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President's Column
Mark A. Finkelstein
Tenth Judicial District Bar

 


DID YOU KNOW OUR HOUSE IS ON FIRE?

NEWS FROM THE ABA BAR LEADERS’ CONFERENCE IN HOUSTON AND FROM SALISBURY STREET

BY MARK FINKELSTEIN, PRESIDENT, TENTH JUDICIAL DISTRICT BAR


LAWYERS ARE
so focused on clients and family that we may not see huge changes afoot. If we do not work in Association with each other to manage the ever increasing speed of change in our profession, the change will come in a form contrary to the public interest and the interests of our clients.

In 2007 our British colleagues lost the privilege of self-regulation. Barristers and solicitors are now regulated by the Legal Services Board which is appointed by the Minister of Justice, dominated by non-lawyers and chaired by an engineer.

This utter loss of bar control occurred because the British bar was as out of touch and inactive as we are in North Carolina today. Strangely enough, I did not learn of this turn of events in the UK until February 2015 when I attended ABA meetings in Houston as your president.

Non-lawyers have long been able to own law firms in Europe. Accountants and lawyers are often practicing under the same business roof there. Washington, D.C. now has similar rules allowing non-lawyers to own interests in law firms located in Washington. What are these evolving rules likely to look like in North Carolina?

The Supreme Court of Washington State has issued rules creating the Limited License Legal Technician. Domestic law Limited License Legal Technicians will be permitted to file approved form divorce complaints on behalf of their customers without the supervision of any lawyer. Did you know that a huge percentage of Wake County residents seeking a divorce cannot afford a lawyer, and many others rely on the Internet for ‘‘advice’’ to ‘‘save money’’? Are we reacting wisely to this crisis in the connection between lawyers and those who need our help?

Please consider these two ‘‘reactions’’ to the increase in pro se litigation and the perceived separation between the interests of lawyers and those of the people we are to serve. First, the North Carolina Dispute Resolution Commission has declared it unethical for a mediator to draft a mediated settlement agreement if the parties reaching the mediated settlement are pro se --- as they more often are today than ever before. Second, even though an increasing number of North Carolina residents cannot afford legal advice, some legislators are proposing to raise the cost of legal representation by requiring lawyers to collect sales taxes from their clients.

I doubt many of us have fully considered the implications of sales tax on the affordability of legal services for our clients. Have we considered the implications of sales tax collection on our staff, our practice, and our confidentiality obligations as lawyers? Let me guess; your legislators don’t even know whether you care about these issues, do they?

Capital Associated Industries, Inc. has caused a lawsuit to be filed in the Middle District of North Carolina and has caused legislation to be introduced in the North Carolina legislature allowing trade associations to practice law representing individual members in legal proceedings. Many trade association members are competitors in the same industry. Have we told our legislators about the potential conflict of interest, ethical, antitrust and consumer protection issues that could arise if trade associations were permitted to practice law in this way?

 

Not long ago, the Wake County Superior Court Clerk’s Office had to ask the Wake County Bar Association to provide basic office supplies such as paper and pens because the courthouse had depleted its supply of these necessary items. Did you know that Wake County civil court sessions are sometimes canceled because there are insufficient funds to pay for court reporters?


Inflation-adjusted wages for court personnel has declined 7% in recent years. It is more difficult to retain well trained employees when wages are low. As a result, the attrition rate in Superior Court Clerk’s offices has increased by 65% over the past 5 years. This turnover results in a less efficient court system and lower quality justice.

While North Carolina is the ninth most populous state, we are now the third lowest in spending on the judicial system. Good government organizations suggest that states should spend approximately 5% of their budgets on the Judicial Branch of government. North Carolina’s spending on the Judicial Branch has slipped from 3% of our budget to about 2% at a time when overall budget growth has been relatively slow. Adequate funding for our courts is both a constitutional imperative and a practical necessity.

If we do not inform our citizen legislators about these challenges to our profession, they will not have the information they need to legislate wisely. Then we, like our British brethren, will have no one to blame but ourselves.

We must embrace change, not ignore it and thereby get steamrolled by it. Your Bar Associations are key resources for embracing changes that improve efficient representation of clients while preventing changes that damage the public and the rule of law. Email your legislators today. Thank them for their service and let them know your thoughts on these important issues.


Register to help with the Bar Association’s Legislative Action Center here: http://cqrcengage.com/ncbar/home

Start here if you need help finding your legislators’ email addresses: http://www.ncleg.net/

representation/WhoRepresentsMe.aspx.


Despite the challenges, I would not bet against us given lawyers’ character for resilience and an

Environment of technological improvement. WBF


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