Update From Bar Councilor Anna Hamrick

Dear Friends and Colleagues of the Buncombe County Bar –

The Bar Council recently wrapped up its quarterly meeting.  Please note you may watch all the public meetings on the NC State Bar YouTube Channel.

Below are some highlights:

  1. Unless the Governor reverses course on the elimination of COVID restrictions on the size of gatherings (effective June 1), the State Bar Council’s July quarterly meeting will be live in Asheville.  The Renaissance Hotel will be the venue.  I will keep you posted.
  1. The Legislative Committee learned the General Assembly is still working to reconcile the numbers for the prosecutorial districts with the judicial districts, but nothing so far is formally in the works.  I’m not holding my breath.
  1. A bill has been introduced which would give the NCSB the authority to increase bar dues in 2023 by up to $25 and increase late fees from $30 up to $50.  It would permit increases of $25.00 every other year thereafter up to a maximum of $400.00.
  1. Ethics Opinions:
    a. The Council adopted FEO 2021 Formal Ethics Opinion 1, covering contemporaneous residential real estate closings.  The FEO addresses conflicts of interest, communication, funding issues, and accountings in contemporaneous closings for residential real property.
    b. The Ethics Committee is publishing Proposed 2019 Formal Ethics Opinion 4, on communications with judicial officials.  This proposed opinion discusses the permissibility of various types of communications between lawyers and judges.
    c. The Ethics Committee is publishing Proposed 2020 Formal Ethics Opinion 1, covering responding to negative online reviews.  The proposed opinion rules that a lawyer is not permitted to include confidential information in a response to a client’s negative online review but is not barred from responding in a professional and restrained manner.
    d. The Ethics Committee is also publishing Proposed 2021 Formal Ethics Opinion 2, covering a lawyer’s professional responsibility in identifying and avoiding counterfeit checks.  The proposed opinion discusses a lawyer’s professional responsibility to safeguard entrusted funds by identifying and avoiding purported transactions involving counterfeit checks.
    e. The Ethics Committee issued for publication Proposed 2021 Formal Ethics Opinion 3, covering charging fees to the opposing party in residential real estate closing.  The proposed opinion rules that a closing lawyer representing the buyer in a residential real estate transaction may not charge a fee to a separately represented opposing party unless the party consents to the fee and the lawyer complies with Rules 1.5(a) and 1.8(f).
  1. If anyone in our district is interested in submitting a name for consideration to be appointed to any of the boards and/or commissions to which the NCSB makes appointments or nominates lawyers for appointment, please let me know and I will tell you how to go about doing so.  Just to give you some examples of the options, in the last quarterly meeting , the Council appointed persons to serve on the Disciplinary Hearing Commission, the NC Courts Commission, and the Legal Aid of NC Board.  The Council also sent the names of nominees to the Governor for appointment to the Inmate Grievance Resolution Board.
  1. At the Council Meeting, Justice Anita Earls gave a presentation of the Equal Access to Justice Commission’s 2021 NC Civil Legal Needs Assessment.  Our own Robin Merrell, of Pisgah Legal Services, was on the Steering Committee.  Thank you, Robin!

The report notes:

A large percentage of the population in North Carolina cannot afford the services of a private attorney. Each year, thousands of North Carolinians must navigate complex civil legal issues such as foreclosure and child custody without the benefit of representation. As a result, basic human needs like food, safety, shelter, and healthcare go unmet.

In 2020, in partnership with UNC Greensboro’s Center for Housing and Community Studies, the NC Equal Access to Justice Commission (EATJC) and the Equal Justice Alliance (EJA) completed the first comprehensive civil legal needs assessment in nearly two decades. The study provides an overview of the scope of civil legal needs in North Carolina, as well as the factors affecting the depth and type of civil legal problems people experience.

A summary can be found here :   http://www.nclegalneeds.org/.

  1. A survey from a subcommittee on the compensation paid to court-appointed defense counsel will be sent to a pilot group of board-certified criminal defense attorneys.  The survey asks questions about workload and pay.  Once any problems with the survey are worked-out with the pilot group, the survey will be sent to all active members of the State Bar.  Information from the survey will be compiled and provided to Indigent Defense Services, AOC, and other entities that may advocate for changes in compensation rates for court-appointed attorneys.
  2. Proposed Rule Amendments Recommended for Publication:
    a. Amendment to Preamble of the North Carolina Rules of Professional Conduct –Inclusion of Anti-Discrimination Language.  It reads:  ___________

Rule 0.1, Preamble: A Lawyer’s Responsibilities; paragraph (f) [NEW]

(f) The North Carolina Constitution requires that “right and justice shall be administered without favor, denial, or delay.” Public confidence in the justice system is strengthened when all participants are treated equally, fairly, honestly, and respectfully within the system. A lawyer, as a representative of and crucial contributor to the justice system, should foster public confidence in the administration of justice by treating all persons the lawyer encounters in a professional capacity equally, courteously, respectfully, and with dignity regardless of a person’s race, sex, national origin, religion, age, disability, sexual orientation, gender identity, marital status, or socioeconomic status.

b. Amendment to Comment to Rule 1.1 (Competency) – Awareness of Implicit Bias and Cultural Differences.  It reads:  __________

Rule 1.1, Competence; Comment [9] [NEW]

A lawyer shall not handle a legal matter that the lawyer knows or should know he or she is not competent to handle without associating with a lawyer who is competent to handle the matter. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

Comment

. . .

Maintaining Competence

. . .

[9] Competency includes a lawyer’s awareness 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.  This is to ensure understanding of the client’s needs, effective communication with the client and others, and adequate representation of the client.

  1. The Council voted to recommend to the Supreme Court approval of rules amendments that add 1 hour of CLE for 2022 for education on implicit bias, diversity, and inclusion. (The total number of required CLE hours—12—will remain the same.)
  1. Proposed amendments to the rule on reinstatement after loss of one’s law license were approved for publication.  The amendments  clarify that a petitioner for reinstatement more than 7 years after the date of suspension must pass the Uniform Bar Exam, the North Carolina state-specific component of the bar exam,  and the Multistate Professional Responsibility Exam no more than nine months before filing the petition.
  1. Some statistics:
    a. Attorney Client Assistance Program:

During the first quarter of 2021, ACAP staff responded to 1,149 phone calls from members of the public and placed 246 calls to lawyers in an effort to resolve their concerns. Staff also responded to 1,387 emails from members of the public and from attorneys and responded to 495 letters from inmates. The State Bar opened 81 requests for fee dispute resolution during the first quarter, all of which were assigned to the two State Bar facilitators.

b. Grievances:

In 2016, 1,375 grievance files were opened. In 2017, 1,305 grievance files were opened. In 2018,

1,247 grievance files were opened. In 2019, 1,254 grievance files were opened. In 2020, 927 grievance were opened. As of April 8, 269 grievance files had been opened.  As of April 8, 1,210 grievances were pending. One hundred sixty-nine grievances were stayed.  Forty-two pending files were in the judicial district grievance committees or had been returned by the district grievance committees within the past 30 days. The OOC had made its recommendation in 238 of the pending cases and the cases were ready for the Grievance Committee’s decision. Of the remaining 761 files in which no recommendation has yet been made, 146 were more than six months old. In the first quarter of 2021, 130 files were dismissed by the Grievance chair or by the Grievance chair and a vice chair.

There were no inquiries about lawyer advertising in the first quarter of 2021.

c. Trust Account Compliance Program

Sixty-nine lawyers have completed the TAC Program since its inception. Three lawyers accepted offers to participate in the TAC Program after the January 2021 Quarterly Meeting. The Bar currently supervises forty participants, and monitors six DHC defendants whose stayed suspensions include trust account compliance conditions and oversees compliance with random audit corrections.

d. Authorized Practice

The Authorized Practice Committee opened 13 new files this quarter. There are 16 files on the Committee’s April agenda for consideration.  The OOC continues to work with the Consumer Protection Division of the Attorney General’s Office dealing with several out-of-state lawyers and law firms that promote debt adjusting and loan modification schemes. With limited exceptions, debt adjusting is illegal in North Carolina. Numerous marketing firms and lawyers engage in this practice.

e. Client Security Fund Claims/Subrogation Cases

There are 19 claims on the agenda for the Board’s April 15 meeting. There are three lawsuits pending in superior court seeking reimbursement from a disbarred lawyer for payments made by the CSF.

f. Ethics

1231 informal ethics inquiries were responded to by staff during the first and second quarters.

g. NC IOLTA

Participant income in 2020 totaled more than $4.7 million, an 8% decrease from the same period in 2019. 2020 participant income received by NC IOLTA has decreased as a result of the economic conditions brought on by the pandemic. However, the decrease is less drastic than originally anticipated.

Thank you for the opportunity to represent you in the Bar Council, and please let me know if you have any questions or concerns I can help you on.

Sincerely, Anna Hamrick

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

State Bar Councilor Update

Dear Friends and Colleagues of the Buncombe County Bar –

I hope you are all hanging in there.  Please find below my informal report of the October 2020 NCSB Quarterly meeting.  As you probably expect, we met via Zoom.  All meetings open to the public were also livestreamed on the NCSB Youtube page, should you wish to see them.

Notable points of interest include the following:

*We bid farewell to C. Colon Willoughby, Jr., originally of Tabor City, currently of Raleigh, as our President.  He led us wonderfully during this especially difficult year.  Chief Justice Beasley swore in our 86th president, Barbara R. Christy, of Greensboro.  Barbara earned her BS magna cum laude from Appalachian State University, and her JD from the University of North Carolina School of Law.  A member of Schell Bray PLLC, in Greensboro, North Carolina, her practice focuses on commercial real estate transactions.  Her professional activities include volunteering with Legal Aid of North Carolina’s Lawyer on the Line initiative and the Pro Bono Resource Center. She is also a North Carolina State Bar board certified specialist in real property law—business, commercial, and industrial transactions, a fellow with the American College of Real Estate Lawyers, and a member of the Piedmont Triad Commercial Real Estate Women. Additionally, Barbara is involved with her community, serving on the Board of Directors for Southern Alamance Family Empowerment, Inc., and is a past member of the UNC Law Foundation, Inc. Board of Directors.

*The Bar passed a motion adopting the CLE Board’s proposal for a publication of rule change to require 1 hour of CLE on Diversity, Inclusion, and Elimination of Bias Training be added to the CLE requirements for active members of the State Bar.  Because the CLE Board is currently studying ways in which the reporting requirements might be more efficiently managed, the proposed rule is a temporary measure that only requires all active lawyers to take a 1 hour course in 2022.  It is anticipated that eventually the Board will propose a rule requiring the course on some periodic basis, like once every 3 years.

*The Ethics Committee Report included:

  1. Due to the great number of comments received , the amendment to Preamble of the North Carolina Rules of Professional Conduct regarding inclusion of anti-discrimination language is being sent to a subcommittee for further consideration.
  1. A proposed new comment to Rule 1.1 (Competency) regarding awareness of implicit bias and cultural differences will continue to be studied by an ethics subcommittee.
  1. The subcommittee tasked with studying whether the North Carolina State Bar should add language to Rule 8.4 of the Rules of Professional Conduct making discrimination and harassment while acting as a lawyer professional misconduct  is continuing its work.

The Council adopted 2 Ethics Opinions:

  1. 2020 Formal Ethics Opinion 3 Solo Practitioner as Witness/Litigant – This opinion rules that a solo practitioner/owner of a PLLC is not prohibited from representing the PLLC and testifying in a dispute with a former client.
  2. 2020 Formal Ethics Opinion 4 Investment in Litigation Financing – This opinion rules that a lawyer may not invest in a fund that provides litigation financing if the lawyer’s practice accepts clients who obtain litigation financing.

Fees and Dues for 2021:

Each year the Council must set the amount of the annual membership fee. Dues are currently $300, which is the statutory maximum. The Finance and Audit Committee recommended, and the Bar Council agreed that the same amount be charged in 2021.

Client Security Fund:  The fiscal year for the Client Security Fund ends on September 30.  For 2020, the assessment imposed by the Supreme Court was $25 for each active member. The Bar Council recommended a $25 assessment for 2021.

*For those of you who may be interested in statistics, please see below.

Ethics Committee Stats:

The Ethics Committee responded to 1086 inquiries this third quarter.

Bar Exam Stats:

In terms of new lawyers for the year, 1300 applications were received for the 2020 North Carolina Bar Examinations, a decrease from the 1443 applications filed for the 2019 North Carolina Bar Examinations.  The February 2020 bar examination was administered to 402 applicants. Of the 116 first-timers from North Carolina law schools, 84 passed for a rate of 72.41%. The overall pass rate for the examination was 50.75%.  The July 2020 bar examination was administered in-person to 668 applicants on July 28 and 29, 2020.   The Board granted testing accommodations to all applicants who filed a request for accommodations due to immunocompromised conditions, and to applicants who filed a request due to having an immunocompromised member of their household. Fourteen applicants were granted a private testing room with a dedicated proctor.

The overall passing rate for the July 2020 Bar Examination was 83.08%. The passing rate for first-timers from North Carolina law schools was 91.82%. For out-of-state law schools, the passing rate for first-time applicants was 84.92%.

Attorney Client Assistance Program Stats:

During the third quarter of 2020, the Attorney Client Assistance Program staff responded to 778 phone calls from members of the public and placed 186 calls to lawyers in an effort to resolve their concerns. Staff also responded to 1,251 emails from members of the public and from attorneys and responded to 613 letters from inmates.

The State Bar opened 91 requests for fee dispute resolution during the third quarter, all of which were assigned to the two State Bar facilitators.

Grievance Stats:

In 2016, 1,375 grievance files were opened. In 2017, 1,305 grievance files were opened. In 2018, 1,247 grievance files were opened. In 2019, 1254 grievance files were opened. Through October 15, 2020, 770 grievance files were opened. As of October 14, 1052 grievances were pending. One hundred-forty-three grievances were stayed. Seventy-eight pending files were in the judicial district grievance committees or had been returned by the district grievance committees within the past 30 days. The OOC had made its recommendation in 168 of the pending cases and the cases were ready for the Grievance Committee’s decision. Of the remaining 663 files in which no recommendation has yet been made, 137 were more than six months old. In the third quarter of 2020, 156 files were dismissed by the Grievance chair or by the Grievance chair and a vice chair.

There were no inquiries about lawyer advertising in the third quarter of 2020.

Thank you for the opportunity to serve you at the Council, and please let me know if you have any concerns, questions or criticisms!

Sincerely, Anna Hamrick

August, 2020 Update from State Bar Councilor Anna Hamrick

Dear Fellow Members of the Buncombe County Bar –

I hope everyone is well. The North Carolina State Bar Council held its Quarterly Meeting last week via Zoom. It was our second Quarterly Meeting held via Zoom, and all committees were able to meet. I would like to share with you some of its highlights. You will get a more detailed report later directly from the Bar.

1. The Ethics Committee approved publication for comment of an amendment to the preamble to the Rules of Professional Conduct that identifies the avoidance of discriminatory conduct as a fundamental value of the profession.

Below is the proposed language. Your opinion matters, and so please consider sending your comments to: ethics@ncbar.gov. Continue reading