September, 2019 Update From State Bar Councilor Anna Hamrick

Dear Members of the Buncombe County Bar –

I hope everyone is well and enjoying Spring!

The NCSB Council recently held its second quarterly meeting of the year.  You will get a more detailed report from the Bar, but in the meantime here are some brief updates:

*As of 1/1/19 each member must do 1 hour of technology CLE per year as part of the 12 required hours.

*Regarding the option to take all 12 hours of CLE online, we are moving forward on that, but not quite there yet.  The rule amendments necessary to remove the 6.0 hour cap on on-line CLE were published for comment following the January meeting and approved by the Council at the April meeting.  They will be sent to the Supreme Court for approval following the July Council meeting (the Bar sends proposed rule amendments to the Supreme Court every other quarter).  If approved by the Court, they will go into effect for the 2020 CLE compliance year.

*Proposed amendments to the Rules Governing the Practical Training of Law Students will be published for comment.  The proposed rule amendments will enable more experiential educational opportunities for law students.

*A proposed rule amendment will be published that will eliminate the requirement that all attendees of the Professionalism for New Admittees must complete a course evaluation form.

*The Committee to Review Amendments to the ABA Model Rules on Advertising continues to study the changes and is working on a proposal to change the State Bar’s advertising rules.

*The Special Committee on Proactive  Management-Base Regulation continues to study the Colorado voluntary PMBR and the Illinois mandatory PMBR to determine whether a similar program would be beneficial in North Carolina.

*The Ethics Committee is publishing proposed 2018 FEO 5 on “friending” opposing parties and witnesses on social media.  The proposed opinion takes a 180 degree turn and holds that a lawyer may not friend someone who is represented by counsel without consent of the opposing lawyer.

*The Council approved and adopted 2019 FEO 1 – lawyer cannot  jointly represent clients and prepare separation agreement.

*The Council approved and adopted  2019 FEO 3 regarding intimate relationships with opposing counsel.

In my ongoing effort to increase transparency about the Bar, I would like to tell you here about the Board of Continuing Legal Education.  The rules and regulations for the administration of the CLE Board are found at 27 NCAC 1D, Sections .1500 and .1600.  The rules apply to each active member licensed by the North Carolina State Bar (unless you are covered by a specific exemption).  The following is (mostly) verbatim from the Administrative Code:

The Council of the North Carolina State Bar established the Board of Continuing Legal Education as a standing committee of the council.  The Board has authority to establish regulations governing a continuing legal education program and a law practice assistance program for attorneys licensed to practice law in this state.

 The Board of Continuing Legal Education has nine members, all of whom must be attorneys in good standing and authorized to practice in the state of North Carolina.

Board members are appointed at quarterly State Bar Council meetings.  The term of office is three years.  The chairperson presides at the board meetings and prepares and presents the annual report of the board to the State Bar Council. 

 The purpose of the continuing legal education rules is to assist lawyers licensed to practice and practicing law in North Carolina in achieving and maintaining professional competence for the benefit of the public whom they serve. The North Carolina State Bar, under Chapter 84 of the General Statutes of North Carolina, is charged with the responsibility of providing rules of professional conduct and with disciplining attorneys who do not comply with such rules. The Revised Rules of Professional Conduct adopted by the North Carolina State Bar and approved by the Supreme Court of North Carolina require that lawyers adhere to important ethical standards, including that of rendering competent legal services in the representation of their clients.

 At a time when all aspects of life and society are changing rapidly or becoming subject to pressures brought about by change, laws and legal principles are also in transition (through additions to the body of law, modifications and amendments) and are increasing in complexity. One cannot render competent legal services without continuous education and training.

 The same changes and complexities, as well as the economic orientation of society, result in confusion about the ethical requirements concerning the practice of law and the relationships it creates. The data accumulated in the discipline program of the North Carolina State Bar argue persuasively for the establishment of a formal program for continuing and intensive training in professional responsibility and legal ethics.

 It has also become clear that in order to render legal services in a professionally responsible manner, a lawyer must be able to manage his or her law practice competently. Sound management practices enable lawyers to concentrate on their clients’ affairs while avoiding the ethical problems which can be caused by disorganization.

 It is in response to such considerations that the North Carolina State Bar has adopted these minimum continuing legal education requirements. The purpose of these minimum continuing legal education requirements is the same as the purpose of the Revised Rules of Professional Conduct themselves—to ensure that the public at large is served by lawyers who are competent and maintain high ethical standards.

So, the NCSB Council created the Board of CLE, and appoints its members.  The Board is a standing committee of the NCSB Council.  It shares the general purpose of the NCSB to protect the public and regulate the profession.  I hope this small presentation has been of some use to you.

Lastly, I would like to let you know how much I appreciate your reelection of me to represent you in this office.  I hope to be of use to our Bar, and welcome any ideas you may have how I can improve .  I just acted as Vice-Chair of my first Grievance subcommittee meeting at the April meeting.  I pulled out a copy of my grandmother’s Roberts Rules of Order which she used to run her DAR and various other meetings in the 1940s and 50s.  It was extremely helpful.  Like the Rules of Civil Procedure, but with more discretion.

Please let me know if there is any way I can be of help to you in State Bar related matters, or if you have any questions, concerns, or criticisms.  My email is Hamrick@gtalaw.net.

Sincerely, Anna R. Hamrick

January, 2019 Update from State Bar Councilor Anna Hamrick

Dear Members of the Buncombe County Bar –

I hope everyone is well and enjoying the new year!

The NCSB Council recently held its first quarterly meeting of the year. You will get a more detailed report from the Bar, but in the meantime here are some brief updates:

One of the big pieces of news is we are one step closer to being able to do all of our required CLE online. The proposed rule changes which would allow this are being drafted and will go to the Supreme Court for approval within a couple weeks. Hopefully it will not take a long time for the Court to review the proposed amendments and let us know their thoughts. I will keep you posted.

You may have heard of the proposal regarding use of the term “specialist.” The Ethics Committee declined to endorse the proposed language as it was determined a large number of board-certified specialists did not support it. Unlike many states, NC has a board-certified specialization program, so the use of the term in NC carries more weight than it may in states which do not have such a program.

The NC IOLTA Report to the North Carolina State Bar Council has some positive news: While all 2018 IOLTA income from participating banks that hold IOLTA accounts will not be received and entered until the end of January. Participant income through November 2018 was more than $2.5 million, an increase of 64% over the same period in 2017. This increase during the same period from 2016 to 2017 was only 2%. We hope this positive trend will continue into 2019 to enhance availability of funds for grantmaking. At the November 30 grantmaking meeting, the IOLTA trustees approved 2019 IOLTA grant awards. Regular 2019 IOLTA grants totaled nearly $1.85 million: $1,447,000 to support providers of direct civil legal services, $305,000 to volunteer lawyer programs, and $112,500 to projects to improve the administration of justice. An additional grant of $998,000 was made to the Home Defense Project Collaborative to support foreclosure prevention legal services provided by six organizations across the state. This grant was made with funds from the national Bank of America settlement.

The IOLTA trustees also dedicated funds to rebuild the reserve fund which has a current balance of $367,201. Though the amount will not be finalized until all 2018 income has been received, we anticipate a contribution of at least $500,000.

One of the goals of the NCSB is to make itself and its functions more transparent to our members and the public. We recently started to show the full council meeting live on Facebook (this is the meeting that usually starts on the Friday of the quarterly meetings at 8:30 am). If you follow the NCSB’s Facebook page, you can be part of the action. In the interest of trying to help with increased transparency, I thought I would start doing a short segment focusing on one part of the Bar. In this edition, let’s get to know the Office of Counsel.

The Office of Counsel (“OOC”) is the legal department of the North Carolina State Bar. It consists of disciplinary staff, authorized practice staff, the investigations department, the Attorney/Client Assistance Program (ACAP) staff, and the trust account compliance program. The OOC reports to the Grievance Committee upon all grievance files opened by the State Bar involving allegations of professional misconduct by North Carolina lawyers. It investigates and tries claims of professional misconduct and disability. The OOC assists the Authorized Practice Committee by investigating and reporting upon complaints concerning the unauthorized practice of law, including representing the State Bar in lawsuits to obtain injunctions prohibiting the unauthorized practice of law. It provides legal counsel to the Client Security Fund Board of Directors and pursues subrogation actions for recovery of funds paid by the CSF. It coordinates the appointment of trustees to wind down the practices of deceased, disabled, and disbarred lawyers and obtains court orders to disburse funds in the trust accounts of disbarred and suspended lawyers. The OOC represents the State Bar in litigation in federal and state trial and appellate courts and provides legal opinions on issues of interest to all departments, committees, and boards of the State Bar.

The ACAP staff helps members of the public resolve problems with lawyers other than matters involving potentially serious violations of the Rules of Professional Conduct. The ACAP staff also provides information about the grievance process, the courts and the justice system, and helps resolve fee disputes between lawyers and their clients.

The OOC includes sixteen lawyers, one of whom serves as trust account compliance counsel, one administrator, ten investigators, one random auditor, eight paralegals, four administrative assistants,one investigative assistant, two investigative clerks, the ACAP director, who is also a fee dispute resolution facilitator, a second fee dispute resolution facilitator, and two public liaisons. After this brief introduction, if you have questions about the OOC, please let me know and I will try to get you the answer.

If you need any ethics CLE, I will be doing a one-hour CLE presentation created by the NCSB on Friday, February 22, 2019 from 12:30 p.m. – 1:30 p.m. at First Presbyterian Church. It covers the basic workings of the State Bar. Just FYI, it is the same one given last year when the Supreme Court came to town.

Lastly, I would like to let you know how much I appreciate your reelection of me to represent you in this office. I hope to be of use to our Bar, and welcome any ideas you may have how I can improve . For this year, I have been assigned to the following committees: Communications, Distinguished Service Award, Executive, Legislative, and Grievance (Vice Chair, subcommittee II). Please let me know if there is any way I can be of help to you in State Bar related matters, or if you have any questions, concerns, or criticisms. My email is Hamrick@gtalaw.net.

Sincerely,
Anna R. Hamrick

November, 2018 Update from State Bar Councilor Anna Hamrick

Dear Members of the 28th Judicial District Bar –

I would like to begin by thanking you for allowing me to continue to represent you as your State Bar Councilor.  I will continue to do my best to serve you in this role.

We had our recent annual meeting in Raleigh, and the new officers were installed.  Our new President is Gray Wilson from Winston-Salem.  The Bar installed Alice Mine as our new Executive Director.

The Ethics Committee had a busy time.  It voted in favor of Proposed 2018 Formal Ethics Opinion 5, which dealt with a lawyer’s professional responsibilities when seeking access to a person’s social media accounts to investigate a non-client’s legal matter.  However, by the time it reached the full Council on Friday it had garnered a great deal of negative attention from lawyers around the State, and was soundly defeated.  The most controversial part of the opinion was the section regarding whether a lawyer may request access to the restricted portions of a represented person’s social network presence.  The committee proposed this would be acceptable under Rule 4.2.  The Council decided it was not.  In fairness to the committee, the vote was close.  Issues included things like “is a friend request a contact?”  It may be back later in some other form.

Below are points of interest from the various committees and boards:

*Among its many activities, the Authorized Practice Committee issued sixteen Letters of Caution to entities and lawyers, dismissed two complaints, and denied one application of a prepaid legal services plan.

*The Client Security Fund reported for the year 2017-18 it decided 128 claims (compared to 90 the year before).  It denied 65 claims, and paid the remaining claims either in part or in full, depending on the facts of each case.  Authorized reimbursements for the year totaled $685,994.64.   The most common reason for denial was that the claim was a “fee dispute” or “performance dispute.”  That is, there was no allegation or evidence that the attorney embezzled or misappropriated any money.  As a reminder, the Client Security Fund reimburses clients of NC attorneys where there is wrongful taking of the client’s money or property.  Applicants must show they have exhausted all viable means to collect these losses from sources other than the Fund.  Reimbursement may not exceed $100,000.00 per applicant based on any one attorney’s malfeasance.  Each lawyer in NC is assessed a fee of $25 per year to fund the Fund.  The NC Supreme Court created the Fund, and it determines the annual fee to lawyers.

*A few statistics from the Board of Paralegal Certification:  today there are 4,039 NCSB certified paralegals.  This year, 147 took the exam and 107 passed.  The first application for paralegal certification was accepted in July 2005.  Certified paralegals must complete six hours of continuing paralegal education (CPE) annually.

*The Board of Legal Specialization shared this information:  NC now has 1,040 certified legal specialists, and offers certifications in 13 areas.  For 2018, 106 applicants met the requirements to sit for the exams this past October.  The pass rate should be known later this month.  The Board created a new area of certification, entitled “Privacy and Information Security Law.”

*The Board of Law Examiners received 1392 applications for the 2018 Bar Exams.  This is a decrease from 2017, in which 1866 applications were filed.  The pass rate for the July exam was 57.14%.  Since January 1, 2018, the NCSB received 103 comity applications.  This number increases every year.

The Board of Law Examiners will administer its first Uniform Bar Exam (UBE) at the February 2019 exam date.  The UBE consists of the Multistate Bar Examination, the Multistate Essay Examination and the Multistate Performance Test.  The goal of the UBE is make legal licensure more portable for lawyers.  Applicants who apply to take the bar exam in NC can use their UBE score to pursue admission in other UBE jurisdictions without having to take another bar exam (subject to score and time limits).

*The Board of Continuing Legal Education reports 99% of active NCSB members complied with the CLE requirements for the year.  Lawyers took an average of 15 CLE hours per person, which is in excess of the required 12 hours.  Effective 2019, it will be mandatory that one of the twelve required hours per year be devoted to technology education.  We are one of only two states with this requirement.

*The Attorney Client Assistance Program staff responded to 2,801 phone calls from the public in the last year.  Of these, ACAP staff contacted 650 lawyers to try to resolve concerns expressed by the public.  The staff also responded to 707 emails and 533 letters from inmates.  These numbers are all slightly down from last year.

In 2017, The NCSB opened 1,305 grievance files.  By comparison, from January 2018 until October 2018, the NCSB has opened 1,027 grievance files.  As of October 19, 2018, 955 grievance files were pending.  46 lawyers have successfully complete the Trust Account Compliance program since its inception.  Currently, 17 participants are involved.  Persons having trust account difficulties which do not involve malfeasance are often referred to this program for help in trust account management.

*NC IOLTA reports it collected income in the amount of $1,734,673 for the period of January 2018 – September 2018.  For the year of 2017, it collected a total of $2,031,808.  Since 2004, IOLTA has awarded grant awards in the amount of $89,964,486.00 (including matching grants).  The Board recently approved two grants for collaborative projects to aid the victims of Hurricane Florence which totaled $226,600.00.

Lastly, you may be aware that our General Assembly passed a law effective January 1, 2019, which concerns the numbering of judicial districts.  I find it confounding to say the least.  I think the main confusion is with the use of the term “judicial district.”   As the State Bar uses the term, a Judicial District (Bar) is coterminous (sharing the same border and number) with the state’s prosecutorial districts.  I define “coterminous” for the few, if any, of you who may have not known what it meant.  I did not know, though I thought I did.  Peter Bolac from the NCSB told me.

For us, this means as of January 2019, Buncombe County will become the 40th Judicial District (Bar), and the 40th Prosecutorial District.  The Superior and District Court Districts (what most non-bar people call “Judicial District”) remain the 28th.   Therefore, our judicial district (Superior/District Court) is 28.  Our prosecutorial district is 40.  However, we are (as of January 1, 2019) members of the 40th Judicial District Bar.  I caution us not to be too boastful of our fancy new “40” to members of other bars who may have less exciting numbers, as word on the street is the General Assembly may see fit to change it back again.  Our executive committee is taking steps to change the name to the Buncombe County Bar for purposes of general reference, pending approval of the members.

Thank you, and please do not hesitate to contact me if you have any questions or concerns.  My email is hamrick@gtalaw.net, and my direct line at work is 575-1344.

Sincerely,

Anna Hamrick

Anna Hamrick Voted State Bar Councilor By Members

Attorney Anna Hamrick was elected for a second three-year term to the State Bar Council by unanimous consent at the October 10, 2018 meeting of the Buncombe County Bar. Ms. Hamrick’s second term begins on January 1, 2019.

Anna Hamrick is a partner at Grimes, Teich, Anderson, LLP, and practices in the area of worker’s compensation and Social Security disability law. Her profile can be found here. For more information about her duties at the State Bar Council, click here.

August, 2018 Update from State Bar Councilor Update

Dear Friends and Colleagues of the Buncombe County Bar –

I hope you are well and having a wonderful summer!

The State Bar Council held its most recent quarterly meeting on July 24-27, 2018.  I thought I would pass along a brief summary of some of the main areas the Bar handled this quarter.  The Bar will send out a more detailed report in the near future.

I. Ethics:

  1. Due to what appears to be (at least the temporary) demise of AVVO,  Proposed 2017 FEO 6 is being withdrawn regarding participation in AVOO legal services.
  2. There has been an inquiry about the use of Bitcoin and other cryptocurrency by law firms, so be on the lookout for a proposed ethics opinion on that issue.
  3. Proposed 2018 FEO 5 (accessing social network presence of represented or unrepresented persons) is being returned to its subcommittee.
  4. The following Proposed FEOs were adopted and approved by the Council, making them effective 7/27/2018:

         a. 2018 FEO 1 (This opinion explains when a lawyer may participate in an online rating system and the lawyer’s professional responsibility for the content posted on a website directory profile);

         b. 2018 FEO 2 (A lawyer has a duty to disclose to a tribunal adverse legal authority that is controlling as to that tribunal if the legal authority is known to the lawyer and is not disclosed by opposing counsel);

         c. 2018 FEO 3 (the name of a lawyer under an active suspension must be removed from the firm name);

        d. 2018 FEO 6 (under certain conditions a lawyer may include in a client’s fee agreement a provision allowing the lawyer’s purchase of litigation cost protection insurance and requiring reimbursement of the insurance premium from the client’s funds in the event of settlement or favorable trial verdict);

         e. Ethics Decision 2018-1 (the RPC do not prohibit a lawyer from serving an opposing party’s subpoena on a witness adverse to the lawyer’s client if the lawyer is so ordered by a court or tribunal).

II.    IOLTA interest income received in the first five months of 2018 increased by 18% compared to last year.

III.  Grievance:

The Grievance Review II Special Committee has completed its review of the grievance process, finding that only a few tweaks were necessary to continue providing the consistency and efficiency that is a hallmark of the program.

Behold some recent statistics on grievance cases opened:

2015:  1331 grievance files opened

2016:  1,375 grievance files opened

2017:  1,305 grievance files opened

2018:  as of 7/20/18, 933 files have been opened

IV.  In other news:

  1. Barbara Christy of Greensboro has been nominated to become the next Vice-President of the NCSB.  Barbara is a great person, and will serve the Bar well.  Plans are also moving forward for the retirement of Tom Lunsford and the transition of Alice Mine to be the new executive director.  This is the first transition of staff leadership in 40 years.  As noted in the last report, Brian Oten was promoted to Assistant Director in July with responsibility for many of our program activities, including the Ethics Committee.  Peter Bolac will become Assistant Director with management responsibilities on October 1, and he will continue to be our legislative liaison.
  2. A new Special Committee is taking a close look at ABA-proposed modifications in advertising rules.
  3. The Legislative Committee discussed constitutional amendments regarding appointing judges to fill vacancies and legislation proposed for redistricting.  Even though these measures will impact lawyers in NC, they do not implicate Chapter 84, so no position was taken by the State Bar.
  4. We heard an interesting presentation by former Justice Edmonds and former Chief Judge Arnold regarding the efforts by a special subcommittee that also includes former Chief Judge Martin to respond to attacks on the judiciary in the media, and to try to prevent such attacks from occurring by establishing relationships with the NC Press Association and reporters who cover the courts.
  5. We approved a proposal by our newest standing committee, Communications, to involve all our councilors in efforts to educate lawyers and the public about the State Bar and our many responsibilities.

Thank you, and please do not hesitate to contact me if you have any questions, concerns, or criticisms.  My direct line at work is 575-1344, and my cell is 707-4249. Take care!

Sincerely,

Anna Hamrick
State Bar Councilor