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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 December 30, 2022.

Council Actions

At its meeting on October 21, 2022, the State Bar Council adopted the ethics opinion summarized below:

2022 Formal Ethics Opinion 5
Client Paying Public Adjuster-Witness a Contingency Fee

Opinion rules that a lawyer may call as an expert witness a public adjuster who will collect a statutorily authorized contingency fee paid by the client.

In addition to adopting the opinion described above, and following favorable votes from both the Ethics Committee and the Executive Committee, the council adopted and approved for transmission to the Supreme Court the proposed amendments to Rule 1.15 and Rule 4.1 that were published during the last quarter. The proposed amendment to Rule 4.1 makes a technical correction to the language in the comment, and the proposed amendments to Rule 1.15 contain new definitions of common ledgers used in monitoring a lawyer’s trust account and rearranging some parts of the rule for improved understanding and application.

Ethics Committee Actions

At its meeting on October 20, 2022, the Ethics Committee considered a total of eight inquiries, including the opinion and rule amendments referenced above. Four inquiries were returned or sent to a subcommittee for further study, including the recently published Proposed 2022 FEO 4, Billing Considerations for Overlapping Legal Services, an inquiry addressing a lawyer’s professional responsibility when selling a law practice and handling aged client files, and an inquiry examining a lawyer-mediator’s ability to draft an agreement between pro se parties defining the terms of participating in a mediation. The committee also approved one ethics advisory concerning the applicability of the duty of confidentiality in the context of a lawyer’s advocacy for criminal justice reform. No new opinions were published for comment this quarter.

Additionally, the committee created a new subcommittee to study a possible exception to the prohibition on providing financial assistance to a client in connection with pending or contemplating litigation set forth in Rule 1.8(e). The American Bar Association recently amended Model Rule 1.8(e) by creating a “humanitarian exception” that permits a lawyer to provide nominal financial gifts to indigent clients under limited circumstances. The new Model Rule permits a lawyer, a nonprofit legal services organization, or a law school clinic program to provide “modest gifts” to a client for basic living expenses provided that a) the client is indigent, and b) the representation is pro bono. Additionally, a lawyer acting under this new 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. Several other jurisdictions employ similar exceptions to the prohibition on financial assistance to a client. The subcommittee will hold its first meeting over the next quarter and will report back to the full committee in January 2023.

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