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Thursday, February 10, 2022

Recognition of New Councilors

The following new councilors were recognized and welcomed:

Michael B. Peters, District 8

Jonathan Mark Herring, District 9

Ashley H. Campbell, District 10

Kimberly A. Moore, District 10

Meredith Nicholson, District 16

Thomas B. Langan, District 23

Manisha P. Patel, District 24

George V. Laughrun II, District 26

Timika Shafeek-Horton, District 26

Thomas G. Jones, District 27

Merrimon (Merri) Oxley, District 41

Zeyland G. McKinney Jr., District 43

Financial Report

The council approved the following financial records:

2021 Year-End Financial Statements

2022 State Bar Budget

2022 Client Security Fund Budget

2022 Continuing Legal Education Budget

2022 Legal Specialization Budget

2022 Lawyer Assistance Program Budget

2022 IOLTA Budget

2022 Paralegal Certification Budget

Appointments

The council made the following appointments:

Lawyer Assistance Program Board (three-year terms) – Michael E. McGuire (clinician) of Raleigh was reappointed to a three-year term. Reid Acree Jr. (volunteer) and Gerald Collins Jr.(councilor) of Raleigh were not eligible for reappointment. Anthony Flanagan (volunteer) and Warren Savage (councilor) were appointed to three-year terms. Theodore C. Edwards II was appointed to a one-year term as chair of the board and Crawford Cleveland was appointed to a one-year term as vice-chair of the board.

NC State Bar Foundation Board (four-year terms) – Dudley Humphrey and M. Ann Reed were not eligible for reappointment. Past presidents Mark Merritt and John Silverstein were appointed to four-year terms.

Board of Paralegal Certification (completion of a three-year term) – Daryl Davidson (lawyer member) was appointed to complete the term of Russell Neighbors.

Recommendations for Appointments Sought

Anyone interested in being appointed to serve on a State Bar board, commission, or committee should email lheidbrink@ncbar.gov to express that interest (being sure to attach a current resume), by April 11, 2022. The council will make the following appointments at its meeting in April:

Disciplinary Hearing Commission (three-year terms) – There are five appointments to be made by the council. James Davis, Margit Hicks, Margaret Hunt, and Jaye Meyer are eligible for reappointment. Donald Prentiss is not eligible for reappointment.

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 2022 are District 11, composed of Franklin, Granville, Person, Vance, and Warren Counties, and District 42, composed of Henderson, Polk, and Transylvania Counties.

Ethics Committee

At its meeting on January 21, 2022, the State Bar Council adopted the following ethics opinions: 2021 Formal Ethics Opinion 3, Charging Fees to Separately Represented Party in Residential Real Estate Closing; 2021 Formal Ethics Opinion 4, Taking Possession of Photographs Portraying Minor Committing Sexual Acts; and 2021 Formal Ethics Opinion 6, Departing Lawyer’s Email Account. In addition to adopting these opinions, upon favorable votes from both the Ethics Committee and the Executive Committee, the council adopted and approved for transmission to the Supreme Court a proposed comment to Rule 1.1 (Competency) addressing a lawyer’s awareness of implicit bias and cultural differences. The comment was published during the last quarter. The council also approved for publication proposed amendments to Rule 1.6 and Rule 1.9 regarding a lawyer’s professional responsibility in handling confidential client information. The proposed amendment to Rule 1.6 adds language to the comment clarifying that the scope of Rule 1.6 does not encompass legal research and legal knowledge gained during a representation. The proposed amendments to Rule 1.9 permit a lawyer to use and/or disclose confidential client information when that information is contained in the public record, was disclosed at a public hearing, or was otherwise publicly disseminated. A further proposed amendment to Rule 1.9 limits the permitted disclosure of such information to instances when the disclosure will not be embarrassing or detrimental to the client. The full text of the proposed amendments is published in the Spring 2022 edition of the Journal and on the State Bar’s website.

At its meeting on January 20, 2022, the Ethics Committee received reports and recommendations from subcommittees studying proposed amendments to the Rules of Professional Conduct. One subcommittee is studying the inclusion of anti-discrimination language in the text of the Rules of Professional Conduct. The other subcommittee is studying potential amendments to Rule 1.19 (Sexual Relations with Clients Prohibited). Both subcommittees will continue their work over the next quarter. Additionally, the Ethics Committee considered eight ethics inquiries, including the three opinions adopted by the council referenced above. Three inquiries were returned to subcommittee for further study, including inquiries addressing the ethical considerations relative to a lawyer’s participation in an online advertising platform such as Google’s Local Service Ads, and the providing of limited representation to an indigent client in a criminal matter. The committee also approved the publication of Proposed 2022 Formal Ethics Opinion 1, Attorney Serving Dual Role of Guardian ad Litem and Advocate. The proposed opinion is published in the Spring 2022 edition of the Journal and on the State Bar’s website.

Grievance Committee

During the quarter, the Grievance Committee considered 261 files. The committee dismissed 201 files. One lawyer was referred to the Lawyer Assistance Program, three lawyers were referred to the Trust Accounting Compliance Program, four lawyers received letters of caution, ten lawyers received letters of warning, nine lawyers received admonitions, four lawyers received reprimands, two lawyers received censures, and 12 lawyers were referred to the Disciplinary Hearing Commission for trial.

Rule Amendments

Amendments Pending Supreme Court Approval

At its meetings on April 16, 2021, July 16, 2021, and January 21, 2022, the council adopted, subject to the Supreme Court’s approval, the amendments described below.

Amendments to the Rules of Professional Conduct

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

  • Rule 0.1, Preamble
  • Rule 1.1, Competence

The amendment to the Preamble adds a paragraph on equal treatment of all persons encountered when acting in a professional capacity. The amendment to Rule 1.1 adds new comment [9] which states that awareness of implicit bias and cultural differences enhances a lawyer’s competency.

Amendments to the Rules Governing the CLE Program

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

  • Rule .1501, Scope, Purpose, and Definitions
  • Rule .1518, Continuing Legal Education Program

The amendments add a definition for “diversity, inclusion, and elimination of bias training” to the definitions in Rule .1501 and, in Rule .1518, adds one hour of such training to the 2022 CLE requirements for active members of the State Bar.

Proposed Amendments to the Rules Governing the Plan of Legal Specialization

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

Amendments to multiple rules in this section adjust the standards to recognize separate subspecialties in federal criminal law, state criminal law, and juvenile delinquency law.

Proposed Amendments Published for Comment

At its meeting on January 21, 2022, the council voted to publish for comment the following proposed rule amendments:

Proposed Amendment to Rulemaking Procedures

27 N.C.A.C. 1A, Section .1400, Rulemaking Procedures

  • Rule .1403, Action by the Council and Review by the North Carolina Supreme Court

The proposed amendment increases the timeframe within which a rule or rule amendment adopted by the council must be transmitted to the Supreme Court for its review.

Proposed Amendments to the Rule on Petitions for Inactive Status

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

  • Rule .0901, Transfer to Inactive Status

The proposed amendment gives the secretary of the State Bar the discretion to transfer an active member of the State Bar to inactive status upon the receipt of a completed petition for transfer.

Proposed Amendments to the Rules of Professional Conduct

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

  • Rule 1.6, Confidentiality of Information
  • Rule 1.9, Duties to Former Clients                                                                

A proposed amendment to Rule 1.6 adds a sentence to the comment that clarifies that information acquired during a professional relationship does not encompass information acquired through legal research. The proposed amendments to Rule 1.9 clarify when a lawyer who has formerly represented a client may use or reveal information relating to the former representation.

Proposed Amendments to the Board of Law Examiners’ 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 

  • Rule .0501, Requirements for General Applicants
  • Rule .0504, Requirements for Transfer Applicants

The proposed amendments eliminate the North Carolina state-specific exam component for general applicants and for Uniform Bar Examination transfer applicants. 

Filed Under: General News

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