Proposed Opinions

Council Actions

At a meeting on January 15, 2010, the State Bar Council adopted the opinions summarized below upon the recommendation of the Ethics Committee:

2008 Formal Ethics Opinion 11
Representation of Beneficiary on Other Matters While Serving as Foreclosure Trustee
Opinion rules that a lawyer may serve as the trustee in a foreclosure proceeding while simultaneously representing the beneficiary of the deed of trust on unrelated matters and that the other lawyers in the firm may also continue to represent the beneficiary on unrelated matters.

2009 Formal Ethics Opinion 1
Review and Use of Metadata
Opinion rules that a lawyer must use reasonable care to prevent the disclosure of confidential client information hidden in metadata when transmitting an electronic communication, and a lawyer who receives an electronic communication from another party or another party's lawyer must refrain from searching for and using confidential information found in the metadata embedded in the document.

2009 Formal Ethics Opinion 3
Non-lawyer Employee Contacting Clients of Former Employer
Opinion rules that a lawyer has a professional obligation not to encourage or allow a nonlawyer employee to disclose confidences of a previous employer's clients for purposes of solicitation.

2009 Formal Ethics Opinion 12
Preparation of Documents for Unrepresented Adverse Party
Opinion rules that a lawyer may prepare an affidavit and confession of judgment for an unrepresented adverse party provided the lawyer explains who he represents and does not give the unrepresented party legal advice; however, the lawyer may not prepare a waiver of exemptions for the adverse party.

2009 Formal Ethics Opinion 15
Dismissal of DWI Charge by Prosecutor When Insufficient Evidence Due to Suppression Order
Opinion rules that a prosecutor must dismiss a DWI charge when the prosecutor fails to appeal a court order suppressing evidence from the traffic stop, thereby eliminating the evidence necessary to prove the charge.

Ethics Committee Actions

At its meeting on January 14, 2010, the Ethics Committee voted to withdraw and send the following proposed opinions to subcommittees for further study: Proposed 2009 FEO 11, Representing Debtor in Bankruptcy When Lender is Current Client; Proposed 2009 FEO 13, Providing Limited Legal Services When Working with a Settlement Agent; Proposed 2009 FEO 14, Referral of Clients to Title Company Owned by Lawyer's Spouse; Proposed 2009 FEO 16, References to Selected Trial and Other Successes on Website; and Proposed 2009 FEO 17, Tacking as Question of Standard of Care. Two proposed opinions, previously published in the Journal, were revised and appear below. Six new proposed opinions are also published for comment. The comments of readers are welcomed.

Rules, Procedure, Comments—All opinions of the Ethics Committee are predicated upon the Rules of Professional Conduct as revised effective March 1, 2003, and thereafter amended, and referred to herein as the Rules of Professional Conduct (2003). The proposed opinions are issued pursuant to the "Procedures for Ruling on Questions of Legal Ethics." 27 N.C.A.C. ID, Sect .0100. Any interested person or group may submit a written comment or request to be heard concerning a proposed opinion. Any comment or request should be directed to the Ethics Committee at PO Box 25908, Raleigh, NC 27611, by March 30, 2009.

Proposed 2009 Formal Ethics Opinion 7
Interviewing a Child Abuse Victim
January 14, 2010

Proposed opinion rules that a criminal defense lawyer or a prosecutor may not interview a child who is the prosecuting witness in a criminal case alleging physical or sexual abuse if the child is younger than the age of maturity for criminal responsibility as determined by the General Assembly (currently age 16) unless the lawyer has the consent or authorization of a non-accused parent or guardian or a court order; a lawyer may interview a child who is the age of maturity for criminal responsibility as determined by the General Assembly or older without such consent or authorization provided the lawyer complies with Rule 4.3, reasonably determines that the child is sufficiently mature to understand the lawyer's role and purpose, and avoids any conduct designed to coerce or intimidate the child.

Introduction:1
This ethics opinion examines when a criminal defense lawyer or a prosecutor may interview a child who is the prosecuting witness in a criminal case alleging physical or sexual abuse of the child. The opinion is purposefully limited to this factual situation and does not address whether a lawyer may, for example, interview a child who is a witness to a crime but is not the victim of the crime. The absence of an opinion on the latter subject does not, however, mean that the Ethics Committee has concluded that such interviews are permissible without consent or authorization of a parent, guardian, or the court. A lawyer should take into consideration the principles articulated in this opinion when considering whether to interview any child who was a witness to a violent crime especially one involving the child's family members.

The opinion examines a difficult dilemma for lawyers who do not wish to interfere with an already traumatized child but who have a duty to prepare competently by investigating each case and interviewing key witnesses. In preparing this opinion, the Ethics Committee received input from mental health professionals and child advocates. That input lead to the committee's determination that the emotional and intellectual sophistication of a child cannot be determined by a lawyer or established by an opinion of the Ethics Committee. However, the General Assembly has determined that a child at a certain age is legally mature for the purpose of his or her own criminal culpability and, in the absence of any other benchmark, the committee accepts the General Assembly's policy decision on this issue.

When a lawyer is considering whether to seek the consent or authorization of a parent or guardian or a court order2 to interview a child who is the victim of physical or sexual abuse, the lawyer should keep in mind the following information provided to the committee by the experts it consulted. Excessive interviews of child victims lead to additional trauma for the child. A person who is not trained in techniques for forensic interviewing of children often makes grave errors that can taint the interview or add to the child's trauma. It is preferable for the interview to be performed by a professional. To avoid intimidating the child, a support person for the child (family member or other appropriate person) should be present at the interview. In light of the foregoing, a lawyer should investigate whether forensic interviews with the child have already taken place and are available on tape; if a tape of an interview with the child is available, the lawyer should consider foregoing further interviews.

If not otherwise clear from the context, the conditions and limitations imposed by this opinion apply equally to prosecutors.

Inquiry #1:

Attorney A represents a criminal defendant on a charge of taking indecent liberties with a child. To prepare for trial, Attorney A would like to interview the child who is the victim of the alleged crime. The child is not a party to the criminal action. She does not have a lawyer and a guardian ad litem has not been appointed to represent her interests. May Attorney A interview the child without the consent of the child's parent or legal guardian?

Opinion #1:

No, if the child is younger than the age of maturity for criminal responsibility as determined by the General Assembly in the General Statutes, it is presumed that the child cannot understand the purpose of the interview, the lawyer's role, or the child's right to decline the interview or terminate the interview at any time. The age of maturity for criminal responsibility is currently 16 but may change by act of the General Assembly. See N.C. Gen. Stat. A77B-1604(a). If the child is the age of maturity for criminal responsibility or older, Attorney A may seek an interview with the child without the consent of the child's parent or legal guardian, provided Attorney A respects the rights of the child and there is no legal requirement that the consent of the parent or legal guardian be obtained. To the extent that this opinion is contrary to the holding in RPC 61 (defense lawyer may interview child victim of molestation without knowledge or consent of district attorney) that opinion is overruled.

It is Attorney A's professional duty to prepare competently and diligently to defend the client; a priori, in most cases this includes interviewing the victim of the alleged crime if the victim will consent to the interview. Nevertheless, a child frequently does not have the emotional or intellectual maturity to make an informed decision about whether to consent to the interview or the emotional or intellectual maturity to understand the role of the lawyer or the purpose of the interview.

Rule 4.3(b) states that, when dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not

state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

As noted in comment [1] to Rule 4.3, "[a]n unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client."

Many children are inexperienced in legal matters and will not understand the role of a lawyer who seeks an interview. Many children will naively defer to the lawyer because he or she is an adult. Many children will be easily misled or subject to the undue influence of an authority figure such as a lawyer. Because of their psychological and emotional immaturity, it is, therefore, presumed that a lawyer may not interview a child who is younger than the age of maturity for criminal responsibility without violating Rule 4.3(b) unless the lawyer obtains the prior consent or authorization of the child's (non-accused) parent or legal guardian or obtains an order from a court with jurisdiction. A child who is the age of maturity for criminal responsibility or older may be interviewed without prior consent or authorization of a parent, guardian, or the court, provided the lawyer who seeks to interview the child reasonably determines that the child is sufficiently mature to understand, when disclosed by the lawyer, (1) the role of the lawyer, (2) who the lawyer represents, (3) the purpose of the interview, and (4) that the child is at liberty to refuse or to terminate the interview. If the lawyer cannot reasonably conclude that the child is sufficiently mature, both emotionally and intellectually, to understand these four things, the lawyer may not interview the child unless a legal guardian or parent consents or a court orders the interview. If the conduct of the legal guardian or the parent toward the child is at issue in the criminal case, consent must be obtained from a guardian ad litem, a court, or other appropriate person or entity with authority to give consent. See Opinion #3; see also Rule 7.1 of the General Rules of Practice for the Superior and District Courts (providing procedure for appointment of lawyer to serve as guardian ad litem for minor who is victim or potential witness in a criminal proceeding).

Rule 3.4(b) prohibits a lawyer from counseling or assisting a witness to testify falsely. This includes making improper suggestions or offering inducements that might lead a naEFve and vulnerable child to change or alter his or her testimony. Although a lawyer may reasonably conclude that a child who is the age of maturity for criminal responsibility or older is sufficiently mature to consent to the interview, the lawyer may not engage in emotional manipulation or other forms of undue influence, coercion, or intimidation that may inhibit or alter the witness's testimony.

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. Before interviewing a child, if allowed to do so under this opinion, the lawyer must determine whether the child is represented and, if applicable, follow the requirements of Rule 4.2(a).

Although a communication without the consent or knowledge of the child's parent or guardian may be allowed under this opinion, a lawyer should err on the side of giving notice to the parent or guardian—and preferably obtaining the consent of the parent or guardian—unless circumstances are such that the lawyer has a good faith belief that the child's candor may be affected by the knowledge of the parent.

Inquiry #2:

May the prosecutor interview the child who is the alleged victim of physical or sexual abuse?

Opinion #2:

Yes, subject to the same constraints set forth in opinion #1.

Inquiry #3:

The defendant is the child's parent or legal guardian and is accused of conduct that, if proven, would constitute abuse or neglect of the child. May the defendant's criminal defense lawyer interview the child subject to the constraints set forth in Opinion #1?

Opinion #3:

In most instances of alleged child abuse or neglect by a parent of guardian, a guardian ad litem (GAL) and an attorney advocate are appointed to represent the child. RPC 249 prohibits a lawyer from communicating with a child who is represented by a GAL and an attorney advocate unless the lawyer obtains the consent of the attorney advocate. If a GAL has not been appointed for the child, the lawyer may interview the child subject to the constraints set forth in Opinion #1.

Endnotes
1. This opinion does not address legal issues relating to due process or the confrontation clause.
2. See also Rule 7.1 of the General Rules of Practice for the Superior and District Courts which provides that the court may appoint a lawyer, from a list of pro bono lawyers, to serve as a guardian ad litem for a minor who is a victim or a potential witness in a criminal proceeding.

Proposed 2009 Formal Ethics Opinion 8
Service as Commissioner after Representing Party to Partition Proceeding
January 14, 2010

Proposed opinion provides guidelines for a lawyer for a party to a partition proceeding and rules that the lawyer may subsequently serve as a commissioner for the sale but not as one of the commissioners for the partitioning of the property.

Inquiry #1:

Attorney is retained by a person with an interest in property to represent him in a proceeding to partition the property pursuant to Chapter 46 of the North Carolina General Statutes. N.C. Gen. Stat. A746-6 authorizes the court to appoint a disinterested person to represent any person interested in the property whose name is unknown and who fails to appear in the proceeding. May Attorney represent the existing client and also agree to be appointed to represent any unknown person with interest in the property?

Opinion #1:

No. There is a potential conflict between the interests of the existing client and the interests of the unknown person(s). One of the critical issues in a partition proceeding is whether the property should be sold or partitioned. See, e.g., N.C. Gen. Stat. A746-22(c)(party seeking sale has burden of proving, by a preponderance of the evidence, that actual partition cannot be made without substantial injury to the interested parties). If Attorney has an existing client with a specific interest in the proceeding, Attorney cannot be disinterested as required by N.C. Gen. Stat. A746-6 or exercise independent professional judgment as required by the Rules of Professional Conduct when evaluating and representing the interests of the unknown person(s). The potential conflict cannot be resolved by consent because the unknown person(s) is unavailable to consent. Rule 1.7.

Inquiry #2:

At the conclusion of the proceeding, the clerk of court orders the public sale of the property and, pursuant to N.C. Gen. Stat. A7A71-399.4 and 46-28, appoints Attorney as the commissioner for the sale.1 May Attorney serve as the commissioner and collect a commission from the public sale?

Opinion #2:

Yes, provided Attorney concludes that he can serve fairly and impartially and, further provided, Attorney terminates his representation of any person with an interest in the property.

The role of the commissioner is a neutral one with fiduciary responsibilities to all of the owners of the property. However, a commissioner conducting a public sale has limited discretion because he must follow the specific procedural requirements for judicial sales set forth in Chapter 1, Article 29A of the General Statutes. Attorney may, therefore, serve as commissioner for the sale upon determining that he can fulfill the role impartially, without bias for or against any of the parties to the partition proceeding, and upon terminating his representation of any person with an interest in the property. In the similar situation of a lawyer serving as a trustee on a deed of trust in foreclosure, the ethics opinions also allow the lawyer to relinquish the representation of the lender or the debtor to serve in the impartial fiduciary role of trustee for the foreclosure. See RPC 46, RPC 82, RPC 90.

N.C. Gen. Stat. A746-28.1 permits any party to a partition proceeding to file a petition for revocation of the order confirming the sale provided the petition is filed within 15 days and is based upon grounds that are specified in the statute. Therefore, the client's legal needs may not end with the entry of the order of sale and the appointment of a commissioner. Anticipating that a client might desire additional legal representation after the sale, the better practice is to obtain the client's consent to the lawyer's potentially limited representation by advising a client at the beginning of the representation of the following: the lawyer might be appointed by the clerk to serve as commissioner; that the lawyer will be required to withdraw from the representation to do so; that the lawyer must obtain the client's consent to such withdrawal; and that the client, upon consent, may need to find new representation. Then, before terminating the representation to serve as the commissioner for the sale, Attorney must obtain the client's consent to withdraw. See Rule 1.16.

Inquiry #3:

At the conclusion of the proceeding, the clerk of court orders a private sale of the property pursuant to N.C. Gen. Stat. A7A746-28 and 1-339.33. May Attorney be designated as the person authorized to make the private sale pursuant to N.C. Gen. Stat. A71-339.33(1)?

Opinion #3:

Yes, subject to the conditions set forth in Opinion #2.

Inquiry #4:

If appointed the commissioner for a public sale or the person authorized to make the private sale, may Attorney purchase the property at the sale?

Opinion #4:

No. As the appointed commissioner or the person appointed to conduct the private sale, Attorney has a duty to oversee the sale of the property in a fair and impartial manner. Advancing a personal interest by bidding on or making an offer on the property violates this duty. See 2006 FEO 5 (county tax lawyer who is appointed commissioner may not bid at tax foreclosure sale).

Inquiry #5:

At the conclusion of the proceeding, the clerk of court orders the public sale of the property but appoints another person as commissioner for the sale. May Attorney bid at the sale on his own behalf?

Opinion #5:

No. This would be a conflict of interest between the lawyer's self-interest in purchasing the property at the lowest price and the client's interest in selling the property for the highest price. Rule 1.7(a)(2). However, Attorney may bid on the property if he is doing so on behalf of the client.

Inquiry #6:

At the conclusion of the proceeding, the clerk of court orders the partition of the property. May Attorney agree to be appointed as one of the three commissioners responsible for dividing the property?

Opinion #6:

No. A commissioner for a partitioning must exercise discretion in determining how to divide the property, thus directly affecting the interests of the various parties to the proceeding. Moreover, there remain opportunities for Attorney to advocate for his client's interests in the event the commissioners seek input from the parties or in the event of an appeal. Attorney cannot, therefore, serve as an impartial commissioner. Rule 1.7(a).

Inquiry #7:

Assume that Attorney formerly represented one or more of the parties in a separate but related partition proceeding (i.e., a prior proceeding involving the same property that did not result in partition or sale), but does not represent any of the parties to the current proceeding.
May Attorney serve as one of the commissioners to conduct the sale or to partition the property?

Opinion #7:

Yes, provided Attorney determines that he can act impartially. See Opinion #1 and Rule 1.7.

Inquiry #8:

Assume that Attorney formerly represented one or more of the parties in a separate but related partition proceeding (i.e., a prior proceeding involving the same property that did not result in partition or sale), but does not represent any of the parties to the current proceeding.
May Attorney serve as the court-appointed lawyer for any "unknown owner" pursuant to N.C. Gen. Stat. A746-6?

Opinion #8:

Yes, with the informed consent, confirmed in writing, of Attorney's former client(s). Rule 1.9(a) prohibits a lawyer who has formerly represented a client in a matter from representing a new client in the same or a substantially related matter if the interests of the new client are materially adverse to the interests of the former client unless the former client gives informed consent confirmed in writing.

Inquiry #9:

Opinion #9:

Yes, unless Attorney received confidential information from a former client relative to the property that Attorney could use to the former client's disadvantage when bidding on the property. Rule 1.9(c)(1).

If a lawyer no longer represents a former client, the lawyer's only duties to the former client are to avoid adverse representations of others in the same or a substantially related matter and to avoid using confidential client information to the disadvantage of the former client. Although the partition sale may be substantially related to the prior partition proceeding, a lawyer who is purchasing for his own interest is not engaged in the representation of an adverse party and, therefore, the prohibition on representations adverse to a former client in Rule 1.9(a) is inapplicable. However, the prohibition on using the confidential information of a former client to the disadvantage of the former client would apply unless, as Rule 1.9(c)(1) permits, the information has become generally known.

Endnote
1. Although the procedure for judicial sales of property set forth in Chapter 1, Article 29A, of the General Statutes provides for the appointment of only one commissioner, it is still the custom in some judicial districts for the clerk of court to appoint three commissioners. The conditions on service as a commissioner for the public sale of property set forth in this opinion apply equally to a lawyer who is appointed by the clerk to serve on a panel of commissioners.

Proposed 2010 Formal Ethics Opinion 1
Representation of Insurance Carrier after Insured Disappears
January 14, 2010

Proposed opinion rules that a lawyer retained by an insurance carrier to represent an insured whose whereabouts are unknown and with whom the lawyer has no contact may not appear as the lawyer for the insured absent authorization by law or court order.

Inquiry #1:

Attorney was retained by Insurance Carrier to defend Insured in a negligence lawsuit based upon an automobile accident. Insured cannot be located and his whereabouts are unknown. Service by publication was required. May Attorney proceed with the representation, file pleadings on behalf of Insured, and appear in court to defend the case on behalf of Insured?

Opinion #1:

No. To respond to this inquiry, the question of whether a client-lawyer relationship is created between Attorney and Insured must be addressed. Comment [4] of Rule 0.2, Scope, provides that "for purposes of determining the lawyer's authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists." In most instances, the Ethics Committee declines to offer an opinion that hinges upon a question of law. Nevertheless, the determination of whether a client-lawyer relationship exists is often essential to the committee's interpretation and application of the Rules of Professional Conduct. Moreover, the relevant North Carolina case law is clear. In Dunkley v. Shoemate, 350 N.C. 573, 515 S.E. 2d 442 (1999), the Supreme Court held that where a law firm had no contact with the defendant and was not authorized by the defendant to undertake his representation, no lawyer-client relationship existed between the defendant and the lawyers seeking to represent him pursuant to the insurance trust fund for the defendant's employer. The Dunkley opinion cites favorably the following statement from Johnson v. Amethyst Corp., 120 N.C. App. 529, 463 S.E. 2d 397 (1995): "[n]o person has the right to appear as another's attorney without the authority to do so, granted by the party for which he [or she] is appearing." Id. at 577, 515 S.E. 2d at 444 [quoting Amethyst Corp. 120 N.C. App. at 532, 463 S.E. 2d at 400]. The Court also concurred with the statement in Amethyst Corp. that, "North Carolina law has long recognized that an attorney-client relationship is based upon principles of agency," and "[t]wo factors are essential in establishing an agency relationship: (1) The agent must be authorized to act for the principal; and (2) The principal must exercise control over the agent.'" Id. [quoting Amethyst Corp., 120 N.C. App. at 533-534, 463 S.E. 2d at 400].

Therefore, unless allowed by statute, court order, or subsequent case law, a lawyer may not appear in court for a party who has not authorized the representation and with whom the lawyer has not established a client-lawyer relationship.

Inquiry #2:

Would the response to Inquiry #1 be different if the insurance contract with Insured specifies that Insurance Carrier has the authority to choose legal counsel for Insured and to decide whether to settle the case?

Opinion #2:

No.

Inquiry #3:

Would the response to Inquiry #1 be different if Insured received actual notice of the lawsuit and contacted Insurance Carrier before disappearing?

Opinion #3:

Whether such contact with Insurance Carrier is sufficient to create a client-lawyer relationship with a lawyer selected by Insurance Carrier is a question of fact and law not resolved by the existing case law. However, the Ethics Committee doubts that the two factors required to establish an agency relationship exist in this situation. See also Dunkley, 350 N.C. at 578, 515 S.E. 2d at 445 ("RPC 223, Rule 1.2(a), and Amethyst Corp. correctly emphasize the principle that a lawyer cannot properly represent a client with whom he has no contact.").

Inquiry #4:

Would the response to Inquiry #1 be different if Insured received notice of the lawsuit and specifically authorized the representation before disappearing?

Opinion #4:
Yes, Attorney may appear in the lawsuit on behalf of Insured if Insured has authorized the representation. However, if Insured cannot thereafter be located, Attorney may not mislead the court about Insured's absence. Rule 3.3(a)(1). Moreover, in the event Insured is not present to participate in the representation, Attorney may have to file a motion to withdraw. Rule 1.2, cmt. [1] (Client has "the ultimate authority to determine the purposes to be served by legal representation85."); Rule 1.16; RPC 223; 03 FEO 16; see also Dunkley, 350 N.C. at 578, 515 S.E. 2d at 445 ("a lawyer cannot properly represent a client with whom he has no contact.").

Inquiry #5:

Would the response to Inquiry #1 be different if the insurance contract contained a provision granting Insurance Carrier the express authority to proceed with the representation on behalf of and in the name of the Insured in the event contact with Insured is lost?

Opinion #5:

This is a question of law that is not resolved by the existing case law and is outside the purview of the Ethics Committee.

Inquiry #6:

Attorney is retained by Insurance Carrier to defend a "John Doe" defendant in an automobile accident case. May Attorney represent "John Doe" in the court proceedings?

Opinion #6:

If the designation of a certain person as "John Doe" is necessary to effect service of process and Attorney concludes that he is able to identify the intended person (e.g., an employee of an insured defendant company), Attorney may work with Insurance Carrier and the defendant company to identify the individual and, once identified, may appear in the lawsuit on behalf of the individual if authorized to do so by the individual. If the identity of "John Doe" cannot be ascertained by Attorney, Insurance Carrier, or another client, whether Attorney may represent "John Doe" in the court proceedings is a question of law outside the purview of the Ethics Committee.

Proposed 2010 Formal Ethics Opinion 2
Obtaining Medical Records From Out of State Health Care Providers
January 14, 2010

Proposed opinion rules that a lawyer may not serve an out of state health care provider with an unenforceable North Carolina subpoena and may not use documents produced pursuant to such a subpoena.

Inquiry #1:

Lawyer represents the Department of Social Services in a county that borders another state. In a particular case, the relevant hospital records are located out of state. Is it ethical for Lawyer to subpoena the medical records under the authority of N.C. R. Civ. P. 45 knowing that the North Carolina subpoena is unenforceable?

Opinion #1:

No. If the North Carolina subpoena is not enforceable out of state, the lawyer may not misrepresent to the out of state health care provider that it must comply with the subpoena. RPC 236 provides that it is unethical for a lawyer to use the subpoena process to mislead the custodian of documentary evidence as to the lawyer's authority to require the production of such documents. See also Rule 8.4(c) (professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Inquiry #2:

If the records are subpoenaed and the health care provider complies with the subpoena, may Lawyer utilize the medical records?

Opinion #2:

No. Lawyer may not use documents that were produced in reliance on Lawyer's misrepresentation as to Lawyer's authority to require the production of such documents.

Proposed 2010 Formal Ethics Opinion 3
Cross-examining Current and Former Clients
January 14, 2010

Proposed opinion rules that it is a non-consentable conflict of interest for a lawyer to cross-examine a current client or, if the lawyer possesses relevant confidential information that is not generally known, to cross-examine a former client.

Inquiry #1:

Lawyer is a criminal defense lawyer who represents persons charged with various criminal and traffic offenses. Lawyer also represents police officers responding to investigations by internal affairs departments. In these matters, the officers are threatened with professional discipline, including possible termination, for alleged conduct involving moral turpitude, dishonesty, or police department policy violations. In such matters, Lawyer represents the police officer individually and does not represent the police department.

Lawyer represents Defendant in a criminal matter. Lawyer also currently represents Officer in an internal affairs investigation in which Officer may be disciplined or lose his job. Officer is one of the prosecuting witnesses in Defendant's criminal matter.

May Lawyer represent Defendant in the criminal matter if Officer is a prosecuting witness?

Opinion #1:

No. If the competent representation of the defendant requires a rigorous cross-examination of the prosecuting witness, the lawyer has a conflict of interest. See Rule 1.7(a). Such a scenario implicates the lawyer's duties of loyalty and confidentiality. See Rule 1.6; Rule 1.7. This opinion is not limited to this fact pattern.

Comment [6] to Rule 1.7 provides that a directly adverse conflict of interest may arise when a lawyer is required to cross-examine a client who appears as a witness in a matter involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit. If Lawyer has confidential information of Officer that is relevant to the cross-examination, a vigorous cross-examination will breach Lawyer's duty of confidentiality to Officer. Alternatively, Lawyer could fail to cross-examine Officer fully, for fear of misusing such information, which would be a breach of Lawyer's duty to competently and diligently represent Defendant. Defendant might conclude that Lawyer's deferential cross-examination of Officer was the result of Lawyer's divided loyalties, while Officer could reach the same conclusion about a vigorous cross-examination.

The conflict of interest is non-consentable. Generally, if a lawyer with a conflict reasonably believes that he will be able to provide competent and diligent representation to both clients, he may take on the representation so long as he obtains both clients' informed written consent. See Rule 1.7(b). However, certain conflicts are non-consentable, "meaning that the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent." Rule 1.7, cmt. [14]. Consentability is determined by considering whether the interests of the clients will be adequately protected if the clients are permitted to give their informed consent to the representation given the conflict of interest. Representation is prohibited if the lawyer cannot reasonably conclude that the lawyer will be able to provide competent and diligent representation to each client. See Rule 1.7, cmt. [15]. For the reasons previously stated, Lawyer cannot reasonably conclude that he can adequately represent Defendant if he has to cross-examine Officer.

Inquiry #2:

Does it matter if Officer's personnel files are generally not subject to subpoena and may not be used for cross examination?

Opinion #2:

No. Although the fact that Officer's personnel files may not be used for cross-examination may appear to alleviate the concern as to Lawyer's duty of confidentiality to Officer, Lawyer remains aware of confidential information relative to Officer that could inspire questions for cross examination. But for the fact that the information was received from Officer, the competent representation of Defendant would compel Lawyer to use this information to develop his cross-examination. As observed in Opinion #1, this would be a breach of Lawyer's duty of confidentiality to Officer.

Inquiry #3:

Would it matter if Defendant was charged only with a minor traffic violation?

Opinion #3:

If Officer's testimony relates only to an uncontested issue and Lawyer reasonably concludes that he can forgo cross examination of Officer without affecting the competent defense of the case, Lawyer may represent Defendant provided he obtains the informed written consent of Defendant. See Rule 1.7(b). If Lawyer determines that he should cross examine Officer but that the cross examination can be limited to factual questions that avoid challenging Officer's credibility or utilizing his confidential information, Lawyer may proceed but only with the informed written consent of both clients. See Rule 1.7(b).

Inquiry #4:

Would it make any difference if the Fraternal Order of Police or a similar organization arranged for or retained Lawyer to represent Officer?

Opinion #4:

No. Regardless of who retains Lawyer to represent Officer, Lawyer still owes Officer the same duties of confidentiality and loyalty. See Rule 1.8(f). Also, Lawyer's pecuniary interest in obtaining further business from the hiring organization may create an additional personal conflict of interest for Lawyer in that he would want to avoid rigorously cross examination of a police officer to remain in the good graces of the organization. See Rule 1.7(a)(2).

Inquiry #5:

What if Officer is a former client at the time of the representation of Defendant? Is Lawyer required to disclose the former client-lawyer relationship with Officer to Defendant at the outset so that Defendant can make an informed decision about representation?

Opinion #5:

If Lawyer obtained confidential information from Officer that is relevant to Officer's cross-examination and Lawyer needs to use that confidential information to effectively cross-examine Officer, then Lawyer may not represent Defendant. See Rule 1.9(c); 2003 FEO 14.

An exception to Rule 1.9(c) provides that a lawyer may use confidential information of a former client to the disadvantage of the former client when the information has become "generally known." Rule 1.9(c)(1). If certain information as to the internal affairs investigation is generally known, that information may be used to cross-examine Officer without obtaining the consent of Officer. See Rule 1.9, cmt. [8].

If Lawyer determines that he does not need to use any confidential information that is not generally known to effectively cross-examine Officer, Lawyer must still disclose the former lawyer-client relationship with Officer to Defendant so that Defendant can make an informed decision about Lawyer's representation.

Proposed 2010 Formal Ethics Opinion 4
Lawyer Participating in Barter Exchange Program
January 14, 2010

Proposed opinion rules that lawyer may not participate in a barter exchange program where a percentage of the amount involved in each barter transaction is paid to the barter exchange program.

Inquiry:

Lawyer would like to participate in a barter exchange program. Program members get paid in barter units that can be used to pay other members for their services. For example, a lawyer might prepare a will for a member and receive "barter points." The barter points could then be used by the lawyer to purchase services from another program member. The program requires its members to pay a ten percent "fee" on each purchase made through the program. If Lawyer provides $500 in services to another member, that member would pay a $50 fee to the program for a total payment of $550.

There is a list of lawyers on the program website, but members are encouraged to call their brokers to get linked with other members when in need of a particular service. Lawyers who participate in the program are not under any obligation to do business with exchange members who request services.

May Lawyer participate in the program?

Opinion:

No. A lawyer may accept payment for legal services in a form other than money. See Rule 1.5, cmt. [4]. However, a lawyer may generally not share legal fees with a nonlawyer or give anything of value to a person for recommending the lawyer's services. Rule 5.4(a); Rule 7.2(b).

The South Carolina Ethics Advisory Committee considered participation in a similar barter exchange program in S.C. Bar Ethics Advisory Comm., Op. 94-34 (1994). As a member of the program, the lawyer would provide legal services to other members at normal rates but, instead of receiving cash, the lawyer would receive credit for the amount of the fees. The credit could be used for the purchase of goods and services from other members. The lawyer would receive credit for the full amount of his legal fees, but when purchasing goods and services from other members the lawyer was required to pay a ten percent commission to the exchange. The Committee found that participation in the program violates the prohibition against sharing legal fees with a nonlawyer and the prohibition against paying for referrals.
The Committee stated:

It is disingenuous in the proposed business exchange relationship to suggest that because the lawyer receives credit for the full attorney's fees that there is no sharing of the fee with a nonlawyer. In the first place the credit that the lawyer receives is subject to the payment of a ten [percent] commission to a nonlawyer when it is used for the purchase of goods and services from other members with the result that the lawyer does not in fact receive the full amount of the fee. Moreover, the member who retains the services of the lawyer is paying ten [percent] more for the legal services than the lawyer receives and the ten [percent] surcharge is being paid directly to a nonlawyer. The mere fact that the ten [percent] commission does not go through the lawyer's hands and is paid directly to the nonlawyer does not affect the substance of the transaction. In such a situation the lawyer is in fact paying a nonlawyer a ten [percent] commission for channeling work to him, a practice that is prohibited by Rule 7.2(c).

Id. Other jurisdictions have reached the same conclusion. See, e.g., Prof'l Ethics Comm. for the State Bar of Tex., Op. 435 (1986); Va. State Bar, Standing Comm. on Legal Ethics, Op. 1035 (1988); see also Fla. Ethics Op. 84-2(1984)(lawyer prohibited from participating in barter exchange programs in which a percentage of the amount involved in each purchase transaction was paid to the program, but may participate in programs proscribing the charging of a transactional fee when legal services are rendered.) However, New York and Utah allow lawyer participation in barter exchange programs that meet certain requirements. See N.Y. State Bar Assoc. Comm. on Prof'l Ethics, Op. 665 (1994); Utah State Bar Ethics Advisory Op. Comm., Op. 97-05 (1997)(exchange may not interfere with lawyer's professional judgment; advertising materials must comply with ethics rules; exchange may not refer clients to participating lawyers other than through the use of advertising that complies with ethics rules; the exchange and its agents may not engage in in-person solicitation of lawyers' services; and lawyer's fee to client must be reasonable.).

We agree with the rationale of the South Carolina Ethics Advisory Committee and conclude that participation in the proposed barter exchange program would violate the prohibition against fee-splitting as well as the prohibition against paying for referrals.

Proposed 2010 Formal Ethics Opinion 5
Client-Lawyer Relationship in Child Support Enforcement Actions
January 14, 2010

Proposed opinion rules that the lawyer for a child support enforcement program that brings an action for child support on behalf of the government does not have a client-lawyer relationship with the custodian of the children.

Inquiry #1:

Title IV-D of the Social Security Act, 42 U.S.C.S. 651 et seq., requires each state to establish a child support enforcement (CSE) agency to provide services for the establishment and collection of child support for dependent children who are recipients of public assistance. The act also requires the CSE agency to provide assistance in the collection of child support to a custodian of a dependent child not receiving public assistance if the custodian applies to the agency for such assistance. The Child Welfare Act, Chap. 110, Art. 9, of the N.C. General Statutes, enacts the requirements of Title IV-D. The CSE program established by the North Carolina act is administered by the Child Support Enforcement Agency, a branch of the North Carolina Department of Health and Human Services. The programis usually administered at the county level; the local CSE program administrator hires a lawyer to institute the child support proceeding against the non-custodial, responsible parent. The proceeding is instituted in the name and on behalf of the government at the instigation of the custodian of the child who is named ex relatione (e.g., County of Durham DSS ex rel. Stevons v. Charles, 182 N.C. App. 505, 642 S.E. 2d 482 (2007)).

Lawyer A is defending a non-custodial parent in a child support action brought by the lawyer for the child support enforcement (CSE) program for the county. Does the CSE lawyer represent the custodian of the children?

Opinion #1:

The lawyer representing the CSE program does not represent the custodian of the children; the lawyer represents the government agency bringing the action. As previously observed in Ethics Decisions 279 and 2007-3, the purpose of the CSE program is to provide financial support to dependent children regardless of who currently has custody of a dependent child and regardless of who may currently owe support payments. "It would defeat the purpose of [CSE] legislation if a client-lawyer relationship were automatically created between the [CSE] lawyer and the custodian of the children because the lawyer would be unable to pursue any future child support action against such custodian should support and custody obligations switch." ED 279.

Nevertheless, if the CSE lawyer makes statements to the parent that would lead a reasonable person to believe that the lawyer is representing him or her personally, a client-lawyer relationship may be inferred. To avoid misleading the custodian as to the relationship, in any private conference with a custodian (outside of court proceedings), "the [CSE] lawyer should explain that he or she is not the custodian's lawyer; that their conversations are not protected by the duty of confidentiality; and that if the interests of the government and the custodian of the children diverge, the lawyer will represent the interests of the government." ED 279.

Inquiry #2:

Lawyer A wants to serve discovery on the custodian of the children. Should the discovery be served on the lawyer for the CSE program or on the custodian of the children?

Opinion #2:

This is a question of civil procedure and trial strategy that is outside of the purview of the Ethics Committee. However, if Lawyer A decides to seek information directly from the custodian, it would not violate Rule 4.2 unless the custodian is represented by his or her own lawyer in the matter.

During the representation of a client, Rule 4.2 prohibits a lawyer from communicating with a person that the lawyer knows is represented in the matter unless the lawyer has the consent of the other lawyer or is authorized by law or court order to communicate with the person. Lawyer A's direct communications with the custodian will not violate Rule 4.2 because the CSE lawyer does not represent the parent. ED 2007-3 (lawyer appointed to represent defendant/non-custodial parent in child support case may communicate directly with custodial parent).

Inquiry #3:

Lawyer A wants to depose the custodian. The CSE lawyer informed Lawyer A that he would not attend the deposition. May Lawyer A proceed with the deposition?

Opinion #3:

Yes. If the custodian was properly served with notice of the deposition, there is no prohibition on proceeding with the deposition although the CSE lawyer fails to appear. Even when a deponent is represented by a lawyer in a matter, if the deposition is properly noticed and the lawyer for the deponent fails or refuses to appear, the lawyer noticing the deposition may proceed. Such communications are "authorized by law" and, therefore, not prohibited by Rule 4.2.

Inquiry #4:

In a case involving international child support enforcement issues, the CSE lawyer, who works in the North Carolina Attorney General's Office, would like to call another lawyer from the attorney general's staff to testify as an expert. Does this violate the Rules of Professional Conduct?

Opinion #4:

No. Rule 3.7(a) prohibits a lawyer from acting as an advocate at a trial in which the lawyer is likely to be a necessary witness. However, this disqualification is not imputed to the other lawyers in same firm or organization unless the lawyer's testimony would be adverse to the interests of the firm or organization's client. Rule 3.7(b)

Proposed 2010 Formal Ethics Opinion 6
Advertising for Legal Employment in Non-practicing Areas with Intent to Refer Cases
January 14, 2010

Proposed opinion rules that a lawyer may not advertise for legal employment in an area of practice in which the lawyer does not currently practice law with the intent to refer any cases to another law firm.

Inquiry #1:

Lawyer would like to advertise for legal employment in several areas of negligence law including products liability, pharmaceutical, and medical malpractice. However, Lawyer does not actually practice in each of these legal areas. For cases involving areas of law in which Lawyer does not practice, Lawyer would refer the matter to another law firm that is qualified in that particular area of law.

May Lawyer advertise for legal employment in an area of practice when Lawyer does not practice in the area and intends to refer all cases to another law firm?

Opinion #1:

No. Rule 7.1 prohibits a lawyer from making a misleading communication about the lawyer or the lawyer's services. Pursuant to Rule 7.1(a)(1), a communication is misleading if it contains a material misrepresentation of fact or omits a fact necessary to make the statement considered as a whole not materially misleading.

In RPC 217, the Ethics Committee determined that it was misleading for a law firm to include in its advertisements remote call forwarding telephone numbers under the names of towns in which the law firm did not have an office. The opinion provides that listing what appears to be a local telephone number in an advertisement circulated in communities where the law firm does not have an actual presence, without including an explanation in the advertisement that the number is not a local telephone number and that there is no law office in that community, will mislead readers as to the actual location of the offices.

Similarly, advertising specific practice areas in which Lawyer does not currently practice law when lawyer intends to refer cases in those practice areas to other law firms will mislead readers as to Lawyer's capability and/or intention to personally handle legal matters pertaining to the practice areas. Readers will not assume that cases in these areas will be referred or "brokered" to another law firm. Two jurisdictions have recently addressed the issue of lawyers "brokering" cases by amending their Rules of Professional Conduct to specifically prohibit a lawyer or a law firm from advertising that the lawyer or law firm practices in an area of law when that is not the case. See Fla. Rules of Prof'l. Conduct R. 4-7.2(c)(4); La. Rules of Prof'l. Conduct R. 7.2(c)(3). These two jurisdictions also require that if a case or matter will be, or is likely to be, referred to another lawyer or law firm, communications regarding the lawyer or law firm's services must include a statement so advising the prospective client. See Fla. Rules of Prof'l. Conduct R. 4-7.2(c)(13); La. Rules of Prof'l. Conduct R. 7.2(c)(12)

Advertising specific practice areas in which Lawyer does not currently practice law, with the intention of referring cases in those practice areas to other law firms, is misleading and a violation of Rule 7.1(a)(1).

Inquiry #2:

If Lawyer obtains a case through permissible means, but then refers the matter to another law firm and does not participate in the development or litigation of the matter, may Lawyer accept a portion of the legal fees?

Opinion #2:

Rule 1.5(e) allows for the division of a legal fee between lawyers who are not in the same firm. Lawyer may receive a portion of the legal fees associated with the referred matter so long as the client agrees to the arrangement in writing, the total fee is reasonable, and the fee division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation. Rule 1.5(e). The assumption of joint responsibility is an alternative to a division of fees in proportion to the services performed. Comment [8] to Rule 1.5 explains that "[j]oint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership." Therefore, a lawyer who agrees to share legal fees must make reasonable efforts to ensure that the other lawyers who are parties to the arrangement comply with the ethics rules. See Rule 5.1. As stated in RPC 205, "whenever a lawyer accepts a fee for referring a case to another lawyer, the lawyer remains responsible for the competent and ethical handling of the matter."

The ABA Committee on Ethics and Professional Responsibility has opined that joint responsibility does not require substantial services to be performed by the lawyer. ABA Comm. on Ethics and Prof'l Responsibility, Informal Op. 85-1514 (1985). However, joint responsibility does include the same financial and ethical responsibility and the same responsibility to ensure adequate representation and communication as one partner would have for another in similar circumstances. Id.

To receive a portion of the legal fees associated with the referred matter, Lawyer must assume joint financial and ethical responsibility for the representation. It is "the ongoing protection of the client's interests" that justifies Lawyer receiving a fee that is disproportionate to the services Lawyer actually provided. See Wis. State Bar Comm. on Prof'l. Ethics, Formal Op. E-00-01 (2000).

Inquiry #3:

If Lawyer is entitled to receive a portion of the legal fees associated with the referred matter, what amount/proportion of the legal fee is reasonable?

Opinion #3:

Apart from the requirements that the total fee be reasonable, that the client consent to the fee division, and that each law firm assume joint responsibility for the representation, the Ethics Committee declines to opine on the division of fees between lawyers or law firms.