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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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NY Ethics Opinion on LinkedIn

Posted By Colleen Glatfelter, Tuesday, March 31, 2015

NY Ethics opinion rules that lawyers must monitor their LinkedIn endorsements for accuracy, should not use “specialties” section unless they have a certification, and may need to include a results disclaimer, depending on the site’s content.

http://www.abajournal.com/news/article/does_your_legal_linkedin_profile_have_off_base_endorsements_ethics_opinion/?utm_source=maestro&utm_medium=email&utm_campaign=tech_monthly

 

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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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Spotlight on Professionalism

Posted By Colleen Glatfelter, Monday, March 30, 2015

By Elizabeth L. Oxley, Attorney, Raleigh, North Carolina

 

As a way to recognize and encourage high standards of professionalism among members of the 10th Judicial District, the Professionalism Committee of the Wake County Bar Association (WCBA) has initiated a program called, “Spotlights on Professionalism.”  At its quarterly meetings, the Committee recognizes and presents a commemorative plaque to an attorney whose actions or efforts exemplify and promote qualities of professionalism.  The program focuses on an attorney’s individual acts or efforts to promote professionalism, as opposed to an attorney’s entire career doing so, which is the focus of the esteemed WCBA Branch Professionalism Award.  Nomination forms are available on the WCBA website and can be completed and submitted to the committee.

 

The first recipient was Melvin F. Wright, Jr.  Mr. Wright is the Executive Director of the North Carolina Chief Justice’s Commission on Professionalism.  He developed and administers the Commission’s “Professionalism Support Initiative” (PSI).  The purpose of PSI is to promote professionalism and thereby bolster the public’s confidence in the legal system.  This program is designed to offer counsel and assistance when an attorney’s behavior is less than professional yet not a violation of a professional rule.  In most cases, Mr. Wright and another attorney visit the attorney to discuss any apparent breaches of professionalism in an effort to informally resolve the problem.

 

Thomas C. Worth, Jr., was the second attorney whose work was recognized with the Spotlight on Professionalism.   Mr. Worth took the very unusual--perhaps unprecedented--step of volunteering to be appointed to serve as trustee to wind down and close the practice of an attorney who had died suddenly and unexpectedly.  For more than two years, Mr. Worth spent many hours contacting all the deceased attorney’s former clients, finding representation for clients who needed it, and closing the trust account.  

 

Carmen H. Bannon, Deputy Counsel for the N. C. State Bar, received the third Spotlight on Professionalism.  Carmen has made numerous outstanding ethics and professionalism CLE presentations to WCBA members, and has developed, planned and supervised the WBCA’s Professionalism Roundtable ethics CLE for many years. 

 

The fourth recipient of the Spotlight on Professionalism was attorney Paul Suhr.  Mr. Suhr developed and has coordinated the WCBA Lunch with Lawyer Program for twenty years.  In an effort to provide a positive role-model for at-risk youth, this program schedules lunches between volunteer attorneys and high school students.

 

Nicolette Fulton, an attorney with the City of Raleigh, received the most recent Spotlight on Professionalism.  Ms. Fulton coordinates the “Rule of Law” program for the WCBA, an annual event in which area high school students participate in a moot court contest and are coached by attorneys and judged by actual judges.  The goal of the program is to promote an understanding of the U. S. legal system, which is based on a settled body of law.

 

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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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Think Before You Link: New NC Ethics Opinion on Social Media Connections

Posted By Colleen Glatfelter, Wednesday, March 18, 2015

By Doug Brocker
The Brocker Law Firm
& Professionalism Committee Chair

The Ethics Committee has now adopted an opinion about the propriety of making and accepting invitations to connect and endorsements from judges and others on social media sites.  2014 FEO 8.  You can view the entire opinion by inserting the opinion number @ http://www.ncbar.gov/ethics/ethics.asp.  The opinion distinguishes between two types of “links” and also by who is making them-- a judge or a lawyer.  For the first category – connections -- the adopted opinion holds that an attorney may ordinarily accept an invitation to connect from a judge.  Opinion #1.  The lawyer generally also may send an invitation to connect with a judge.  Opinion #2. 

The opinion warns that if the attorney is currently in proceedings before the judge at the time of the invitation, however, the Rules of Professional Conduct may require the lawyer to decline the invitation until the proceedings have concluded.  The lawyer must determine whether acceptance of the invitation during the pendency of a case will: (a) impair the lawyer’s ability to comply with the Rule 3.5 concerning ex parte communications and (b) amount to conduct that is prejudicial to the administration of justice in violation of Rule 8.4(d), among other Rules. 

Ultimately, the opinion directs lawyers to be mindful of their obligation to protect the integrity of the judicial system and to avoid creating an appearance of judicial partiality.  The same criteria apply when deciding whether to send an invitation to a judge to connect. Opinions #1 and 2.  Based upon this opinion, the safest course is to wait to connect with a judge until you are not appearing before that judge, if possible.

The next part of the opinion deals with endorsements and recommendations.  On LinkedIn, you have an option to display your “skills & expertise” on your profile page.  Your connections can then endorse a skill or expertise for you and you get a notification of the endorsement.  If you do nothing, and the endorsement is for a skill you have selected to show, then that endorsement automatically will appear on your profile page.  You may edit the “skills & endorsements” section to “hide” selected endorsements or skills.  People can also post recommendations on your profile page.    

Why is all of this important?  The proposed ethics opinion says that it is okay to endorse a judge for skills or expertise (assuming you are not currently appearing before them).  Opinion #3.  Likely, this is permitted because it is really no different than sponsoring a judicial campaign or being listed publicly as a donor.  The lawyer also may accept endorsements and recommendations from persons other than judges as long as they are truthful and not misleading.  Opinion #5.   

The opinion, however, holds that an attorney may not accept an endorsement from a judge under any circumstances or at any time because it would create the appearance of judicial partiality in violation of Rule 8.4(e).  Opinion #4.  Further, if a person who endorsed you later becomes a judge, you are required to remove or hide the endorsement from your profile if you know or reasonably should have known the person is or became a judge.  In the final adopted opinion, the State Bar added the reasonableness qualifying language.  Opinion #6.    

Although the opinion primarily concerns the use of LinkedIn, it also applies to any social media site that allows public displays of connections, including endorsements or recommendations.  Opinion #7.    After reading the final opinion and before posting this blog, I decided I needed to figure out how to check my LinkedIn profile for people that may have become judges and might have endorsed or recommended me at one time.   Fortunately, no current judges endorsed me on LinkedIn so I didn’t have to learn how to hide or remove any.  Now I am off to figure out how to get onto our firm Facebook, Twitter and Google+ pages to check them as well.  Whose idea was it to set up all these social media sites anyway?   

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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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Campbell Law Connections Mentor Program

Posted By Colleen Glatfelter, Friday, February 27, 2015
Updated: Tuesday, March 3, 2015

By Megan West, Attorney, Campbell University School of Law

“Tell me and I forget, teach me and I may remember, involve me and I learn.”  

-- Benjamin Franklin

Campbell Law Connections mentor program, which pairs highly-qualified attorneys with our third-year students and newly-minted attorneys in Wake County, holds this as a central tenet.  The goal is not just to establish mentoring relationships that last a year, but symbiotic and progressive bonds that last a lifetime. 

This sort of outreach is also at the core of the North Carolina State Bar’s Rules of Professional Conduct, which state:

As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice, and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law, and work to strengthen legal education. (emphasis added)

In 1997, the Wake County Bar Association/10th Judicial District adopted a Creed of Professionalism, which holds in part:

The practice of law must be motivated by service rather than inspired by profit….  My word is my bond.  Integrity is an absolute.  Fairness and civility are essential….  To my colleagues in the practice of law, I offer concern for your welfare.  As we work together, I will respect your personal and family commitments.  I will share my learning and experience so that we may all improve our skills and abilities. (emphasis added)

Connections asks mentors to work with their mentees to complete six activities over the course of the academic year for an average total commitment of only 20 hours.  Mentee activities range widely from attending a WCBA meeting, drafting or reviewing sample pleadings, attending court hearings, and participating in pro bono efforts like a wills clinic for low-income citizens. 

Connections is looking for mentors who have been in practice at least five years and are members of the WCBA/10th to work with and provide learning opportunities to motivated third-year law students and attorneys who have been in practice less than three years.  For more information, please contact Megan West at westm@campbell.edu or 919-865-5875.

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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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Taking Steps to Prevent Hacking - A Change to the N.C. Rules of Professional Conduct effective October 2, 2014

Posted By Colleen Glatfelter, Thursday, February 19, 2015

By Dan Johnson, Professionalism Committee Member 

 

It appears there is now an express ethical duty to take reasonable steps to prevent hacking of client data.

 

Rule 1.6 (c) was added to the N.C. Rules of Professional Conduct stating: 

 

“(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”

 

Comment 19 to Rule 1.6 was re-written to state:

 

[19] Paragraph (c) requires a lawyer to act competently to safeguard information acquired during the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1, and 5.3. The unauthorized access to, or the inadvertent or unauthorized disclosure of, information acquired during the professional relationship with a client does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). A client may require the lawyer to implement special security measures not required by this Rule, or may give informed consent to forgo security measures that would otherwise be required by this Rule. Whether a lawyer may be required to take additional steps to safeguard a client’s information to comply with other law—such as state and federal laws that govern data privacy, or that impose notification requirements upon the loss of, or unauthorized access to, electronic information—is beyond the scope of these Rules. For a lawyer’s duties when sharing information with nonlawyers outside the lawyer’s own firm, see Rule 5.3, Comments [3]-[4].

 

So, taking reasonable steps to preventing unauthorized access to law firm computers appears to have evolved from an implied requirement or best practice to an express provision in the Rule and Comments.  

 

NOTE:  All of the State Bar’s October 2014 changes can be seen at this link:  http://www.ncbar.com/2014_RPC_final.pdf

 

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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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Our Learned Profession—Keep Learning to Succeed

Posted By Colleen Glatfelter, Friday, January 30, 2015

By Elizabeth Oxley, Attorney at Law, Member, WCBA Professionalism Committee

A law school professor told us that the first and the great commandment in law practice is, “Read the statute,” and the second is like unto it, “Re-read the statute.”  These commandments apply to rules, regulations, judicial opinions, and any other legal authority, as well as to facts contained in documents or in notes from conversations with clients.  Thoroughness in preparation of a case yields great results for lawyers and their clients.

 

As recommended by the North Carolina Chief Justice’s Commission on Professionalism, a third commandment is that, at the beginning of each new year, all lawyers read the Rules of Professional Conduct, and that all judges read the Code of Judicial Conduct.  

 

The fourth commandment could be, as our beloved Raleigh attorney Robert McMillan does, each day to read the Bill of Rights—the amendments to the U. S. Constitution.   The U. S. Constitution and the Bill of Rights are the foundation of our great legal system and of our cherished learned profession.

 

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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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All I Really Need to Know About Professionalism I Learned in Kindergarten

Posted By Colleen Glatfelter, Monday, January 12, 2015

By Carmen Bannon, N.C. State Bar 

OK, perhaps not everything—not the legal profession’s long history of adversaries who “strive mightily, but eat and drink as friends,” or the notion that our legal system functions optimally when lawyers treat each other with dignity, courtesy, and respect.  But the fundamental precepts of professionalism—be kind to each other, don’t be a bully, play fair—are the lessons of childhood.  One would hope that lawyers do not need to be reminded to apply these basic tenets to their practice of law…but evidently some do.  The State Bar’s Ethics Committee has published proposed amendments to several of the Rules of Professional Conduct reminding lawyers that they are expected to behave at least as well as kindergarteners.

The proposed amendments include the following additional commentary to Rule 3.5 (Impartiality and Decorum of the Tribunal):

As professionals, lawyers are expected to avoid disruptive, undignified, discourteous, and abusive behavior. Therefore, the prohibition against conduct intended to disrupt a tribunal applies to conduct that does not serve a legitimate goal of advocacy or a requirement of a procedural rule and includes angry outbursts, insults, slurs, personal attacks, and unfounded personal accusations as well as to threats, bullying, and other attempts to intimidate or humiliate judges, opposing counsel, litigants, witnesses, or court personnel.

… and the following proposed addition to the commentary to Rule 4.4 (Respect for Rights of Third Persons):

Threats, bullying, harassment, insults, slurs, personal attacks, unfounded personal accusations generally serve no substantial purpose other than to embarrass, delay, or burden others and violate this rule. Conduct that serves no substantial purpose other than to intimidate, humiliate, or embarrass lawyers, litigants, witnesses, or other persons with whom a lawyer interacts while representing a client also violates this rule.

… and the following proposed addition to the commentary to Rule 8.4 (Misconduct):

Threats, bullying, harassment, and other conduct serving no substantial purpose other than to intimidate, humiliate, or embarrass anyone associated with the judicial process including judges, opposing counsel, litigants, witnesses, or court personnel violate the prohibition on conduct prejudicial to the administration of justice. When directed to opposing counsel, such conduct tends to impedes opposing counsel’s ability to represent his or her client effectively.

The proposed commentary makes explicit what should go without saying:  It is unethical to use the powers and privileges attendant to being a lawyer to gratuitously hurt and embarrass people.  In other words:  Be kind to each other. Don’t be a bully. Play fair.

*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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Who is Driving This Thing?

Posted By Colleen Glatfelter, Wednesday, December 31, 2014

By Howard A. Marsilio, La Mantia, Marsilio & Verna, PLLC

For attorneys that regularly, or even on rare occasions, “step in” for a fellow attorney, this blog is for you.  For the purposes of this blog post, I will use the designations of “primary” and “secondary” attorneys.  While I suspect most attorneys would like to handle every aspect of their own cases, there are a myriad of circumstances (e.g. attorney scheduling conflict, illness or other absence, associate attorney responsibility, etc.) which may give rise to the need for one attorney (“primary”) to ask another attorney (“secondary”) for assistance with occasional court appearances or even entire case management/handling for some period of time. 

 

The anticipated duration and extent of the secondary attorney’s involvement will provide some guidance as to what that attorney stepping in should know about the case at a minimum, or what decisions that attorney may feel comfortable making.  For example, if an attorney is merely stepping in for a fellow attorney to continue a traffic ticket case for the first time due to an unanticipated absence, perhaps the secondary attorney’s working knowledge need be very limited.  However, with each layer of complexity or factual circumstance, we all can imagine how varied and risky the secondary attorney’s involvement may become depending on the primary attorney’s circumstances or the procedural posture of a matter.  It may accordingly call for a much more in-depth working knowledge of the case, and clearly defined authority and direction, in order to best effectuate or protect a client’s interests and to prepare the secondary attorney to make decisions, if necessary.

 

Despite the circumstances which give rise to secondary attorney’s involvement, at the very least North Carolina Rule of Professional Conduct 1.1 and Rule 1.4 should be immediately considered.  Rule 1.1 states in part “[a] lawyer shall not handle a legal matter that the lawyer knows or should know he or she is not competent to handle without associating with a lawyer who is competent to handle the matter.”  Additionally, Rule 1.4 et seq. explains what is required of a lawyer, with regard to communicating with their clients. 

 

With regard to attorney competency, we know from our law school days, competence in an area law is earned, not automatic.  For both the primary and secondary attorneys’ sake, honest and thoughtful considerations about experience, comfort level, potential pitfalls, etc. is worth having sooner rather than later.  A secondary attorney’s loyalty or willingness (or obligation) to assist is helpful, however, having a solid working knowledge of any matter will help prevent against embarrassment (I always fear the question to which I must reply “I don’t know”) or getting reprimanded by opposing counsel or a judge, for something you were not prepared for and probably did not deserve.  

 

With regard to communication, as a matter of courtesy, ethics, and professionalism, any change in attorney, whether limited or extended and regardless of compensation, should be brought to a client’s attention and consent/permission obtained.  For an unexpected absence or emergency, a lawyer has the discretion and authority to involve another attorney if necessary to protect the client’s interest.  For a longer switch, the choice would clearly be the client’s with regard to what course of action they would like to take.  Other than for birthdays and holidays, people rarely like surprises.  Whatever the client’s decision might be, they will likely always appreciate being informed.  Additionally, let’s not forget to communicate with the secondary attorney as a matter of professionalism.  Although some may like surprises, nobody likes being “thrown under the bus.”  Nothing is more painful than watching a fellow attorney in court squirm in front of a judge because they were not adequately informed of case facts, procedural history, or what to expect.

 

*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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Staying Professional in the Face of Adversity

Posted By Colleen Glatfelter, Monday, December 22, 2014
Updated: Monday, December 29, 2014

By Crystal S. Carlisle, The Brocker Law Firm, P.A.

It is difficult when your best efforts for a client appear to have been in vain; especially when you know without a doubt that the result should have been in client’s favor and there are no more avenues left to pursue to right the wrong.  Sometimes insult is added to injury when the client does not understand that you did everything humanly possible to help them.  We learn at an early age that life is not fair, but to see this concept played out is sometimes very hard to witness.  How do we remain professional in these circumstances?

(1)    Do not allow your emotions to get in the way.  Don’t yell, be overly animated, or allow your body language to show you are upset.  For some, keeping neutral facial expressions and not expressing anger and outrage comes naturally, but I believe for a lot of us, it is a learned behavior that comes with experience and effort.  If you need to vent, wait until after you leave the forum.

(2)    Try not to take things personally.  There are often factors involved that play into a decision that having nothing to do with you, i.e. politics, group dynamics, etc.

(3)    Stay positive.  Set the tone for those around you.  “Let me embrace thee, sour adversity, for wise men say it is the wisest course.” (King Henry VI, William Shakespeare)

(4)    Respond decisively.  Speak with conviction, confidence, and authority – despite the circumstances.

(5)    Remain fearless.  Do not allow the experience to keep you from pursuing what is just.

(List derived from http://www.forbes.com/sites/glennllopis/2014/01/20/7-ways-leaders-maintain-their-composure-in-difficult-times/)

Conducting yourself professionally in these types of situations sets an example for those around you.  Exhibit civility and self-control.  This type of behavior will certainly benefit you in the legal community and in your practice.  Though you may lose a battle, losing it with grace is commendable and will be noticed.

*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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Embezzlement

Posted By Colleen Glatfelter, Wednesday, December 3, 2014

By Leanor Hodge, NC State Bar 

The State Bar has seen an increase in reports of employee embezzlement from law firms.  This is an issue of concern for the State Bar, and of concern, angst and heartache for the lawyers whose accounts and trust have been breached by their embezzling employee. Let’s go over a few tips that might help safeguard against employee theft. 

  1. Maintain physical control of your trust account records.  Your trust account records should not be maintained by your staff.  You can give your staff access to your account records in the office as needed in support of your obligations under Rule 1.15, but staff should not be permitted to take your account records off site.

     

  2. Review your bank records, including bank statements and canceled checks, making sure to review the canceled checks for forged signatures.  Many cases of employee theft would have been discovered if the lawyer reviewed bank statements and canceled checks.

     

  3. Reconcile your trust account promptly.  It is the lawyer’s responsibility to reconcile his or her trust account.  If this responsibility is delegated to a non-lawyer staff person then the lawyer should review and sign off on each reconciliation monthly and quarterly (three-way reconciliations).

     

  4. Review all trust account activity regularly.  Random spot checks of the bank records against documentation from the client file helps deter theft.

     

    What should a lawyer do if he or she discovers that an employee has embezzled from the trust account?  The Winter 2015 edition of the North Carolina State Bar Journal will include an article authored by Trust Account Compliance Counsel, Peter Bolac that outlines his “Top Tips on Trust Accounting.”  Let’s preview Bolac’s tips for action after embezzlement has been discovered:

     

  1. Actions the lawyer must take:

  1. Replenish any known deficit; and

  2. Report the embezzlement to the North Carolina State Bar.

     

  1. Actions that the lawyer is strongly encouraged to take:

  1. Terminate the employee;

  2. Call the police;

  3. Question other employees; and

  4. Consider opening a new trust account.

     

    Make sure to read Peter Bolac’s article in the Journal later this winter for more detailed information on this subject.

*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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