Wednesday, December 7, 2022
Election of Officers
Matthew W. Smith of Eden was elected vice president. A. Todd Brown of Charlotte was elected president-elect. Marcia H. Armstrong of Smithfield was installed as president.
Retiring Councilors
The following retiring councilors were recognized:
C. Everett Thompson - District 1, 2013-2022
Heidi C. Bloom - District 10, 2014-2022
Charles Davis - District 17, 2014-2022
Dewitt “Mac” McCarley - District 26, 2012-2022
John S. Willardson - District 34, 2012-2022
Matthew Smith - District 22, 2014-2022
Appointments
The State Bar Council made the following appointments:
Board of Law Examiners—The council reappointed Shelly Blake Curran, Judge Sherri W. Elliott, Michael J. Greene, and D. Clark Smith to three-year terms. Judge Athena Fox Brooks was appointed to a three-year term.
Board of Continuing Legal Education—The council appointed Robert A. Ponton Jr., Judge Addie M. Harris Rawls, and Syrena N. Williams to three-year terms.
Client Security Board of Trustees—The council appointed Ted Whitehurst (public member) to a five-year term.
Board of Paralegal Certification—The council appointed Precious Vines Harris (lawyer/paralegal educator) and Carrie Marshall (paralegal) to three-year terms. Scott Hart (lawyer) was appointed to complete the remainder of the term of Matthew Smith, who resigned from the board. Bryan Scott was appointed by the council to an additional term of one-year while serving as chair of the board.
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 6, 2023. The council will make the following appointments at its meeting in January:
Disciplinary Hearing Commission (1 appointment; 3-year terms) There is one appointment to be made.
Description - The Disciplinary Hearing Commission (DHC) is an independent adjudicatory body 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.
Lawyer Assistance Program Board (3 appointments; 3-year terms) There are three appointments to be made. Theodore C. Edwards II (councilor member) and Paul D. Nagy (clinician member) are not eligible for reappointment. Crawford H. Cleveland III (LAP volunteer member) is eligible for reappointment.
Description - The LAP Board is a nine-member board comprised of three State Bar councilors, three LAP volunteers, and three clinicians who are experienced in working within the substance abuse and/or mental health field. The LAP Board establishes policy related to the execution of the LAP mission and is responsible for oversight of the operation of the Lawyer Assistance Program subject to the statutes governing the practice of law, the authority of the council, and the rules of the board. The LAP Board meets during the regularly scheduled quarterly State Bar Council meetings.
North Carolina State Bar Foundation Board (2 appointments; 4-year terms) There are two appointments to be made. Irvin W. Hankins III, and Barbara B. Weyher are not eligible for reappointment. The bylaws of the Foundation require that all members of the board of directors must be past presidents of the State Bar Council.
Description - The Board of the North Carolina State Bar Foundation is composed of seven members, all of whom must be past presidents of the North Carolina State Bar. The board oversees the sound investment of the assets of the Foundation for the purpose of generating income for the support of the maintenance and operation of the State Bar Building and for the support of the programs of the State Bar.
North Carolina Legal Education Assistance Foundation Board (NC LEAF) (1 appointment; 3-year term; no limit on consecutive terms) William R. Purcell is the State Bar’s appointee and has been so since the program’s inception. He is eligible for reappointment because there are presently no limits on the number of terms that a board member may serve consecutively. We have been advised by the NCLEAF executive director that a project to revise the bylaws to include a provision for limiting the number of consecutive terms has begun.
Description – NC LEAF assists in the recruitment and retention of public interest attorneys by providing loan repayment assistance for law school debt. The NC LEAF board consists of 18 members appointed by their constituent groups. The NC State Bar Council has one appointment to the board. The NC LEAF board establishes policy related to the execution of the NC LEAF mission and is responsible for oversight of the operation of the program. The board meets once a year. The Executive Committee of the board meets more frequently.
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 2022 are District 12 composed of Harnett and Lee Counties, and District 22 composed of Caswell and Rockingham Counties.
Ethics Committee
At its meeting on October 21, 2022, the State Bar Council adopted one new ethics opinion: 2022 Formal Ethics Opinion 5, Client Paying Public Adjuster-Witness a Contingency Fee (opinion rules that a lawyer may call as an expert witness a public adjuster who will collect a statutorily authorized contingency fee paid by the client). Additionally, the council adopted and approved for transmission to the Supreme Court the proposed amendments to Rule 1.15 and Rule 4.1 of the Rules of Professional Conduct that were published during the last quarter. The proposed amendment to Rule 4.1 makes a technical correction to the language in the comment, and the proposed amendments to Rule 1.15 contain new definitions of common ledgers used in monitoring a lawyer’s trust account and rearrange some parts of the rule to improve understanding and application of the rule.
At its meeting on October 20, 2022, the Ethics Committee considered a total of eight inquiries, including the opinion and rule amendments referenced above. Four inquiries were returned or sent to a subcommittee for further study, including the recently published Proposed 2022 FEO 4, Billing Considerations for Overlapping Legal Services; an inquiry addressing a lawyer’s professional responsibility when selling a law practice and handling aged client files; and an inquiry examining a lawyer-mediator’s ability to draft an agreement between pro se parties defining the terms of participating in a mediation. The committee also approved one ethics advisory concerning the applicability of the duty of confidentiality in the context of a lawyer’s advocacy for criminal justice reform. No new opinions were published for comment this quarter.
Grievance Committee
During the quarter, the Grievance Committee considered 292 files. The committee dismissed 257 files. Two files were continued. Four lawyers were referred to the Trust Accounting Compliance Program, five lawyers received letters of warning, seven lawyers received admonitions, five lawyers received reprimands, one lawyer received a censure, and eight lawyers were referred to the Disciplinary Hearing Commission for trial.
Rule Amendments
AMENDMENTS PENDING APPROVAL BY THE SUPREME COURT
At its meeting on October 21, 2022, 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 visit the State Bar website: www.ncbar.gov.)
Amendments to the Discipline and Disability Rules
27 N.C.A.C. 1B, Section .0100, Discipline and Disability Rules
- Rule .0113, Proceedings Before the Grievance Committee
The proposed amendments establish the procedures for a review of public discipline issued to a respondent by the Grievance Committee.
Amendments to the Discipline and Disability Rules
27 N.C.A.C. 1B, Section .0100, Discipline and Disability Rules
- Rule .0119, Effect of a Finding of Guilt in any Criminal Case
The proposed amendments to Rule .0119 set forth what the State Bar must do when a criminal conviction relevant to a disciplinary matter has been expunged, overturned, or otherwise eliminated.
Amendments to the Rules for Administrative Reinstatement
27 N.C.A.C. 1D. Section .0900, Procedures for Administrative Committee
- Rule .0902, Reinstatement from Inactive Status
The proposed amendments permit a member of the federal judiciary who is an inactive member of the State Bar to use each year (or portion thereof) of service as a federal judicial official to offset each year of inactive status for the purpose of determining whether the judge (inactive member) must sit for and pass the bar exam to be reinstated to active status.
Amendments to the Trust Accounting Rule
27 N.C.A.C. 2, The Rules of Professional Conduct, Rule 1.15, Safekeeping Property
- Rule 1.15-1, Definitions
- Rule 1.15-2, General Rules
- Rule 1.15-3, Records and Accountings
The proposed amendments add definitions for four different types of ledgers to Rule 1.15-1 and re-order the subparagraphs in Rules 1.15-2 and 1.15-3 to make the progression of requirements more logical.
Technical Correction to Rule of Professional Conduct 4.1
27 N.C.A.C. 2, The Rules of Professional Conduct
- Rule 4.1, Truthfulness in Statements to Others
A technical correction to Rule 4.1, Comment [2], will replace a reference to “tortuous misrepresentations” with “tortious misrepresentations.
PROPOSED AMENDMENTS PUBLISHED FOR COMMENT
At its meeting on October 21, 2022, the Council voted to publish for comment the following proposed rule amendment:
Proposed Amendments to the Discipline and Disability Rules
27 N.C.A.C. 1B, Section .0100, Discipline and Disability Rules
- Rule .0105, Chairperson of the Grievance Committee: Powers and Duties
- Rule .0106, Grievance Committee: Powers and Duties
- Rule .0113, Proceedings Before the Grievance Committee
Proposed amendments to Rule .0113 were published after the July Quarterly Meeting following the adoption of statutory amendments that required the establishment of a review procedure for discipline issued to a respondent by the Grievance Committee. Upon the initiation of the review procedure in the third quarter, it was determined that the amendments to Rule .0113 required some minor revisions and two additional rules required amendment. The proposed revisions to Rule .0113 and the two additional proposed rule amendments will be published.
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; 27 N.C.A.C. 1D, Section .1600, Regulations Governing the Administration of the Continuing Legal Education Program
- Rules .1501 to .1527
- Rules .1601 to .1606
Additional proposed amendments to the CLE rules will be published as a part of the ongoing process of improving the procedures for regulating compliance with mandatory CLE.
Amendments to the Rule on Standing Committees of the Council
27 N.C.A.C. 1A, Section .0700, Standing Committees of the Council
- Rule .0701, Standing Committees and Boards
The proposed amendments designate the Access to Justice Committee as a standing committee of the Council.
Amendments to the Rules Governing IOLTA
27 N.C.A.C. 1D, Section .1300, Rules Governing the Administration of the Plan for Interest on Lawyers’ Trust Accounts (IOLTA)
- Rule .1306, Appointment of Members; When; Removal
- Rule .1313, Fiscal Responsibility
- Rule .1314, Meetings
- Rule .1316, IOLTA Accounts
- Rule .1319, Certification
The proposed amendments are largely technical in nature, improving clarity and revising designated dates and timeframes to comport with practice.
Miscellaneous
The council also adopted a Resolution of Appreciation for Darrin D. Jordan upon his completion of service as the North Carolina State Bar President.
