Update from State Bar Councilor

Dear Members of The Buncombe Bar –

I hope everyone is doing well and staying warm.  I am very honored to have been re-elected to represent you for one final term at the Bar Council.  Thank you for your support, and please reach out if you need me for anything.

The Council met virtually (due to Omicron) on January 18-21.  As always, you should receive a more detailed report directly from the Bar in a bit, but in the meantime here are a few key points:

  1. The NC Lawyer Assistance Program has officially launched a new Sidebar Podcast (https://www.nclap.org/podcast-sidebar/) as a companion to its quarterly e-newsletter, Sidebar (https://www.nclap.org/sidebar-resources/). Episodes will feature interviews of lawyers and judges who share their personal stories and journeys of recovery.  New episodes will come out weekly on Fridays. You can listen to the podcast directly from the LAP website or on Apple podcasts, Spotify podcasts, or anywhere you listen to your podcasts. The first dozen episodes have been released and interviews with lawyers cover compassion fatigue, anxiety, imposter syndrome, addiction in an adolescent child, and problems with alcohol. You can subscribe to the podcast directly on your player of choice. Please feel free to share across social media platforms. LAP is excited about the podcast as a new way to engage with its material.

2. FEOs which were adopted:

  • 2021 Formal Ethics Opinion 3

Charging Fees to Separately Represented Party in Residential Real Estate Closing

Opinion rules that a closing lawyer representing the buyer in a residential real estate

transaction may not charge a fee for services performed that primarily benefit the buyer

to a separately represented seller unless the seller consents to the fee and the lawyer

complies with Rules 1.5(a) and 1.8(f). The opinion also allows a closing lawyer to

charge a seller for services performed that primarily benefit the seller if seller is notified

in advance of the charge and has a reasonable opportunity to object to the charge.

  • 2021 Formal Ethics Opinion 4

Taking Possession of Photographs Portraying Minor Committing Sexual Acts

Opinion rules that a lawyer may not take possession of photographs portraying a minor

engaged in sexual activity.

  • 2021 Formal Ethics Opinion 6

Departing Lawyer’s Email Account January 21, 2022

Opinion addresses a law firm’s ethical responsibilities as to a departing lawyer’s email account.

3. One FEO issued for Publication:

  • Proposed 2022 Formal Ethics Opinion 1

Attorney Serving Dual Role of Guardian ad Litem and Advocate

Proposed opinion rules that an attorney appointed by the court as the Guardian ad Litem and the Attorney Advocate in an abuse, neglect, and dependency proceeding may not testify as a witness unless directed to do so by the court.

4. Reports Received; Debate Postponed to April Quarterly Meeting:   Two reports, with action recommendations, were presented to the State Bar Issues Committee at its meeting in January. One report was from the Regulatory Change Subcommittee.  This subcommittee, which was appointed in January 2020, was tasked with studying the efforts in other states to examine and propose changes to the regulatory structure of the legal profession in an effort to improve the access to legal representation to people with limited financial means.  The other report was from the Diversity and Inclusion Subcommittee. This subcommittee was appointed in December 2020 to consider and discuss diversity and inclusion at the State Bar.  The reports and recommendations of the two subcommittee were presented at the Issues Committee meeting; however, because the meeting was virtual, the Issues Committee voted to postpone discussion of the recommendations to the April meeting of the Issues Committee (which, it is hoped, will be in-person at State Bar Headquarters in Raleigh).

5. Reports Distributed to Stakeholders: Two reports that were approved by the Council at its October Annual Meeting were distributed to stakeholders with the objective of obtaining support for the recommendations in the reports.  The Report of the Subcommittee to Study Secure Leave Policy was sent to the Chief Justice of the NC Supreme Court and to the General Counsel at the Administrative Office of the Courts.  The report recommends changes to Rule 26 of the General Rules of Practice, Appellate Rule 33.1, and 26 NCAC 03.0119 to, among other things, expand secure leave  and allow it to be taken in smaller increments. The Report on Private Appointed Counsel Caseload and Compensation Study from the Subcommittee on Compensation of Court-Appointed Counsel was sent to bar organizations,  judicial officials, and other stakeholders that can lobby for increases in the compensation of appointed counsel.  The two reports will be published on the State Bar’s website soon.

6. Appointment of a New Subcommittee of the Issues Committee:  The Issues Committee agreed that a subcommittee should be appointed to study “attorney deserts” in North Carolina.  An attorney desert is a place where too few lawyers live and work, leaving unmet legal needs.

7. Adoption of Amendment to Rule of Professional Conduct 1.1, Competence:  A proposed amendment to the comment to Rule 1.1 that was published in the State Bar Journal last quarter was adopted by the State Bar Council and will be sent to the Chief Justice of the NC Supreme Court for review and acceptance.  The amendment adds the following comment [9] to the rule:

“A lawyer should be aware of implicit bias and cultural differences relative to a client or anyone involved in a client’s matter that might affect the lawyer’s representation of the client. Such awareness enhances a lawyer’s competency and works to ensure understanding of the client’s needs, effective communication with the client and others, and adequate representation of the client.”

8. Proposed Amendments to Rules of Professional Conduct 1.6, Confidentiality of Information, and 1.9, Duties to Former Clients, Published for Comment:  Upon the recommendation of the Ethics Committee, proposed amendments to Rule 1.6 and Rule 1.9 will be published in the State Bar Journal and website. The proposed amendments clarify that information acquired during a professional relationship with a client does not include information acquired through legal research and explain when a lawyer who has formerly represented a client may use or reveal information relating to the representation. Comment is welcomed.

9. 2022 State Bar Budget:  The Council approved the State Bar’s budget for 2022.  Anticipated revenue is $10, 103, 999 and anticipated operating expenditures, exclusive of capital expenditures (including principal payments on the mortgage on the State Bar Building), are $9,929,485.

Thank you and please let me know if you have any questions or concerns.

Take care,

Anne Hamrick, State Bar Councilor