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Monday, November 16, 2020

ELECTION OF OFFICERS

Marcia H. Armstrong of Smithfield was elected vice president. Darrin D. Jordan of Salisbury was elected president-elect. Barbara R. Christy of Greensboro was installed as president and Alice Neece Mine was elected secretary-treasurer.

RETIRING COUNCILORS AND MEMBERS OF BOARDS AND AGENCIES

The following retiring councilors and members of boards and agencies were recognized:

Linda M. McGee
Board of Continuing Legal Education
2014-2020

J. Dickson Phillips III
Board of Continuing Legal Education
2014-2020

Calvin E. Murphy
Client Security Fund Board
2015-2020

R. Lee Farmer
Disciplinary Hearing Commission
2014-2020

David W. Long
Disciplinary Hearing Commission
2016-2020

Sidney S. Eagles Jr.
IOLTA Board of Trustees
2014-2020

Elizabeth L. Quick
IOLTA Board of Trustees
2014-2020

Forrest A. Ferrell
NC Judicial Standards Commission
2014-2020

William H. Jones Jr.
NC Judicial Standards Commission
2009-2020

John Bowman
Lawyer Assistance Program Board
2014-2020

Council members:

Charles R. Hardee
2012-2020

Kimberly S. Taylor
2012-2020

Raymond A. Bretzmann
2018-2020

Timothy L. Patti
2018-2020

APPOINTMENTS

The following appointments were made:

Board of Law Examiners—The council reappointed George R. Hicks and Roger A. Askew to three-year terms.

Board of Continuing Legal Education—The council reappointed Robert C. Kemp III to a three-year term and appointed Judge Ashleigh Parker-Dunston and Paul A. Capua to three-year terms.

NC LEAF—The council reappointed William R. Purcell II to a three-year term.

Board of Paralegal Certification—The council reappointed Lakisha Chichester (paralegal), Sarah H. Kaufman (paralegal), and H. Russell Neighbors (lawyer) to three-year terms.

NC Judicial Standards Commission—The council appointed Michael A. Grace and Michael Crowell to six-year terms.

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) by January 5, 2021. The council will make the following appointments at its meeting in January:

Lawyer Assistance Program Board (LAP) (two appointments; three-year term)—There are two appointments to be made.

The rules governing the LAP require three members of the board to be State Bar councilors; three members to be mental health/substance abuse or addiction professionals; and three members to be LAP volunteers. A clinician member and a councilor member are both eligible for reappointment.

The purpose of the lawyer assistance program is to: (1) protect the public by assisting lawyers and judges who are professionally impaired by reason of substance abuse, addiction, or debilitating mental condition; (2) assist impaired lawyers and judges in recovery; and (3) educate lawyers and judges concerning the causes of and remedies for such impairment.

Board of Law Examiners (one appointment; three-year term)—There is one appointment to be made. The appointee will complete the remainder of the term of Judge W. Erwin Spainhour who died in September 2020. All 11 members of the Board of Law Examiners must be members of the State Bar who are not State Bar councilors or law professors.

The Board of Law Examiners is responsible for establishing, administering, and enforcing the requirements for admission to the North Carolina State Bar.

Client Security Fund Board of Trustees (one appointment; five-year term)—There is one appointment to be made. The rules governing the Client Security Fund require that at least four of the five members of the board must be lawyers. There is currently one public member on the board.

The Client Security Fund was established by the North Carolina Supreme Court in 1984 to reimburse clients who have suffered financial loss as the result of dishonest conduct of lawyers engaged in the private practice of law in North Carolina.

RANDOM AUDITS 

Lawyers selected for audit are randomly drawn from a list generated from the State Bar’s membership database based upon judicial district membership designations. The randomly selected judicial districts used to generate the lists for the fourth quarter of 2020 are District 27, composed of Rowan County, and District 29, composed of Moore County. 

ETHICS COMMITTEE

The State Bar Council adopted two new ethics opinions this quarter. 2020 Formal Ethics Opinion 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. 2020 Formal Ethics Opinion 4, Investment in Litigation Financing, holds that a lawyer may not invest in a fund that provides litigation financing if the lawyer’s practice accepts clients who obtain litigation financing.

Following its July 2020 meeting, the State Bar Council published for comment two proposed amendments to the Rules of Professional Conduct. The first proposed amendment was 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 State Bar received comments both supporting and opposing this proposal. Consequently, the Ethics and Executive Committees agreed to send the proposed Preamble amendment to a subcommittee for further study. The other proposed amendment to Rule 1.5 (Fees) clarifies 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. No comments were received on this proposed amendment. At its meeting on October 23, 2020, the council adopted the amendment for transmission to the Supreme Court for approval.

The Ethics Committee, through appointed subcommittees, continues to study two additional proposed amendments to the Rules of Professional Conduct. One subcommittee is studying whether to include a prohibition on discriminatory conduct in Rule 8.4 (Misconduct) of the Rules of Professional Conduct, and another subcommittee is studying 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. These subcommittees will meet during the fourth quarter and report their findings and recommendations to the Ethics Committee at its January 2021 meeting. The subcommittee meetings are livestreamed and can be observed through the State Bar’s YouTube page.

The Ethics Committee considered 12 ethics inquiries at its October 22, 2020, meeting, including the opinions adopted by the State Bar Council referenced above. The committee voted to publish five opinions for comment. Proposed 2019 Formal Ethics Opinion 4, Communications with Judicial Officials, analyzes the permissibility of various types of communications between lawyers and judges. Proposed 2020 Formal Ethics Opinion 1, Responding to Negative Online Reviews, 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. Proposed 2020 Formal Ethics Opinion 2, Advancing Client Portion of Settlement, rules that a lawyer may not advance a client’s portion of settlement proceeds while a matter is pending or litigation is contemplated, but may advance a client’s portion of settlement proceeds under other circumstance if the lawyer complies with Rule 1.8(a). Proposed 2020 Formal Ethics Opinion 5, A Lawyer’s Responsibility in Avoiding Fraudulent Attempts to Obtain Entrusted Client Funds, discusses a lawyer’s professional responsibility to inform clients about potential fraudulent attempts improperly to acquire client funds during a real property transaction. Lastly, Proposed 2020 Formal Ethics Opinion 6, Commenting Publicly on Client Information Contained in Public Records, rules that a lawyer is prohibited from commenting publicly about information acquired during representation unless the client consents or the disclosure is permitted by Rule 1.6(b). The Ethics Committee welcomes feedback on these proposed opinions. The remaining five inquiries were sent or returned to subcommittees for further study.

GRIEVANCE COMMITTEE

During the quarter, the Grievance Committee considered 224 files. The committee dismissed 158 files, abated two files, and continued two files. One lawyer was referred to the Lawyer Assistance Program, nine lawyers were referred to the Trust Accounting Compliance Program, one lawyer received a letter of caution, 18 lawyers received letters of warning, nine lawyers received admonitions, four lawyers received reprimands, three lawyers received censures, and nine 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. 

Proposed Amendments to the Student Practice Rules

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

The rule amendments clarify the different forms of student practice placements outside the law school and the supervision requirements for those placements.

Proposed Amendments to the Rules of Professional Conduct

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

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.

The amendments to the advertising rules in the Rules of Professional Conduct (Rule 7.1 to Rule 7.5) are comprehensive. The amendments were proposed following a two-year study of the 2018 amendments to the equivalent 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 amendments to the North Carolina rules seek to advance the following objectives: 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 

The council adopted a Resolution of Appreciation for C. Colon Willoughby Jr. upon his completion of service as the North Carolina State Bar President.

Filed Under: General News

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