Buncombe Bar Annual Meeting & Awards

Congratulations to this year’s awards honorees! The Bar’s Annual Meeting on Wednesday, June 8th will honor Barry Master with the Lifetime Achievement Award; Bill Christy as Centennial Award recipient; Hon. Ward Smith as Professionalism Award recipient, and B.J. Kilgore as the Distinguished Young Lawyer of 2022. This event, our last Bar luncheon of the fiscal year, features annual awards, a review of the accomplishments of the year, and the election of new members of the Executive Committee.  This meeting takes place at the Asheville Social Hall at 12:30pm. We request an RSVP for attendees: click here to RSVP.

From Anna Hamrick, State Bar Councilor

Dear Friends and Colleagues –

I hope you are well. Though Albert Einstein said “time is an illusion,” my tardiness in this report is very real, and I apologize. This report about the April meeting is much later than I would have liked, and I hope it has not caused you any inconvenience.

On the issue of time, one of the biggest pieces of news to come out of the meeting is that the CLE rules are being significantly overhauled. Please see below for a preview of an article that will soon be published in the NCSB Journal:

(TL; DR: (this is what the kids apparently say when they don’t have the band-width to read something – it stands for “Too Long, Didn’t Read”).  Here is my take on the new rules if you don’t feel like reading the article now: they change the reporting requirements so one needs to do 36 hours of CLE in three years, rather than 12 hours per year. You can take the 36 hours at whatever point you choose during three years. This does not change your annual CLE requirements if you wish to maintain any board certification. Is this a good idea, or will one be tempted to kick the can down the road and then have a 36 hour marathon in January of the year one’s hours are due? Time will tell!)

CLE Board Proposes Sweeping Changes to CLE Rules

On March 12, 2022, the North Carolina State Bar’s Board of Continuing Legal Education (CLE Board) approved large-scale amendments to its rules following a multi-year review process. The CLE Board believes that these proposed changes will have the combined effect of providing more flexibility for lawyers while also improving efficiency for the CLE program. This Executive Summary details the key changes. The full text of proposed rule changes follows this summary. Lawyers are encouraged to read both the summary and the full-text version of the proposed amendments.

The rules of the Continuing Legal Education program were originally adopted by Order of the Supreme Court in 1987. While various minor changes have been made in the 35 years since adoption, the general structure of the CLE program remains unchanged since its inception. Requirements that once made practical sense (e.g., the Annual Report Form requirement), and administrative tasks that were easier to accomplish when there were fewer licensed lawyers (e.g., collecting fees based on credit hours), have become both inefficient and unnecessary.

Beginning in 2020, the Board of Continuing Legal Education undertook an all-encompassing review of its rules to create a more efficient and flexible CLE program. The review included meetings with State Bar CLE directors in other states, where board members were able to ask questions and learn what works best around the country. The review process was conducted transparently (meetings are available on the State Bar’s YouTube page), and the Board received regular feedback from CLE providers, including the North Carolina Bar Association.

The proposed rule changes were presented to the North Carolina State Bar Council in April and were subsequently approved for publication. The CLE Board and the Council are very interested in receiving comments from both lawyers and sponsors. In addition to publication in this edition of the Journal, we intend to hold multiple question and answer sessions for lawyers, and we are available to meet with bar groups and other professional associations over the next quarter. The CLE Board, along with the Council, will review any comments received. Following the comment period, if no substantive changes are needed, the rules will come back before the State Bar Council for adoption. The adopted rules will then be sent to the Supreme Court for its review and approval. It is the Board’s desire that these new rules will be effective beginning with the 2023 CLE year.

KEY CHANGES TO CLE RULES

Increase Reporting Period

Three-year reporting period for lawyers to complete their CLE requirements. Lawyers split into 3 reporting groups.

Reason: Gives lawyers more flexibility to take courses at their own pace and eases administrative burden on CLE staff.

No “Grace Period”

The CLE year will run from March 1 through the end of February.

Reason: Most lawyers do not realize that the CLE year ends in December, and that January/February is meant to be a grace period. A clean 12-month CLE year is more efficient for everyone.

Eliminate Annual Report

The requirement to file an Annual Report is eliminated.

Reason: If a lawyer’s CLE record shows compliance with the requirements, a filing requirement is unnecessary.

No Carry-Over Credit

Carry-over credit from one period to another is prohibited.

Reason: The trade-off for a 3-year reporting period is eliminating carry-over credit. This will also increase administrative efficiency.

Change Fee Structure

Changes from a $3.50/hr fee to program application fees and an annual CLE attendance fee (likely $25) paid during the membership dues process.

Reason: Improves efficiency for the CLE program, reduces a lawyer’s annual cost of attendance (currently $42), and eliminates “bill collecting.”

Improved Enforcement

Lawyers who fail to complete their hours requirements will be subject to additional compliance fees and a more streamlined suspension process.

Reason: With additional flexibility comes increased individual responsibility and accountability.

ADDITIONAL INFORMATION

• As part of the 36-hour requirement over three years, lawyers must complete at least:

o 6 Ethics hours (Professional Responsibility, Professionalism, or Social Responsibility);

o 1 Professional Well-Being and Impairment (PWI) hour; and

o 1 Technology Training hour.

• The CLE Board intends to create staggered reporting periods so that roughly one-third of lawyers are reporting each year. This will require a one-time modification to the rules where one-third of lawyers have a 1-year/12-hour requirement and one-third have a 2-year/24-hour requirement before starting the three-year reporting period.

• Program application fees will be based on the number of credit hours sought for approval and will be due upon submission of the program application.

• Courses offered for free will have a reduced application fee and will be searchable in the CLE Course Directory.

• On-Demand programs will be approved for three years and thereafter may be renewed annually as long as the program continues to meet accreditation standards.

• Eliminating carry-over credit may frustrate lawyers who like to stay ahead on their requirements. The reasons for eliminating carry-over credit include:

o A three-year reporting period provides the flexibility and additional time that carry-over credit now provides.

o If carry-over credit was permitted (36-hours, for example) then lawyers could theoretically take 72 hours in year 1 of their reporting period and not have to complete another CLE program for 8 or 9 years. This is not a good way to ensure continued competency in the profession.

o The elimination of carry-over credit improves administrative efficiency, and the Board believes it is an acceptable trade-off for the additional flexibility provided to lawyers in these changes.

• The additional credit for teaching CLE courses (6 hours for every hour taught) remains the same.

• The Substance Abuse and Mental Health program definition is modernized and is now called Professional Well-Being and Impairment (PWI).

• A new type of ethics program called “Social Responsibility” is created and is defined as “a program, directly related to the practice of law, devoted to education about diversity, inclusion, bias, or equal access to justice.” The program is not mandatory. Lawyers can choose to take Social Responsibility programs as part of their 6-hour ethics requirement.

• Exemptions will be claimed during the annual membership dues renewal process and will be effective for one year. Exempt lawyers will not be assessed an annual attendance fee.

• To encourage and recognize service to the profession, the CLE Board recommends that State Bar Councilors be exempt from CLE requirements in the same manner as members of the Board of Law Examiners.

• There will be increased penalties for late-compliance, and a faster process for administrative suspensions due to non-compliance. Notices to Show Cause and Orders of Suspension will operate in tandem without the need for additional Council action.

• The designation of “Registered Sponsor” is eliminated.

• Sponsors failing to timely submit attendance reports will be charged a late reporting fee and also prohibited from having new courses approved for credit until the report is filed.

• The CLE Board intends to maintain its historical funding in support of the Chief Justice’s Commission on Professionalism (CJCP) and the Equal Access to Justice Commission (EAJC).

• Specialists should note that these changes do NOT impact the CLE requirements for obtaining and maintaining specialty certification through the Board of Legal Specialization. Existing specialists and lawyers intending to apply for specialty certification in their practice area should consult the administrative rules governing their specific specialty for a full list of CLE requirements associated with specialty certification (including annual, cumulative, and content requirements).

In other NCSB news:

1. Upon recommendation from the Issues Committee, the Full Council adopted the following written Diversity, Equity, and Inclusion (DEI) Statement:

Lawyers swear an oath to defend the United States and North Carolina Constitutions. These constitutions decree all persons are created equal and endowed with certain inalienable rights and guarantee all persons equal protection of the laws. The North Carolina Constitution also specifically prohibits discrimination by the State against any person because of race, color, religion, or national origin. The North Carolina State Bar considers diversity and inclusion essential elements of promoting equity and preventing discrimination. Diversity encompasses characteristics that make each of us unique. Equity promotes fairness by aiming to ensure fair treatment, access, opportunity, resources, and advancement for everyone to succeed. Inclusion fosters a collaborative and respectful environment where diversity of thought, perspective, and experience is valued and encouraged. The North Carolina State Bar therefore recognizes diversity, equity and inclusion as core values and is committed to being intentional about incorporating diversity, equity and inclusion into its operations and mission.

This will be published on the State Bar’s website in the About Us section, Lawyer’s Handbook, State Bar Journal, and on social media as appropriate.

2. Grievance Committee: The Grievance Committee dismissed 115 files, continued 4 files, referred one lawyer to the Lawyer Assistance Program, referred 3 lawyers to the Trust Accounting Compliance program, issued 12 letters of warning, 4 admonitions, 4 reprimands, 1 censure and referred 9 cases to the Disciplinary Hearing Commission.

3. Ethics Committee: The Ethics Committee introduced one FEO to be adopted by Council:

a. 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.

The Ethics Committee proposed three Formal Ethics Opinions for Publication:

a. Proposed 2022 Formal Ethics Opinion 2

Limited Representation in a Criminal Matter

Proposed opinion rules that a privately retained lawyer may provide limited representation to a criminal defendant who has been appointed counsel.

b. Proposed 2022 Formal Ethics Opinion 3

Inclusion on Allied Professional’s List of Recommended Lawyers

Proposed opinion rules that a lawyer may be included in an allied professional’s list of recommended lawyers provided that the professional does not disseminate the lawyer’s name and information in a manner that is prohibited by the Rules of Professional Conduct.

c. Proposed 2022 Formal Ethics Opinion 4

Billing Considerations for Overlapping Legal Services

Proposed opinion rules that a lawyer may not separately bill multiple clients a full hourly rate when the lawyer provides legal services to all clients simultaneously. Any increase in the lawyer’s efficiency in providing legal services must be passed on to the client.

The Ethics Committee is also publishing a rule amendment –

Rule 1.19 – expansion of the current prohibition on lawyers having sex with clients; the rule will now prohibit not just sexual activity with clients but also sexual communications with clients. These amendments are in response to increased reports of sexually inappropriate (and unsolicited) communications between lawyers and clients.

4. In January 2020, the Council established a Subcommittee on Regulatory Change under the umbrella of the Issues Committee. The subcommittee was tasked to “study the various efforts taking place in the U.S. and abroad aimed at examining and proposing potential changes to the regulatory structure of the legal profession, with a focus on how regulatory changes could improve access to justice.” A lot of people worked very hard on this committee. The subcommittee was going to present its findings at the April meeting, but it became clear this would have to wait until the July meeting after many questions were raised about the report and its conclusions and intentions.

The subcommittee made six recommendations, including “Pursue a Limited License for Nonlawyers/paraprofessionals.” Before the subcommittee could even make its presentation, it became clear there were a lot of questions and the matter would need to be tabled until July. It is unclear to me what will take place on this matter going forward, but we will learn more in July and I will keep you posted.

Episode 11 of the State Bar’s BarTalk podcast is now available!  This episode is a recap of the April Quarterly Meeting.  BarTalk – Episode 11

Please let me know if you have any questions, concerns or criticisms. I will do my best to help. Take care, Anna

 

District Court Support of NC State Bar Event

From Chief District Judge Calvin Hill:

We encourage lawyers and Judges to participate in the North Carolina State Bar event at Harrah’s Cherokee Center on May 2o, though our Courts will remain open. Some matters involving multiple witnesses and multiple lawyers that have been scheduled should proceed, for obvious reasons. If lawyers are uncertain about the posture of a case they should consult with the presiding Judge. In all other matters, the Court will try to accommodate continuance request. 

Candidate Forum for DA & Sheriff Race – May 3, 2022

The Buncombe County Bar held a candidate forum for the May, 2022 primary on Tuesday, May 3, 6-9pm in the Buncombe County Courthouse, courtroom 1A.

This forum was organized by the Buncombe County Bar as part of our responsibility for public service and public education regarding the legal system. The Buncombe County Bar is nonpartisan and the members of the Bar made every effort to promote a fair and reasonable exchange of ideas within the forum. Attorney James Kilbourne served as moderator for the Sheriff and District Attorney candidates.

Download candidate profiles here: Candidate Profiles May 2022

Nominations Invited for Bar Executive Committee for 2022

The Buncombe County Bar invites nominations for President-Elect, Vice-President, Secretary, Treasurer, and three members of the Executive Committee for the 2022-2023 fiscal year.

Suggestions for persons to fill these vacancies are welcome. Nominations can be mailed to the Bar Administrator, P.O. Box 7391, Asheville, NC  28802 or emailed to admin@BuncombeBar.com, and must be received by 3 p.m., May 10, 2022.  According to the Bar’s By-Laws, any member whose name is submitted for consideration for nomination to any office must have indicated willingness to serve in such office if elected.  Please contact Immediate Past President and Nominating Committee Chairperson Sonya Rikhye with any questions.

The election of officers for the fiscal year of July 1, 2022 through June 30, 2023 will occur at the annual meeting of the Bar on June 8, 2022. Additional nominations may be made from the floor at the meeting when the election is held.