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 July 7, 2023.
Council Actions
At its meeting on April 21, 2023, the State Bar Council adopted the ethics opinion summarized below:
2023 Formal Ethics Opinion 1
Sale or Closure of Law Practice and Proper Handling of Aged Client Files
Opinion clarifies a lawyer’s professional responsibility when closing and/or selling a law practice and when handling aged client files.
The council voted to publish a proposed amendment to Rule 1.8(e) that would create a new exception to the general prohibition on providing financial assistance to a client in connection with pending or contemplating litigation. The proposed amendment would allow a lawyer to provide modest gifts for basic living expenses provided that a) the client is indigent, and b) the representation is pro bono (including representation of indigent clients through legal service organizations and law school clinics). The new exception would also apply to lawyers representing court-appointed clients. The proposed rule amendment states that a lawyer acting under this exception is prohibited from advertising or publicizing the ability to make such gifts, is prohibited from stating or implying the availability of a gift as an inducement to secure representation, and is prohibited from seeking or accepting reimbursement of the gift from the client or anyone affiliated with the client.
Ethics Committee Actions
At its meeting on April 20, 2023, the Ethics Committee considered a total of eight inquiries, including the opinion and proposed rule amendment noted above. Five inquiries were sent or returned to subcommittee for further study, including Proposed 2022 FEO 4, Billing Considerations for Overlapping Legal Services; Proposed 2023 FEO 2, Confidentiality Clause that Restricts a Lawyer’s Right to Practice; and an inquiry addressing a lawyer’s ability to obligate a client’s estate to pay the lawyer for any time spent defending the lawyer’s work in drafting and executing the client’s will. Additionally, the committee approved an ethics advisory opinion addressing a lawyer’s ability to serve as an escrow agent in connection with a residential real estate closing. No new opinions were published for comment this quarter.
