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Tuesday, February 2, 2021

RECOGNITION OF NEW COUNCILORS

The following new councilors were recognized and welcomed:

Robert C. Kemp III - District 3

Kathleen E. Nix - District 24H

Daryl G. Davidson - District 32

Roy Lawrence McDonald III - District 33

Michael Randolph Neece - District 38

FINANCIAL REPORT

The council approved the following financial reports and budgets:

  • 2020 Year-End Financial Statements
  • 2021 State Bar Budget
  • 2021 Client Security Fund Budget
  • 2021 Continuing Legal Education Budget
  • 2021 Legal Specialization Budget
  • 2021 Lawyer Assistance Program Budget
  • 2021 IOLTA Budget
  • 2021 Paralegal Certification Budget

APPOINTMENTS 

The council made the following appointments:

Client Security Fund Board of Trustees – The council appointed Erika D. Jones of Raleigh to a five-year term.

Lawyer Assistance Program Board – The council appointed Timothy Carroll (clinician-member) of Virginia and Shelli Buckner (volunteer-member) of Sylva to three-year terms. The council reappointed Theodore C. Edwards, II (councilor-member) of Raleigh as chair of the board and Crawford H. Cleveland III (volunteer-member) of Boone as vice-chair of the board.

Board of Law Examiners – The council appointed Ronald L. Gibson of Charlotte 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 the State Bar’s Executive Director, Alice Neece Mine, at amine@ncbar.gov, and express that interest, being sure to attach a current resume. The council will make the following appointments at its meeting on April 16, 2021:

Disciplinary Hearing Commission (three-year term) – There are three appointments to be made by the State Bar Council. Maya Madura Engle and Shannon R. Joseph are eligible for reappointment. Richard V. Bennett is not eligible for reappointment.

The Disciplinary Hearing Commission (DHC) is an independent court that hears all contested disciplinary cases. It is composed of 12 lawyers appointed by the State Bar Council and eight public members appointed by the governor and the General Assembly. The DHC sits in panels of three: two lawyers and one public member. In addition to disciplinary cases, the DHC hears cases involving contested allegations that a lawyer is disabled and petitions from disbarred and suspended lawyers seeking reinstatement.

Inmate Grievance Resolution Board (four-year term) – There is one appointment to be made. Gerald Beaver is eligible for reappointment. The State Bar assists the governor with his selection by providing the names of ten lawyers as potential candidates. The Inmate Grievance Resolution Board investigates inmate grievances and seeks to resolve those grievances pursuant to the procedures established by its Administrative Remedy Procedure.

North Carolina Courts Commission (four-year term) – There is one appointment to be made. Fred Parker is eligible for reappointment. The Courts Commission studies the structure, organization, jurisdiction, procedures, and personnel of the Judicial Department and of the General Court of Justice and makes recommendations to the General Assembly for changes that will facilitate the administration of justice.

Legal Aid Of North Carolina (three-year term) – There is one appointment to be made. Chris Clifton is eligible for reappointment. Legal Aid of North Carolina is a statewide, nonprofit law firm that provides free legal services in civil matters to low-income people to ensure equal access to justice and to remove legal barriers to economic opportunity.

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 first quarter of 2021 are District 13, composed of Johnston County, and District 36, composed of Burke, Caldwell, and Catawba Counties. 

ETHICS COMMITTEE 

At its meeting on January 15, 2021, the State Bar Council adopted two new ethics opinions. 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). 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 relevant, potential fraudulent attempts improperly to acquire client funds during a real property transaction.

At its January 14, 2021, meeting, the Ethics Committee received reports from two subcommittees studying proposed amendments to the Rules of Professional Responsibility. One subcommittee is studying the addition of anti-discrimination language to the Preamble and in the text of the Rules of Professional Conduct. The other subcommittee is studying the inclusion of language to the comment of Rule 1.1 (Competency) that recognizes a lawyer’s responsibility to be aware of how implicit bias and cultural differences may impact the representation of a client. Both proposals remain in subcommittee for continued study.

The Ethics Committee also considered 12 ethics inquiries. Ten inquiries were sent or returned to subcommittee for further study, including inquiries addressing the following: a lawyer’s professional responsibility when asked by a client to take possession of evidence constituting contraband; a lawyer’s duty to recognize and avoid counterfeit check scams; and a lawyer’s professional responsibility in utilizing machine learning/artificial intelligence in a law practice. The committee reconsidered three proposed formal ethics opinions upon receiving adverse comment after publication. Proposed 2019 Formal Ethics Opinion 4, concerning a lawyer’s professional responsibility when communicating with members of the judiciary; Proposed 2020 Formal Ethics Opinion 1, concerning a lawyer’s professional responsibility in responding to negative online reviews; and Proposed 2020 Formal Ethics Opinion 6, concerning the confidentiality of information contained in the public record, were all returned to subcommittees for further study. Lastly, the committee approved the publication of one new opinion, Proposed 2021 Formal Ethics Opinion 1, Contemporaneous Residential Real Estate Closings. The proposed opinion addresses conflicts of interest, communication, funding issues, and accountings in contemporaneous closings for residential real property. The Ethics Committee welcomes comments on the published opinion.

GRIEVANCE COMMITTEE

During the quarter, the Grievance Committee considered 136 files. The committee dismissed 74 files and continued one file. Two lawyers were referred to the Lawyer Assistance Program; three lawyers were referred to the Trust Accounting Compliance Program; four lawyers received letters of caution; 17 lawyers received letters of warning; three lawyers received admonitions; six lawyers received reprimands; four lawyers received censures; and six lawyers were referred to the Disciplinary Hearing Commission for trial.

RULE AMENDMENTS

Amendments Pending Supreme Court Approval 

At its meetings on October 23, 2020, and January 15, 2021, the council adopted, subject to the Supreme Court’s approval, the amendments described below.

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.

Amendments to Rule 1.5, Fees, of the Rules of Professional Conduct

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

The amendments add a specific prohibition on charging a client for responding to the following: an inquiry by a disciplinary authority regarding allegations of professional misconduct by the lawyer; a Client Security Fund claim alleging wrongful conduct by the lawyer; or a petition for resolution of a disputed fee filed against the lawyer.

 

Amendments to the Advertising Rules in the Rules of Professional Conduct

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

Comprehensive amendments to the rules on legal advertising in Section 7, Information About Legal Services, of the Rules of Professional Conduct seek to accomplish the following: strengthen and prioritize the prohibition on false and misleading communications concerning a lawyer’s services; streamline the rules on advertising and eliminate unnecessary or unclear provisions; update the rules to reflect the current state of society and the profession, including the recognition of technology’s presence in personal and professional lives and the evolution of the consuming public; and enable lawyers effectively and truthfully to communicate the availability of legal services, including utilizing new technologies.

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

Section .0900, Examinations 

To comply with social distancing requirements during the coronavirus pandemic, there is a need for additional venues at which to administer the February 2021 bar exam. The rule amendment will permit the exam to be administered anywhere in North Carolina.

Proposed Amendments Published for Comment 

At its meeting on January 15, 2021, the council voted to publish for comment the following proposed rule amendments:

Proposed Amendments to the Rules on Organization of the North Carolina State Bar

27 N.C.A.C. 1A, Section .0800, Election and Appointment of State Bar Councilors

The proposed amendments permit notices for district bar elections for State Bar councilors to be sent via email.                                                                                  

Proposed Amendments to the Rules for Legal Specialization

27 N.C.A.C. 1D, Section .1700, The Plan for Legal Specialization

The proposed amendments eliminate a designated time of year for the Board of Legal Specialization’s annual meeting, permit notice of meetings by email, and correct references to the Rules of Professional Conduct.

Proposed Amendments to the Rules for Certain Specialty Certifications

27 N.C.A.C. 1D, Section .1700, The Plan for Legal Specialization

The proposed amendments will make the rules for the various specialties consistent by enabling the specialization program to send peer reference forms for all specialties by email.                                                                             

Proposed Amendments to the Plan of Legal Specialization

27 N.C.A.C. 1D, Section .3400, Certification Standards for the Child Welfare Law Specialty [NEW Section]

The rules in this new proposed section of the administrative rules will create a new specialty certification in child welfare law. The standards for the proposed specialty are comparable to the standards for the other specialty certifications.

Filed Under: General News

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