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A blog by members of the Wake County Bar Association/Tenth Judicial District Bar's Professionalism Committee members.

 

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What Will Be Your Story?

Posted By Administration, Thursday, August 1, 2019

Edd Roberts, Roberts Law Office, PA

While I never have been one to sing my own praises, I was asked to write an article on “what will be your story,” a question most definitely appropriate to ponder at this stage of my life. Even though I’m nearly fifty, I consider myself a work in progress. In every facet of my life, as a spouse, a parent, a son, a professional, and an advocate, I continuously reflect on ways in which I can better myself. My two sons are constant reminders of why it is important to put forth the best version of myself and to do so daily. They are like sponges, soaking up everything I say, do, and don’t do.

Just the other day my seven-year-old, who I thought was fully engaged in playing with his younger brother in the other room, was listening to my telephone conversation with a client’s parent about her son being locked up in jail. In a way only a child would dare to ask, he inquired, “Dad, how come you help someone that did such a bad thing that he is locked up in jail for it?” Caught off guard with the bluntness of his question (if my seven year old son has a filter, he has yet to find it), it took some time before I responded with, “sometimes we are asked to do things that are not always understood by everybody, but are necessary because that is what makes our system of fairness work.” I’m not sure if he understood the full depth of those words, but the time it took me to think of them, share them, and later reflect on them made me realize that what I do professionally and how my sons perceive that aspect of my life is very important to me. I want them to see me as committed to an honorable and necessary profession. In order for that to be part of my story, every day for the rest of my life I must strive to be a better version of myself.

Ralph Waldo Emerson said it best, “To laugh often and much; To win the respect of intelligent people and the affection of children; To earn the appreciation of honest critics and endure the betrayal of false friends; To appreciate beauty; To find the best in others; To leave the world a bit better, whether by a healthy child, a garden patch, or a redeemed social condition; To know even one life has breathed easier because you have lived. This is to have succeeded.” I can only hope that some of Emerson’s words are found living and well in my own life.

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Do What You Say You're Going to Do

Posted By Administration, Friday, July 12, 2019

Ryan Shuirman, Yates, McLamb & Weyher, LLP

I saw a television commercial the other day that said something to the effect of “90% of parenting is just showing up.” My immediate reaction was, “if only it was that easy.” Without commenting on anyone’s parenting skills (or lack thereof), we all know that our clients demand more of us than just showing up. When it comes to our professional relationships, and especially with opposing counsel, it really starts with doing what you say you’re going to do.

We are told in law school professional responsibility courses that your reputation can take years to build but can slip away with one bad decision. Few things build reputation more easily than simply following through on what you tell other parties you are going to do in a case. Whether it is producing items in discovery, filing a motion, serving timely responses, or answering benign and straightforward questions directly, simply doing what you say you are going to do does more to build credibility and reliability with other lawyers and, ultimately, your clients, than many of the cleverest strategic litigation maneuvers you could envision.

From the other perspective, receiving promises from opposing counsel about what will be produced or filed sets reasonable expectations. Perhaps more commonly, extending a professional courtesy to opposing counsel on an extension of time to respond to discovery necessarily sets a reasonable expectation that you will receive what has been promised in a timely fashion. Failing to fulfill your end of the bargain and following through with what you said you would do undermines good will and punishes a professionally courteous lawyer for extending a deadline for you.

Sometimes it really is that simple. When you promise to obtain dates for a deposition to occur, obtain the dates. When you request more time to serve discovery responses, serve responses before the deadline opposing counsel has so graciously extended for you. When you assure opposing counsel that you will make a decision as to whether you will pursue a claim or assert a defense within a given period of time, make that decision without requiring opposing counsel to follow up with you. Be the kind of lawyer for whom follow up is unnecessary.           

We all get busy. We all get distracted. There are any number of reasons why an informal deadline can come and go without a great impact on a particular case. But the impact on your reputation for reliability, and the detrimental impact on our ability to rely on another lawyer’s word, can be much greater by not following through on even the simplest of tasks. Although I don’t know that just showing up accomplishes most of what we need to do as parents, following through on what you have promised in your professional relationships suggests a reliability that ultimately will serve you and your clients well beyond any individual case.

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Take a Lawyer to Lunch

Posted By Administration, Monday, July 1, 2019
Updated: Friday, June 28, 2019

Douglas J. Brocker, The Brocker Law Firm

When I first began practicing law in North Carolina, one of my primary mentors told me about a strict policy he followed concerning filing sanction motions against an opposing attorney. His practice was to invite an opposing lawyer to lunch before filing any such motion for sanctions against that attorney.  The primary reason for this procedure was to ensure that he had considered the position of, and other potential facts and circumstances from, opposing counsel.   It was essentially his  private principle of professionalism, to make sure  he had the rest of the story, and to potentially preserve an important professional relationship before filing any pleading that explicitly or at least implicitly accused another lawyer of improper conduct.

In the many years since getting that excellent advice, I have followed it consistently and fortunately have never filed a motion for sanctions against an opposing attorney. However, I’ve also expanded the principal to include other types of communications. For example, before sending a letter or email to opposing counsel that might suggest some sort of improper conduct, I’ve strived to speak with the attorney either in person or at least by phone. While I can’t say that this prevented me from sending every adverse communication over the years, there have been many instances where I was very glad that I reached out to make that personal contact and, in many instances, I ended up never sending the letter, email or other communication. In contrast, on the rare occasions where I have sent that type of accusatory communication without making personal contact first, I have typically regretted it and wished that I had reached out first.

While this principle is not perfect, I believe that if opposing lawyers would have more personal communications, including going to lunch or some other meeting, there would be much less acrimony and fewer unprofessional exchanges among lawyers. It is simply harder to file pleadings and send other communications making allegations against an attorney that you know personally. Additionally, understanding others’ positions and being empathetic is a critical part of being a successful attorney.

The theme of the Professionalism Committee for 2019 is, “How do you want to be known as a lawyer, including when you’re gone?” Personally, I want to be known as the kind of attorney like some of my mentors, Ed Gaskins and Judge Franklin Dupree, who treated all lawyers and everyone else involved in the legal and judicial process with respect and professionalism. Taking a lawyer to lunch, or otherwise having direct personal communication, before making any professional accusation is certainly a good way to start.  

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What Will Be Your Story? A Memorial Tribute to Allan Head

Posted By Administration, Monday, June 3, 2019

Editor's Note: Allan B. Head, the long-time executive director of the North Carolina Bar Association and long-time treasurer of the Wake County Bar Association, was one of our Tenth members recently recognized at the Tenth Judicial District’s memorial session of court held on April 12. Melissa Essary, professor and former dean of Campbell Law School, presented Allan’s tribute, and it fit directly with our professionalism committee’s theme for this year: what will be your story? You can read her remarks below and also view the memorial session online, which recognized J. Allen Adams, John W. Herron, Robert Worthington Spearman, Reuben Grove Clark, III, and Robert Marcus Lodge in addition to Allan.

 

Melissa Essary, Campbell University Law School

When Allan’s wife Patti called to ask if I could give a brief eulogy, my deep honor turned to a bit of anxiety. Who am I to speak of Allan, who generously embraced and even loved so many of us in this room? But my anxiety has turned back to honor, and I speak briefly today with passion about the man I knew for only eleven short years, Allan Head.

I met Allan just before I became Dean of Campbell Law School in 2006 at an annual [North Carolina Bar Association] meeting. He didn’t know me but greeted me as though I were a long-lost friend. I was new to North Carolina, new to the [NCBA], but felt I’d found a home in this warm, friendly man. We were at the beach that year, and beach music blasted that final night. Allan said, “Do you want to shag?” Being a native Texan, I realized that either my new friend had issues or was speaking a foreign language. I hoped it was the latter and agreed to dance this jitterbug dance, ultimately laughing until my sides were hurting.

And that was the beginning of a beautiful friendship with this man who embodied so much that is good in our world: passion, warmth, kindness, and humor, all while leading and building over 43 years’ time one of the best state bar associations in the country—if not the best.  And he did this all while being a husband of more than 50 years to his beloved Patti, a father to three children, and a grandfather who still skied, ziplined and more. He was just a cool guy.

If you knew Allan, you knew the twinkle in his eye, you knew the laughter around the corner, you knew the friendship that is a footprint on our hearts.

For in Allan, life was to be lived, people were to be embraced. His buoyant enthusiasm for life and laughter was contagious and lifted all those in the room. His “Can-do” attitude infected me and my leadership at Campbell Law School. All of a sudden, I found myself in a state that welcomed Deans and interested lawyers to the table of a committee called the Law School Liaison Committee, an idea created by Allan that brought all legal education leaders to the table to learn from each other and support each other.

In my native Texas, such a thing was absolutely unheard of. Law schools were silos and competitors. But to Allan, who supported deeply our state’s law schools, a rising tide lifted all boats. And he was right. I couldn’t believe the support that we as deans received from the bar association and from each other, all of Allan’s doing. Allan wanted the best for every law student in this state, and he shepherded more than a few of them into law school, through law school, and into the practice. Today, Madison Sides, a current 1L at Campbell, sits beside Patti. I remember the last time I saw Allan: it was when he brought Madison to my office to introduce her to me as she was looking at law schools. He was fragile, and in this last act of kindness, still paying it forward.

As I close, I simply throw out these words: family, faith, friends. Allan Head was so much to so many. To me, he was a true friend whose broad smile and broad embrace are seared in my heart. Rest well, dear friend. We know you’re jitterbugging with the angels.

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A Matured Idealism

Posted By Administration, Wednesday, May 1, 2019

David Sherlin, Holt Sherlin, LLP

 

Lawyers, I suppose, were children once.”     --Charles Lamb

The above quote is the epigraph to Harper Lee’s classic To Kill a Mockingbird. It’s simple, poignant, and in my opinion, replete with the notion that we as lawyers start our careers much like children start their lives: full of hope and free of cynicism. I consider myself one of these lawyers. I started practicing law in 2005 with the idealistic notion that all attorneys would play fair, be honest, and treat one another with respect. Having practiced law for the past fourteen years, and I can now say with experience (some may call it age), my idealistic belief that all attorneys would adhere to a sense of fairness and honesty was perhaps too lofty an expectation. 

Anyone who has practiced law for a significant portion of time has seen both the best and worst from our profession. The best are attorneys like Bonnie Weyher, Ed Gaskins, Hart Miles, Victor Boone, Wade Smith, and Dan McLamb. Common traits that run throughout these attorneys are work ethic, honesty, professionalism, and a sense of community. Even when on the opposite side of a case from one of them, I know that I am working with the very best and, most importantly, with someone that I can trust. As a young attorney, these traits are the ones that I hoped every attorney would have. 

As with anything else, hope doesn’t make it so, and I have witnessed attorneys acting well outside the Rules of Professional Conduct – and decency for that matter. Some of the most egregious instances of unprofessional conduct that I have witnessed relate to Rule 4.1, Truthfulness in Statements to Others. This is one of those rules that was clearly written by lawyers, for lawyers. It reads, “In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.” If I were drafting Rule 4.1, I’d write it just like I tell my children: “Don’t lie.” Simple, to the point, and easy to follow (hopefully!). 

My initial idealistic notion that all attorneys adhere to the same sense of fairness and honesty has taken a hit over the past fourteen years. Fortunately, however, my experiences have led me to a new conviction that is just as strong. Lawyers may be imperfect, but our legal community is full of good, honorable, honest lawyers whom, through their adherence to the highest of ethical standards, do right by their clients, and just as importantly, to our profession. 

 

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To Be Continued… The Ethics of Appearing Solely to Secure a Continuance

Posted By Administration, Monday, April 15, 2019

By: Emily Hurtt, Bagwell Holt Smith P.A.

If you haven’t done it, then you’ve probably thought about doing it: filing a limited appearance for the sole purpose of securing a continuance. Picture the scenario where a potential client calls your office and asks for your first available consultation—frantic, rushed—saying that they have a hearing in less than a week. Do you take the case? What if your schedule for the week is packed, but it’s a referral from a good friend, or a family member? Perhaps the better article would be about all the countless times this has happened to some of us and all the ways we’ve handled the situation.

I’m mostly interested in the scenario where the attorney decides to take the case with no intention of trying it on the merits, but rather for the sole purpose of securing the client a continuance. When this happens, usually the reason a continuance is needed is because the client needs time to get the money together to hire an attorney. Sometimes it’s because a client legitimately cannot appear on that date. If one of us were to help that client out, what are our ethical obligations surrounding such an arrangement?

On one hand, there doesn’t seem to be a clear rule against this, but we have obligations to our clients to ensure they are fully aware of the limited scope of our representation.  Rule 1.2(c) of the North Carolina Rules of Professional Conduct states a lawyer may limit the scope of her representation so long as the limitation is reasonable under the circumstances.  Rules 1.2 and 1.4 also require the lawyer to adequately communicate with her client to ensure the client fully understands and agrees to the limited nature of the representation.  On the other hand, practical considerations should potentially dissuade attorneys from entering a limited appearance for this purpose. For example, one big problem is if the client already had a number of continuances and the question becomes one of willful delay; a potential violation of Rule 3.2. A bigger problem is if you show up to the hearing prepared only to ask for a continuance, and the judge denies your motion. In that circumstance, would you proceed with the hearing unprepared, or have your client proceed alone? 99 FEO 12 contemplates that a lawyer “covering” for another lawyer should nevertheless be sufficiently familiar with the case and prepared to provide competent representation if appearing before the court on behalf of the client.  I shudder to think of the situation where a judge denies the motion and deems you counsel of record in the matter, subject to all responsibilities that would ensue as counsel of record.

Although your client likely has a reasonable need for a continuance, such that you are willing to make the limited appearance, this last worst-case-scenario is at least something to think about. At the very least, should the inevitable request for help obtaining a continuance appear in our doorway, we have a responsibility to clearly communicate the nature and limited scope of our representation not just to the client but also the tribunal, including our lack of familiarity with the case.  Then again, perhaps we’re all better off having the client draft his own motion for continuance.

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Use Your Resources

Posted By Administration, Tuesday, March 5, 2019

Crystal S. Carlisle, The Brocker Law Firm

 

You’re competent in the area of law you practice. Of course you are! But have you ever had some unusual circumstance occur in the middle of a perfectly “normal” case where, all of the sudden, you need to take some type of action or make a very quick decision? You have never dealt with this particular issue before, and it is likely you never will again. You immediately research this issue, but there is nothing on point and really no direction at all.  You are under pressure, and you need help.

 

This is not time for your pride to get in the way. You have to take care of your client. Call that colleague you know can shed some light on this issue. Competence doesn’t mean you know everything. A very wise attorney recently told me, “being a good lawyer means knowing when you use your resources.”  There are always resources. Someone always knows someone who can give you direction. If you cannot think of who to call first, start with your professional liability provider. Most providers will provide this type of support. And if a colleague contacts you and needs a little guidance, ensure to make some time to respond. If you cannot help, you may know someone who can, and in turn become a resource yourself.

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What Will Be Your Story?

Posted By Administration, Friday, February 15, 2019
Updated: Thursday, February 14, 2019

Brian Oten, NC State Bar

I got lucky. It was a Friday evening, mid-August, when I received the email – “You’ve Been Selected!  We are happy to share that you have been selected for the Hamilton Durham Onsale….” Tempting though it was to jump into the ticket resale marketplace and gouge my neighbors of their life’s savings, my wife and I took two friends to see Hamilton in November. And yes, it lived up to the hype.  (Shout out to Amazon Music for the free streams these past few years). As someone who doesn’t go to many plays or musicals, I loved every minute of it. I was most struck by the variety of the show – the music, the choreography, and perhaps most importantly, the messages conveyed in each scene.  Lin-Manuel Miranda is a genius for writing and composing this thing, but I digress. 

There’s one particular moment that’s always stood out to me – George Washington is (finally) about to put Alexander Hamilton in command during the Revolutionary War, and he cautions the young Hamilton that “history has its eyes on” him:

Let me tell you what I’d wish I’d known

When I was young and dreamed of glory. 

You have no control

Who lives, who dies, who tells your story.

These lines rolled over and over in my head for days beyond my first listen. The lack of control over who tells my story is tough to accept; it can even make me feel like giving up at times. Why fight so hard for what I think is right when someone will come along after I’m gone and take full editorial control over what my actions stood for, or why I fought in the first place? But as I grew in frustration over this thought — this inevitable lack of control over what my life would mean or how my life would be interpreted — I realized I was wrong. Yes, George/Lin-Manuel was right – we have no control over who tells our stories. But we have full control over what our stories will be. We are the authors of our own stories. Every day, every decision. Every action, every reaction, every interaction – they are ours to do with what we choose. And these decisions write the lines of our own stories that will someday be told by someone who is compelled to tell the story just as we crafted it. It’s simultaneously beautiful, empowering, and burdensome. As lawyers, perhaps more than any other profession, we are put in positions where our interactions with each other, with our clients and with members of the public uniquely (and perhaps disproportionally) inform our communities about the entirety of this profession. Each day, as lawyers, or peers, or neighbors, or simple acquaintances, we choose how we will impact lives, both in terms of the work we produce and the way in which we carry out our responsibilities. 

So what will be your story? Will you choose to return the hostility displayed to you by opposing counsel? Or will you choose to professionally calm yourself and work through the hostility to find a solution? Will you brush off the client who calls you for the fifth or fifteenth or fiftieth time this week requesting a status update on his case? Or will you take that step back, remember that this case means the world to your client, and call him back to explain why there is no movement yet? Don’t get me wrong – sometimes I feel entirely justified in returning that hostility or ignoring the phone. When I feel I’m right, doing so can even make me feel satisfied and “right.”  At least for a while. But if I can catch myself, I know that taking the path of professionalism will inevitably lead to mutual understanding, respect, and the personal contentment that I’ve done what I can to positively contribute to whatever the outcome may be. And those professional choices, whether I want them to or not, add lines to my story. Just as your choices add lines to your story. A story that will be told one day, by someone, somewhere.  The story may not be yours to tell, but it’s yours to write. 

What will be your story?

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I Resolve…

Posted By Administration, Monday, January 28, 2019

Leanor Bailey Hodge, North Carolina State Bar

 

It’s the start of a new year. The season for resolutions. This is evident in many of the advertisements that air after the Christmas holiday – many are selling diet plans, gym memberships, and exercise equipment in recognition of the fact that, for many, a new year provides a fresh opportunity to resolve again to lose weight. This morning I heard a commercial for genetic testing that suggested making genetic resolutions this year. It went something like this: “Have you made your new year’s resolution?  If not, register for [INSERT GENETIC TESTING COMPANY NAME HERE] to get the information you need to allow you to make a genetic resolution.”  I paused for a moment – the thought of making a genetic resolution never occurred to me nor did I find it appealing. I doubt it occurred to many other listeners either. It caused me to wonder a bit, though, about the “how” and “why” of the resolution process.

I quickly answered the question of why one makes a resolution: to address something that needs fixing. This explains the flurry of January marketing directed at weight loss. It took a bit more thought, however, to decide about the “how” of the resolution process. I eventually settled on the following: often, resolutions are aimed at enhancing physically observable attributes that are easily visible by the eye. Thus, the resolution process entails taking a visual survey of the observable landscape and then setting goals for the year. Like me, the genetic advertisers seemed to recognize that this is the “how” of the resolution setting process, and because it made sense for their product, they suggested doing something slightly different: assessing that which is not apparent or easily visible by the eye. Although I still don’t find the idea of genetic resolutions appealing, I think the concept the company espoused in its ad may have some application in the professional setting. 

January, after the end-of-year hustle and bustle, is the perfect time to take an in-depth look at the inner workings of your office practices and procedures – particularly those that are not visible to your clients and other members of the public. Do your practices and those of the staff who support you ensure your compliance with the Rules of Professional Conduct? Do you have any written policies and procedures that ensure you and your staff meet your professional responsibilities? On a personal level, do your current professional practices allow you to meet the needs of your clients while permitting the time and space needed for you to do things that bring you joy?  You get the idea.  Unfortunately for the genetic testing company, their ad didn’t convince me to conduct genetic testing or make any genetic resolutions. Fortunately for me, it did convince me that taking an internal, in-depth look professionally is a good idea before making any professionally-related new year’s resolutions. 

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Taking Off the Hat for a Fine Wine and Caveats

Posted By Administration, Monday, December 3, 2018

 

Howard Marsilio, N.C. General Assembly, Legislative Analysis Division

                Writing a holiday blog post is becoming a holiday tradition for me at this point. Given that the holiday season will be here shortly, parties with friends and family will be in full force. Some of those friends and family may take the opportunity to "casually" bring up their legal issues that "their friends" are experiencing. Remember that casual conversation can implicate the Rules of Professional Conduct depending on the circumstances. Ms. Rebecca F. Hölljes discussed this topic in greater detail in her post Friends, Family, and Casual (Legal) Conversation from May, 2017.

                The term "client" is defined in the North Carolina Rules of Professional Conduct, Rule 1.15-1 as "a person, firm, or other entity for whom a lawyer performs, or is engaged to perform, any legal services." It defines "legal services" as "services (other than professional fiduciary services) rendered by a lawyer in a client-lawyer relationship".

                In a casual party conversation, you are probably not intending to be engaged to perform legal services or render legal advice, nor are you intending to form a "client-lawyer relationship" around the fireplace of your friend's house. But does the person you are speaking with know that, especially when you are offering friendly bits of information about their issues just to be friendly or helpful? Maybe not. Additionally, depending on what you learn during the conversation, confidentiality or conflict issues are potentially in play. Rule 1.18, Duties to Prospective Clients, in my opinion is intending to apply to more formal conversations about forming a client/lawyer relationship, but the comments provide good guidance and will help calibrate your THIS IS NOT TO BE CONSTRUED AS LEGAL ADVICE - O – METER.

Unfortunately, from the non-attorney point of view, a lawyer is always a lawyer – and very rarely can we take off the hat. It would be nice to carry around a "NOT IN SERVICE" marquee after business hours, but I find that it's a bit too heavy. I like to think that the Rules of Professional Conduct are not meant to prevent lawyers from interacting with society in conversations about the law without reciting a laundry list of caveats, but of course every situation is different, and unfortunately the attorney may need to deal with the consequences if a line is crossed. With that being said, I will leave you with the gift of caveats: This blog post is not to be construed as legal advice; For ethics questions, please consult the North Carolina Rules of Professional Conduct, Ethics Opinions, and/or consult with the North Carolina State Bar; I am certainly not an expert, nor competent in the art of manners and party etiquette - I am not from the South and that probably does not help. Happy Holidays!!!

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