unlike in defending a State Bar grievance, generally a defendant attorney or his or her counsel may attempt to resolve a formal complaint through a negotiated consent order. Our firm works with attorney clients to comprehensively and objectively evaluate the case before the DHC. If our client directs or consents, our firm then makes determined, good faith efforts to resolve DHC matters pursuant to an acceptable consent order based on this comprehensive case evaluation. All negotiated consent orders are subject to review by the DHC panel, which can either accept or reject the proposed order. If the proposed order ultimately is rejected by the DHC, the case must proceed to a formal hearing.
DHC Hearing Process, Decisions and Appeals
Hearings are divided into two phases. The process is somewhat similar to a bifurcated liability and damages civil trial or to the guilt/innocence and sentencing phases in a criminal case, except that the DHC phases are done immediately after one other.
- Phase one is the “violations phase.” The State Bar has the burden of proving by clear, cogent and convincing evidence that the defendant attorney violated the Rules of Professional Conduct. If the State Bar fails to carry its burden of proof in phase one, the case is dismissed and there is no second phase. If the Hearing Committee finds that the State Bar has proven some or all of the alleged violations, phase two begins immediately after the panel announces its decision. Our firm works with attorney clients with matters pending before the DHC to comprehensively and objectively evaluate the case and aggressively defend against the State Bar allegations when no resolution is feasible or warranted.
- Phase two is the “disciplinary phase.” At this phase, the DHC panel hears evidence relevant to the discipline to be imposed, determines the existence of factors pertinent to discipline, and determines the appropriate discipline. Our firm coordinates with our clients to develop persuasive mitigating evidence concerning the appropriate discipline and present it to the DHC panel in cases where violations are uncontested or are found to have occurred in phase one.
- DHC Decision: The DHC panel verbally announces its decision at the conclusion of each phase and then must issue a written order containing its findings of fact and conclusions of law from both phases of the trial.
The DHC panel can dismiss the charges or can admonish, reprimand, or censure the defendants, which discipline is explained in the section concerning defending a grievance. The DHC also can suspend an attorney’s license for up to five years or disbar an attorney for a minimum of five years. The Hearing Committee can stay all or part of a suspension upon compliance with stated conditions. It also can impose conditions precedent to reinstatement of a suspended or disbarred lawyer. A disbarred lawyer is technically eligible to apply for reinstatement five years after the effective date of disbarment but reinstatement from disbarment is exceptionally difficult.
Either the defendant attorney or the State Bar can appeal an order issued by the DHC panel. The appeal is heard directly by the North Carolina Court of Appeals. Disbarments and suspensions exceeding eighteen months are not stayed on appeal unless the appellate court issues a writ of supersedeas upon request of the defendant attorney. All other discipline imposed by the DHC is automatically stayed on appeal. Our firm’s attorneys have experience in handling appeals of State Bar disciplinary matters.