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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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Size Really Matters…Or Does It?

Posted By Colleen Glatfelter, Thursday, November 5, 2015

By Leanor Hodge, NC State Bar

I began my practice of law in two very large jurisdictions.  In many of the law firms in these jurisdictions, there were lawyers within the firms who never had occasion to meet or talk with one another.  The prosecutors’ offices in these jurisdictions were also sufficiently sized such that lawyers within these offices could go at least a year without meeting one another, and depending upon assigned duties, several years without having a need to communicate with one another again. 

Contrast my beginnings in the practice of law with my entry into the Tenth Judicial District Bar – a bar that was much smaller than the two in which I had practiced previously.  I recall conversations with members of the Wake County Bar who had been practicing for at least twenty years in which they recounted fondly stories of a time when the members of the bar who practiced in the courthouse would regularly get together for lunch.  These lawyers knew each other’s names, they knew the composition of one another’s families – they had a human connection.  The Tenth Judicial Bar was much smaller then.  By comparison, the Tenth Judicial District Bar was likely to be considered more professional and congenial than those from which I had come. 

It is very likely that the size of a bar contributes to the ability to maintain congeniality in the bar:  the larger the bar, the less congenial – the smaller the bar, the more congenial.  It is much more difficult to be rude and unkind to those with whom we have a human connection.  In contrast, it is easier to disregard those whom we don’t know and view as our adversaries.

The population of the Triangle has grown dramatically since I moved here sixteen years ago.  Likewise, the number of members of the Tenth Judicial District Bar has grown significantly since the days in which the courthouse lawyers would gather regularly for lunch.  The fact that the size of the bar has increased should not mean that congeniality among lawyers diminishes in proportion to the growth.  Part of a lawyer’s professional responsibility includes representing his or her clients while maintaining a professional, courteous and civil attitude toward all persons in the legal system, which would include opposing counsel.  I submit that it is easier to maintain a courteous and civil attitude to those with whom we’ve made a human connection.    What steps can you take to get to know your fellow lawyers a little better?  Regular lunch meetings at a downtown restaurant may no longer be feasible given the current size of the local bar.  However, you could attend a Wake County Bar luncheon or join a Wake County Bar or Tenth Judicial District Bar Committee.  Taking a little time to get to know your fellow lawyers can go a long way toward helping you fulfill your professional responsibility of courtesy toward your fellow lawyers.

~~~~~

 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole.

 

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Attorneys as Advisors: Be Advised

Posted By Colleen Glatfelter, Wednesday, October 21, 2015

By Howard A. Marsilio, La Mantia & Marsilio, PLLC – Raleigh, NC 

In this blog post, I would like to take a quick moment to reflect on what it means to be an Advisor. Being an Advisor to our client(s) is typically a fundamental role that attorneys assume on a day-to-day basis, in addition to our other traditional roles as advocate, negotiator, evaluator, and/or third-party neutral in some circumstances. 

The Preamble to the North Carolina Rules of Professional Conduct states “[a]s advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications.”  Arguably, the common thread that links us all together in this profession is that we have clients who are seeking our advice and/or opinions, whether it may be strictly legal advice, or advice which is tangential to their immediate legal needs (e.g. long-term consequences, financial impact, etc.). 

Determining the scope of advice to give a client can be difficult, and we should take a moment to think and consider what, when, how, and how much advice is provided to a client.  More often than not, the answer/advice is not simply found in the general statutes, case law, or some treatise on the shelf.  Rule 2.1 of the Rules of Professional Conduct explains some of the duties we owe to our clients in our role as an Advisor by further stating: “[i]n representing a client, a lawyer shall exercise independent, professional judgment and render candid advice.  In rendering advice, a lawyer may refer not only to law, but also to other considerations such as moral, economic, social, and political factors that may be relevant to the client's situation.”

After re-reading Rule 2.1 and the comments for this blog post, I decided to include these salient excerpts from the comments section, but encourage you to re-read Rule 2.1 for context.

  • “A client is entitled to straightforward advice expressing the lawyer's honest assessment.”
  • “. . . a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.”
  • “Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations such as cost or effects on other people are predominant.  Purely technical legal advice, therefore, can sometimes be inadequate.”
  • “. . . the lawyer's responsibility as advisor may include indicating that more may be involved than strictly legal considerations.”
  • “Where consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation.”

It seems to me that the language above appears to broaden the role of advisor, but contrast this with Comment 5 (excerpts below), which seems to narrow the role.

  • “In general, a lawyer is not expected to give advice until asked by the client,” unless as may be necessary pursuant to Rule 1.4; and
  • “A lawyer ordinarily has no duty to initiate investigation of a client's affairs or to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client's interest.”

The question becomes, how much advice is too much advice?  Clients may not want bad news, or at times they may not want the responsibility to make the tough decisions themselves (clients seem to love asking “well what would you do if you were me?”).  Giving advice to a client may be second-nature to some, but it is a skill which requires improvement and needs to be honed constantly.  No attorney wants to be wrong, but I sometimes wonder if an attorney that is afraid to provide relevant advice in fear of not being right is as helpful as an attorney who is prepared to provide more advice and information or pose questions to a client to better inform them in making decisions.  The best advice to attorneys, when taking on the role of an advisor and giving advice, is to advise thoughtfully with Rule 2.1 in mind.

~~~~~

 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole.

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Do You Play to Your Competition?

Posted By Colleen Glatfelter, Monday, September 28, 2015

By Ryan Shuirman, Yates, McLamb, & Weyher, L.L.P.  

            At a recent interview with a would-be summer associate, I heard a phrase you have probably heard from many young lawyers looking to demonstrate a burning desire to be in a courtroom: “It’s the competitive nature of litigation which assures me that I want to be a litigator.”  Acknowledging that our 20-minute interview was likely not the appropriate time for us to discuss the professional implications of seeking competition in all aspects of work, this student’s comment left me pondering just what it meant to be an effective competitor in our adversarial system.

            In interviews with potential summer associates and bar exam candidates and in discussions with court reporters around the country, I take pride in describing a congenial working relationship with opposing counsel in Wake County specifically and North Carolina generally, at least in the practice area in which I most commonly find myself.  While it surely is competitive, the overriding expectations of doing things the right way and treating opposing counsel with respect just plain makes our work that much more pleasant.  I frankly cannot imagine devoting such time and effort to a career which was intentionally unpleasant. 

            I remember a deposition I attended in Texas a few years ago in which my opposing counsel was eliciting the opinions of an expert I had retained.  The deposition went smoothly, and at its conclusion the court reporter asked me if we were “really” done.  I must have looked confused since I thought us going off the record sent a clear signal the deposition had finished.  The court reporter “really” was wondering how we could conclude a deposition without someone arguing, one lawyer accusing the other lawyer of misleading the witness, or one lawyer threatening to end the deposition prematurely.  Perhaps the “competitive spirit” reigns supreme in the Lone Star state.

            Capitalism tells us competition is good, and it certainly plays some role in all litigation.  Clients, in most cases, want someone to fight for them, and I’d like to think that we are all willing to fight for our clients when that is what they want us to do.  But if a would-be litigator is primarily attracted by the competition inherent in litigation, then it seems that would-be litigator is destined to create a practice which makes life unpleasant for him or her and the rest of us.  In the end, competition with a healthy dose of professionalism should not only produce the right results for our clients, but also help us make our daily work that much more pleasant.

~~~~~

 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole.

 

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GRADE YOUR CASE TONE HERE!

Posted By Colleen Glatfelter, Thursday, September 17, 2015

By Ted Smyth, Cranfill Sumner & Hartzog LLP

 

Good Friends

(Affirmative, Consistent, Unrelenting Cooperation)

Friendly

(Helpful)

Neutral

(By the book, but not uncooperative)

Unfriendly

(Passive-Aggressive, Not Helpful)

Vicious

(Affirmative, Unrelenting War-like Acts)

A Good Day

 

 

 

A Bad Day

 

            The chart above is pretty much self-explanatory.  I will make the case that the further up the chart you can operate with opposing counsel and co-counsel, the better your life will be and probably the less expensive your bill will be.  Not everyone can operate in Good Friends territory, but I submit that starting at Friendly rather than at Neutral should be a default setting, as it is harder to move to Friendly after starting in Neutral or Unfriendly.  Also, if one starts at Friendly, it is a longer journey to get to Vicious.  Good Friends is still popular and possible for large segments of our Bar, particularly in areas where the Bar is specialized or operates in a confined geographic area, where lawyers work with each other over multiple cases or matters and develop a rapport and a self-reinforcing code of conduct.  Is there Unfriendly and Vicious in this world?  Sure.  It seems to be associated more prevalently with out-of-state or widespread geographic dispersal and/or large sums of money at stake and/or randomly poor interpersonal match ups of competing personalities.

          Many of the indicia for scaling tone involve simple everyday matters of scheduling and accommodation.  Starting at Friendly is helpful to one’s life.  It is, of course, a two-way street by necessity, and one lawyer’s unexpected funeral of an uncle might be just six weeks before opposing counsel’s daughter’s serious and unexpected automobile wreck.  Both would hopefully involve voluntary last-minute accommodation.

          Is it ethically okay to be Friendly if not Good Friends?  Thank goodness, yes.  This is specifically envisioned in Rule of Professional Conduct 1.2(a)(2) and (3) wherein a lawyer is granted authority to accede to “reasonable requests of opposing counsel that do not prejudice the rights of a client, by being punctual and fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.”  Further, from Rule of Professional Conduct 1.2, “a lawyer may exercise his or her professional judgment to waive or fail to assert a right or position of the client.”  However, one cannot go too far in this regard or a client may suffer.  Thus, while it appears to be okay for a lawyer to contact an opposing lawyer who failed to file an answer on time to remind the other lawyer of the error and to give the other lawyer a last opportunity to file the pleading (see RPC 212), on the other hand, an attorney cannot go so far as to waive the statute of limitations without the client’s consent.  (See RPC 118).

          At the other extreme at the Unfriendly and Vicious end of things, there are lines that should never be crossed no matter what (thank goodness).  These are often found in procedural rules such as Rule 11 and Rule 37 of the Rules of Civil Procedure, as well as in Rule of Professional Conduct 3.4, which lists many things that hopefully no one would ever think about doing (such as falsifying evidence or assisting a witness to testify falsely, for example), as well as “obstructive tactics in discovery procedure, and the like”.  (See Rule of Professional Conduct 3.4 and Comment [1]).

          It is your space.  It is your decision how to live in it.  You reap what you sow.  From my perspective, I hope you have A Good Day and that our adversarial work on this case will not affect the scheduling of either of our vacations or dealing with an unexpected family emergency.  And you were right, that restaurant you recommended was great!

~~~~~

 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole.



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What Lawyers Do When Nobody’s Watching: Professionalism in Depositions

Posted By Colleen Glatfelter, Monday, August 31, 2015

By Carmen Bannon, N.C. State Bar

 

Many quotable people have suggested that your character is revealed by what you do when nobody's watching.  Litigators should consider that maxim every time they walk into a deposition.

 

Unfortunately, depositions are a hotbed of unprofessional behavior.  One need only spend a few minutes on YouTube to see incontrovertible evidence that lawyers do and say things in depositions that would be unthinkable in a courtroom.  Without a judge, jury, or members of the public present, some lawyers feel oddly emboldened to mistreat litigants, witnesses, opposing counsel, and even court reporters.  Within the last year, I've heard about North Carolina lawyers who shouted and cursed at deponents, insulted the credentials and abilities of opposing counsel, and made sexual innuendoes toward the court reporter--all in the semi-private confines of a deposition.  I have read many deposition transcripts in which a lawyer treats a deposition as an opportunity to bully and insult the deponent.  Even more frequently, opposing counsel obstructs a lawyer's ability to conduct the deposition by constantly interjecting editorials in the form of speaking objections.

 

This phenomenon is widespread.  It has been noted, lamented, and analyzed the American Bar Association and many jurisdictions’ bars. E.g., "Professionalism Undermined by Misconduct in Deposition"; "How Low Can You Go?”; "Professionalism in Depositions: The Sound of Silence" ; "Restoring Civility to Depositions in an Anything-Goes World"

 

In thinking about this issue, two very different depositions from my first years of practice came to mind:

 

During the first deposition I ever took, opposing counsel asked if we could "go off the record." I was under the impression that to say "no" or “not yet” would be discourteous. Seizing on this rookie mistake, he capitalized on my inexperience by repeatedly going "off the record" to coach his client.  I had a sense that this wasn't the way things were supposed to go, but lacked the wherewithal to regain control of the situation. While I now appreciate the valuable lesson I learned from this lawyer, I am underwhelmed by how he chose to behave when no one was watching.

 

Sometime later, I took a deposition in a case where I had a friendly relationship with my (considerably more experienced) opposing counsel. He allowed me to ask my questions without interference, but my questions weren't always particularly good. At one point, I was fumbling around trying to ask the deponent about a document, and opposing counsel interjected a few questions to help make sure the document would be identifiable on the record.  Immediately thereafter, the following exchange took place:

  

Me:                                   Yeah, I’m sorry I didn’t ask the appropriate questions about that.  Just – just to make sure we’ve got it on the record, Exhibit 125 is a bank statement for your operating account?

Witness:                           Yes, Ma’am, Yes, Ma’am.

Me:                                   And did you actually—

Opposing Counsel:       You might want to go one more.  And that statement is for the period from February 1, 2007 through February 28, 2007?

Witness:                          Yes, sir.

Opposing Counsel:       Okay.

Me:                                   What would I do without you?

Opposing Counsel:       I know.

 

[Smiles]

 

In that small moment, when nobody was watching, a lawyer revealed something about his character. It's not exactly true that no one was watching: I was. And I learned something about the kind of lawyer I wanted to be.


~~~~~

 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole.


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2013 Formal Ethics Opinion 8

Posted By Colleen Glatfelter, Monday, August 17, 2015

By Dan Johnson, Professionalism Committee Member

 

Like most professions, some lawyers suffer from significant mental health and substance abuse issues.  The State Bar has set out the responsibilities of other attorneys in a firm with an impaired lawyer. 

 

2013 Formal Ethics Opinion 8 instructs partners and supervising attorneys about their duty when they become aware that a lawyer in their firm is suffering from a mental impairment that materially impairs the lawyers ability to competently represent firm clients.  Supervising lawyers must make reasonable efforts to ensure that the firm's lawyers comply with the Rules of Professional Conduct.

 

Depending on the severity and likelihood of recurrence of the mental impairment, the firm may be obligated to supervise the legal services performed by the impaired lawyer and may be obligated to prevent the impaired lawyer from providing legal services to firm clients.  Making a confidential report to the bar's Lawyer Assistance Program is also an appropriate step.

 

If the impaired lawyer's conduct is of such magnitude that it raises a substantial question as to the lawyer's fitness as a lawyer, the partners or supervising lawyers with knowledge have a duty to inform the State Bar while preserving client confidential information.  Every effort must also be made to mitigate the adverse consequences to the client of the impaired lawyer's conduct.

 

This Ethics Opinion is lengthy and should be read in its entirety.  This article is meant to be an alert regarding this important topic.

 

~~~~~

 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole.

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What Makes a Mentor Great?

Posted By Colleen Glatfelter, Thursday, July 30, 2015

 By Megan West, Campbell University School of Law

 

“A role model in the flesh provides more than inspiration; his or her very existence is confirmation of possibilities one may have every reason to doubt, saying, “Yes, someone like me can do this.”

Justice Sonia Sotomayor

Associate Justice, United States Supreme Court

 

No single recipe exists for what makes a mentor great.  Many elements impact the mentoring relationship, not the least of which is the respective abilities, personalities, and aspirations of the mentor and their mentee. 

The nature of the mentoring relationship has changed.  In the past, mentoring served more as an apprenticeship, with the mentor providing the mentee with missing knowledge and pertinent philosophies.  Now millennial-aged mentees are expected to take the initiative with their mentorships, to be resourceful, and to be on the leading edge with new technologies.  This creates a more symbiotic, less hierarchical mentorship blueprint.

There are several characteristics that distinguish a truly great mentor: 1) humility – approaching a learning/teaching opportunity with an attitude of authority inhibits discussion and debate, which are invaluable learning tools for mentees and mentors; 2) respect for individuality – working collaboratively demonstrates mutual respect for the years of study, training, and inherent abilities of both mentor and mentee; and finally, 3) mentors who recognize that the professional development and growth of their mentee has led to that mentee’s success.

Campbell Law Connections mentees clearly acknowledge the important role their mentors play in the success of the mentorship experience.  Mentees were at first surprised, and then honored, by the fact their mentors seemed to gain equally as much from the relationship as the mentees.

 “I liked how she never made me feel as if I [were] a burden to her….  She was very easy to talk to and focused on me as a human being and aspiring lawyer.  I also loved how culturally aware she is and how she isn’t afraid to talk openly about issues of race and poverty and hindrances to access.”

“He went above and beyond in meeting regularly, scheduling events which related to my interests and in offering encouragement and advice.”

“We had a great connection based on interests in legal fields and in teaching.  My mentor’s demeanor, professionalism, and drive matched the type of lawyer that [I] can only aspire to be.”

“I am indebted to my mentor with a debt I cannot repay.  I can only pass it on, which I intend to do once I gain some experience worth sharing.”

Campbell Law Connections mentorship program will kick off the 2015-16 program in August, and is open to third year students at Campbell Law and newly minted attorneys in the Wake County Bar Association/10th Judicial District, who have been practicing less than three years.

Connections is always looking for mentors who have been in practice at least five years and are members of the 10th.  If you are interested in participating either as a mentee or mentor, please contact Connections’ director, Megan West, at westm@campbell.edu.

~~~~~

 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole.


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Preparing for the Unexpected - an Ethical Duty

Posted By Colleen Glatfelter, Wednesday, July 15, 2015

 By Stacey A. Phipps, Solo Practitioner  

As an attorney and presumably responsible adult, you have taken steps to provide for your family in the event of an emergency.  You have probably drafted a will, purchased life and disability insurance, and perhaps even set up a trust for your children.  You’ve got an organ donor card and a healthcare power of attorney.  But what have you done to protect your clients and your practice?

Rule 1.3 of the North Carolina Rules of Professional Conduct provides:

A lawyer shall act with reasonable diligence and promptness in representing a client.

Comment 5 arguably applies a heightened duty for sole practitioners to "prevent neglect of client matters.”

To prevent neglect of client matters in the event of a sole practitioner's death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer's death or disability, and determine whether there is a need for immediate protective action. Cf . 27 N.C.A.C. 1B, .0122 (providing for court appointment of a lawyer to inventory files and take other protective action to protect the interests of the clients of a lawyer who has disappeared or is deceased or disabled).

What did your office look like when you last left it?  Could "another competent lawyer” come in and triage your cases, contact your clients, and collect your receivables to pay your bills?  Would someone be able to pay your staff, make their payroll tax deposits or keep their benefits active?  Would your spouse be burdened with addressing these issues?

I have thrice been appointed by the court to wind down the practices of attorneys who became disabled or were disbarred.  Let’s just say it wasn’t pretty.  While an appointed trusteeship assists clients, it is not intended to protect the firm, its reputation, its employees, or its assets.  And, even if your unavailability is temporary, the trustee’s job is to shut down the firm.  The firm may even be billed for the trustee’s hours.

To prevent this scenario, you can develop a plan to have an "assisting attorney” designated to step in, in the event of your death or disability.  This individual can perform some of the same tasks as a trustee, but with an eye toward protecting you, in addition to protecting your clients.

Here are some steps you can take:

1.      Select an Assisting Attorney.  Ideally, it should be someone who has the same type of practice as you.  Perhaps a reciprocal agreement can work –"I’ll cover yours if you cover mine.”  Depending on your area of practice, there may be conflict of interest challenges (especially in family law or intellectual property).

2.      Introduce the Assisting Attorney to your staff and significant others.  They need to know where this person can be reached, and the scope of the assistance he can offer.  You may even want to reference the Assisting Attorney in your will.

3.      Give the Assisting Attorney a tour.  Show her where everything is in your office and explain your system.  Map your filing cabinets:  "Closed files are in this closet and everything pre-2012 is in the basement.  Civil files are here and criminal files are there.”  Are things alpha, by case number, by some other system?  Where are oversize materials?  Is anything locked up?

4.      Check the language in your fee agreements or engagement letters.  Do you have boilerplate which allows another attorney to take over in an emergency?  If you are a solo, you can even use this as a marketing tool.  "While I’m a sole practitioner… I want you to know I’ve taken steps to ensure your interests are protected…”

5.      Develop and update periodically an office procedures manual.  It doesn’t have to be fancy.  List items like who controls the website (and can edit it in an emergency), and how to modify the voicemail greeting.  Do you receive mail at a P.O. box and a street address?  How about a courthouse mailbox?

6.      Include in the manual how you handle calendaring and deadline or statute of limitation management.  Do you have a password-protected system?  Are paper copies where someone can find them?

7.      Include how to access your file/case management system.  Whether it is old-fashioned index cards or something like Clio or Needles, someone in addition to you needs to know where it is and how it works.  Can a list of clients and current contact information be generated or is a printed list available?

8.      Keep time and billing records up to date.  Again, this is something to reference in your manual.  Your assisting attorney may need to pay bills, pay staff to assist, or just keep the lights on.  She can’t do that if there is no money coming in and no way to send client statements or collection letters.  How are you tracking client advances and what is the policy for billing for them?

9.      Have a policy for retaining or returning client originals.  In my trustee work, large-scale shredding of unclaimed files was necessary as there were no funds to store such files.  Although attempts were made to identify and return original documents, it simply wasn’t feasible to go through every closed file.  If you have originals of legal significance, your assisting attorney needs to know how to identify them and where they are kept.

10. Identify your banking procedures.  At minimum, have a list of account numbers and banks available so your assisting attorney knows where to begin.  (It is not suggested that you provide your assisting attorney with PIN or online banking access.)  Who is your CPA?  What auto-drafts or auto-renewals are in place?

11. List procedures specific to your practice areaIf for example, you are a personal injury attorney, how do you track medical record requests?  How do you track liens?  If you are a real estate attorney, how do you track the deadlines associated with closings?  For criminal defense practices, how do you handle payment of court costs and reconciling your trust account for earned fees upon case completion?

12. Inform your malpractice carrier about your plan and identify your Assisting Attorney.  Related to that, you may want to explore "tail coverage” options.*

13. Update your plan annually.

*Because of my trustee work and my experience as a sole practitioner, I served as a member of Lawyer’s Mutual’s "HELP Team” (Handling Emergency Legal Problems).  Resources developed by this group are available on the LM website.

Taking these steps will ensure that your clients’ and your interests will be protected, should you have an unexpected, extended leave from your practice.  

About the Author:

Prior to entering private practice in 2010, Stacey A. Phipps spent 17 years in North Carolina state government, including several years as an Assistant Attorney General where she litigated personal injury, medical malpractice, and workers compensation claims.  She currently practices primarily in the area of plaintiff’s civil litigation, including auto accident and other negligence cases.  Stacey also offers law practice consulting services targeting attorneys in transition (retirement, winding down, disability).

Stacey earned a Bachelor of Science in Elementary Education at the University of Arkansas in 1990, and a Juris Doctor from the North Carolina Central University School of Law evening program in May 1999.

~~~~~

 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole.

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Representing Children: Spotlight on The Child’s Advocate

Posted By Colleen Glatfelter, Tuesday, June 30, 2015

By Stephanie D'Atri, Loebsack & Brownlee, PLLC 

 

Children deserve to have custody proceedings conducted in the manner least harmful to them and most likely to provide judges with the facts needed to decide the case” – American Bar Association Section of Family Law Standards of Practice for Lawyers Representing Children in Custody Cases (August 2003)

 

There are several often-confused roles of an attorney representing or advocating for children:  (1) Child’s Attorney; (2) Best Interests Attorney; and (3) Guardian ad Litem.  The latter, a child’s Guardian ad Litem (“GAL”), is usually a non-lawyer volunteer who is appointed by the court in child abuse, neglect, and dependency (“AND”) cases pursuant to N.C. Gen. Stat. § 7B-601(a).  This role is not optional; our statutes actually require the judge to appoint a volunteer GAL in AND cases.  This type of GAL can be a lawyer, but GALs are not obligated to (and shouldn’t) perform any lawyer-related functions.  Before I started my legal career, I became a GAL for abused, neglected, and dependent children – I investigate the child’s circumstances, write court reports about my observations, and testify about what I believe is best for the child, even though the child to whom I have been appointed may have an entirely different position about where he or she is to be placed and/or with whom.  I am precluded from objecting and must instead sit quietly and respond to another lawyer’s questions.  A very strange feeling for a zealous attorney… But it’s also been one of the most rewarding jobs that I’ve ever had.

 

I mention this very well defined role of a GAL in AND cases because it is quite different than the attorney roles of advocating for or representing a child – i.e. the actual subject of the proceeding – in custody cases.  You certainly don’t see attorneys representing a parcel of land in a land dispute or the house in a foreclosure proceeding, so why is it that we now have attorneys representing non-party children in high conflict child custody cases? 

 

High conflict cases are just that – high conflict – and very litigious.  The parents are in an emotional war over who gets primary custody of their beloved child, each distorting facts and positioning themselves in ways that make them look like the better parent to the presiding judge.  The child often gets caught in the middle and becomes a bargaining chip and prize for the “winner.”  But who is there to look out for the child’s wishes and interests and to make sure that his/her voice is heard too? 

 

It is this question that propelled the “Child’s Attorney” into existence.  Custody judges can only decide cases based on what is presented to them – and they may never get all of the information relevant to the child’s long-term success, particularly in a situation with two pro se litigants.  Having an independent lawyer for children in high conflict custody cases often prompts voluntary settlements between the parties, thereby reducing litigation, costs to the litigants, and court resources, which ultimately saves valuable taxpayer dollars.  If the case does ultimately reach the trial stage, then the lawyer for the child can provide timely and reliable information to the judge about the child’s wishes so that the best result for the child’s custody placement is achieved. 

 

Many states have been appointing attorneys to represent children in custody proceedings for years and have quite well-developed and effective systems.  While our North Carolina statutes do not specifically provide for the appointment of a lawyer in this high conflict custody scenario, a 2003 ABA publication suggests that the role is not only allowed, but is particularly important for the judge when conducting a best interests analysis (http://www.americanbar.org/content/dam/aba/migrated/domviol/pdfs/0908/Standards_of_Practice_for_Lawyers_Representing_Children.authcheckdam.pdf). 

 

Our North Carolina Supreme Court may have actually contemplated the role of a Child’s Attorney and its importance in deciding custodial arrangements almost 139 years ago:  “We think the boy was a competent witness, and ought to have been examined in that character. Indeed, we think, being the party mainly concerned, he had a right to make a statement to the court as to his feelings and wishes upon the matter, and that this ought to have been allowed serious consideration by the court, in the exercise of its discretion, as to the person to whose control he was to be subjected.”  Spears v. Snell, 74 N.C. 210 (1876).  About a century later, the North Carolina Supreme Court reaffirmed its position that children have a right to be heard and have their wishes considered in most circumstances.  See In Re Peal, 305 N.C. 640 (1982).

 

In addition to this authority, our N.C. State Bar also recently adopted 2012 Formal Ethics Opinion 9 to provide some clarification on this unique role and on how this type of lawyer should manage his or her representation under our Rules of Professional Conduct (http://www.ncbar.com/ethics/printopinion.asp?id=868).  It specifically requires the lawyer to decline representation unless the court’s appointment order very clearly identifies his or her roles and responsibilities throughout the litigation.  Notably, the ethics opinion “does not address or seek to question the authority of a court to appoint a lawyer to represent a child in a contested custody proceeding” and simply clarifies that lawyer’s duties.

 

So what exactly is a Child’s Attorney, as distinguished from a Best Interests Attorney?  In short, a Child’s Lawyer must operate in a very traditional client-centered role – he or she has a fiduciary duty to take and argue positions as expressed by his or her client unless such a position would “seriously endanger” the child-client.  If the child takes a position that would be contrary to his or her interests but may not necessarily put the child in harm’s way, then the Child’s Attorney must counsel the child, just as he or she would with any other client, so that the child is able to make informed, meaningful decisions about his or her wishes.  Even if the child’s wishes are ultimately not granted, the opportunity to be heard creates a lasting sense of respect for the legal system.  A Best Interests Attorney, as distinguished from the Child’s Lawyer, would not be bound by the child’s wishes and would instead advocate for positions that are squarely in line with what the GAL deems is the best interests of that child, even if the child disagrees or articulates an entirely opposite position.  

 

The increasing appointment of attorneys to children in Wake County in particular is a direct result of Attorney Sally Scherer’s foundation of The Child’s Advocate (TCA).  With the support of local family court judges, Scherer founded TCA in 2008 so that a skilled group of attorneys could represent these voiceless children in high conflict custody cases.  After TCA merged with Legal Aid of North Carolina, Inc., in 2014, its focus has been on recruiting and training additional attorneys from the private bar to help represent the growing number of children in need of an independent advocate.  As TCA continues to garner tremendous support from lawyers in the family law bar – who have increasingly recognized the importance of providing a lawyer for children caught in the cross-fire of custody litigation – more children will now have their voices heard through attorneys who can leverage settlements between parents, call and question witnesses at trial, and argue the children’s wishes to the court.  After all, shouldn’t their wishes be given some consideration when the children are themselves the very subjects of the custody litigation? 

 

For more information on TCA, their website is as follows: http://www.thechildsadvocate.org/.  If you are interested in volunteering for this important role, please email TCA’s managing attorney, Suzanne Chester, directly at SuzanneC2@legalaidnc.org.

 

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 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole.

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Help, I need somebody! – Part Three

Posted By Colleen Glatfelter, Monday, June 15, 2015

by Leslee Ruth Sharp, Sharp Law Offices, Raleigh, NC 

 

In the previous two blogs of the same title, information was provided on NC LAP, CPM and BarCARES.  This final blog presents information on other organizations and programs that benefit lawyers including TLC and PSI.

 

 

TLC, Transitioning Lawyers Commission was originated by the Senior Lawyers Division.  Like CPM, it has been designated as a lawyer assistance program by the North Carolina State Bar.  So, it is free and confidential!  The goal is to assist lawyers near the end of their career wind down their practice, and help each attorney transition from the practice of law to the next phase of his or her life.  This might mean identifying the best way to slow down and ultimately retire with dignity and grace;  identifying a loss in cognitive skills that require taking certain steps  to transfer responsibilities in the practice; or looking for the best means to sell the practice to a young attorney.  Learn more at https://www.ncbar.org/members/committees/transitioning-lawyers-commission/.

 

 

Last but not least, there is PSI, the Professional Support Initiative Program.  PSI is an informal voluntary local lawyer and judge assistance program that handles client-lawyer, lawyer-lawyer, and lawyer-judge issues.  Oversight is through The Chief Justice's Commission on Professionalism which encourages judicial districts to set up these voluntary programs.  For more information see, http://nccourts.org/Courts/CRS/Councils/Professionalism/PSI.asp.

 

As you can see from the information presented in this blog series, within both the North Carolina State Bar (mandatory) and the North Carolina Bar Association (voluntary) are sections, committees and commissions you can join, become a member of, or get elected to which emphasize different practice areas to assist you with the nuts and bolts of practice or specific aspects related to quality of life.  As I see it, the groups discussed above are designed not only to assist you with the technical aspects of your practice, but to assist you in maintaining the ethical and professional appearances of the practice of law and our legal community; those nebulous criteria that have less to do with knowing the elements of the cause of action and more to do with how your colleagues and the public perceive each of us in our service.  When you discover that you, a friend or a colleague needs help getting your feet back on the ground, one of these groups may be just the help you need, all you have to do is visit the website to open the door. 

 

 

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 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole.

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