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Rules, Procedure, Comments

All opinions of the Ethics Committee are predicated upon the North Carolina Rules of Professional Conduct. Any interested person or group may submit a written comment – including comments in support of or against the proposed opinion – or request to be heard concerning a proposed opinion. The Ethics Committee welcomes and encourages the submission of comments, and all comments are considered by the committee at the next quarterly meeting. Any comment or request should be directed to the Ethics Committee at ethicscomments@ncbar.gov no later than October 1, 2021.

Council Actions

At its meeting on July 16, 2021, the State Bar Council adopted the three ethics opinions summarized below:

2019 Formal Ethics Opinion 4
Communications with Judicial Officials

Opinion discusses the permissibility of various types of communications between lawyers and judges.

2020 Formal Ethics Opinion 1
Responding to Negative Online Reviews

Opinion rules that a lawyer is not permitted to include confidential information in a response to a client’s negative online review but is not barred from responding in a professional and restrained manner.

2021 Formal Ethics Opinion 2
A Lawyer’s Professional Responsibility in Identifying and Avoiding Counterfeit Checks

Opinion discusses a lawyer’s professional responsibility to safeguard entrusted funds by identifying and avoiding purported transactions involving counterfeit checks.

Ethics Committee Actions

At its July 15, 2021, meeting, the Ethics Committee received reports and recommendations from two subcommittees studying proposed amendments to the Rules of Professional Conduct: one studying the adoption of anti-discrimination language in both the Preamble and the text of the Rules of Professional Conduct, and the other studying the adoption of language to the comment of Rule 1.1 (Competency) recognizing a lawyer’s responsibility to be aware of how implicit bias and cultural differences can impact the representation of a client. Following publication and discussion of proposed amendments to the Preamble and Rule 1.1 during the prior quarter, the Ethics Committee voted to recommend the adoption of the proposed amendment to the Preamble. The committee also voted to send the proposed amendment to Rule 1.1 back to subcommittee for further study in light of comments received during publication. The subcommittee studying the potential inclusion of anti-discrimination language in the text of the Rules of Professional Conduct will continue its work over the next quarter.

In addition to the proposed Rule amendments, the Ethics Committee considered a total of 11 ethics inquiries, including the opinions adopted by the council referenced above. Five inquiries were sent or returned to subcommittee for further study, including inquiries addressing whether a closing attorney may charge an independently represented seller for services performed in connection with a residential real estate transaction, the confidentiality of information contained in the public record, and a lawyer’s professional responsibility in providing limited representation to an indigent client in a criminal matter. The committee also approved an advisory opinion on a lawyer’s use of machine learning in the lawyer’s practice. Lastly, the committee approved the publication of two proposed opinions, which appear below.

Proposed 2021 Formal Ethics Opinion 4

Taking Possession of Photographs Portraying Minor Committing Sexual Acts
July 15, 2021

Proposed opinion rules that a lawyer may not take possession of photographs portraying a minor engaged in sexual activity.

Inquiry #1:

Lawyer represents Mother in a pending child custody matter. During the consultation, Mother informed Lawyer that she recently discovered an illicit photograph of her minor child on the child’s cell phone. The photograph depicts the minor child engaging in sexual activity. Mother believes the photograph was taken while the minor child was living with Mother’s ex-husband and opposing party, Father. Mother believes the photograph is relevant to the custody matter in that it demonstrates Father’s lack of proper supervision of minor child and wants Lawyer to introduce the photograph into evidence at the next custody hearing. Mother presents the photograph to Lawyer, who confirms that the photograph contains a visual representation of a minor child engaging in sexual activity. Lawyer believes the photograph is relevant to the court’s determination of the best interests of the child.

May Lawyer take possession of the photograph for the purpose of introducing it as evidence in the upcoming custody hearing?

Opinion #1:

No. The Ethics Committee previously opined that a lawyer may not take possession of a client’s contraband if possession is itself a crime. 2007 FEO 2. Furthermore, a lawyer shall not counsel or assist a client to engage in conduct that the lawyer knows is criminal. Rule 1.2(d).

The possession of child pornography is a crime. North Carolina state law provides that a person commits the offense of third-degree sexual exploitation of a minor if, knowing the character or content of the material, he possesses material that contains a visual representation of a minor engaging in sexual activity. N.C. Gen. Stat. § 14-190.17A(a). Furthermore, North Carolina law defines second degree sexual exploitation of a minor if the person, knowing the content of the material, duplicates or distributes material that contains a visual representation of a minor engaged in sexual activity. N.C. Gen. Stat. § 14-190.17(a). There is no legal exception allowing a lawyer to possess such material if the possession is in furtherance of the representation of a client. Additionally, federal law prohibits the production, distribution, reception, and possession of an image of child pornography using or affecting any means or facility of interstate or foreign commerce. See 18 U.S.C. § 2251; 18 U.S.C. § 2252; and 18 U.S.C. § 2252A.

Both North Carolina and federal law clearly establish that it is unlawful for Lawyer to take possession of the photograph. Although Lawyer’s intent in taking possession of the photograph is for the purpose of representing a client and not for nefarious purposes, the law provides an absolute prohibition against possessing the photograph that the Rules of Professional Conduct cannot overrule.

Additionally, Lawyer must review the law to determine if he and Mother/client have a legal duty to report the existence of the photograph to either law enforcement or the Department of Social Services. The North Carolina statutes Lawyer should review include, but are not limited to, N.C. Gen. Stat. § 14-318.6 (report sexual offense of a minor to law enforcement) and N.C. Gen. Stat. § 7B-301 (report abuse, neglect, and dependency to the Department of Social Services).

Inquiry #2:

If Lawyer is permitted to take possession of the photograph, what safeguards should Lawyer take to protects the rights of the minor child?

Opinion #2:

Lawyer is not permitted to take possession of the photograph because it is prohibited by law. See Opinion #1. Nevertheless, Lawyer does not represent the child and therefore owes no duty to protect her legal interest. Lawyer, however, may have a duty to report the existence of the photograph to law enforcement and/or the Department of Social Services (DSS). See Opinion #1.

Inquiry #3:

Same scenario as Inquiry #1, except that, without prior notice to Lawyer, Client sends to Lawyer by email photographs of Client’s minor child engaging in sexual activity. What are Lawyer’s duties regarding the photographs?

Opinion #3

Because a photograph portraying a minor engaged in sexual activity is contraband and it is unlawful to possess contraband, Lawyer cannot possess the photographs. Upon discovering the photographs/contraband in Lawyer’s email inbox, Lawyer must promptly review the law on the duty to report to law enforcement and DSS. See Opinion #1. Furthermore, if there is a law requiring Lawyer to disclose the location of the contraband to the authorities, Lawyer must do so after notifying the client and explaining the legal consequences to the client. 2007 FEO 2.

Click here to comment on this proposed opinion.

Proposed 2021 Formal Ethics Opinion 5

Lawyer Participating in Pay-Per-Lead Advertising Program
July 15, 2021

Proposed opinion rules that a lawyer may not participate in a pay-per-lead advertising program that records communications between the lawyer and potential client.

A search engine company (“company”) offers service providers pay-per-lead local service advertisements (LSAs) designed to connect consumers to service providers in their immediate area.1 For example, a search with the keyword phrase “family lawyer near me” would trigger the display of LSAs from family lawyers close to the consumer’s geographic location. LSAs appear above all other paid advertisements and only three LSAs are displayed at a time. When there are more firms with relevant LSAs than there are spots to display them, the company rotates the displayed advertisements based on a rankings algorithm that considers factors such as proximity to the consumer, business operating hours, online reputation, and responsiveness to customer inquiries. In order to participate in the LSA program, service providers must complete a screening and verification process. For lawyers, the process includes a background check, license check, and insurance verification. LSAs appear at the top of a relevant search results page under the heading “Company Screened” with a green checkmark. LSAs generally display the lawyer’s name, photograph, search engine rating, years of experience, hours of operation, and a “call button.”

Unlike other pay per lead advertisements, LSAs do not link to the participating lawyer’s website. A lawyer’s LSA links to a profile page created by the company. The profile page provides an overview of the legal services provided by the lawyer and displays the same “call button” displayed on the LSA. The phone number activated by the call button is not the lawyer’s number, but rather a number assigned to the lawyer by the company. All phone calls initiated through the lawyer’s LSA or company profile page are routed through the company. A lawyer participating in the LSA program authorizes the company, its affiliates, and their agents to access, monitor, and record communications initiated through the program. The lawyer also authorizes the company to disclose the communication to third parties. Recorded communications are kept by the company for a period of 60 days before they are erased.

A phone call routed through the company to a lawyer plays a “whisper message” prior to connecting the call alerting the lawyer that the call is from the company, will be recorded, and may not be privileged. Potential clients hear a whisper message prior to the call being connected stating that the call is being recorded and is not confidential.

Inquiry #1:

Do the Rules of Professional Conduct permit a lawyer to participate in the company’s LSA program?

Opinion #1:

No, because the LSAs do not sufficiently inform consumers about the circumstances and implications of the consumer’s use of the LSA to facilitate communication with the lawyer in violation of Rule 7.1. When a lawyer chooses to advertise through an outside advertising service, the lawyer has an obligation to make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional responsibilities. See RPC 241; 2004 FEO 1; 2018 FEO 1. Rule 7.1 prohibits a lawyer from making a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it “contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.” Rule 7.1.

The company’s LSAs differ from other online advertisements containing similar information in that the contact information provided is not the lawyer’s personal contact information. Instead, communications through a lawyer’s LSA are routed through the company. During the routing process, the company records and retains the communications. However, there is no indication on a lawyer’s LSA, or the lawyer’s company profile page, that all communication with the lawyer will be routed through, recorded, and retained by the company. Similarly, there is no indication that the company may share the communication with additional third parties. A third party’s recording and retention of these conversations, as well as its access to and potential disclosure of conversations between consumer and lawyer, raise consumer protection concerns and heighten the need for clear and full communication. A consumer seeking a conversation with a lawyer concerning legal services – regardless of the medium or platform of the conversation – should be given adequate, clear, and advance notice if the conversation will occur outside of the reasonable expectation of a consumer, to wit: the conversation will be exclusively between consumer and lawyer and/or a member of lawyer’s staff. A consumer using an LSA as described herein to facilitate their conversation with a lawyer about potential legal services should be given adequate, clear, and advance notice that the conversation will be recorded, retained, and potentially disclosed (without their knowledge or consent) by a third party. The company’s message at the outset of a communication initiated by the LSA that the company may record the call and the call is not confidential is insufficient to correct the omission of material facts causing the violation of Rule 7.1. Any legal implications of a third party’s presence during a consumer’s conversation with a lawyer about legal services is beyond the scope of the Rules of Professional Conduct.

Inquiry #2:

If the company includes clear, adequate, and advance notice on the lawyer’s LSA that satisfies the concerns addressed in Inquiry #1, would the Rules of Professional Conduct permit a lawyer to participate in the advertising program?

Opinion #2:

No, because participating in the LSA program is prejudicial to the administration of justice in violation of Rule 8.4(d).

A person seeking legal advice or other legal services is seeking justice, including the exploration of his or her legal rights and responsibilities, potential legal remedies, or a defense against allegations that could substantially impact his or her life. A foundational component of a person’s pursuit of justice is that person’s reasonable and historic expectations of privacy and exclusivity in communicating with a lawyer. These expectations are recognized in the comment to Rule 1.18, which requires lawyers to affirmatively disclaim the creation of duties owed to prospective clients when speaking with a person seeking legal services. Rule 1.18, cmt. [2] (“[A] lawyer has an affirmative obligation to warn the person that a communication with the lawyer will not create a client-lawyer relationship and information conveyed to the lawyer will not be confidential or privileged.”). An individual may choose to alter those expectations when communicating with a lawyer (e.g., by bringing a family member to a consultation); but a lawyer may not unilaterally make that choice for the individual.

As explained above, a consumer using the LSA to pursue legal services will have his or her words recorded, retained, and potentially disclosed without prior knowledge or consent. While the Ethics Committee is hesitant to classify a consumer using the LSA program as a prospective client under Rule 1.18, the committee is concerned that the LSA’s structure employs a mechanism through which critically important client confidences could be made vulnerable (e.g., the recordings could be subpoenaed by adverse parties, inadvertently disclosed, or subjected to unauthorized access). These vulnerabilities thwart a consumer’s pursuit of justice in an adversarial system such as ours. Additionally, even with an appropriate disclaimer, the knowledge that a conversation is being recorded has a chilling effect on full disclosure between the consumer and his or her potential lawyer, thereby undermining the very reason the consumer is seeking legal services. Accordingly, the lawyer’s use of a program that is designed to subvert a consumer’s basic expectations of privacy and exclusivity when reaching out to a lawyer about their legal rights and responsibilities does not foster the pursuit of justice; as such, a lawyer’s use of the LSA is prejudicial to the administration of justice in violation of Rule 8.4(d).

Endnote

1. One example of such a program is Google’s “Local Service Ads” advertising program.

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