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Monday, February 20, 2017

JANUARY 2017 council meeting

RECOGNITION OF NEW COUNCILORS 

The following new councilors The following new councilors were recognized and welcomed:

W. Allen Cobb Jr. - District 5

Michael R. Ramos - District 13

Dorothy Hairston Mitchell, District 14

Charles Gordon Brown - District 15B

Herbert “Jay” White, District 19A

Rebecca J. Pomeroy, District 27B

Emmanuel Wilder, Public Member

Patricia Head, Public Member

Robert C. Sinclair, Public Member 

APPOINTMENTS

The council made the following appointments:

Lawyer Assistance Program Board – John A. Bowman of Durham, Paul D. Nagy of Durham, Theodore C. Edwards II of Raleigh and Eben T. Rawls III of Charlotte were appointed to three-year terms. Darrin D. Jordan of Salisbury was appointed as chair and John A. Bowman of Durham was appointed as vice chair.

Disciplinary Hearing Commission – Fred W. DeVore III of Charlotte was appointed to fill the unexpired term of Joshua W. Willey Jr. who had resigned to assume a judgeship.

Board of Legal Specialization – Laura V. Hudson of Raleigh was appointed to fill the unexpired term of Priscilla P. Taylor. Ms. Taylor had resigned. 

RECOMMENDATION FOR APPOINTMENTS SOUGHT

The council and the president will make the following appointments at its meeting in April 2017. Anyone wishing to be considered or to nominate someone should contact Tom Lunsford at the State Bar office: 919-828-4620, tlunsford@ncbar.gov, PO Box 25908, Raleigh, NC 27611.

American Bar Association Delegates (2-year terms) – There are three appointments to be made.Ronald G. Baker Sr. is eligible for reappointment. M. Keith Kapp and Deyaska Spencer (young lawyer delegate) are not eligible for reappointment.

NC Courts Commission (4-year terms) – There is one presidential appointment to be made. Thomas R. West is eligible for reappointment.

Grievance Resolution Board (4-year terms) – There is one appointment to be made by the governor. Wesley W. Barkley is eligible for reappointment. The council makes recommendations to the Governor.

Disciplinary Hearing Commission (3-year terms) – There are four appointments to be made. David W. Long, Shirley Fulton, R. Lee Farmer, and Fred DeVore III are eligible for reappointment. 

RANDOM AUDITS

Lawyers randomly selected for audit are drawn from a list generated from the State Bar’s database based upon judicial district membership designations. The randomly selected judicial districts used to generate the lists for the first quarter of 2017 were 3A Pitt County and 16C Anson and Richmond Counties.

ETHICS COMMITTEE 

Upon the recommendation of the Ethics Committee, the council adopted two new ethics opinions. 2016 FEO 3, Negotiating Private Employment with Opposing Counsel, which rules that a lawyer may not negotiate for employment with another firm if the firm represents a party adverse to the lawyer’s client unless both clients give informed consent; and 2016 FEO 4, Disclosing Confidential Information to Execute on a Judgment for Unpaid Legal Fees, which rules that lawyer may not disclose financial information obtained during the representation of a former client to assist the sheriff with the execution on a judgment for unpaid legal fees. The council also adopted two ethics decisions Ethics Decision 2016-2, Signing Closing Documents for Seller While Representing Buyer, and Ethics Decision 2017-1, Duties of Supervising Lawyer for Charlotte School of Law Clinic.

At its meeting on January 26, 2017, the Ethics Committee voted to publish Proposed 2017 FEO 1, Text Message Advertising, and proposed amendments to the comments to Rule 7.2, Advertising, and Rule 7.3, Direct Contact with Potential Clients.

The Ethics Committee agreed that subcommittee review of three pending inquires should continue: Inquiry of Hartzell, Providing Judicial Officials with Decisions from the Trial Courts of Other Judicial Districts; Inquiry of Avvo, Participation in Online Flat-Fee Client Referral Service; and Inquiry of Grievance, Maintaining Fiduciary Accounts in Accordance with Rule 1.15.

The Ethics Committee also voted to defer consideration of proposed 2016 FEO 1, Contesting Opposing Counsel’s Fee Request to Industrial Commission, pending the anticipated issuance of an opinion on similar facts by the court of appeals.

GRIEVANCE COMMITTEE 

During the quarter the Grievance Committee considered 301 cases. Five lawyers received letters of caution, 12lawyers received letters of warning, seven lawyers received admonitions, seven lawyers received reprimands, one lawyer received a censure, and 13lawyers were referred to the Disciplinary Hearing Commission.

RULE AMENDMENTS

Amendments for Which Supreme Court Approval is Pending

At its meeting on January 27, 2017, the council adopted, subject to the Supreme Court’s approval, the amendments described below.

Proposed Amendments to the Rule on Judicial District Bar Dues

27 N.C.A.C. 1A, Section .0900, Organization of the Judicial District Bars

The proposed amendments would shorten the time that district bars have to report delinquent district bar dues from 12 months to 6 months after the delinquency date.

Proposed Amendments to the Rule on Formal Hearings Before the DHC

27 N.C.A.C. 1B, Section .0100, Discipline and Disability of Attorneys

The proposed amendments to the rule on formal hearings before the Disciplinary Hearing Commission (DHC) would allow media coverage of DHC hearings subject to the following conditions: absent a showing of good cause, the media would be permitted to broadcast and photograph formal DHC hearings; the chair of a hearing panel who denies a request for such access would have to make findings of fact supporting that decision; a request for media access would have to be filed no less than 48 hours before the hearing is scheduled to begin; the chair of the hearing panel would have to rule on such motion no less than 24 hours before the hearing is scheduled to begin; and, except as set forth in the rule, Rule 15 of the General Rules of practice for the Superior and District Courts would apply to electronic media coverage of DHC hearings. 

Proposed Amendments to the Certification Standards for the Criminal Law Specialt

27 N.C.A.C. 1D, Section .2500, Certification Standards for the Criminal Law Specialty

The proposed amendment to the standards for board certification in criminal law would change the requirements relative to peer review from opposing counsel and judges in cases recently tried by the applicant.

Proposed Amendments to the Regulations for PCs and PLLCs

27 N.C.A.C. 1E, Section .0100, Regulations for Organizations Practicing Law

The proposed amendments would eliminate the requirement that a notice to show cause be issued to a professional corporation or professional limited liability company for failure to apply for renewal of a certificate of registration. The applicable statues, N.C. Gen. Stat. §§55B-11 and 55B-13, do not require such notice prior to the suspension or revocation of a certificate of registration. 

Proposed Amendments to the Rules of Professional Conduct

27 N.C.A.C. 2, Rules of Professional Conduct

The proposed amendments to two Rules of Professional Conduct would require lawyers to disclose post-conviction information or evidence that might exonerate a convicted defendant. The proposed amendments to Rule 3.8, Special Responsibilities of a Prosecutor, set forth specific disclosure requirements for a prosecutor who comes into possession of new, credible information or evidence creating a reasonable likelihood that a defendant was wrongfully convicted. Proposed new Rule 8.6, Information About a Possible Wrongful Conviction, sets forth comparable requirements for all other members of the Bar. In addition, the comment to Rule 1.6, Confidentiality, is amended to add a proposed cross-reference to new Rule 8.6. 

At the time of adoption by the council, a correction was made to proposed new Rule 8.6(b)(2) and (3) to clarify that a lawyer may not disclose information if the disclosure would harm the interests of a former client. 

PROPOSED AMENDMENTS TO BE PUBLISHED FOR COMMENT

At its meeting on January 27, 2017, the council voted to publish the following proposed rule amendments for comment from the members of the Bar: 

Proposed Amendments to the Rule on Prehearing Procedure in Proceedings Before the Disciplinary Hearing Commission

27 N.C.A.C. 1B, Section .0100, Discipline and Disability of Attorneys

.0115 Proceedings Before the Disciplinary Hearing Commission: Pleadings and Prehearing Procedure

The proposed amendments would require that a settlement conference with the parties be held before a DHC panel can reject a proposed settlement agreement. 

Proposed Amendment to IOLTA’s Fiscal Responsibility Rule

27 N.C.A.C. 1D, Section .1300, Rules Governing the Administration of the Plan for Interest on Lawyers’ Trust Accounts (IOLTA)

.1313 Fiscal Responsibility

The proposed amendment would clarify that the funds of IOLTA may only be used for the purposes specified in the IOLTA rules.

Proposed Amendment to the Rule on Uses of the Client Security Fund

27 N.C.A.C. 1D, Section .1400, Rules Governing the Administration of the Client Security Fund of the North Carolina State Bar

.1416 Appropriate Uses of the Client Security Fund

The proposed amendment would clarify that the Client Security Fund may only be used for the purposes specified in the rule.

Proposed New Inactive Status Rule in The Plan of Legal Specialization

27 N.C.A.C. 1D, Section .1700, The Plan of Legal Specialization

.1727 Inactive Status [New Rule]

The proposed new rule would enable certified specialists with special circumstances to be placed on inactive status for a period of time and to regain their status as certified specialists upon satisfying certain conditions. 

Proposed Standards for New Specialty in Privacy and Information Security Law

27 N.C.A.C. 1D, Section .3300 Certification Standards for the (Proposed) Privacy and Information Security Law Specialty (Proposed)

.3301 Establishment of Specialty Field

.3302 Definition of Specialty

.3303 Recognition as a Specialist in Privacy and Information Security Law

.3304 Applicability of Provisions of the North Carolina Plan of Legal Specialization

.3305 Standards for Certification as a Specialist in Privacy and Information Security Law

.3306 Standards for Continued Certification as a Specialist

.3307 Applicability of Other Requirements

The proposed new section of the specialization rules would create a specialty in privacy and information security law and establish the standards for certification in that specialty. 

Proposed New Retired Status Rule in The Plan for Certification of Paralegals

27 N.C.A.C. 1G, Section .0100, The Plan for Certification of Paralegals

.0124 Retired Certified Paralegal Status

The proposed new rule would create a retired status for certified paralegals subject to certain conditions.

Proposed Amendments to the Rules of Professional Conduct

27 N.C.A.C. 2 The Rules of Professional Conduct

Rule 1.3 Diligence

Rule 7.2 Advertising

Rule 7.3 Direct Contact With Potential Clients

Rule 8.4 Misconduct

Proposed amendments to Rule 1.3, Diligence, and Rule 8.4, Misconduct, of the Rules of Professional Conduct would clarify the standards for imposition of professional discipline under each rule. The proposed amendments to Rule 7.2, Advertising, and Rule 7.3, Direct Contact with Potential Clients, would explain the terms “electronic communication(s)” and “real-time electronic contact” as used in the rules and alert lawyers to state and federal regulation of electronic communications.

Filed Under: General News

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