Skip to main content

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 June 30, 2022.

Council Actions

At its meeting on April 22, 2022, the State Bar Council adopted the ethics opinion summarized below:

2022 Formal Ethics Opinion 1
Attorney Serving Dual Role of Guardian ad Litem and Advocate

Opinion rules that an attorney appointed by the court as the guardian ad litem and the attorney advocate in an abuse, neglect, and dependency proceeding may not testify as a witness unless directed to do so by the court.

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 1.6 and Rule 1.9 regarding a lawyer’s professional responsibility in handling confidential client information that were published during the last quarter. The council also approved the publication of proposed amendments to Rule 1.19 addressing prohibited sexual conduct with a client. The full text of the proposed amendments is published in this edition of the Journal and on the State Bar’s website.

Ethics Committee Actions

At its meeting on April 21, 2022, in addition to a report from the subcommittee studying the amendments to Rule 1.19 referenced above, the Ethics Committee received a report from the subcommittee studying the potential adoption of anti-discrimination language in the text of the Rules of Professional Conduct. Citing the pending federal litigation challenging various antidiscrimination provisions in other states’ Rules of Professional Conduct, the subcommittee voted to pause its deliberations on the subject until the courts offer additional guidance on the constitutionality of such rules. The subcommittee expects to continue its work in the future.

The Ethics Committee also considered a total of seven ethics inquiries, including the opinion adopted by the council referenced above. A new inquiry concerning a lawyer’s ability to call a client-retained public adjuster as an expert witness was sent to subcommittee for further study. The committee withdrew one pending opinion—Proposed 2021 FEO 5, Lawyer Participation in “Google Screened” Pay-Per-Lead Advertising Program—and instead issued guidance via the ethics article published in this Journal on page 45. The committee also approved an ethics advisory opinion addressing whether a law firm may represent nonprofit organizations and private clients in estate matters in which bequests are made to the firm’s nonprofit organizational clients. Lastly, the committee approved the publication of three new proposed opinions, which appear below.

Proposed 2022 Formal Ethics Opinion 2
Limited Representation in a Criminal Matter
April 21, 2022

Proposed opinion rules that a privately retained lawyer may provide limited representation to a criminal defendant who has been appointed counsel if the limitation is reasonable under the circumstances.

Facts:

Criminal defendant qualifies as indigent and is appointed counsel. Private lawyer (“Lawyer”) is contacted by Defendant or Defendant’s family for potential representation in filing a motion for bond on behalf of Defendant. If Lawyer takes on the representation, he will make a limited appearance solely for the purpose of representing Defendant at the bond hearing. Lawyer is informed that Defendant has been appointed counsel in the underlying criminal matter.

Inquiry #1:

May Lawyer communicate with Defendant knowing Defendant is represented by appointed counsel?

Opinion #1:

Yes. The prohibition on a lawyer speaking with a represented individual does not apply in this scenario. Rule 4.2 provides that, during the representation of a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. However, the comment to Rule 4.2 provides, “[t]his Rule does not prohibit a lawyer who does not have a client relative to a particular matter from consulting with a person or entity who, though represented concerning the matter, seeks another opinion as to his or her legal situation.” Rule 4.2, cmt. [2]. Lawyer is therefore permitted to meet with Defendant to discuss potential representation. Lawyer should, but is not required to, inform appointed counsel of his participation and advice. Rule 4.2, cmt. [2].

Inquiry #2:

May Lawyer undertake a limited representation of Defendant knowing Defendant has appointed counsel?

Opinion #2:

Yes, if the limitation is reasonable under the circumstances, Lawyer has fully informed Defendant of the possible ramifications of privately retaining Lawyer for the limited representation, and Defendant consents.

The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client. Rule 1.2(c); Rule 1.2, cmt. [6]. Although Rule 1.2 “affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances.” Rule 1.2, cmt. [7].

Before agreeing to represent Defendant on a limited basis for the sole purpose of handling a bond hearing, Lawyer must consider whether the limited representation is reasonable under the circumstances. As stated in the facts, Defendant has qualified as indigent and has been appointed counsel. Lawyer must therefore consider the effect his representation will have on Defendant’s ability to remain indigent and qualify for appointed counsel. N.C. Gen. Stat. § 7A-450 (Indigency; definition; entitlement; determination; change of status) and N.C. Gen. Stat. § 7A-453 (Duty of custodian of a possibly indigent person; determination of indigency) govern. Whether Defendant remains indigent considering the ability to pay Lawyer for the bond hearing is a legal question outside the purview of the Rules of Professional Conduct. Therefore, no opinion is expressed as to whether Defendant remains indigent despite having retained Lawyer. Nevertheless, Lawyer has a duty to review the law and render objective, candid, and thorough advice to Defendant regarding the same. See Rule 1.1, Rule 1.4(b), and Rule 2.1. Lawyer must discuss the limitations of representation and the effect, if any, the representation will have on Defendant’s qualification as indigent to enable Defendant to make an informed decision regarding the representation. Rule 1.2(a), Rule 1.2(c), and Rule 1.4(b). If Defendant consents to the limited representation after Lawyer’s thorough review and explanation of the legal ramifications of the limited, private representation, Lawyer must inform the court of his limited appearance so that the court may also evaluate Defendant’s indigent status. See Rule 3.3(a)(1); RPC 52. At the earliest time possible, Lawyer should also inform the appointed counsel of his involvement, preferably prior to accepting the representation, to ensure Defendant is sufficiently protected and informed of the impact the limited representation may have on Defendant’s ability to continue representation with appointed counsel.1 Failing to communicate Lawyer’s involvement with appointed counsel under these circumstances might be prejudicial to the administration of justice. Rule 8.4(d).

If Lawyer obtains Defendant’s informed consent to limit representation to just the bond hearing, Lawyer must provide competent and diligent representation to Defendant and must not do anything that jeopardizes Defendant’s case. Rule 1.1, Rule 1.3, and Rule 8.4(d). Rule 1.1 provides in pertinent part, “[c]ompetent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” Before Lawyer can make a limited appearance, Lawyer must educate himself on Defendant’s case, which includes understanding the underlying charges. Lawyer must therefore communicate with Defendant and the district attorney’s office and review any available discovery. Competent representation also requires Lawyer to communicate with appointed counsel.

Inquiry #3:

Assume Lawyer has obtained Defendant’s consent to limit representation and agrees to accept the legal fee from Defendant’s family in accordance with Rule 1.8(f). May Lawyer withdraw if the family is unable to pay Lawyer’s fee?

Opinion #3:

It depends. Lawyer may limit representation if the limitation is reasonable under the circumstances. See Opinion #2. Generally, a lawyer should not accept representation in a matter unless it can be performed competently, promptly, without conflict of interest, and to completion. Rule 1.16, cmt. [1]. Additionally, “[u]nless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer’s employment is limited to a specific matter, the relationship terminates when the matter has been resolved.” Rule 1.3, cmt. [4].

Before Lawyer agrees to represent Defendant in a limited capacity, Lawyer must determine whether his fee can be paid in full. If not and Lawyer is unwilling to finish representation without getting paid, the limitation on representation is not reasonable in accordance with Rule 1.2 and Lawyer must therefore decline the representation. However, should Lawyer accept representation but later conclude that he cannot continue representation because the family is unable to continue paying his fee, Lawyer may withdraw only if withdrawal can be accomplished without material adverse effect on the interests of the client. Rule 1.16(b)(1). Lawyer must also seek the court’s permission to withdraw. Rule 1.16(c). Prior to seeking the court’s permission to withdraw, Lawyer must inform the client of his intent to withdraw. Lawyer must either obtain the client’s consent to withdraw or provide client with notice of hearing on Lawyer’s motion to withdraw. Furthermore, before Lawyer can withdraw, Lawyer has a duty to protect Defendant’s interests, and therefore Lawyer must communicate with appointed counsel to ensure the withdrawal will not cause irrevocable harm to Defendant. Rule 8.4(d).

Inquiry #4:

Is the analysis in this opinion applicable to lawyers who limit representation of a criminal defendant in both misdemeanor and felony cases?

Opinion #4:

Yes. Under Rule 1.2(c), a lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances. Whether limitation is allowed is not contingent on whether the pending criminal matter is a misdemeanor or a felony. Instead, the determining factor should be based on the class of charges levied against the defendant. The lawyer should also consider the possible levels of punishment based on the charges. For example, a series of multiple felonies that will result in significant punishment for Defendant may make limiting representation unreasonable under the rule. Similarly, limited representation may be unreasonable when representing a client on a single misdemeanor charge that by itself generally will not result in significant punishment, but when added to Defendant’s prior record increases the punishment. Therefore, the lawyer must consider these and other factors and review the totality of the circumstances to determine if limited representation is reasonable under the circumstances.

Endnote

1. Lawyer should endeavor to involve appointed counsel and discuss the best strategies to ensure Defendant is protected and not harmed by Lawyer’s limited role. Lawyer should also discuss with appointed counsel the evidence he intends to introduce at the bond hearing, including a list of witnesses and the expected testimony of those witnesses.

Click here to comment on this opinion.

Proposed 2022 Formal Ethics Opinion 3 
Inclusion on Allied Professional’s List of Recommended Lawyers
April 21, 2022

Proposed opinion rules that a lawyer may be included in an allied professional’s list of recommended lawyers provided that the professional does not disseminate the lawyer’s name and information in a manner that is prohibited by the Rules of Professional Conduct.

Inquiry #1:

Doctor works at a local medical office. Doctor often treats patients who suffered injuries resulting from car accidents. On occasion, these patients ask Doctor if Doctor knows of any lawyers who could represent the patient regarding their involvement in the car accident. Doctor has decided to create and offer to patients a list of lawyers to assist the patient in identifying and choosing a lawyer.

Lawyer focuses his practice on personal injury matters. Doctor has previously worked with patients represented by Lawyer and believes Lawyer can provide reliable representation to patients. Doctor has asked Lawyer if she may recommend Lawyer to her patients by including Lawyer on her list of lawyers.

May Lawyer agree to his inclusion on Doctor’s list of lawyers?

Opinion #1:

Yes, provided that there is no quid pro quo exchange for recommending Lawyer’s services, and provided that Lawyer has not instructed Doctor to engage in improper solicitation of Doctor’s patients for legal services offered by Lawyer and Lawyer does not understand Doctor to engage in improper solicitation.

Rule 7.2 prohibits a lawyer from compensating, giving, or promising anything of value to a person for recommending the lawyer’s services. Rule 7.2(b); see 2006 FEO 7; 2007 FEO 4. A lawyer offering to refer a client to an allied professional in exchange for a referral from the professional to the lawyer’s practice, rather than based on the professional’s independent analysis of the lawyer’s qualifications, constitutes an improper quid pro quo. 2006 FEO 7.

Rule 7.3 defines solicitation as “a communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services.” Rule 7.3(a). Rule 7.3(b) prohibits a lawyer from soliciting professional employment “by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain[.]” A lawyer may not engage in conduct that would constitute a violation of the Rules of Professional Conduct through the acts of another. Rule 8.4(a).

In 2007 FEO 4, this committee concluded that a lawyer may provide business cards or a brochure containing information about the lawyer’s practice to an allied professional for distribution to the professional’s patients/clients so long as the lawyer does not understand the professional will engage in in-person solicitation on the lawyer’s behalf. In reaching this conclusion, the committee cited the absence of “[t]he potential for abuse or overreaching” when a lawyer passively provides information about his practice to an allied professional for voluntary collection by potentially interested clients/patients of the professional. Id.

The same can be said for the present situation. Doctor has described the proposal as a list of potential legal service providers to be given to interested patients who are in need of and/or seeking legal services. Lawyer has not instructed Doctor to solicit business from Doctor’s patients for Lawyer, and Lawyer has no reason to expect that Doctor will engage in improper solicitation of Doctor’s patients. Furthermore, Lawyer’s inclusion on the list is not in exchange for referrals to Doctor’s practice in the manner of an improper quid pro quo. See RPC 57.

Inquiry #2:

May Lawyer initiate and pursue a conversation with Doctor to inform Doctor of Lawyer’s practice and services for the purpose of having Doctor provide her patients with Lawyer’s information or place Lawyer on Doctor’s “recommended lawyers” list to be given to patients?

Opinion #2:

Yes, provided that Lawyer does not instruct Doctor to engage in improper solicitation of Doctor’s patients for legal services offered by Lawyer and Lawyer does not understand Doctor to engage in improper solicitation, and provided that there is no quid pro quo exchange for recommending Lawyer’s services. See Opinion #1.

Inquiry #3:

Same scenario as Inquiry #1, except Lawyer has learned that, after agreeing to be included in Doctor’s list of lawyers, Doctor is refusing to treat patients unless the patient has legal representation from someone on Doctor’s list.

May Lawyer continue his inclusion in Doctor’s list of lawyers?

Opinion #3:

No. Rule 7.3(c) prohibits a lawyer from soliciting professional employment if “the solicitation involves coercion, duress, or harassment.” Rule 7.3(c)(2). In this scenario, Lawyer has learned that Doctor is creating duress for her patients and coercing patients into obtaining legal representation from Lawyer by refusing to provide medical treatment unless the patient obtains legal representation. Lawyer could not engage in such conduct himself, and therefore cannot engage in conduct through the actions of Doctor with whom Lawyer has associated for the purpose of disseminating information about Lawyer’s practice and legal services. Rule 8.4(a). Upon learning of Doctor’s conduct, and given the nature of Doctor’s conduct, Lawyer must immediately correct Doctor’s conduct or request his removal from Doctor’s list. Compare Rule 7.4 (requiring a lawyer to terminate his relationship with an intermediary organization upon learning the organization failed to comport its conduct to the requirements in Rule 7.4 despite the lawyer’s attempt to correct the conduct).

Click here to comment on this opinion.

Proposed 2022 Formal Ethics Opinion 4
Billing Considerations for Overlapping Legal Services
April 21, 2022

Proposed opinion rules that a lawyer may not separately bill multiple clients a full hourly rate when the lawyer provides legal services to all clients simultaneously. Any increase in the lawyer’s efficiency in providing legal services must be passed on to the client.

Inquiry #1:

Lawyer is flying to Seattle from Raleigh for a deposition in Client A’s case. Lawyer’s fee agreement with Client A provides that Lawyer may charge Client A $150 per hour for time spent traveling for purposes of the representation.

During the flight, Lawyer worked for three hours on a brief in Client B’s case. Lawyer’s fee agreement with Client B provides that Lawyer may charge Client B $300 for every hour of legal work completed in Client B’s case.

May Lawyer bill Client A for four hours of travel time to Seattle and Client B for three hours of legal work completed during the flight to Seattle, for a total of seven hours billed time?

Opinion #1:

No.

Rule 1.5(a) prohibits a lawyer from charging or collecting “clearly excessive” fees. Comment 6 to Rule 1.5 states that, “[a] lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures.” Furthermore, Rule 7.1 prohibits a lawyer from making a “false or misleading” statement about the lawyer’s services, and Rule 8.4(c) prohibits a lawyer from “engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer’s fitness as a lawyer[.]”

In RPC 190, the Ethics Committee concluded that it was dishonest for a lawyer to bill one client for the completion of work product and subsequently bill a different client the same amount for the reused work product. “Implicit in an agreement with a client to bill at an hourly rate for hours expended on the client’s behalf is the understanding that for each hour of work billed to the client, an hour’s worth of work was actually performed. If a lawyer who has agreed to accept hourly compensation for her work subsequently bills the client for reused work product, the lawyer would be engaging in dishonest conduct in violation of Rule [8.4(c)].” RPC 190. In 2007 FEO 13, the Ethics Committee reiterated, “The fiduciary character of the client-lawyer relationship requires a lawyer to act in the client’s best interests and to deal fairly with the client. When billing on an hourly basis, fair dealing requires that the lawyer provide an hour’s worth of legal services for each hour billed.”

The American Bar Association reached a similar conclusion in 1993. In ABA Formal Opinion 93-379, entitled “Billing for Professional Fees, Disbursements, and Other Expenses,” the ABA addressed various billing practices involving one lawyer completing work for multiple clients simultaneously, all of which were considered “unreasonable fee[s]” in violation of Model Rule 1.5:

A lawyer who spends four hours of time on behalf of three clients has not earned twelve billable hours. A lawyer who flies for six hours for one client, while working for five hours on behalf of another, has not earned eleven billable hours. A lawyer who is able to reuse old work product has not re-earned the hours previously billed and compensated when the work product was first generated. Rather than looking for profit from fortuity of coincidental scheduling, the desire to get work done rather than watch a movie, or the luck of being asked the identical question twice, the lawyer who has agreed to bill solely on the basis of time spent is obliged to pass the benefits of these economies on to the client.

ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 93-379 (1993). Multiple state ethics opinions agree with the ABA’s conclusions. See, e.g., Oregon Formal. Op. 2005-170 (2005) (“A lawyer who bills more than one client for the same time expended on the same service has billed more time than the lawyer actually worked. Lawyer in this question worked a total of one hour for four clients, not four hours. The fact that Lawyer could have billed each client a full hour had each client’s case been the only one set for call that day does not change the conclusion. The lawyer-client relationship is ‘one of special trust and confidence’ and ‘must be characterized by fairness, honesty, and good faith.’”) (citing In re Howard, 304 Or. 193 (1987); Alaska Formal Op. 96-4 (1996) (“For example, a lawyer spends three hours traveling to attend a deposition in Seattle. If the lawyer decides to spend the time on the airplane drafting a motion for a different client, he or she may not charge both clients, each of whom agreed to hourly billing, for the time during which he was traveling on behalf of one client, but drafting a document on behalf of another. The lawyer has not earned six billable hours....[W]here the client has agreed to pay the lawyer on an hourly basis, the economies associated with a lawyer’s efficient use of time must benefit the client rather than giving the lawyer an opportunity to charge a client for phantom hours.”)

North Carolina joins in the chorus agreeing with the ABA’s assessment in Formal Opinion 93-379. In this scenario, Lawyer has spent four hours traveling for Client A, during which he completed three hours of work for Client B. Lawyer did not complete seven hours of work in four hours of actual time; to claim otherwise would be inaccurate and impossible. Accordingly, billing seven hours of work that occurred during the span of four actual hours would be false or misleading in violation of Rule 7.1, dishonest in violation of Rule 8.4(c), and clearly excessive in violation of Rule 1.5(a). Instead, Lawyer has an obligation to respect and strengthen the trust and confidence both clients place in Lawyer by carrying out the representation in their best interests, including Lawyer’s billing practices. Any benefits created by Lawyer’s efficient provision of legal services must be passed on to the clients. What constitutes the appropriate division of fees is beyond the scope of this opinion, but Lawyer must pass along the benefits of his efficient use of time to the clients rather than absorb the financial benefits presented by the opportunity.

Inquiry #2:

Lawyer appears at calendar call on Monday morning. Lawyer spends one hour attending calendar call, during which Lawyer appeared on behalf of three clients. Lawyer’s fee agreement with each client provides Lawyer may bill $200 for each hour of legal work completed, including court appearances.

May Lawyer bill each of the three clients for one hour of legal work, for a total of three billed hours of work?

Opinion #2:

No. See Opinion #1.

Click here to comment on this opinion.

Back to top