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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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Top tags: ethics  Exit Planning  Mediation  admissibility  Advocacy  appeal  Competence  corporate appearance  Law  Lawyer  mediator  Professionalism  professionalism stress depression anxiety mental h 

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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"Judge Not...": How the Legal Profession Continues to Fail at Inclusion

Posted By Administration, Thursday, November 15, 2018

Evin L. Grant, Esq., Campbell Law School

“Our criminal justice system needs reforming and the perfect person for the job may have dreadlocks. Meanwhile, you, an attorney, have encouraged them to cut their pride and dignity off so they can ‘fit in.’” @jastalkslaw (Attorney Jas, Twitter)

I read this tweet and it really bothered me. Not because of what it said, but because of what it signifies. What did it mean to “fit in”?  Recently the legal profession has put a lot of emphasis on the buzzword “inclusion.” We simultaneously embrace it while also trying to avoid the realities of what it implies, there was a point in time when the profession was exclusive.

I shared the tweet with a friend, “Jane Doe” and we discussed the origin of this article. We talked a bit about our thoughts and feelings as it related to the concept of “fitting in.”  We opined on how "fitting in" forces us to imitate the external image of a “lawyer.” In the years she's been a valued asset to her firm, she's believes "if [she] had shown up to [her] job interview without makeup, [her] hair not artificially [improved], [her] tan not artificially enhanced, regardless of the fact [she] had on a [tailored] suit and a good resume, [she] would not have gotten the job.”

Have we become a profession of profile? Do we continue to equate appearance with ability? A character and fitness couture? As Jane Doe stated, “the legal profession in general 100% bases your ability [to] work on how you appear.” This sat with me. What defines my ability to other lawyers? Is it my three-piece suits or my earrings and tattoos? What about me, makes me "fit in"? Or is it that I don't fit in that determines their impression?

Even with our dedication to inclusivity, I ask, are we still being exclusive? I submit to you that we still are. In 2017, the National Association of Law Placement reported, of 112,090 lawyers, 35% are women, 15% are minorities, and 8% are minority women. (2017 Report on Diversity in U.S. Law Firms, https://www.nalp.org/uploads/2017NALPReportonDiversityinUSLawFirms.pdf, 2017). We aspire to increase our inclusivity, but it appears we only accept people who already “fit in” to the profession.

In law school admissions, we visit the schools where students’ parents are already doctors and lawyers, rather than visiting the schools that could benefit from exposure to the profession. In hiring, we exclude highly capable candidates over technical requirements that have no bearing on their ability to perform. When promoting internally, we exclude the most valuable associate because they don't participate in Thursday afternoon golf.

How do we fix this? First, as a profession, let's stop putting the image of a lawyer in a box. I remember my time as a magistrate judge and the first thing most people would say, "you're not what I thought you'd look like." My response, "what are judges supposed to look like?"

Google the word "lawyer" and view the images. What do you see? As lawyers, this is the image we've created of ourselves. If we want to be exposed to a different image we have to search "woman lawyer," "Muslim lawyer," "Black lawyer," Hispanic lawyer."

Secondly, let’s stop putting our diverse employees on the “Diversity and Inclusion Committee,” but leaving them off of the “Executive Committee” or “Hiring Committee.”  We profess inclusion but fail to include diverse employees on decision-making committees within our organization because they don't "fit in" with the culture of the firm. We have to accept that not all lawyers will look or behave as we do.

Finally, we have to stop being judgmental. Because a woman chooses to wear pants instead of a skirt does not make her inadequate. A lawyer’s decision to wear bright-color ties or patterned shirts does not have any bearing on his or her ability to perform. The name "Daquan," "Muhammud," or "Sue" is not representative of one's ability to add value to an organization.

The legal profession is one of tradition, prestige and integrity. However, these words are not synonymous with inflexibility, prejudice and exclusion. We cannot continue to judge people because they do not look like our ideal image of a "capable lawyer" while as a profession we profess greater inclusivity.

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Professionalism: The Get and Give of Volunteering

Posted By Administration, Thursday, October 18, 2018

Meredith Cross, Gailor | Hunt | Jenkins | Davis |Taylor | Gibbs

Over the last week I have attended several swearing-in ceremonies, an event that occurs semi-annually and until now I had never attended. At these ceremonies, I got to experience firsthand the bright, shining faces of the new admittees, filled with excitement and optimism after being sworn-in to the practice of law. 

On October 4th, I had the opportunity to hear Justice Paul Newby speak at the Wake County Bar Association’s swearing-in ceremony. In his speech to the new admittees about professionalism and the practice of law, the one piece of information that stood out to me most was his discussion of the necessity of providing pro bono services as a lawyer.

Pursuant to the North Carolina Rules of Professional Conduct, “Every lawyer has a professional responsibility to provide legal services to those unable to pay.” Although it is recognized that the amount of hours a lawyer provides pro bono services may vary from year to year, “a lawyer should aspire to render at least 50 hours of pro bono public services per year.” 

During his speech, Justice Newby referenced an email that some in the audience may have already received earlier in the week from the North Carolina Pro Bono Resource Center, detailing the Supreme Court of North Carolina’s recent approval of a temporary amendment to the rules of the North Carolina State Bar.  This temporary amendment permits lawyers barred in other states to provide legal services in North Carolina, under the supervision of Legal Aid, to those affected by Hurricane Florence.

What I did not know, and I imagine many others in the audience were unaware of, is that the Supreme Court of North Carolina approved this temporary amendment due to the lack of North Carolina lawyers responding to the call for help to provide pro bono services as a part of the hurricane relief.  

My first thoughts were of shock and embarrassment that the Supreme Court of North Carolina had to take the drastic action of temporarily amending the rules to the North Carolina State Bar to allow lawyers from other states to answer the call to aid because our own lawyers have not responded. These thoughts were quickly followed by the realization that it is our duty as lawyers to instill a sense of public service in these new admittees and others. 

Winston Churchill said it best: “We make a living by what we get, but we make a life by what we give.”  As lawyers, we need to take time to remember this and ensure that those that who come after us understand its significance. 

To volunteer, please visit:

https://ncprobono.org/disaster/

https://ncprobono.org/volunteer/find-pro-bono-opportunities/

 

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A Call to Action to Assist Hurricane Victims

Posted By Administration, Monday, September 24, 2018

David Sherlin, Holt Sherlin | President-elect, Wake County Bar Association

Since Hurricane Florence unleashed her wrath on North Carolina I have experienced extreme sadness for our neighbors to the east. Tragically, at least 26 people in North Carolina have died as a result of the hurricane. In addition, countless homes and businesses have been severely damaged or completely destroyed. 

In the coming months, North Carolinians hardest hit by the hurricane will be putting their lives back together. During this process they will undoubtedly face myriad legal issues. Finding attorneys to help them navigate these uncertain times should not be one of their challenges.

The preamble to the North Carolina Rules of Professional Conduct addresses a lawyer’s responsibilities to the public. Specifically, it holds “[t]he legal profession is a group of people united in a learned calling for the public good. At their best, lawyers assure the availability of legal services to all, regardless of ability to pay, and as leaders of their communities, state and nation, lawyers use their education and experience to improve society.”

There is no better time than now for us, as lawyers, to fulfill the charge set forth to us in the RPC by offering free legal services to those impacted by the hurricane.  The North Carolina Bar Association Young Lawyer’s Division and Legal Aid of North Carolina have teamed up to help facilitate legal assistance efforts through the North Carolina Disaster Legal Services Program.  The online sign-up takes no more than two minutes to complete.  And although many of our practice areas will not be listed on the online sign-up, the NCBA has provided a wealth of resources to assist us when speaking with hurricane victims.  

In short, there is no better time than now to sign-up to provide pro bono legal advice to victims of Hurricane Florence.  The Rules of Professional call us to do so.  But most importantly, it’s just the right thing to do. 

To volunteer, please visit:
https://docs.google.com/forms/d/e/1FAIpQLSfZIBaV8gSixxm_xdvDWqxKKCbVVC85p939XMZOc0O3aqvQsQ/viewform

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Mentoring Prosecutors

Posted By Administration, Wednesday, September 5, 2018

Judge Ned Mangum, Wake County District Court

Rule 3.8 of the North Carolina Rules of Professional Conduct is titled “Special Responsibilities of a Prosecutor.” The comment section of the rule provides the best description of the role of the District Attorney: “a prosecutor has the responsibility of a minister of justice and not simply that of an advocate. The prosecutor’s duty is to seek justice, not merely to convict.” It goes on to note “the prosecutor represents the sovereign and therefore should use restraint in the discretionary exercise of government power.”

It is common for this power to be delegated to a young lawyer hired as an Assistant District Attorney in their mid-20s with little professional experience. Considering the comments above, ask yourself this question- is there a position in which a person has been entrusted with a more powerful job than that of an Assistant District Attorney? You might answer that a judge has a more powerful role, yet it can be reasonably argued that the power to prosecute is more powerful than the judge’s ability to decide and sentence.

It is important to read section 5.1 of the rules in conjunction with the rule mentioned above. It states “a lawyer who individually or together with other lawyers possesses comparable managerial authority, shall make reasonable efforts to ensure that the firm or the organization has in effect measures giving reasonable assurance that all lawyers  .  . . conform to the Rules of Professional Conduct.”

Simply stated, the District Attorney’s Office must make sure the young assistants follow the rules.

For the last 25 years in Wake County, spanning the terms of three different DA’s, much of that responsibility has fallen on the shoulders of First Assistant District Attorney Howard Cummings.

If you have ever been an ADA or an intern in the Wake County District Attorney’s Office, it is likely you have been in Howard’s office talking about how to proceed with a case. In his own way, he works through the issues with a young lawyer, helping that ADA find a just result. Howard also started a formal mentoring program in the District Attorney’s Office almost twenty years ago before these programs were on our collective conscience. He accomplished this formal mentoring while also handling many of the most complicated and well known investigations and trials this county has seen. Recently, this commitment to service was recognized by the North Carolina Bar Association. He was named the 2017 recipient of the Peter S. Gilchrist award for the Most Outstanding Prosecutor in the State.

Our profession is better because of him.

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Professionalism: Modeled Behavior

Posted By Administration, Friday, August 24, 2018

Edd Roberts, Roberts Law Office, PA

My six and four-year-old constantly make me aware that the things I do and the words I say in their presence are absorbed by them. These young boys of mine are being shaped by the actions and words that are modeled by me as I go through life experiencing the good and the bad.

As I reflect on my modeled behavior and the responsibilities that come with being a parent, I’m reminded of similar responsibilities required of me in my day-to-day professionalism as a lawyer. Although there is a book for our professional conduct that regulates and defines our professional conduct, most of what we learn about professionalism as young lawyers comes from behavior modeled to us by older lawyers.

We are fortunate in the Wake County Bar to have a substantial contingent of senior lawyers who practice law with the utmost professionalism. This modeled behavior to young lawyers watching is one of the things that makes our bar so special. I remember a particular lesson learned from a senior lawyer of the bar for whom I had great deal of respect (mainly because he beat me most of the time). He was representing the other side in this hotly contested case where the key witness was a law enforcement officer. At the end of all the evidence and arguments, I thought for sure he had won another one. However, to my surprise the verdict went against him and his client. While I was happy to have won, the lesson I learned that day from him was far more meaningful to me. He thanked the court even though he had just received an unfavorable outcome for his client. He sought out and shook the hand of the law enforcement officer, whom he had just recently been grilling with tough questions during a well thought out and lengthy cross examination. Finally, as he passed me on the way out of the court room he softly spoke the words, “Good job.” Now this old trial lawyer had vigorously represented his client, but at the end of the trial, he accepted the result with poise and dignity and was not ill tempered as one might have expected him to be, or adversarial after it was all over.

The take away lesson for me was that this lawyer handled himself with the same professionalism in a loss as he did in a win. The professionalism that was modeled to me that day stuck with me. I find myself almost 18 years later trying to comport my behavior as a lawyer to that level of professionalism that was modeled to me back then.

As lawyers we should always conduct ourselves in a way that honors our profession. No matter where we are, or with whom we interact, it is essential to remember that we must conduct ourselves as professionals. I can only hope that I live up to that standard of professionalism modeled for me almost 18 years ago – for myself and for the young lawyers that may be watching me.

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