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Monday, August 17, 2020

APPOINTMENTS 

The following appointments were made:

Board of Legal Specialization - The council reappointed Laura V. Hudson (public member), Nancy Ray, and Jan E. Pritchett to three-year terms.

IOLTA Board of Trustees - The council reappointed Anita Brown-Graham to a three-year term and appointed Judge John Arrowood and John Keane (public member) to three-year terms.

NC Dispute Resolution Commission - The State Bar president appointed Charlot F. Wood to a three-year term.

RECOMMENDATIONS FOR APPOINTMENTS SOUGHT

Anyone interested in being appointed to serve on any of the State Bar’s boards, commissions, or committees should email lheidbrink@ncbar.gov to express that interest, being sure to attach a current resume. The council will make the following appointments at its meeting in October:

Client Security Fund Board of Trustees (five-year terms) – There is one appointment to be made. Calvin Murphy is not eligible for reappointment.

Board of Law Examiners (three-year terms) – There are two appointments to be made. George R. Hicks and Roger A. Askew are eligible for reappointment.

Board of Continuing Legal Education (three-year terms) – There are three appointments to be made. Robert C. Kemp III is eligible for reappointment. Linda McGee and J. Dickson Phillips III are not eligible for reappointment.

NC LEAF (one-year term) – There is one appointment to be made. William Purcell is eligible for reappointment.

Board of Paralegal Certification (three-year terms) – There are two paralegal appointments and one lawyer appointment to be made. Lakisha Chichester (paralegal member), Sarah H. Kaufman (paralegal member), and H. Russell Neighbors (lawyer member) are eligible for reappointment.

NC Judicial Standards Commission (six-year terms) – There are two appointments to be made. Forrest Ferrell and William H. Jones Jr. are not eligible for reappointment.

RANDOM AUDITS

Lawyers selected for audit are randomly drawn from lists generated from the State Bar’s membership database based upon judicial district membership. The randomly selected judicial districts used to generate the lists for the 2020 third quarter audits are District 5, composed of Duplin, Jones, Onslow and Sampson Counties, and District 7, composed of Bertie, Halifax, Hertford and Northampton Counties.

ETHICS COMMITTEE 

The State Bar Council did not adopt any ethics opinions this quarter. Upon the recommendation of the Ethics Committee, the council voted to publish two proposed amendments to the Rules of Professional Conduct for comment. The first proposal is an amendment to the Preamble identifying the avoidance of discriminatory conduct while employed or engaged in a professional capacity as a fundamental value of the profession. The second proposal is an amendment to Rule 1.5 (Fees) clarifying that a lawyer may not charge anything of value for responding to an inquiry by a disciplinary authority regarding allegations concerning the lawyer’s own conduct. The Ethics Committee welcomes feedback on these proposed rule amendments.

Also at its July 23, 2020, meeting, the committee created two subcommittees to study additional proposed amendments to the Rules of Professional Conduct. One subcommittee will study whether to adopt ABA Model Rule 8.4(g) or a provision similar thereto. MR 8.4(g) prohibits a lawyer from engaging in conduct related to the practice of law that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status. The other subcommittee will study whether the comments to Rule 1.1 (Competency) should state that competency includes awareness of how implicit bias and cultural differences impact the representation of clients. The subcommittees will study the proposals over the next months and report their findings and recommendations to the Ethics Committee.

The Ethics Committee considered ten ethics inquiries at its July 23, 2020, meeting. The committee voted to publish three opinions for comment. Proposed 2020 FEO 2, Advancing Client Portion of Settlement, rules that a lawyer may not advance the client’s portion of settlement proceeds while a matter is pending or litigation is contemplated but, in other cirsumstances, may advance the client’s portion of settlement proceeds if the lawyer complies with Rule 1.8(a). Proposed 2020 FEO 3, Solo Practitioner as Witness/Litigant, rules that a solo practitioner/owner of a PLLC is not prohibited from representing the PLLC and testifying in a dispute with a former client. Proposed 2020 FEO 4, Investment in Litigation Financing, rules that a lawyer may not invest in a fund that provides litigation financing if the lawyer’s practice accepts clients who obtain litigation financing. The remaining seven inquiries were sent or returned to subcommittees for further study, including inquiries addressing the duty of confidentiality relative to information from a public hearing, the permissibility of certain communications with a judge, and the professional responsibilities that are impacted by the utilization of machine learning/artificial intelligence in a law practice. The Ethics Committee welcomes feedback on these proposed opinions.

GRIEVANCE COMMITTEE

During the second quarter, the Grievance Committee considered 179 files. The committee dismissed 117 files and dismissed and retained one file. Five lawyers were referred to the Trust Accounting Compliance Program; five lawyers received letters of caution; 11 lawyers received letters of warning; nine lawyers received admonitions; three lawyers received reprimands; one lawyer received a censure; and seven lawyers were referred to the Disciplinary Hearing Commission for trial.

RULE AMENDMENTS

The council voted to adopt the following rule amendments for transmission to the North Carolina Supreme Court for approval. (For the complete text of the proposed rule amendments, visit the State Bar website: www.ncbar.gov.)

Proposed Amendments to the Rules on the Annual Membership Fee

27 N.C.A.C. 1A, Section .0200, Membership—Annual Membership Fee

The proposed amendments make the language of Rule .0203 consistent with the authorizing statute and delay imposition of the late fee until September 1, 2020, for the 2020 calendar year only.

Proposed Amendments to the Discipline Rules

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

The proposed amendments eliminate the requirements that letters of warning, admonitions, reprimands, and censures issued by the Grievance Committee be served by certified mail or personal service when valid service has previously been accomplished upon the respondent.

Proposed Amendments to the Rules on Reinstatement from Inactive Status and Administrative Suspension

27 N.C.A.C. 1D, Section .0900, Procedures for the Administrative Committee

The proposed amendments to Rule .0902 and Rule .0904 eliminate the six-hour cap on online CLE when fulfilling the requirements for reinstatement from inactive status and from administrative suspension.

Proposed Amendments to the Certification Standards for the Immigration Law Specialty

27 N.C.A.C. 1D, Section .2600, Certification Standards for the Immigration Law Specialty

The proposed amendments update the clarify the requirements for substantial involvement for certification as a specialist in immigration law.

Proposed Amendments to the Rules on Prepaid Legal Services Plans

27 N.C.A.C. 1E, Section .0300, Rules Concerning Prepaid Legal Services Plans

The comprehensive proposed amendments to the rules on prepaid legal services plans include the following: incorporating the registration, renewal, and amendment forms in the rules; eliminating the requirement that the State Bar review plan documents to determine whether representations made in the registration, renewal, and amendment forms are true; and specifying that registration and renewal fees shall be in amounts to be determined by the State Bar Council.

Proposed Amendments to the Rules Governing Admission to the Practice of Law

Rules Governing Admission to the Practice of Law in the State of North Carolina

Section .0500—Requirements for Applicants; Section .0600—Moral Character and General Fitness; Section .1200—Board Hearings

The North Carolina Board of Law Examiners proposed amendments to its admission rules that streamline the processing of comity, military-spouse comity, and transfer applications that do not present character and fitness issues.

Also at its meeting on July 24, 2020, the council voted to publish for comment the following proposed rule amendments:

Proposed Amendments to the Student Practice Rules

27 N.C.A.C.1C, Section .0200, Rules Governing the Practical Training of Law Students

The proposed rule amendments clarify the different forms of student practice placements outside the law school and the supervision requirements for those placements. In addition, throughout the rules, the term “student intern” is replaced with the term “certified law student” to avoid confusion between student practice in law school clinics and practice placements outside the law school.

Proposed Amendments to the Rules of Professional Conduct

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

A proposed amendment to the Preamble identifies the avoidance of discriminatory conduct while employed or engaged in a professional capacity as a value of the profession.

Proposed amendments to Rule 1.5, Fees, specify that it is professional misconduct to charge a client for any of the following: responding to an inquiry by a disciplinary authority regarding allegations of professional misconduct by the lawyer; responding to a Client Security Fund claim alleging wrongful conduct by the lawyer; or responding to and participating in the resolution of a petition for resolution of a disputed fee filed against the lawyer.

Proposed amendments to the advertising rules in the Rules of Professional Conduct (Rule 7.1 to Rule 7.5) are extensive. The amendments are proposed following a two-year study by a committee of the State Bar Council of the 2018 amendments to the advertising rules in the ABA Model Rules. The amendments to the Model Rules were undertaken in recognition of the need for more consistency among the various jurisdictions because of increased lawyer mobility; the impact of social media on the practice of law; and recent trends in First Amendment and antitrust law suggesting that burdensome and unnecessary restrictions on a lawyer’s commercial speech may be unlawful. The proposed amendments to the North Carolina rules on lawyer advertising seek the same objectives as the amendments to the ABA Model Rules: elimination of compliance confusion, and promotion of consistency in the lawyer advertising rules across the country; protection of prospective clients from false and misleading advertising while freeing lawyers to use expanding technologies to communicate the availability of legal services; and increased consumer access to accurate information about legal services.

MISCELLANEOUS

In other business, the council renewed the designation of the North Carolina Bar Association’s Transitioning Lawyers Commission as an approved lawyers’ assistance program with the protections on confidential information specified in Rule 1.6(d) of the Rules of Professional Conduct. The council renewed the designation for a period of two years commencing July 25, 2020, and ending July 31, 2022.

The council also adopted a Resolution of Appreciation for A. Root Edmonson upon his retirement after 41 years of service as a lawyer in the State Bar’s Office of Counsel. 

Filed Under: General News

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