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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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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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Attorney-client Confidentiality, Social Media and the Internet

Posted By Colleen Glatfelter, Tuesday, November 18, 2014

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

The question of attorney-client confidentiality may arise if a disgruntled client posts a negative comment about an attorney on social media such as Facebook or on an internet site such as AVVO.  May an attorney respond?  If so, in what manner?  An attorney may only respond in a general manner, making a statement such as, “This firm strives to provide its clients with excellent legal service and regrets that any client is less than satisfied.  Please contact the firm, and we will be happy to discuss your concerns with you.”

 

Newly-admitted attorneys who have been accustomed to free rein in posting personal items on Facebook, other social media, and the internet, have to make a special adjustment to the demands of N. C. Rule of Professional Responsibility 1.6, Confidentiality of Information.  In response to negative client comments, attorneys must not post comments that breach attorney-client confidentiality. 

 

In relevant part, Rule 1.6 states that “[a] lawyer shall not reveal information acquired during the professional relationship with a client unless the client gives informed consent….”    In Rule 1.0, Terminology, “Informed consent” as defined in (f),  “ …denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation appropriate to the circumstances.”   Lack of informed consent from a complaining client is tantamount to a prohibition against an attorney’s posting of confidential client information on social media or the internet.

 

There are exceptions to Rule 1.6 that usually do not apply to the hypothetical facts considered here.  Per Comment 3, however, Rule 1.6 “….applies not only to matters communicated in confidence by the client but also to all information acquired during the representation, whatever its source….”  All information acquired during the representation would include a prohibition against an attorney’s reference to pleadings and other documents filed with the court, even though they are public record.

 

And, per Comment 4, “This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person.  A lawyer’s use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation.”    The size of the community may determine whether it is appropriate for an attorney to communicate a particular hypothetical or other reference—the smaller the community, the greater the likelihood that the listener would be able to determine the identity of the client.

 

Finally, per Comment 21, [t]he duty of confidentiality continues after the client-lawyer relationship has terminated.”   There is never a time when it is permissible to breach attorney-client confidentiality.  It is a sacred trust and part of the duty that goes with the privilege of practicing 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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How to Make a One Click Thank You Note

Posted By Colleen Glatfelter, Tuesday, November 4, 2014

By Erik Mazzone, North Carolina Bar Association 

 

The following fact pattern has never occurred in any science fiction movie or book:

 

People invent a new technology. The new technology evolves, grows and expands in unpredictable ways. Everyone lives happily ever after.

 

I don’t know why it is, but it seems hard wired into our cultural consciousness that the inevitable march of technology is destined to conflict with our humanity.  The robots turn on us, soylent green is people, the Terminator becomes Governor of California. Disaster is unavoidable.

 

Happily, things don’t always go down like that. Sometimes, technology can help us be a little more human to each other.

 

You, like me, receive a ton of email. More than you can respond to. So we don’t. All day we send each other emails that go unanswered. There are just not enough hours in the day to get it all done.

 

One of my favorite tech tools to help with this is to use a typing shortcut program. I use TextExpander on my Mac. The equivalent one for Windows is ActiveWords.

 

Here’s how it works:

 

When I recognize that I retype the same email (or any block of text, really) over and over again, I enter it in TextExpander along with a special shortcut key. For example, I give out directions to my office fairly frequently, so I use a shortcut. I typed out one set of really good directions and stored them in TextExpander. I type in “.addy” and TextExpander pops that entire block of directions right in whatever email, word document, Skype chat or other program I am working in.

 

It’s cut and paste on steroids.

 

It’s a small thing. A saver of minutes, not hours, each day. But as you build up your library with text blocks for “thank you”, “good job”, “great to see you” and so forth, you will be able to more easily manage the insane volume of communication coming at you without spending an insane amount of time.

 

Best of all, no soylent green involved.

 

Erik Mazzone is a Practice Management Advisor for the North Carolina Bar Association and member of the Wake County Bar Association.

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The Evolving Law of Mediation

Posted By Colleen Glatfelter, Monday, October 20, 2014
Updated: Tuesday, October 21, 2014

By Mark Finkelstein, Partner, Smith Moore Leatherwood LLP
 


The North Carolina Dispute Resolution Commission has recently issued a number of advisory opinions that lawyers in the dispute resolution business should know.

A.     Mediator Testimony

First, The confidentiality provisions of Standard III have been held to prohibit a mediator from testifying regarding statements at mediation even when all parties want the mediator to testify.  Standard III.A states in part that:

“Apart from statutory duties to report certain kinds of information [i.e. juvenile and elder abuse], a mediator shall not disclose, directly or indirectly, to any non-party, any information communicated to the mediator by a party within the mediation process.”

 While the parties may testify regarding the mediation for the purposes of determining whether an enforceable settlement was reached and the mediator may provide his written report of mediation, the mediator may not testify about what happened at the mediation.  Advisory Opinion No. 30 (2014) (comment period ending October 10, 2014).

B.     Limits of Inadmissibility of Statements Made in Mediation

Many lawyers are surprised to learn that there are limits to the rule on inadmissibility of statements made at mediated settlement conferences.  The Dispute Resolution Commission addressed the limitations of G.S. § 7A-38.1(1).  This statute provides:

“Evidence of statements made and conduct occurring in a mediated settlement conference . . . shall not be subject to discovery and shall be inadmissible in any proceeding in the action or other civil actions on the same claim …” 

 

However, statements made during mediation may be used in criminal cases and in civil actions on different claims.  There are also at least four additional exceptions to the inadmissibility of statements during mediation “rule”:

(1)        Proceedings to enforce or rescind a settlement; 

(2)        Proceedings for sanctions regarding the mediation;

(3)        Disciplinary proceedings before the State Bar or the North Carolina Dispute Resolution Commission; and

(4)        Proceedings to enforce laws concerning juvenile or elder abuse.

 Mediators have the duty to define and describe these concepts of inadmissibility, but legal interpretation of these rules is the responsibility of counsel for the parties.  Advisory Opinion No. 29 (2014).

C.     Disputes over Corporate Appearance

Advisory Opinion No. 25 addresses the issue of mediator conduct when a corporate party

indicates that it will be represented by an employee only and not a lawyer.  The opinion indicates that the mediator should act as a neutral facilitator and is not required to police attendance issues.  The mediator should hold the conference and report to the court those individuals who are present at the conference.  The parties can address issues regarding attendance to the court either before or after the mediated settlement conference.

D.    Interlocutory Appeal

What should happen when a case with a mediation deadline is appealed and the appeal may be of an interlocutory order that may not affect a substantial right?  The appeal of an interlocutory order that does not affect a substantial right does not deprive the trial court of jurisdiction.  RPR & Associates, Inc. v. The University of North Carolina – Chapel Hill, et al., 153 N.C.App. 342 (2002).  In such a case, the parties should obtain guidance from the court as to whether the matter is stayed pending appeal, and if they fail to do so, the mediator should obtain such guidance from the trial court.  Advisory Opinion No. 26 (May 17, 2013).

            Conclusion    

The law of mediation is complex and detailed.  The duty of competence requires all lawyers involved in the mediation process to understand this complex and detailed 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.

Tags:  admissibility  appeal  corporate appearance  ethics  mediation  mediator 

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