Defending a Complaint of Unauthorized Practice of Law before the Authorized Practice Committee

If you have received a certified letter from the North Carolina State Bar containing a Letter of Notice from the Authorized Practice of the North Carolina State Bar, you may have been surprised or shocked at allegations that you allegedly have violated state law and committed criminal violations.  You may wonder about the procedures, what the possible results are, what decisions have been made in prior similar cases, whether you may be prosecuted criminally, among other questions.  Our firm routinely represents clients like you in responding to and defending complaints of the unauthorized practice of law filed with the Authorized Practice Committee of the North Carolina State Bar.  In the sections below, we attempt to address some of your potential questions and explain the general process, procedures and possible outcomes of this complaint.

Authorized Practice Committee and General Procedures

The Authorized Practice Committee of the North Carolina State Bar investigates and pursues allegations concerning the unauthorized practice of law in North Carolina.  The Committee consists of approximately 35 members, most of whom are elected State Bar councilors and attorneys, along with several advisory members and one public member.  The Committee meets quarterly in conjunction with the State Bar’s regular meetings to consider and decide complaints of the unauthorized practice of law.  All complaints concerning the unauthorized practice of law filed with the North Carolina State Bar must come before and be decided by the Authorized Practice Committee at one of its quarterly meetings.  Attorneys with the State Bar’s Office of Counsel serve as counsel for and staff liaisons to the Committee.

Authorized practice complaints, the response and any documentation obtained in connection with the complaint are matters of public record and not confidential.  Meetings of the Authorized Practice Committee generally are open to the public.  Historically, the Committee also has provided notice to respondents against whom complaints have been filed about the meeting at which the Committee will consider the complaint against them.  If requested, respondents or their counsel generally are given a brief opportunity to address Committee in person.   Authorized Practice complaints typically take anywhere from six months to a year, or longer in some cases, before the State Bar makes a final decision.

Responding to a Complaint Concerning the Unauthorized Practice of Law

If you have received a Letter of Notice from the Authorized Practice Committee of the North Carolina State Bar, this generally means that its staff counsel has reviewed a complaint filed against you and made an initial determination that the allegations, if true, state a violation of the statutes concerning the unauthorized practice of law.

The deadline to submit a written response is within 15 days from receipt of the Letter of Notice by certified mail.  It is important that you know the date that the letter was received.  The State Bar typically grants an initial extension of time to respond upon request.  Although you can obtain a copy of the original complaint, which is generally advisable, it also is important to remember that the staff attorney already has made determinations about what allegations s/he thought were pertinent.

In drafting a response to the letter of notice, it is important for you to include all information and documentation necessary to respond to the allegations but equally important for you to include only the pertinent information and documentation.  Our firm helps our clients make these judgments and determinations from an objective standpoint and with knowledge and experience of the process in defending complaints involving the unauthorized practice of law.  We also work with clients to comprehensively and objectively evaluate the complaint, the best response, and the potential outcomes, based on approximately 15 years of experience with the Committee.

After receiving the response, the staff attorney may request additional follow-up information from you or otherwise conduct an additional investigation.  Whether additional information and investigation is necessary and how much needs to be collected varies depending on the types of cases.  For example, allegations involving assisting in real estate closings often involve either additional follow-up requests or investigation and sometimes both.

Authorized Practice Committee Decisions and Possible Results

After the staff attorney determines that all necessary information has been obtained, s/he prepares a report of counsel to the Authorized Practice Committee.  This report summarizes the complaint, response, evidence, and makes a recommended resolution.  This report and recommendation also results in the complaint being placed on the Committee’s agenda at its next quarterly meeting either for full Committee discussion or on the consent agenda with a proposed disposition.

At the Committee’s quarterly meeting, the complaint is considered on the written record, consisting of the complaint with any attachments, the response(s) with any attachments, the results of any additional investigation conducted by the Office of Counsel, and the Report of Counsel.  Live testimony is not received and the respondent and his or her counsel is at most given a brief opportunity to address the Committee.

Complaints considered at the quarterly meetings are resolved by the Authorized Practice Committee taking one of the following actions:

• Dismiss the complaint if the committee finds that there is no probable cause to believe that the respondent violated the unauthorized practice of law statutes.
• Take no action, which typically occurs when the Committee is unable to locate the respondent or otherwise unable to obtain sufficient information to make a determination.
• Issue a letter of caution finding that the respondent committed a violation of the unauthorized practice of law statutes but take no further action at that time.  (For respondents who are out of state attorneys, the Committee on occasion has referred the matter or sent a copy of the letter of caution to the Bar for the State in which the lawyer is licensed to practice)
• Issue a cease and desist letter finding that the respondent committed a violation of the unauthorized practice of law, directing the respondent to cease such activities and provide confirmation that respondent has done so.
• Refer the matter to a local district attorney and request that respondent be prosecuted criminally for violations of the unauthorized practice of law and possibly other statutes.
• Recommend that the State Bar file and pursue civil injunctive proceedings against respondent.  Either the State Bar Executive Committee or its governing Council must adopt the Committee’s recommendation before the State Bar can pursue civil injunctive proceedings.

Generally, the State Bar does not provide an opportunity to reject its findings and conclusions and also does not provide an opportunity for an evidentiary hearing for respondents who disagree with the Committee’s decision.  However, the State Bar must file a civil action to pursue injunctive relief against a respondent.  In such a proceeding, the State Bar has the burden of proving that the respondent committed a violation of the unauthorized practice of law statutes and that injunctive relief is warranted.  Respondents generally have the same rights and opportunities afforded to any defendant in a civil case in such proceedings.  Our firm strives to prevent the State Bar from filing such actions and seeking such relief against our clients.

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