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Wednesday, May 12, 2021

Appointments

The council made the following appointments: 

Disciplinary Hearing Commission – The council reappointed Maya Madura Engle and Shannon R. Joseph to three-year terms and appointed William Oden to a three-year term. The council appointed current commission member Stephanie Davis to serve as vice-chair for a three-year term.

Allison Tomberlin’s resignation was received after the Appointments Advisory Committee met. The committee will consider the appointment of her replacement at the July Quarterly Meeting.

Inmate Grievance Resolution Board – The council recommended the following ten names be submitted to the governor for consideration:

Travis Ellis

Wendy Bartos

Dayton Cole

William Faison

Jackie Houser

Erika N. Jones

Deborrah Newton

Riley W. Smith

Syrena Williams

Rebekah Wolfe

North Carolina Courts Commission – The council appointed John Nieman to a four-year term as an ex-officio member.

Legal Aid Of North Carolina – The council reappointed Chris Clifton to a three-year term.

North Carolina State Bar Foundation Board – The council appointed Keith Kapp to a four-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, or Lanice Heidbrink at lheidbrink@ncbar.gov, and express that interest, being sure to attach a current resume. Please submit before July 2, 2021. The council will make the following appointments at its meeting on July 16, 2021:

Board of Legal Specialization (three-year term) – There are three appointments to be made. Patti Head (public member) is eligible for reappointment. Robert A. Ponton Jr. and Larry Rocamora are not eligible for reappointment.

The nine-member Board of Legal Specialization oversees the specialization program. The board is composed of six lawyers, at least one of whom must not be a specialist, and three nonlawyer public members. The program assists in the delivery of legal services to the public by identifying to the public those lawyers who have demonstrated special knowledge, skill, and proficiency in a specific field, and seeks to improve the competency of members of the Bar by establishing an additional incentive for lawyers to participate in continuing legal education and to meet other requirements of specialization. 

IOLTA Board of Trustees (three-year term) – There are three appointments to be made. One trustee, Kerry A. Friedman, is ineligible for reappointment. Two trustees, Jane V. Harper and Robert A. Wicker, are eligible for reappointment. Both Harper and Wicker do not seek reappointment.

The nine-member IOLTA Board of Trustees oversees the North Carolina’s Interest on Lawyers’ Trust Accounts (IOLTA) program. NC IOLTA works with lawyers and banks across the state to collect net interest income generated from lawyers’ general, pooled trust accounts for the purpose of funding grants to providers of civil legal services for the indigent and programs that further the administration of justice.

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 second quarter of 2021 are District 20, composed of Robeson County, and District 25, composed of Cabarrus County.  

Ethics Committee

At its meeting on April 16, 2021, the State Bar Council adopted one new ethics opinion: 2021 Formal Ethics Opinion 1, Contemporaneous Residential Real Estate Closings (opinion addresses conflicts of interest, communication, funding issues, and accountings in contemporaneous closings for residential real property).

At its April 15, 2021 meeting, the Ethics Committee considered a total of 11 ethics inquiries, including the opinion adopted by the council referenced above. Six inquiries were sent or returned to subcommittee for further study, including inquiries addressing a lawyer’s professional responsibility when asked by a client to take possession of evidence constituting contraband, the confidentiality of information contained in the public record, and a lawyer’s professional responsibility in utilizing machine learning/artificial intelligence in a law practice. The committee approved the publication of the following four proposed opinions. The first two proposed opinions were revised following receipt of comments during prior publication.

  • Proposed 2019 Formal Ethics Opinion 4, Communications with Judicial Officials (proposed opinion discusses the permissibility of various types of communications between lawyers and judges);
  • Proposed 2020 Formal Ethics Opinion 1, Responding to Negative Online Reviews (proposed opinion 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 2021 Formal Ethics Opinion 2, A Lawyer’s Professional Responsibility in Identifying and Avoiding Counterfeit Checks (proposed opinion discusses a lawyer’s professional responsibility to safeguard entrusted funds by identifying and avoiding purported transactions involving counterfeit checks); and
  • Proposed 2021 Formal Ethics Opinion 3, Charging Fees to Opposing Party in Residential Real Estate Closing (proposed opinion rules that a closing lawyer representing the buyer in a residential real estate transaction may not charge a fee to a separately represented opposing party unless the party consents to the fee and the lawyer complies with Rules 1.5(a) and 1.8(f)).

The Ethics Committee welcomes comments on the proposed formal ethics opinions. Comments may be submitted by email to ethicscomments@ncbar.gov.

Grievance Committee

During the quarter, the Grievance Committee considered 192 files. The committee dismissed 149 files, dismissed and retained one file, and continued two files. Seven lawyers were referred to the Trust Accounting Compliance Program, six lawyers received letters of caution, eight lawyers received letters of warning, five lawyers received admonitions, four lawyers received reprimands, three lawyers received censures, and six lawyers were referred to the Disciplinary Hearing Commission for trial.

RULE AMENDMENTS

Amendments Approved by the Supreme Court

On April 21, 2021, the North Carolina Supreme Court approved the following amendments. (For the complete text see the Fall 2020 and Winter 2020 editions of the Journal.)

Amendments to the Rules Governing Admission to the Practice of Law

Section .0900, Examinations

The requirement in Rules Governing Admission to the Practice of Law that the bar exam be administered in Wake County was removed. This change permits the exam to be administered anywhere in North Carolina.

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. In addition, throughout the rules, the term “student intern” is replaced with “certified law student” to avoid confusion between student practice in law school clinics and practice placements outside the law school.

Amendments to Rule 1.5 of the Rules of Professional Conduct

27 N.C.A.C. 2, Rules of Professional Conduct, Rule 1.5, Fees

Amendments to Rule 1.5 add a specific prohibition on charging a client for responding to an inquiry by a disciplinary authority regarding allegations of professional misconduct by the lawyer; for responding to a Client Security Fund claim alleging wrongful conduct by the lawyer; or for responding to and participating in the resolution of a petition for resolution of a disputed fee against the lawyer.

Amendments to the Advertising Rules in the Rules of Professional Conduct

27 N.C.A.C. 2, Rules of Professional Conduct, Rules 7.1-7.5, Information About Legal Services

Comprehensive amendments to the rules on legal advertising in Rules 7.1-7.5, Information About Legal Services, of the Rules of Professional Conduct 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 to communicate effectively and truthfully about the availability of legal services.

Amendments Pending Approval by the Supreme Court

At its meeting on April 16, 2021, the Council of the North Carolina State Bar voted to adopt the following rule amendments for transmission to the North Carolina Supreme Court for its approval. (For the complete text of the rule amendments, see the Winter 2020 and Spring 2021 editions of the Journal.)

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 Governing the Continuing Legal Education Program

27 N.C.A.C. 1D, Section .1500, Rules Governing the Administration of the Continuing Legal Education Program

The proposed amendments add “Diversity, Inclusion, and Elimination of Bias Training” to the definitions in Rule .1501 and, in Rule .1518, include such training in the 2022 CLE requirements for active members of the State Bar.  

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 .2700, Certification Standards for the Workers’ Compensation Law Specialty; Section .2800, Certification Standards for the Social Security Disability Law Specialty; Section .2900, Certification for the Elder Law Specialty; Section .3000, Certification Standards for the Appellate Practice Specialty; Section .3100, Certification Standards for the Trademark Law Specialty; Section .3200, Certification Standards for the Utilities Law Specialty; Section .3300, Certification Standards for the Privacy and Information Security Law Specialty.

The rules for some of the specialty certifications require peer references to be mailed. The proposed amendments will make the rules for the various specialties consistent with each other and enable 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 proposed rules create a new specialty certification in child welfare law. The standards are comparable to the standards for the other specialty certifications.

Proposed Amendments Published for Comment

At its meeting on April 16, 2021, the council voted to publish for comment the following proposed rule amendments:

Proposed Amendments to the Discipline and Disability Rules

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

The proposed amendments require a petitioner for reinstatement seven years or more after the effective date of suspension or disbarment to (1) attain the passing score required in North Carolina on the Uniform Bar Examination; (2) successfully complete the North Carolina state-specific component of the bar examination; and (3) attain a passing score on the Multistate Professional Responsibility Examination. A petitioner for reinstatement from disability inactive status may be required to do the same. The proposed amendments also provide the following: (1) failure to comply with any requirement of the rule can result in dismissal of the petition; (2) a petitioner for reinstatement from disbarment or suspension must have reimbursed the State Bar for fees and expenses paid by the State Bar to any trustee appointed by the court to protect the petitioner’s clients, and a petitioner for reinstatement from disability inactive status may be required to do so; and (3) a petitioner for reinstatement from disbarment or suspension must have properly reconciled all trust or fiduciary accounts, and all entrusted funds of which the petitioner took receipt must have been disbursed to the beneficial owner(s) of the funds or the petitioner must have taken all necessary steps to escheat the funds, and a petitioner for reinstatement from disability inactive status may be required to do so.

Proposed Amendments to the Rules for the Administrative Committee

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

If a petition for reinstatement is filed seven years or more after the effective date of an order transferring the petitioner to inactive status or administrative suspension, the proposed amendments require the petitioner to (1) attain the passing score required in North Carolina on the Uniform Bar Examination; (2) successfully complete the North Carolina state-specific component of the bar examination; and (3) attain a passing score on the Multistate Professional Responsibility Examination.

Proposed Amendments to the Rules for the Administrative Committee

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

As a condition of reinstatement, if a petition for reinstatement is filed seven years or more after the effective date of the order transferring the petitioner to inactive status or administrative suspension, the proposed amendments require, as a condition of reinstatement, a petitioner for reinstatement from inactive status or from administrative suspension to (1) attain the passing score required in North Carolina on the Uniform Bar Examination; (2) successfully complete the North Carolina state-specific component of the bar examination; and (3) attain a passing score on the Multistate Professional Responsibility Examination.

Proposed Amendment to the Preamble of the Rules of Professional Conduct

27 N.C.A.C. 2, Rules of Professional Conduct, Rule 0.1, Preamble

The proposed amendment adds a paragraph to the Preamble on equal treatment of all persons encountered when acting in a professional capacity.

Proposed Amendment to the Comment to Rule 1.1 of the Rules of Professional Conduct

27 N.C.A.C. 2, Rules of Professional Conduct, Rule 1.1, Competence

The proposed amendment states that competency includes awareness of implicit bias and cultural differences relative to a client that might impact the lawyer’s representation of the client. 

Filed Under: General News

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