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

 

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

Officers of the Legal System: Requirements of a Self-Policing Profession

Posted By Colleen Glatfelter, Monday, December 2, 2013
By William M. Hedrick, Attorney, The Law Office of William M. Hedrick, P.A.
 

"A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the North Carolina State Bar or the court having jurisdiction over the matter.”


-Rule 8.3(a) of the Model Rules of Professional Conduct, as adopted by the NC Bar

(see link: http://www.ncbar.gov/rules/rules.asp?page=64 )




I, like many of you, have never really considered myself to be a "policeman”, or perhaps more appropriately, a "law enforcement officer”. For one, law enforcement officers wear holsters on their hips with guns and handcuffs hanging off them. The only holster I ever wore was as a young child, when I was channeling the actor Clayton Moore and pretending to be "The Lone Ranger”. But even though I don’t wear a holster with a six-shooter and ride a blazing white stallion by the name of "Silver”, I understand that we, as attorneys, have all been deputized by our licensing body so as to maintain law and order within our professional community.


Under the North Carolina State Bar, and amongst our peers, we are all "Officers of the Legal System”. We are charged with the solemn duty of policing ourselves and our profession, lest we ever reach a time when we are no longer considered by the public at large to be honest, trustworthy, and fit to carry on as an independent body of professionals. It is an honor and a privilege that we are allowed to police ourselves, and we owe a duty to every member of our profession, and ourselves individually, to ensure that all of us are living up to the standards which we hold as establishing the responsible and ethical practice of law.


Our primary obligation, as officers of the legal system, is not really any different from that of police officers. Our duty is to the public at large, to take notice and to protect them from those who would hold themselves out as attorneys, but who fail to live up to the standards of conduct and follow the rules we all swore an oath to abide by when we were allowed to join the practice of law. The average citizen has little, if any, knowledge of the Model Rules of Professional Conduct. As such, they are less likely to recognize when an attorney is, for instance, engaging in conflict of interest that may be, or in fact is, detrimental to their client’s respective interests. As officers of the legal system, it is our duty to protect those who we see or know to be the victims of the misconduct of our colleagues.


Rule 8.3(a) of the Model Rules of Professional Conduct states that we are required to report a fellow attorney when that individual attorney’s conduct raises a substantial question in our mind as to that attorney’s honesty, trustworthiness, or fitness with regards to the ethical practice law. The comments that follow the rule shed further light on what is meant by these terms:




"This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent…..A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.


Comment [4], Rule 8.3 of the Model Rules of Professional Conduct


"Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.


Comment [1], Rule 8.3 of the Model Rules of Professional Conduct




In addition, we can turn to the Ethics Opinions Notes for further guidance on the rule:




"An attorney who acquires knowledge of apparent misconduct must report the matter to the State Bar.


RPC 17 (see link, http://www.ncbar.gov/ethics/ethics.asp?id=17)



Bear in mind that an attorney’s misconduct may just be an isolated incident resulting from a momentary lapse in judgment. If so, such misconduct may not raise a "substantial" question as to the offending attorney's fitness to be a lawyer. The lawyer who has knowledge of this type of isolated misconduct may want to counsel the attorney in question with regards to his/her misconduct. Under these types of circumstances, the lawyer is not required to report the misconduct to the State Bar. However, if the offending attorney continues the misconduct, after being advised that his/her conduct is a violation of the rules, then the lawyer should report the matter to the State Bar, or other appropriate authority. (see, RPC 243, Opinion #2, and link, http://www.ncbar.gov/ethics/ethics.asp?id=243)


It is my hope that such incidents rarely if ever happen. And yet, as I say this, it seems that every year a number of our peers are either disciplined or disbarred for their professional misconduct. It is incumbent upon us all to do what is necessary to uphold the name of our fair profession and to live up to the standards we’ve set for ourselves as officers of the law. I suggest that we continue, as always, to be courteous to our colleagues in our continued day-to-day interactions, but that we also be mindful of the fact that we all carry a metaphorical badge with a silver star on it just inside our breast pockets. If we see a colleague conducting themselves in a questionable manner, then we should not hesitate to step in and address the matter. After all, one attorney’s misconduct reflects negatively on all of us.


Hopefully, this will give you all some food for thought. If so, then I’ve accomplished what I set out to do when I started writing this article. And, with that being said, this cowboy is going to jump on his horse and head out for another day on the open range. A Happy Holidays to you all and, "Hi Ho Silver Away!


*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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Reading is Fundamental

Posted By Colleen Glatfelter, Wednesday, October 30, 2013

By Mark Finkelstein, Attorney, Smith Moore Leatherwood LLP 

Mark Twain famously wrote:

The man who does not read good books has no advantage over the man who can’t read them.

The same can be said of lawyers who fail to read good legal writing. We have an ethical obligation to remain competent. To this end, reading good law blogs and good appellate briefs are worthwhile endeavors.

If you are litigating an issue previously addressed by a North Carolina appellate court, you can find the record and briefs for the case online thanks to the Administrative Office of the Courts. The web page to search for these documents is: http://appellate.nccourts.org/opinions/

North Carolina is also blessed with a number of wonderful law related blogs. The Institute of Government has a useful criminal law blog that may be found here: http://nccriminallaw.sog.unc.edu/

Mack Sperling does an excellent job with his business litigation blog, which is found here: http://www.ncbusinesslitigationreport.com/

Tom Terrell has an excellent blog on North Carolina land use matters, which may be found here: http://nclegallandscapes.wordpress.com/

Both Womble Carlyle and Smith Moore have excellent North Carolina appellate blogs for the appellate practitioners in our community. Those blogs can be found here: http://womblencappellate.blogspot.com/ and http://www.ncapb.com/

A great local government blog can be found here: http://canons.sog.unc.edu/

Enjoy the cooler weather and the good reading.

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Turning Out the Lights Part Three: Checklist for Closing Your Law Firm

Posted By Colleen Glatfelter, Thursday, October 3, 2013

By Brooke Ottesen and Deanna Brocker, The Brocker Law Firm, P.A.

Closing a law practice takes time and planning. The most important considerations, outside of ethical responsibilities, are to start early, create and utilize a timeline and checklist, and update it often. The process should ideally be implemented over a period of six months to one year.

Ensuring your clients and their files are taken care of should be a principal concern once you have made the decision to close your practice and have informed staff of your plans. Although individual circumstances will dictate how much time you have available, attempt to complete and close out as many clients as possible.

The following is a form checklist that you can modify to your particular circumstances:

For Closed Client Files:

o Determine if any inactive clients should be notified. If the file or client matter has been closed for more than six years, the file may be destroyed as long as client confidentiality is preserved. If six years or less, the files should be retained and the client notified how you will be storing the files and how the file may be retrieved.

o Create a record of all destroyed files.

For Remaining Active Clients and Files:

o Calculate any accounts receivables and try to collect the balances before making the announcement if possible.

o Prepare a letter for all active clients. Advise the clients about the termination of the representation; the status of their cases and any pending deadlines; the need to retain new representation, if necessary; and how to receive their files. Try to contact clients personally first, if possible, before sending the letter.

o Get the client’s prior consent, if you are planning to transfer any files to a new lawyer.

o Prepare and file withdrawal motions where necessary.

o It is a good idea to keep at least an electronic copy of all files.

o Determine if you may need to refund money to any of your clients, particularly in the case of flat fees designated as "earned upon receipt.”

o Resign from any fiduciary position held, such as administrator, executor, etc. that cannot be completed.

Banking and Accounting:

o Review accounts payable and contact vendors to arrange payment of bills.

o Check for fee sharing and fees owed to co-counsel.

o Reconcile and close trust and fiduciary accounts. Disburse funds held in your trust account to appropriate client or third parties with final accounting to the clients.

o Research current escheat law if you have unclaimed funds in your trust account.

o Notify the State Bar when the trust and fiduciary accounts are closed.

o Preserve the financial records for the appropriate period of time. Trust records must be maintained for six years.

o Determine if there is other non-cash client property being held that must be returned to the client.

o Determine a closure date for all other accounts.

o Terminate all bank account direct pay arrangements from the operating account.

o Determine which state and federal offices should be contacted.

o Discuss filing final tax returns with an accountant.

o Cancel any credit in the name of the business entity.

Insurance:

o Cancel all relevant insurance including office, liability, etc., but only after operations have ceased. Discuss the timing with your insurance agent.

o Determine need for professional liability tail coverage that would cover you for any malpractice claims that arise after you have stopped practicing for malpractice incurred while you were still practicing.

o Consider COBRA options for health insurance.

o Determine rollover options for retirement plan for you and staff.

o Determine if life and disability insurance may be rolled into a personal policy.

State Bar and Bar Associations:

o Call the membership department at the N.C. State Bar to update membership records with your status and any new contact information. You may submit a petition for transfer to inactive status, which must be received by December 31st to avoid dues for the following year.

o Contact all other associations and professional organizations to update membership records with your status and new contact information.

Equipment, Furniture, and Office Space:

o Scrub computers, digital copiers, and other electronic devices, including smart phones, of software and client information to ensure confidential information is not compromised.

o Consider how to dispose of equipment, furniture, and office supplies.

o Determine move date and arrange moving service.

o Coordinate with the landlord if rental space.

Misc.:

o Dissolve the business entity.

o Terminate all firm e-mails accounts and any social media sources.

o Consider setting up a static web page on your website with information on the closure of the firm and where client files are being stored.

o Cancel subscriptions and on-line accounts.

o Cancel vendor accounts including courier and express accounts.

o Cancel any advertisements by the firm and any legal directory listings.

o Determine whether a post office box is needed for post-dissolution mail.

o Disconnect utilities including phone. Determine whether the firm needs to maintain the number for a period of time with a recording that gives information regarding the dissolution and client files.

o Determine what disclosures should be made to employees concerning termination of employment.

This list is not comprehensive and does not cover every situation. Hopefully, it may serve as a starting point for building and completing your own checklist so you can be confident that when you turn off the lights, no one is left in the dark.


Tags:  Exit Planning 

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Lawyer Professionalism in Wake County: An Historical Perspective

Posted By Colleen Glatfelter, Friday, September 13, 2013
By Mark Finkelstein, Partner, Smith Moore Leatherwood LLP
 

A key to professionalism is simply considering the issue of professionalism early and often. Half the professionalism battle is won when we think about professionalism obligations before we act. In the fast paced world of email, that is easier said than done; but don’t fool yourself into thinking it has ever been easy.

Lawyers in their first 25 years of practice often lionize lawyers in their second 25 years of practice. Since the dawn of the licensed practice of law, the "good old days” have seemingly always been 25 years ago. Despite the wave of new lawyers, I do not believe new lawyers in Wake County are appreciably less professional today than 25 years ago. Lack of professionalism does not necessarily flow from youth any more than professionalism necessarily comes with age. If the Bar is any less professional today than in the past it is a surfeit of potential protégés and a deficit of quality mentors that is the cause.

Senior Resident Superior Court Judge Don Stephens tried a case in Halifax County with a younger lawyer in the Attorney General’s office long ago against Wade and Roger Smith. It was a high profile case, emotions were high and both sides were staying in the same hotel. Roger Smith discovered that his car was physically disabled – engine wires were pulled -- in the hotel parking lot by Judge Stephens’ protégé. To Judge Stephens’s bewilderment, a vigorous altercation, rather than mediation, ensued.

Frankly, I cannot see such a situation occurring today. The events after that day of trial long ago do, however, offer a teachable moment.

Stories teach lessons. Among the lessons to be found in old stories like this one are:

(1) Our aspirations of professionalism are not any more or less important or necessary than they were in those "Good Old Days;”

(2) To paraphrase the salesperson’s mantra of "sell something to someone soon”: Exercise your professionalism and seek to mentor someone in something you know soon. We desperately need more professionalism focused mentorship efforts because we have so many more young lawyers who may be able to learn from the experiences we can share.

We the practicing bar are the face and hands of professionalism. Helping people is the heart of our profession. Helping each other when we can is professionalism in action.


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Turning Out the Lights Part Two: To Sell or Not to Sell

Posted By Colleen Glatfelter, Friday, August 16, 2013

By Brooke Ottesen and Deanna Brocker, The Brocker Law Firm, P.A.

As we suggested in part one of this series, exit planning is a hot topic, and the end of a legal career is a certainty for all who practice the law. In spite of that, many attorneys reach that point without considering and preparing a succession plan. The American Bar Association estimates a vast majority of lawyers, particularly solo practitioners, do not have a plan in place. Likely, this is because it takes time and commitment which can be challenging when running a busy law practice. However, attorneys who develop a plan – and do it early – are in a better position to protect their clients, employees, family and reputation. Exit strategies encompass any one of a number of different scenarios including: (1) selling the law practice; (2) internally transitioning the law practice to another attorney in the firm; or (3) winding down and closing the doors of the practice.

Selling a Law Practice

The current version of Rule 1.17 of the Rules of Professional Conduct permits a lawyer or law firm to sell or purchase a law practice or area of law practice, including good will, if certain conditions are met. The Rule requires the selling attorney to discontinue the private practice of law, or the area of practice that has been sold,within a one-hundred (100) mile radius of the purchased practice.The Rule also requires that the seller’s entire practice, or an entire area of practice, be sold.In addition, written notice of the proposed sale must be sent to all clients who are currently represented by the seller and to all former clients whose files will be transferred to the purchaser.However, at its last quarterly meeting in July 2013, the Ethics Committee voted to adopt a proposed change to Rule 1.17 which would permit a lawyer to continue to work for the law practice as an employee after its sale. This would allow a senior selling attorney to remain in the practice during a transition period which would,in turn, create a more seamless transition for clients, staff, and the purchasing attorney. (See prior blog article, "Now You Can Retire…Or Not”).

Often the lawyer interested in selling his or her law practice already has qualified and interested buyers employed at the firm. Regarding the transition of a law practice to a current employee, 98 Formal Ethics Opinion 6 rules that the requirements for selling a practice set forth in Rule 1.17do not apply to the sale of a law practice to lawyers who are current employees of the firm.In addition, the law firm may continue to include in the firm name the name of a retired attorney who practiced with the firm up to the time of his retirement if that attorney has ceased the practice of law.

Aside from the multitudes of ethical considerations, it can be challenging to determine how to value and set a price for a law practice. Attorneys may have inaccurate perceptions that their practice has little or no real value; however, that is usually not the case. One way to ensure an objective valuation is to hire a business appraiser and/or a professional business broker. The consultant can assist in not only determining the value of the practice, but also providing knowledge of the process, marketing the practice, dealing with unqualified buyers, attracting qualified buyers, and negotiating a price once a qualified buyer is located.

Deciding to sell, understanding the ethics involved, and determining the value of a practice is really just the beginning. In part three of this series, we will provide a comprehensive checklist for selling a law practice.

Closing the Doors of a Law Practice

Closing, as opposed to selling, the law practice, involves different issues. The most important considerations are to start early, create and utilize a timeline and checklist, and update it often. The process should be implemented over a period of six months to one year at a minimum. In part three of this series, the checklist discussed above will also include a section on closing a law practice.

Contingency Plans

At this point, you may be thinking retirement is too far into the future to even consider selling or closing your law practice. However, at a minimum, it is important to plan for contingencies in the event of the unexpected. Advance designation of another lawyer to assist with client matters is critical when a temporary disability or emergency occurs. Lloyd Cohen is a solo practitioner and the author ofBeing Prepared: A Lawyer’s Guide for Dealing with Disability or Unexpected Events. Mr. Cohen’s own office experienced a short shutdown due to his sudden illness:

During my absence from the office, my manual is getting its first real-life test. The good news is that having a manual available has been a comfort that helped the office to continue to run smoothly. Those closest to me were able to check the physical and clerical aspects of the office. Lawyers with whom I’ve developed a rapport for such a contingency were notified. A lawyer was able to screen both the physical and electronic calendars for appointments, court appearances, and deadlines. Rescheduling client appointments far ahead of time was appreciated. Immediately directing e-mail to auto-reply "out due to illness” worked well. Bill-pay and money-transfer functions were attended to. Having my medical contacts and information organized was helpful. I found that keeping updated with the continuing evolution of technology and proliferation of passwords to be a challenge, but overall, client confidence was maintained and opposing counsels cooperated.

Lloyd D. Cohen,How My Emergency Plan Saved My Practice, GPSOLO, a publication of the American Bar Association, vol. 29, no. 4.

Mr. Cohen, in his manual, advocates safeguarding your practice with five practical steps: "Define, Enable, Empower, Keep, and Inform.” Even if you do not have time for the entire manual, his short article, "How My Emergency Plan Saved My Practice”, is worth the ten minute read and may be the spark to encourage you to create a plan so your clients and your practice aren’t left in the dark.

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Now You Can Retire…Or Not

Posted By Colleen Glatfelter, Tuesday, August 6, 2013

By Deanna Brocker, Principal, The Brocker Law Firm, P.A. 

At its last quarterly meeting in July 2013, the Ethics Committee voted to adopt a proposed change to Rule 1.17 Sale of a Law Practice, which would permit a lawyer to continue to work for the law practice as an employee after its sale. The current rule prohibits the selling attorney from engaging in the private practice of law for the same firm, except as an independent contractor. The concern raised by Mel Wright, the Executive Director of the Chief Justice’s Commission on Professionalism, is that many senior lawyers would like to retire, but do not think they can afford to do so. Mr. Wright noted that he has seen dentists sell their practices to new dentists who are just starting out. The senior dentist agrees to stay on during a transitional period, introducing the new dentist to his patients and assisting in any way he can with the transition. The senior dentist can be paid for his services during this transition time as an employee (receiving benefits), and then can receive additional payments into retirement. The new dentist gets an established practice in exchange.

This symbiotic relationship seems like a win-win for everyone involved if expanded to law practices. The new lawyer gets a mentor and an introduction to an established client base, and the senior lawyer can help ensure his practice is transferred to a capable and qualified individual while still receiving income. And clients? Well perhaps they benefit the most by a smooth transition.

The proposed revised rule makes clear in the comment that the practice, once purchased, may retain the same firm name under certain conditions in Rule 7.5, but the seller’s retirement must be indicated on the letterhead or other communications as necessary to avoid misleading the public. If the seller becomes an employee of the firm in his or her "retirement,” then the letterhead and other communications must indicate in some fashion that the seller is no longer the owner. An "of counsel” designation by the seller’s name would be sufficient.

Bottom Line: this proposed rule gives attorneys more choices going into retirement. You gotta like that.


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Disconnect: A Matter of Professionalism and Respect

Posted By Colleen Glatfelter, Monday, July 22, 2013

By Douglas J. Brocker, Chair of the WCBA/Tenth JD Professionalism Committee, The Brocker Law Firm, P.A.  

Modern communication technology enables lawyers to accomplish things in a much more timely, efficient and effective manner in many instances. Utilized properly, digital communications also can assist a lawyer or law firm in reducing overhead and providing representation to clients more economically. E-mails and other electronic medium allow lawyers and law firms to operate in ways that would not have been imaginable less than a decade ago.

However, use of these relatively new communication mediums can become as addictive as some substances and their overuse can cause a myriad professional and personal problems and issues. As lawyers, we all have times where it seems that there is no possible way we can accomplish everything in the limited time given. It is during those times that we run the greatest risk of overusing or misusing electronic communications.

I am constantly reminded of the importance of disconnecting from them on occasion for both personal and professional reasons. One recent experience reinforced the importance of disconnecting. The Wake County Bar Association had the privilege of having one of the Fourth Circuit judges from North Carolina speak at a recent monthly luncheon. During a fascinating speech from one of the most interesting and accomplished persons in the State, I looked around the room and repeatedly saw fellow attorneys using their phones to read and respond to emails and texts, browse, among other things. I was hoping that our speaker was looking from a different perspective and did not observe what I saw.

I completely understand the temptation during a busy time to catch up on a few emails or deal with some other pressing matters. I'm confident that I have been guilty of doing so in the past. However, as a past president of the organization, I was dismayed that our esteemed speaker might be observing the same thing I was and believing that our local Bar members were not interested in her very insightful remarks.

We all have been involved in situations where we are talking or meeting with somebody in person and they interrupt the personal conversation to take a phone call or respond to an e-mail or text. When you are on the receiving end of this behavior, it unmistakably projects the impression that your discussions, and by extension you, are not important. Although that probably was not the intent, it leaves a very bad impression.

They are many important reasons, in my opinion, that all of us should disconnect at times. When attending a speech or in meeting with a client, witness or other person, in my opinion, it's simply a matter of professionalism and good form to turn off your own phone and focus on the matter at hand. If you are truly that busy, you should probably not attend or reschedule. In these types of situations, disconnect; it’s a matter of professionalism and respect.

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Turning Out the Lights Without Leaving Clients in the Dark

Posted By Colleen Glatfelter, Monday, July 1, 2013

By Brooke Ottesen,  Associate, The Brocker Law Firm, P.A.

Exit planning is a hot topic in North Carolina although we are certainly not the first state to tackle these issues. Keith Kapp, President of the North Carolina State Bar, called for the Bar to re-examine and improve our approach to both the beginning and the end of law practice. Despite this call to arms and recognition of a need for change in the legal profession, Warren Savage, a claims attorney with Lawyers Mutual, finds it surprising "how many lawyers avoid preparing for the inevitable end of their careers until after that end arrives at an unexpected time.” He says, "While legal careers will almost certainly end because of a career change, retirement, health, or death, a surprising number of lawyers reach that end without having considered and prepared for the recurring issues common to winding down a law practice.”[1] Therefore, exit planning appears to be both a big challenge for attorneys, as well as, an opportunity for improvement in the legal profession.

Exit strategies can encompass any one of a number of different scenarios:

(1) Winding down and closing the doors of the practice;

(2) Selling or merging the law practice; or

(3) Internally transitioning the law practice to another attorney in the firm.

Each strategy comes with its own challenges, and it takes time and commitment to successfully implement. Regardless of the road you choose, the key is to start early in developing your plan so your clients, your employees, and your family are protected.

Beginning in July and over the next few months, we will post a series of articles related to this issue. Each subsequent article will tackle a specific aspect of exit planning and succession such as practical checklists for winding down a practice, the ethics of turning out the lights, the sale or merger of a law practice, and expecting the unexpected. In the meantime, a great resource for attorneys interested in creating such a strategy is Turning out the Lights: Planning for Closing Your Law Practice, a publication of the North Carolina Bar Association. The Association published the procedural guidebook to help lawyers plan for untimely events that might necessitate the closing of a law practice. The publication is $27 and you can order online at http://www.ncbar.org/cle/bookstore/tol12.



[1] The Senior Lawyer Division of the NCBA Newsletter. "What to Expect When You’re Expecting to Retire,” Section Vol. 21, No. 2 (March 2013).

Tags:  Exit Planning 

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