Buncombe County Bar Wellness Day

For this year’s Buncombe County Bar Wellness Day, February 26, we are hosting these free wellness events:

For a great start to your day, join us for a 15-minute meditation with Laura Mahr of Conscious Legal Minds. We’ll start with a brief introduction by our Bar President Sonya Rikhye at 9:00 a.m. and the meditation will begin at 9:05am. Click here to sign up.

Also, to help you relax, we’ll have a free one-hour yoga class beginning at 4:30 p.m. online with Margaret Kirshner of A Mindful Emergence. Click here to sign up.

For additional wellness resources and information, please visit the wellness resources webpage offered by our Wellness Committee.

Jury Trial Resumption in District Court

STATE OF NORTH CAROLINA                                 IN THE GENERAL COURT OF JUSTICE
COUNTY OF BUNCOMBE                                         DISTRICT COURT DIVISION
TWENTY-EIGHTH JUDICIAL DISTRICT

ADMINISTRATIVE ORDER

February 10, 2021

Re: Jury Trial Resumption in the District Courts of Buncombe County

            Consistent with 7A-146, the Chief District Court Judge has the authority to the administrative and operational direction of the District Courts.

While the Courts are allowed to resume jury trials under the Chief Justice’s Order, on this matter he has expressly indicated that each jurisdiction would need to make the determination on specifically when jury trials could be resumed efficiently and safely.

Buncombe County under the guidance of our local health officials have redesigned the Historic 5th floor Courtroom to be compliant with safety protocols for holding jury trials.  We have only the one courtroom, at this time, to hold jury trials in compliance with safety protocols.  While the 5th floor Courtroom is a “Superior Court” Courtroom, Judge Thornburg has graciously agreed to allow the District Courts to use it when the Superior Courts are not using it for Superior Court matters.

The Superior Courts have not been able to entertain jury trials since late March and have developed a backlog of jury trials that need to be processed.  Judge Thornburg has set February 15, 2021 as the date to start again with Superior Court jury trials.

The District Courts will not be starting to do jury trials at this time because of the limited amenities to do so safely.  We will however continue to do our non jury matters.  We will again review the progress of Superior Court jury trials after September 15, 2021 to determine the availability of the 5th floor Courtroom for District Court jury trials.

The District Courts will resume jury trials as soon as practically possible.

This Order becomes effective immediately, this day of February 10, 2021.

Chief District Court Judge Buncombe County

 

_____________________________________

Honorable J. Calvin Hill

Update from State Bar Councilor Anna Hamrick

Dear Fellow Members of the Buncombe Bar –

Welcome to 2021.   The Bar Council had its first meeting of the year January 11 – 15, 2021.  As expected, we met via Zoom.  We will also Zoom for the April meeting.  The July meeting is scheduled to take place in Asheville, depending on Covid.  If we can meet live, I will let you know of the meeting schedule in case you would like to attend any in person.

Below are what I hope is some helpful information from our most recent meeting:

  1. Remote work and closed State Bar Building is to continue for present.
  2. Proposed Amendments for Supreme Court Review: These amendments were approved by the Council at its January 15, 2021, meeting and will be sent to the Supreme Court for review and certification (pursuant to G.S. 84-21(b) this week.

Rules of Professional Conduct on Advertising (Rule 7.1 to 7.5) The advertising rules have been comprehensively amended to accomplish the following:

A. strengthen and prioritize the prohibition on false and misleading communications concerning a lawyer’s services;

B. streamline the rules on advertising and eliminate unnecessary or unclear provisions;

C. update the rules to reflect the current state of society and the profession, including the recognition of technology’s presence in personal and professional lives and the evolution of the consuming public; and enable lawyers effectively and truthfully to communicate the availability of legal services, including utilizing new technologies.

Other rules that will be sent, with the advertising rules, to the Court for review and certification:

A. Amendments to the student practice rules that clarify the different forms of student practice placements outside of the law school and the supervision requirements for those placements.

B. Amendments to Rule 1.5, Fees, of the Rules of Professional Conduct, that add a specific prohibition on charging a client for responding to a disciplinary inquiry.

C. Amendments to the Board of Law Examiners’ Rules Governing Admission to the Practice of Law to permit the bar exam to be administered anywhere in North Carolina.

Initiatives to address discrimination – The State Bar is considering several initiatives to address the historical inequities of our justice system and of our society, including racial issues within the profession.  These include:

  1. At its July meeting, the Council approved the publication for comment of an amendment to the Preamble of the Rules of Professional Conduct that states that discrimination on the basis of specified suspect classes or characteristics is contrary to the values of our profession.  Comments were received following publication and a subcommittee of the Ethics Committee is currently studying those comments.
  2. The Ethics Committee is studying whether Rule 8.4 of the Rules of Professional Conduct should include a provision that states that discriminatory conduct during a lawyer’s professional activities is professional misconduct subject to discipline.
  3. The Ethics Committee is also studying whether the comment to Rule 1.1, on the duty of competence, should be amended to include a statement that competency requires knowledge and understanding of implicit bias and its impact on the representation of clients.
  4. At its October 2020 meeting, the Council approved for publication rule amendments requested by the Board of Continuing Legal Education that would require one hour of diversity, inclusion, and elimination of bias training beginning 2022. Comments both critical and supportive of the proposal were received.  The Executive Committee sent the proposal back to the Board for further study.
  5. At the October 2020 meeting, a subcommittee of the Council’s Issues Committee began its study of diversity and inclusion and the role of the State Bar in addressing the same in the profession and the State Bar.

At the January 2021 meeting the preamble was sent to the existing subcommittee studying the potential inclusion of anti-discrimination language; that subcommittee is looking to meet in mid-February, and it is expected the next meeting to focus entirely on the preamble.  The other subcommittee studying a comment re: implicit bias in Rule 1.1 is looking to meet toward the end of February.  Whether those subcommittees produce any recommendations for the April Council meeting is unknown.  If anyone wants to follow these subcommittees, the Bar will be livestreaming the meetings through the State Bar’s YouTube page (just do a google search for “NC State Bar Youtube” and folks should be able to find it).  Notices of the meetings being scheduled will be posted on the State Bar’s website under “upcoming events.”

The comments on all proposed rule amendments are public record, so please let me know if you are interested in reading them, and I will get them to you.

Other initiatives:

  1. Issues Subcommittee to Study Proposed Regulatory Changes in Other Jurisdictions.  The subcommittee is studying initiatives from Arizona, California, Utah, and other states to change the regulation of the practice of law to facilitate innovation and access to justice.
  2. Issues Subcommittee to Study the Expansion of Secured Leave.  The subcommittee will be appointed to study whether there should be additional secure leave and whether it can be taken in increments shorter than a week.  Mel Wright, executive director of the Chief Justice’s Commission on Professionalism, has indicated his interest in working with the subcommittee and that the CJCP will be supportive of this endeavor.
  3. Issues Subcommittee on Compensation of Court-Appointed Defense Counsel.  The subcommittee will survey stakeholders on whether the current fee schedule is impacting competency.

Legislation:

A. The State Bar will continue to pursue the passage of the bill to increase the cap on State Bar dues from $300 to $400.

B. The State Bar will continue to support efforts to bring the numbering system for prosecutorial districts in line with judicial districts.

In other news:

Thankfully, we are not up for the Bar’s random audit.  However,  just as we know the sun rises in the East, we know our time will come.  Therefore, I thought I would pass along information from the 2020 Fourth Quarter Random Audit Report (from a different judicial district) to give you an idea of issues found in a typical report.  (Just as a reminder, the lawyers randomly selected for audit are drawn from a list generated from the State Bar’s database based upon judicial district membership designations in the database).

Areas of common rule deficiencies:

(a) 41% failed to perform quarterly transaction reviews;

(b) 36% failed to identify the client and source of funds, when the source was not

the client, on the original deposit slip;

(c) 31% failed to escheat unidentified/abandoned funds as required by GS 116B53;

(d) 21% failed to identify the client on confirmations of funds received/disbursed

by wire/electronic/online transfers;

(e) 18% failed to:

  • perform quarterly reconciliations;
  • maintain images of cleared checks, or failed to maintain them in the

required format;

  • take the required one-hour trust account management CLE course;
  • sign, date and/or maintain reconciliation reports;

(f) up to 10% failed to:

  • perform monthly bank statement reconciliations;
  • provide written accountings to clients at the end of representation or at

least annually if funds were held more than twelve months;

  • prevent bank service fees being paid with entrusted funds;
  • prevent over-disbursing funds from the trust account resulting in

negative client balances;

  • use business size checks containing the Auxiliary On-Us field;
  • maintain a ledger of lawyer’s funds used to offset bank service fees;
  • provide a copy of the Bank Directive regarding checks presented

against insufficient funds;

  • indicate on the face of each check the client from whose balance the

funds were withdrawn;

  • remove signature authority from employee(s) responsible for

performing monthly or quarterly reconciliations;

  • sign trust account checks (used a signature stamp or electronic

signature);

  • review bank statements and cancelled checks each month;

In an effort to make us all feel better, areas of consistent rule compliance include:

  • properly maintained a ledger for each person or entity from whom or for whom

trust money was received;

  • properly recorded the bank date of deposit on the client’s ledger;
  • properly deposited funds received with a mix of trust and non-trust funds into the

trust account;

  • promptly removed earned fees or cost reimbursements;
  • promptly remitted to clients funds in possession of the lawyer to which clients

were entitled;

  • properly maintained records that are retained only in electronic format.

Thank you for the opportunity to represent you at the Bar Council.  Please do not hesitate to contact me with any questions or concerns.

Take care,

Anna R. Hamrick, Councilor

Honorable Marvin P. Pope Jr. Retirement Slideshow

Judge Marvin Pope began practicing law in 1973 in Asheville following his graduation from Wake Forest University School of Law.  He  practiced for 28 years, trying cases in criminal, civil and domestic courts throughout Western North Carolina as well as the federal and appellate courts.  In 2001, Governor Jim Hunt appointed Marvin to the District Court bench where he gained particular expertise in juvenile and family law.  In 2010, Judge Pope was elected to the Superior Court where he has served with distinction until his retirement February 1, 2021.  He gained a reputation for legal scholarship, his respectful courtroom demeanor and efficiency in moving cases.

In 2014, Judge Pope founded and has since presided over the Buncombe County Veterans Treatment Court which offers treatment and structure to veterans suffering from substance use and mental health disorders.

Judge Pope is a committed public servant.  He has served many times as a Guardian on Honor Air Flights escorting veterans to Washington D.C. to visit war memorials and Arlington Cemetery.  He is an Eagle Scout and loves to help scouts achieve Eagle Scout and other merit badges and awards.  He is an active member of his Masonic Lodge, has taught self-defense and personal safety classes as well as hunter safety classes to children and adults.  He has served as the Chairperson of the congregation at St. Marks Lutheran Church in Asheville and can be seen each advent playing the role of Joseph in a local passion play (often with a grandchild serving as Jesus).

Judge Pope is married to retired Judge Rebecca Knight.  He is a devoted father and grandfather.

We wish Judge Pope well in his retirement in hopes that he will enjoy his time riding horses and gardening on his beautiful mountain farm.  He will undoubtedly, however, be back soon to lend his experience and good judgment to our legal community.

From Senior Resident Superior Court Judge Alan Z. Thornburg

The Climate and the Land: Clean Energy, Land Protection and Ethics CLE

Join us for a 3-hour virtual CLE on February 10th to learn more about clean energy and land protection. As our region and the world navigate the burdens of the pandemic, most of the focus has appropriately been on health and economic fallout. Despite these challenges, the threat of our warming climate looms in the background. Just as the warning signs were there for decades about the potential of a global pandemic, the warning signs are all around us about what could become a global catastrophe if the effects of climate are not addressed. In this three hour CLE, participants will spend the first hour learning from national and regional experts in state-level carbon sequestration, clean energy planning and policy. The final two hours will focus on local and regional land conservation efforts focused on land trust legal ethics and property law as it pertains to land protection. Click here for more information or to sign up.