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Tuesday, August 17, 2021

APPOINTMENTS 

The council made the following appointments:

Disciplinary Hearing Commission (three-year terms) – The council appointed Jaye Meyer to complete Allison Tomberlin’s term on the commission.

Board of Legal Specialization (three-year term) – The council reappointed Patti Head (public member) to a three-year term and appointed Barbara R. Morgenstern and Gina E. Cammarano to three-year terms. The council appointed current member Kimberly R. Coward as chair of the board and current member Jan E. Pritchett as vice-chair, both for one-year terms.

IOLTA (three-year term) – The council appointed Theodore C. Edwards II, Sharika Richardson Shropshire, and Jacob Kyle Smith to three-year terms. The council reappointed Maria Missé as chair of the board and appointed current member Shelby D. Benton as vice-chair, both for one-year terms.

RECOMMENDATIONS FOR APPOINTMENTS SOUGHT 

Anyone interested in being appointed to serve on any of the State Bar’s boards, commissions, or committees may email Lanice Heidbrink to express that interest, being sure to attach a current resume. Submissions by September 30, 2021, will be included in agenda materials for the October meeting of the council. The council will make the following appointments at its October 2021 meeting:

Board of Paralegal Certification (three-years term) – There are three appointments to be made. Matthew Smith and Benita Angel Gwynn Powell are eligible for reappointment. Patty Clapper (paralegal member) is not eligible to be reappointed. The rules governing the Board of Paralegal Certification require the council to appoint a paralegal member from a list of two candidates selected by certified paralegals in a special election conducted by the board.

Description – The nine-member Board of Paralegal Certification is responsible for administration of the plan for certification of paralegals. The paralegal certification program assists in the delivery of legal services by identifying and certifying qualified paralegals.

Board of Continuing Legal Education (three-year term) – There are three appointments to be made. Adrienne Blocker and Leah Kane are eligible for reappointment. George Jenkins is not eligible for reappointment.

Description – The nine-member Board of Continuing Legal Education (CLE) oversees the administration of the North Carolina State Bar’s mandatory CLE program, which requires lawyers licensed to practice in North Carolina to take 12.0 hours of CLE every calendar year. CLE enables lawyers to achieve and maintain professional competence.

Client Security Fund Board of Trustees (five-year term) – There is one appointment to be made. W. Erwin Fuller Jr., is not eligible for reappointment.

Description – The five-member Client Security Fund Board of Trustees administers the Client Security Fund. The purpose of the fund is to reimburse, in whole or in part in appropriate cases, clients who have suffered financial loss as the result of dishonest conduct of lawyers engaged in the private practice of law in North Carolina.

Board of Law Examiners (three-year term) – There are three appointments to be made. Ronald G. Baker, Calvin E. Murphy, and Ronald L. Gibson are all eligible for reappointment.  

Description – The Board of Law Examiners establishes the procedures and rules for examining, investigating, and licensing applicants to practice law in North Carolina. All 11 members of the board are appointed by the State Bar Council and must be members of North Carolina State Bar who do not teach at a law school.

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 third quarter of 2021 are District 26, composed of Mecklenburg County, and District 38, composed of Gaston County. 

ETHICS COMMITTEE

At its meeting on July 16, 2021, the State Bar Council adopted three new ethics opinions:

  • 2019 Formal Ethics Opinion 4, Communications with Judicial Officials (opinion discusses the permissibility of various types of communications between lawyers and judges; with the adoption of this opinion, the council also withdrew the following opinions: RPC 237, 97 FEO 3, 97 FEO 5, 98 FEO 12, 98 FEO 13, 2001 FEO 15, and 2003 FEO 17);
  • 2020 Formal Ethics Opinion 1, Responding to Negative Online Reviews (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); and
  • 2021 Formal Ethics Opinion 2, A Lawyer’s Professional Responsibility in Identifying and Avoiding Counterfeit Checks (opinion discusses a lawyer’s professional responsibility to safeguard entrusted funds by identifying and avoiding purported transactions involving counterfeit checks).

Also on July 16, after receiving favorable recommendations from the Ethics and Executive Committees, the State Bar Council approved for transmission to the Supreme Court the proposed amendment to the Preamble that was published last quarter. This new aspirational provision in the Preamble states that a lawyer should treat all persons encountered in a professional capacity equally, courteously, respectfully, and with dignity regardless of personal identifying characteristics. The proposed amendment will now be sent to the Supreme Court for consideration and potential adoption.

Last quarter, the State Bar Council published a proposed new comment to Rule 1.1 (Competency), which stated that a lawyer’s competency encompasses awareness of implicit bias and cultural differences relative to a client that might impact the lawyer’s representation of the client. In light of the comments received during publication, the Ethics Committee returned the proposed comment to subcommittee for further study.

At its meeting on July 15, 2021, the Ethics Committee considered 11 ethics inquiries, including the opinions adopted by the council referenced above. Five inquiries were sent or returned to subcommittee for further study, including inquiries addressing whether a closing attorney may charge an independently represented seller for services performed in connection with a residential real estate transaction, the confidentiality of information contained in the public record, and a lawyer’s professional responsibility in providing limited representation to an indigent client in a criminal matter. The committee also approved an advisory opinion on a lawyer’s use of machine learning in the lawyer’s practice. Lastly, the committee approved the publication of two new proposed opinions:

  • Proposed 2021 Formal Ethics Opinion 5, Lawyer Participating in Pay-Per-Lead Advertising Program (proposed opinion rules that a lawyer may not participate in a pay-per-lead advertising program that records communications between the lawyer and potential client); and
  • Proposed 2021 Formal Ethics Opinion 4, Taking Possession of Photographs Portraying Minor Committing Sexual Acts (proposed opinion rules that, despite relevancy to a client’s case, a lawyer may not take possession of photographs portraying a minor engaged in sexual activity).

The Ethics Committee welcomes comments on the proposed formal ethics opinions. Comments may be submitted by email to ethicscomments@ncbar.gov, and are requested by September 24, 2021.

GRIEVANCE COMMITTEE 

During the second quarter, the Grievance Committee considered 122 files. The committee dismissed 69 files. One lawyer was referred to the Lawyer Assistance Program, ten lawyers were referred to the Trust Accounting Compliance Program, five lawyers received letters of caution, five lawyers received letters of warning, nine lawyers received admonitions, five lawyers received reprimands, three lawyers received censures, and 11 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. 

Amendments to the Discipline and Disability Rules

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

The proposed amendments provide that a petitioner for reinstatement seven years or more after the effective date of suspension or disbarment must (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; 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. The proposed amendments also modernize and clarify language in the existing rule.

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.

Amendments to the Rules and Regulations Governing the Continuing Legal Education Program

27 N.C.A.C. 1D, Section .1500, Rules Governing the Administration of the Continuing Legal Education Program; Section .1600, Regulations Governing the Continuing Legal Education Program

The proposed rule amendments require sponsors of CLE programs to remit sponsor fees within 90 days following the completion of a program or risk having future applications for program approval denied.

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 RULE AMENDMENTS FOR PUBLICATION 

The council voted to publish for comment the following proposed rule amendments:

Proposed Amendments to the Standards for Certification as a Specialist in Criminal Law

27 N.C.A.C. 1D, Section .2500, Certification Standards for the Criminal Law Specialty

The proposed amendments modify the criminal law specialty rules to recognize separate subspecialties in federal criminal law, state criminal law, and juvenile delinquency law. Currently, the rules recognize a combined federal/state criminal law specialty, a state criminal law subspecialty, and a juvenile delinquency law subspecialty. Specialists currently certified in the federal/state criminal law specialty will remain so until their next recertification when they will have to qualify for recertification in federal criminal law or state criminal law or in both subspecialties.

Filed Under: General News

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