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

 

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,

Anna
Anne Hamrick, State Bar Councilor

Update from State Bar Councilor Anna Hamrick

Dear Friends and Colleagues –

I hope you are well!  The NCSB recently held its October quarterly meeting.  As per the new procedure, you will receive a full summary of the results of the meeting directly from the Bar.  However, I wanted to pass along some highlights.

To begin, we have a new slate of officers.  They are :

Darrin D. Jordan – President, Salisbury, NC (Darrin practices criminal law)
Marcia Armstrong – President-Elect, Smithfield, NC  (Marcia practices family law)
Todd Brown – Vice-President, Charlotte, NC (Todd practices complex commercial litigation and dispute resolution)
Barbara R. Christy – Past-President, Greensboro, NC (Barbara practices commercial real estate law).
Alice Neece Mine – Secretary/Treasurer, Raleigh, NC (our wonderful Executive Director)

Some of the big news out of the October meeting of the Council (apart from the new officers) is the completion of the two studies, one on compensation for court-appointed private counsel and the other on secured leave.  Both reports have the potential to impact lawyers in very positive ways and in ways that will help with lawyer wellbeing and, as a consequence, help the public by improving the fitness and competency of practicing attorneys.  Although the implementation of the conclusions and recommendations in the reports will be up to other government agencies or branches of government, the value of the studies cannot be underestimated.

The news out of the Regulatory Change Subcommittee continues to be interesting.  At the July meeting, upon the recommendation of the subcommittee, the Executive Committee authorized the officers to appoint an ad hoc committee to study the creation of a paraprofessional license that would permit the licensee to engage in limited practice in areas where there is a serious access to justice problem (as demonstrated by the Equal Access to Justice Commission’s Civil Legal Needs Assessment Report (2021)).  The ad hoc committee will be appointed soon.

In internet news, our State Bar has a podcast entitled BarTalk.  There are now eight episodes.  The most recent one, hosted by Peter Bolac (Assistant Executive Director and Legislative Liaison) and Brian Oten (Ethics Counsel) is a recap of the October meeting, and can be found at:  https://bit.ly/2ZosFYa.

In award news, I would like to solicit nominees from our local bar for the John B. McMillan Distinguished Service Award.  I sit on this committee, and would love to see some lawyers from our area.  The last recipient from our Bar was Howard Gum, in 2016.  This award honors current and retired members of the North Carolina State Bar throughout the state who have demonstrated exemplary service to the legal profession. Members of the Bar are encouraged to nominate colleagues who have demonstrated outstanding service to the profession.  The award criteria are as follows:

Cultivating knowledge of the law beyond its use for clients, employing that knowledge in reform of the law, and working to strengthen legal education.

Furthering the public’s understanding of and confidence in the rule of law and the justice system.

Devoting professional time and resources and providing civic leadership to ensure equal access to our system of justice for all those who, because of economic or social barriers, cannot afford or secure adequate legal counsel.

Aiding the legal profession by helping the bar regulate itself in the public interest and by seeking to improve the administration of justice and the quality of services rendered by the legal profession.

Providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations, by service in activities for improving the law, society, the legal system or the legal profession, and providing financial support for organizations that provide legal services to persons of limited means.

Treating opposing counsel with courtesy and respect; encouraging and counseling peers by providing advice and mentoring; and fostering civility among members of the bar.

Promoting diversity and diverse participation within the legal profession.

Please consider if there is anyone you know who would be a good candidate for this award.  Again, it would be wonderful to have a local recipient.  Here is a list of past recipients:

https://www.ncbar.gov/bar-programs/distinguished-service-award/#:~:text=Click%20here%20to%20view%20a%20list%20of%20past%20DSA%20recipients.

Lastly, my second term is coming to an end this year.  I am eligible for one final three-year term. I would be honored if you would consider allowing me to serve in this capacity one more time.  I have learned a great deal about our Bars (both the local and the statewide) over the past six years, and hope that I have been able to put that knowledge to the use of each and every one of you in some way.  This experience has been very rewarding to me personally, but that means nothing if I have not been of help to you.

Please let me know if you have any questions, concerns, criticisms, or just want to discuss the working of the NCSB and what the local bar councilor does.  I believe you will hear in the near future from our local bar about the time and place of an election.

Thank you for the opportunity to represent our bar in Raleigh for these past six years.

Sincerely, Anna Hamrick

Update from State Bar Councilor Anna Hamrick

Dear Friends and Colleagues –

I hope you are well.  The NCSB Council recently had its Summer quarterly meeting in Asheville.  In the past after these meetings, I have sent out an update to you about the major points of interest.  However, the NCSB recently reinstated its efforts to provide a state-wide summary, and you should receive it directly from them.  The one from the July meeting can be found below if you did not get it:

https://ncbar.us17.list-manage.com/track/click?u=c8f565c89cc1996a150dc1259&id=242c6bbbfe&e=0442fdb1b9

Given the above, I will not recreate the wheel with a summary of my own.  However, please do not hesitate to reach out to me if you have any questions or concerns.

The synopsis covers the big points, but I did want to note the Preamble amendment on discriminatory conduct was approved for transmission to the Supreme Court.

Another topic not addressed in the quarterly update or the synopsis is the decision of the executive committee to instruct the officers to appoint an ad hoc committee to study the feasibility of creating a license for legal paraprofessionals who can assist with addressing the unmet legal needs identified in the Equal Access to Justice Commission’s 2021 Legal Needs Assessment.   Here is a link to the assessment:  https://ncequaljusticealliance.org/assessment/.

Our state Bar councilors had a wonderful time in Asheville.  I would like to especially thank Bill Wolcott, Bill Christy, Jason Gast and Bob Deutsch for their kind and generous help.  Each of them volunteered to guide a local hike for Bar councilors who wanted to see the area.  Everyone had a great time visiting new places.  Many of the non-local lawyers treated to the hikes praised Bill, Bill, Jason and Bob as wonderful ambassadors and hosts.  I really appreciate their hard work.

One last thing I would like to mention that may save some of you worry and heartburn:  After each quarterly meeting, the NCSB asks the Bar councilors to call all members in the councilor’s local bar who may be owing any or all of the following to the Bar:  NCSB dues, local Bar dues, CLE forms, CLE fees, CLE hours and/or the annual IOLTA certification.  The idea is for us to give a gentle reminder to you of anything missing which perhaps fell through the cracks.  The Bar is hoping with the call, you can then take care of the matter, and they can avoid the time and expense of a Notice to Show Cause.

When I make these calls, if I have to leave a message for you, please do not worry.  As someone who can teach a masterclass in the art of the kneejerk panic reaction, I get it.  The problem sometimes comes when I can’t get through to the lawyer’s voicemail (where I feel comfortable leaving a message of the exact issue), and so I have to be somewhat vague and cryptic with the person who answers the phone for the number you have given to the NCSB.  Some lawyers do not want the person answering the phone to know the issue, and I have tried to tread a fine line between giving out just enough information, without getting into actual matter.  Please just know if you get a message from “Anna Hamrick, local Bar councilor,” especially in the months of January, April, July or October, this is likely why I am calling.  Any serious Bar issues would not be presented to you in the form of a phone call from me.

Our next meeting will be in Raleigh in October.  Thank you, and take care!

Sincerely, Anna Hamrick

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