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