Proposed Opinions

Council Actions

At its meeting on April 17, 2015, the State Bar Council adopted the ethics opinions summarized below:

2015 Formal Ethics Opinion 1
Preparing Pleadings and Other Filings for an Unrepresented Opposing Party

Opinion rules that a lawyer may not prepare pleadings and other filings for an unrepresented opposing party in a civil proceeding currently pending before a tribunal if doing so is tantamount to giving legal advice to that person.

2015 Formal Ethics Opinion 2
Preparing Waiver of Right to Notice of Foreclosure for Unrepresented Borrower

Opinion rules that when the original debt is $100,000 or more, a lawyer for a lender may prepare and provide to an unrepresented borrower, owner, or guarantor a waiver of the right to notice of foreclosure and the right to a foreclosure hearing pursuant to N.C.G.S. § 45-21.16(f) if the lawyer explains the lawyer’s role and does not give legal advice to any unrepresented person. However, a lawyer may not prepare such a waiver if the waiver is a part of a loan modification package for a mortgage secured by the borrower’s primary residence.

2015 Formal Ethics Opinion 3
Offering Prospective Client a Computer Tablet in Direct Mail Solicitation

Opinion rules that a lawyer may not offer a computer tablet to a prospective client in a direct mail solicitation letter.

Ethics Committee Actions

At its meeting on April 16, 2015, the Ethics Committee voted to publish a substitute opinion for 2014 FEO 5 (7/25/14), Advising a Client About Social Media, but deferred voting on whether to withdraw the existing opinion to permit consideration of comment on the proposed substitute opinion received after publication. The substitute opinion appears at the end of this article. The committee also voted to revise and republish three proposed opinions (Proposed 2014 FEO 1; Proposed 2014 FEO 9; and Proposed 2014 FEO 11) and to publish one new proposed opinion.

The comments of readers on the proposed opinions are welcomed. Comments received before July 16, 2015, will be considered at the next meeting of the Ethics Committee. Comments may be emailed to ethicsadvice@ncbar.gov.

Proposed 2014 Formal Ethics Opinion 1
Protecting Confidential Client Information When Mentoring
April 16, 2015

Proposed opinion encourages lawyers to become mentors to law students and new lawyers (“protégés”) who are not employees of the mentor’s firm, and examines the application of the duty of confidentiality to client communications to which a protégé may be privy.

Note:

This opinion does not apply to law students certified pursuant to the Rules Governing the Practical Training of Law Students (27 N.C.A.C 1C, Section .0200) or to lawyers, employees, or law clerks (paid or volunteer) being mentored or supervised by a lawyer within the same firm. This opinion addresses issues pertaining to informal mentoring relationships between lawyers, or between a lawyer and a law student, as well as to established bar and/or law school mentoring programs. Mentoring relationships between a lawyer and a college or a high school student are not addressed by this opinion because such relationships require more restrictive measures due to these students’ presumed inexperience and lack of understanding of a lawyer’s professional responsibilities, particularly the professional duty of confidentiality.

Inquiry #1:

May a lawyer who is mentoring a law student (“protégé”) allow the student to observe confidential client consultations between the lawyer and the lawyer’s client?

Opinion #1:

Yes, if the client gives informed consent.

The duty of confidentiality is set forth in Rule 1.6. It provides that all communications relative to a client’s matter are confidential and cannot be disclosed unless the client consents, the client’s consent is implied as necessary to carry out the representation, or one of the specific exceptions to the duty of confidentiality in Rule 1.6(b) applies. If a law student/protégé is not an agent of the lawyer for the purpose of representing the client, there is no implied client consent to disclosure of the client’s confidential information to the student. Moreover, none of the specific exceptions to the duty of confidentiality apply in this situation. Only the express informed consent of the client will permit disclosure of confidential client information to a law student/protégé.

“Informed consent,” as defined in Rule 1.0, Terminology, “denotes the agreement by the person to a proposed course of conduct after the lawyer has communicated adequate information and explanation appropriate under the circumstances.” Rule 1.0(f). Informed consent must be given in writing by the client or confirmed in writing by the lawyer. See Rule 1.0(c). In the mentoring situation, obtaining the client’s informed consent requires the lawyer to explain the risks to the representation of the client that will be presented by the law student’s knowledge of client confidential information and the law student’s presence during client consultations.

One such risk is the possibility that the law student, who is not subject to the Rules of Professional Conduct, will intentionally or unintentionally reveal the client’s confidential information to unauthorized persons. To minimize this risk, it is recommended that the law student be required to sign a confidentiality agreement that emphasizes the duty not to disclose any client confidential information unless the client and the lawyer give express consent.

The lawyer should also explain to the client any risk that the attorney-client privilege1 will not attach to client communications with the lawyer because of the presence of the law student during the lawyer’s consultation with the client. If the lawyer concludes that the student’s presence will jeopardize the attachment of the privilege and the resulting harm to the client’s interests is substantial, the lawyer should consider carefully whether it is appropriate to ask the client to consent to the student’s presence during the consultation.

Inquiry #2:

A lawyer wants to be a mentor to a new lawyer (“protégé”) who is not employed by or affiliated with the lawyer/mentor’s law firm. The lawyer/mentor wants to allow the new lawyer to observe his consultations with clients, and he also wants to observe the new lawyer’s consultations with the new lawyer’s clients in order to critique and advise the new lawyer.

May the lawyer/mentor allow the lawyer/protégé to observe confidential client consultations between the lawyer/mentor and his client? May the lawyer/protégé allow the lawyer/mentor to observe confidential client consultations between the lawyer/protégé and his client?

Opinion #2:

Yes, these observations are allowed with the client’s informed consent. See Opinion #1. The observing lawyer should sign an agreement to maintain the confidentiality of the information of the other lawyer’s client, in accordance with Rule 1.6, and to avoid representations adverse to the client in accordance with Rule 1.7 and Rule 1.9.

Both the lawyer/protégé and the lawyer/mentor should avoid the creation of a conflict of interest with any existing or former clients by virtue of the mentoring relationship. For example, the lawyer/protégé should not consult with a lawyer he knows has represented the opposing party in the past without first ascertaining that the matters are not substantially related and that the opposing party is not represented in the current matter by the lawyer/mentor. Similarly, the lawyer/mentor should obtain information sufficient to determine that the lawyer/protégé’s matter is not one affecting the interests of an existing or former client. Rule 1.7 and Rule 1.9.

Inquiry #3:

When a lawyer seeks advice from a lawyer/mentor, what actions should be taken to protect confidential client information?

Opinion #3:
If possible, the lawyer/protégé should try to obtain guidance from the lawyer/mentor without disclosing identifying client information. This can often be done by using a hypothetical. If the consultation is general and does not involve the disclosure of identifying client information, client consent is unnecessary.

If the consultation is intended to help the lawyer/protégé comply with the ethics rules, client consent is not required because Rule 1.6(b)(5) allows a lawyer to reveal protected client information to the extent that the lawyer reasonably believes necessary “to secure legal advice about the lawyer's compliance with [the Rules of Professional Conduct].” Pursuant to comment [10] to Rule 1.6:

A lawyer's confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer's personal responsibility to comply with [the Rules of Professional Conduct.] In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (b)(5) permits such disclosure because of the importance of a lawyer's compliance with the Rules of Professional Conduct.

If the consultation does not involve advice about the lawyer’s compliance with the Rules of Professional Conduct, a hypothetical is not practical, or making the inquiry risks disclosure of information relating to the representation, the lawyer/protégé must obtain client consent. See Opinion #2.

Under all circumstances, the lawyer/protégé and the lawyer/mentor should avoid the creation of a conflict of interest with any existing or former clients by virtue of the mentoring relationship. See Opinion #2; Rule 1.7 and Rule 1.9.

Endnote

1. The attorney-client evidentiary privilege to avoid compelled testimony applies to client communications with a lawyer if (1) the relation of attorney and client existed at the time the communication was made, (2) the communication was made in confidence, (3) the communication relates to a matter about which the attorney is being professionally consulted, (4) the communication was made in the course of giving or seeking legal advice for a proper purpose although litigation need not be contemplated, and (5) the client has not waived the privilege. State v. McIntosh, 336 N.C. 517, 444 S.E.2d 438 (1994).

Proposed 2014 Formal Ethics Opinion 9
Use of Tester in an Investigation that Serves a Public Interest
April 16, 2015

Proposed opinion rules that a private lawyer may supervise an investigation involving misrepresentation if done in pursuit of a public interest and certain conditions are satisfied.

Note:

This opinion does not apply to the conduct of a government lawyer. As explained in comment [1] to Rule 8.4, the prohibition in Rule 8.4(a) against knowingly assisting another to violate the Rules of Professional Conduct or violating the Rules of Professional Conduct through the acts of another does not prohibit a government lawyer from providing legal advice to investigatory personnel relative to any action such investigatory personnel are lawfully entitled to take.

In addition, this opinion is limited to private lawyers who advise, direct, or supervise conduct involving dishonesty, deceit, or misrepresentation as opposed to a lawyer who personally participates in such conduct.

Inquiry:

Attorney A was retained by Client C to investigate and, if appropriate, file a lawsuit against Client C’s former employer, E. Employer E employed Client C as a janitor and required him to work 60 hours per week. E paid Client C a salary of $400 per week. Attorney A believes that because his client’s employment was a “non-exempt position” under the North Carolina Wage and Hour Act, the payment method used by E was unlawful. Instead, E should have paid Client C at least $7.25 (minimum wage) per hour for each of the first 40 hours Client C worked per week, and at least $10.88 (time and a half) for each hour in excess of 40 (overtime) that Client C worked per week.

Prior to filing a lawsuit, Attorney A wants to retain a private investigator to investigate E’s wage payment practices. The private investigator suggests using lawful, but misleading or deceptive tactics, to obtain the information Attorney A seeks. For example, the private investigator may pose as a person interested in being hired by E in the same capacity as Client C to see if E violates the North Carolina Wage and Hour Act when compensating the investigator.

Prior to filing a lawsuit, may Attorney A retain a private investigator who will misrepresent his identity and purpose when conducting an investigation into E’s wage payment practices?

Opinion:

The Rules of Professional Conduct are rules of reason and there are instances when the use of misrepresentation does not violate Rule 8.4(a)’s prohibition on the use of third parties to engage in conduct involving misrepresentation. See Rule 0.2, Scope, and Rule 8.4(a) and (c).

Other jurisdictions have interpreted their Rules of Professional Conduct to permit lawyer supervision of investigations involving misrepresentation in circumstances similar to that set out in the instant inquiry. For example, the bars of Arizona and Maryland permit lawyers to use “testers” who employ misrepresentation to collect evidence of discriminatory practices. Ariz. State Bar Comm. on the Rules of Prof’l Conduct, Op. 99-11 (1999); Maryland Bar Ass'n, Op. 2006-02 (2005). These ethics opinions conclude that testers are necessary to prove discriminatory practices and, therefore, serve an important public policy. The State Bar of Arizona opined that it would be inconsistent with the intent of the Rules of Professional Conduct to interpret the rules to prohibit a lawyer from supervising the activity of testers. Ariz. State Bar Comm. on the Rules of Prof’l Conduct, Op. 99-11 (1999).
The objective of Rule 8.4 is set out in comment [3] to the rule: “The purpose of professional discipline for misconduct is not punishment, but to protect the public, the courts, and the legal profession.” The challenge is to balance the public’s interest in having unlawful activity fully investigated and possibly thereby stopped, with the public’s and the profession’s interest in ensuring that lawyers conduct themselves with integrity and honesty. In an attempt to balance these two important interests, we conclude that a lawyer may advise, direct, or supervise an investigation involving pretext under certain limited circumstances.

In the pursuit of a legitimate public interest such as in investigations of discrimination in housing, employment and accommodations, patent and intellectual property infringement, and the production and sale of contaminated and harmful products, a lawyer may advise, direct, and supervise the use of misrepresentation (1) in lawful efforts to obtain information on actionable violations of criminal law, civil law, or constitutional rights; (2) if the lawyer’s conduct is otherwise in compliance with the Rules of Professional Conduct;1 (3) the lawyer has a good faith belief that there is a reasonable possibility that a violation of criminal law, civil law, or constitutional rights has taken place, is taking place, or will take place in the foreseeable future;2 (4) misrepresentations are limited to identity or purpose; and (5) the evidence sought is not reasonably available through other means. A lawyer may not advise, direct, or supervise the use of misrepresentation to pursue the purely personal interests of the lawyer’s client, where there is no public policy purpose, such as the interests of the principal in a family law matter.
If Attorney A concludes that each of the above conditions is satisfied, he may retain a private investigator to look into E’s wage payment practices, which investigation may include misrepresentations as to identity and purpose.

Endnotes

1. Rule 4.2(a) prohibits a lawyer from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter unless the other lawyer consents or the communication is authorized by law or court order. A lawyer may not violate this rule through the acts of another, including an investigator. Rule 8.4(a).

2. Government evidence or data that supports the conclusion that random testing will uncover illegal discriminatory conduct is a sufficient basis for a lawyer’s “good faith belief” under this condition. For example, federal funding and contracts for Legal Aid of North Carolina, Inc.’s (LANC) Fair Housing Project require the performance of systematic fair housing testing to uncover patterns, practices, barriers, and other more subtle forms of unlawful housing discrimination in North Carolina. Studies and evidence developed by US Department of Housing and Urban Development confirm that systematic fair housing testing is an important tool to detect housing discrimination. A LANC lawyer may rely on such evidence to form a good faith belief that there is a reasonable possibility that a violation of fair housing law has, is, or will take place and that random audits by “testers” supervised by the lawyer will uncover such conduct.

Proposed 2014 Formal Ethics Opinion 11
Notice to Parents Prior to Seeking Nonsecure Custody Order
April 16, 2015

Proposed opinion rules that a DSS lawyer must follow legal notice requirements when filing a petition alleging abuse, neglect, or dependency and must comply with Rule 3.5 regarding ex parte motions for nonsecure custody.

Facts:

In cases when immediate removal of a child is deemed necessary, the County Department of Social Services (DSS) must file a petition alleging abuse, neglect, or dependency, and obtain a nonsecure custody order.

The petition alleging abuse, neglect, or dependency must be filed prior to the request for a nonsecure custody order. The parties to the action are DSS as petitioner, the respondent parents, the child (who is appointed a guardian ad litem), and, depending upon the facts, a legal guardian, legal custodian, or adult caretaker of the child. N.C. Gen. Stat. § 7B-401.1 (2013). Upon the filing of the petition, respondent parents are each appointed provisional counsel by the clerk. The provisional counsel remain appointed to each parent unless the parent does not appear at the hearing, the court finds that the parent is not indigent, the parent retains his/her own counsel, or the parent waives his/her right to counsel. N.C. Gen. Stat. § 7B-602 (2013). Very specific criteria for nonsecure custody are set out in N.C. Gen. Stat. § 7B-503 (2011). Pursuant to N.C. Gen. Stat. § 7B-506 (2013), if nonsecure custody is needed for more than seven calendar days, there must be a hearing on the merits within that time.
The instant inquiry involves a family where there is a pending DSS action and each parent has been appointed counsel. The children have been adjudicated abused, neglected, and/or dependent, and the case is in the permanency planning and review stage.

The respondent mother is pregnant (it is unknown whether the father is same father as in the underlying abuse, neglect, or dependency action). Upon the birth of the infant, DSS intends to file a petition alleging abuse, neglect, or dependency and to file an ex parte motion for nonsecure custody as to the newborn child.

Inquiry #1:

Is the lawyer for DSS required to notify the respondent parents’ lawyers prior to or at the time of filing the new petition alleging abuse, neglect, or dependency as to the newborn child?

Opinion #1:

The issue of notice is a legal question not governed by the Rules of Professional Conduct. The DSS lawyer must follow the legal guidelines established as to the notice or service required prior to or at the time of filing the petition alleging abuse, neglect, or dependency.

If the law does not require such notice, it would be consistent with the Rules of Professional Conduct for the DSS lawyer to provide the parents’ lawyers with notice prior to or at the time of the filing, particularly when the parents’ lawyers have requested such notice as to the unborn child. Rule 1.2(a)(2) provides:

A lawyer does not violate this rule by acceding to reasonable requests of opposing counsel that do not prejudice the rights of a client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.

Inquiry #2:

Rule 3.5 prohibits ex parte communication with a judge except in certain limited situations. Does Rule 3.5 apply to the filing of the ex parte motion for nonsecure custody as to the newborn child?

Opinion #2:

Yes. Rule 3.5 governs a lawyer’s communication with a judge about a pending matter. Rule 3.5(a)(3) provides that a lawyer shall not communicate ex parte with a judge or other official except in the course of official proceedings, in writing, if a copy is furnished simultaneously to the opposing party, orally, upon adequate notice to the opposing party, or “as otherwise permitted by law.”

The lawyer for DSS must comply with Rule 3.5(a)(3) as to any ex parte communications with a judge following the filing of the petition relative to the newborn child. Whether an ex parte motion for nonsecure custody is specifically authorized by law is a legal question beyond the purview of the Ethics Committee. For this exception to apply, however, there must be “a statute or case law specifically and clearly authorizing such communication. Such authorization may not be inferred by the absence in the statute or case law of a specific statement requiring notice to the adverse party or counsel prior to the ex parte communication.” 2001 FEO 15.

Proposed 2015 Formal Ethics Opinion 4
Disclosing Potential Malpractice to a Client
April 16, 2015

Introduction
Lawyers will, inevitably, make errors, mistakes, and omissions (referred to herein as an “error” or “errors”) when representing clients. Such errors may constitute professional malpractice, but are not necessarily professional misconduct. This distinction between professional or legal negligence and professional misconduct is explained in comment [9] to Rule 1.1, Competence:

An error by a lawyer may constitute professional malpractice under the applicable standard of care and subject the lawyer to civil liability. However, conduct that constitutes a breach of the civil standard of care owed to a client giving rise to liability for professional malpractice does not necessarily constitute a violation of the ethical duty to represent a client competently. A lawyer who makes a good-faith effort to be prepared and to be thorough will not generally be subject to professional discipline, although he or she may be subject to a claim for malpractice. For example, a single error or omission made in good faith, absent aggravating circumstances, such as an error while performing a public records search, is not usually indicative of a violation of the duty to represent a client competently.

Although an error during the representation of a client may not constitute professional misconduct, the actions that the lawyer takes following the realization that she has committed an error should be guided by the requirements of the Rules of Professional Conduct. This opinion explains a lawyer’s professional responsibilities when the lawyer has committed what she believes may be legal malpractice.

This opinion does not address requirements under a lawyer’s malpractice insurance policy to give the insurer notice or to report a potential claim. Lawyers are encouraged to read their policies. This opinion also does not address settlement of a malpractice claim. Lawyers are reminded that Rule 1.8(h)(2) prohibits settlement of a malpractice claim with an unrepresented client or former client unless the person is advised in writing of the desirability of seeking and given a reasonable opportunity to seek the advice of independent legal counsel.

Inquiry #1:

When the lawyer determines that an error that may constitute legal malpractice has occurred, is the lawyer required to disclose the error to the client?

Opinion #1:

Disclosure of an error to a client falls within the duty of communication. Rule 1.4(a)(3) requires a lawyer to “keep the client reasonably informed about the status of the matter,” while paragraph (b) of the rule requires a lawyer to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Comment [3] to the rule explains that paragraph (a)(3) requires that the lawyer keep the client reasonably informed about “significant developments affecting the timing or the substance of the representation.” Comment [7] to Rule 1.4 adds that “[a] lawyer may not withhold information to serve the lawyer's own interest or convenience or the interests or convenience of another person.”

In the spectrum of possible errors,1 material errors that prejudice the client’s rights or claims are at one end. These include errors that effectively undermine the achievement of the client’s primary objective for the representation, such as failing to file the complaint before the statute of limitations runs. At the other end of the spectrum are minor, harmless errors that do not prejudice the client’s rights or interests. These include nonsubstantive typographical errors in a pleading or a contract or missing a deadline that causes nothing more than delay. Between the two ends of the spectrum are a range of errors that may or may not materially prejudice the client’s interests.

Whether the lawyer must disclose an error to a client depends upon where the error falls on the spectrum and the circumstances at the time that the error is discovered. The New York State Bar Association, in a formal opinion, described the duty as follows:

[W]hether an attorney has an obligation to disclose a mistake to a client will depend on the nature of the lawyer’s possible error or omission, whether it is possible to correct it in the present proceeding, the extent of the harm resulting from the possible error or omission, and the likelihood that the lawyer’s conduct would be deemed unreasonable and therefore give rise to a colorable malpractice claim.

N.Y. State Bar Ass’n Comm. Prof’l Ethics, Op. 734 (2000). Under this analysis, it is clear that material errors that prejudice the client’s rights or interests as well as errors that clearly give rise to a malpractice claim must always be reported to the client. Conversely, if the error is easily corrected or negligible and will not materially prejudice the client’s rights or interests, the error does not have to be disclosed to the client.

Errors that fall between the two extremes of the spectrum must be analyzed under the duty to keep the client reasonably informed about his legal matter. If 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, the error must be disclosed to the client. Similarly, if disclosure of the error is necessary for the client to make an informed decision about the representation or for the lawyer to advise the client of significant changes in strategy, timing, or direction of the representation, the lawyer may not withhold information about the error. Rule 1.4. When a lawyer does not know whether disclosure is required, the lawyer should err on the side of disclosure or should seek the advice of outside counsel, the State Bar’s ethics counsel, or the lawyer’s malpractice carrier.2 

Inquiry #2:

Applying the analysis in Opinion #1, the lawyer has determined that her error must be disclosed to the client. Is the lawyer also required to withdraw from the representation?

Opinion #2:

No, unless the conditions in Rule 1.7, Conflict of Interest: Current Clients, that allow a representation burdened with a conflict to proceed cannot be satisfied.

Rule 1.7(a)(2) states that a lawyer may not represent a client if the representation of a client may be materially limited by a personal interest of the lawyer. When a lawyer realizes that she made an error that may give rise to a malpractice claim against her, the lawyer’s personal interest in avoiding liability may materially impair her professional judgment. Specifically, she may take actions that are contrary to the interests of the client to protect herself from liability. This is the essence of a conflict of interest.

Nevertheless, in many instances the lawyer may reasonably believe that she can mitigate or avoid any loss to the client by taking corrective action.3 For example, an error made in a title search may be readily repaired or a motion in limine may prevent the use of privileged communications that were improperly produced in discovery. It is often in the best interest of both the lawyer and the client for the lawyer to attempt such repair. When the interests of the lawyer and the client are aligned in this way, withdrawal is not required if the conditions for consent in Rule 1.7(b) are satisfied.

Rule 1.7(b) allows a lawyer to proceed with a representation burdened by a conflict if the lawyer reasonably believes that she will be able to provide competent and diligent representation to the client and the client gives informed consent, confirmed in writing. If the lawyer reasonably concludes that she is still able to provide the client with competent and diligent representation—that she can exercise independent professional judgment to advance the interests of the client and not solely her own interests—the lawyer may seek the informed consent of the client to continue the representation.

Of course, when an error is such that the client’s objective can no longer be achieved, as when a claim can no longer be filed because the statute of limitations has passed, the lawyer must disclose the error to the client and terminate the representation.

Inquiry #3:

If an error must be disclosed to a client, what must the lawyer tell the client?

Opinion #3:

The lawyer must candidly disclose the material facts surrounding the error, including the nature of the error and its effect on the lawyer’s continued representation. If the lawyer believes that she can take steps to remedy the situation or mitigate or avoid a loss, the lawyer should discuss these with the client while informing the client that the client has the right to terminate the representation and seek other counsel. Rule 1.4.

Whether a lawyer must inform the client that the client may have a malpractice action against the lawyer was addressed in Colorado Formal Ethics Opinion 113. The opinion states that

The lawyer need not advise the client about whether a claim for malpractice exists, and indeed the lawyer’s conflicting interest in avoiding liability makes it improper for the lawyer to do so. The lawyer need not, and should not, make an admission of liability. What must be disclosed are the facts that surround the error, and the lawyer should inform the client that it may be advisable to consult with an independent lawyer with respect to the potential impact of the error on the client’s rights or claims.

Co. Formal Ethics Op. 113 (November 19, 2005). The Colorado approach appropriately limits the possibility that a lawyer will attempt to give legal advice to a client about a potential malpractice claim against the lawyer. To do so would place the lawyer squarely in a nonconsentable conflict between the client’s interest and the lawyer’s personal interest. However, the lawyer is required to tell the client the operative facts about the error and to recommend that the client seeking independent legal advice about the consequences of the error.

Under this approach, the lawyer is not required to inform the client of the statute of limitations applicable to legal malpractice actions, nor is she required to give the client information about the lawyer’s malpractice insurance carrier or information about how to file a claim with the carrier. Nevertheless, the lawyer should seek the advice of her malpractice insurance carrier prior to disclosing the error to the client, and should discuss with the carrier what information, if any, should be provided to the client about the lawyer’s malpractice coverage or how to file a claim.

Inquiry #4:

Is there any information that the lawyer should not provide to the client when disclosing her error to the client?

Opinion #4:

The lawyer should not disclose to the client whether a claim for malpractice exists or provide legal advice about legal malpractice. See Opinion #3.

Inquiry #5:

When is the lawyer required to inform the client of the error?

Opinion #5:

The error should be disclosed to the client as soon as possible after the lawyer determines that disclosure of the error to the client is required. See Rule 1.4(a)(1) (lawyer shall promptly inform the client of any decision requiring consent).

Inquiry #6:

Is filing a motion to undo the error based upon excusable neglect sufficient disclosure to the client if the client is copied with the motion? May the lawyer wait until the court has ruled on the motion to send a copy of the motion and order to the client?

Opinion #6:

As noted above, comment [3] to Rule 1.4 explains that a lawyer must keep the client reasonably informed about “significant developments affecting the timing or the substance of the representation.” If the client will lose a significant right or interest if the motion fails, the client is entitled to know about the error in order to determine whether the client is willing to allow the lawyer to attempt to correct the error or would prefer that the motion be handled by another lawyer. The client must be advised of the error prior to filing the motion to allow the client to make an informed decision about the representation. Rule 1.4(b).

Inquiry #7:

When disclosing the error to the client, may the lawyer refer the client to another lawyer for advice?

Opinion #7:

Yes, if the lawyer concludes that she can exercise impartial, independent professional judgment in recommending other counsel to the client. See Opinion #2.

Inquiry #8:

If the client has paid legal fees to the lawyer, is the lawyer required to return some or all of the fees that she received?

Opinion #8:

Rule 1.5(a) prohibits a lawyer from collecting a clearly excessive fee. As stated in 2000 FEO 5,

there is always a possibility that a lawyer will have to refund some or all of any type of advance fee, if the client-lawyer relationship ends before the contemplated services are rendered. At the conclusion of the representation, the lawyer must review the entire representation and determine whether, in light of the circumstances, a refund is necessary to avoid a clearly excessive fee.

Therefore, the lawyer must determine whether, in light of the lawyer’s error and its consequences for the client’s interests and legal representation, a refund is necessary to avoid a clearly excessive fee. In addition, the lawyer should never charge or collect legal fees for any legal work or expenses necessitated by the lawyer’s attempts to mitigate the consequences of the lawyer’s error.

Endnotes

1. The “spectrum” concept of legal errors is borrowed from Colorado Formal Ethics Op. 113 (November 19, 2005).

2. Rule 1.6(b)(5) allows a lawyer to disclose confidential client information to secure legal advice about the lawyer's compliance with the Rules of Professional Conduct.

3. Insurance carriers are experienced at repairing malpractice. A lawyer should seek the advice and assistance of her carrier.

Proposed Substitute for 2014 Formal Ethics Opinion 5 (Adopted 7/25/14)
Advising a Civil Litigation Client about Social Media
April 16, 2015

Proposed opinion rules a lawyer must advise a civil litigation client about the legal ramifications of the client’s postings on social media as necessary to represent the client competently. The lawyer may advise the client to remove postings on social media if the removal is done in compliance with the rules and law on preservation and spoliation of evidence.

Inquiry #1:

A client’s postings and other information that the client has placed on a social media1 website (referred to collectively as “postings”) are relevant to the issues in the client’s legal matter and, if the matter is litigated, might be used to impeach the client. The client’s lawyer does not use social media and is unfamiliar with how social media functions.

What is the lawyer’s duty to be knowledgeable of social media and to advise the client about the effect of the postings on the client’s legal matter?

Opinion #1:

Rule 1.1 requires lawyers to provide competent representation to clients. Comment [8] to the rule specifically states that a lawyer “should keep abreast of changes in the law and its practice, including the benefits and risks associated with the technology relevant to the lawyer’s practice.” “Relevant technology” includes social media. As stated in an opinion of the New Hampshire Bar Association, N. H. Bar Ass’n Op. 2012-13/05, “counsel has a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation.”

If the client’s postings could be relevant and material to the client’s legal matter, competent representation includes advising the client of the legal ramifications of existing postings, future postings, and third party comments.

Inquiry #2:

The client’s legal matter will probably be litigated, although a law suit has not been filed. May the lawyer instruct the client to remove postings on social media?

Opinion #2:

A lawyer may not counsel a client or assist a client to engage in conduct the lawyer knows is criminal or fraudulent. Rule 1.2(d). In addition, a lawyer may not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. Rule 3.4(a). The lawyer, therefore, should examine the law on preservation of information, spoliation2 of evidence, and obstruction of justice to determine whether removing existing postings would be a violation of the law.

If removing postings does not constitute spoliation and is not otherwise illegal, or the removal is done in compliance with the rules and law on preservation and spoliation of evidence, the lawyer may instruct the client to remove existing postings on social media. The lawyer may take possession of printed or digital images of the client’s postings made for purposes of preservation. See N.Y. State Bar, Ethics Op. 745 (2013)(lawyer may advise a client about the removal of postings if the lawyer complies with the rules and law on preservation and spoliation of evidence).

Inquiry #3:

May the lawyer instruct the client to change the security and privacy settings on social media pages to the highest level of restricted access?

Opinion #3:

Yes, if doing so is not a violation of law or court order.

Endnotes

1. “Social media” is defined as “forms of electronic communication ([such] as Websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content ([such] as videos).” Social Media, Merriam-Webster, merriam-webster.com/dictionaty/social%20 media (last visited Jan. 20, 2015).

2. Black’s Law Dictionary 1437 (8th ed. 2004) defines spoliation as the intentional concealment, destruction, alteration or mutilation of evidence, usually documents, thereby making them unusable or invalid. The doctrine of spoliation of evidence holds that when “a party fails to introduce in evidence documents that are relevant to the matter in question and within his control...there is a presumption, or at least an inference that the evidence withheld, if forthcoming, would injure his case.” Jones v. GMRI, Inc., 144 N.C. App. 558, 565, 551 S.E.2d 867, 872(2001) (quoting Yarborough v. Hughes, 139 N.C. 199, 209, 51 S.E. 904, 907-08 (1905)).

THE NORTH CAROLINA STATE BAR
217 E. Edenton Street (27601) • PO Box 25908 • Raleigh, NC 27611-5908 • 919.828.4620
Copyrightę North Carolina State Bar. All rights reserved.