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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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Attorney-Lobbyists --- Ethics Rules Apply

Posted By Colleen Glatfelter, Thursday, November 2, 2017

By David Ferrell, Nexsen Pruet PLLC

Many of us handle matters for clients that may not seem to meet the definition of practicing law – particularly when it comes to state government lobbying. With lobbying, we’re not filing a complaint; not in a courtroom, not drafting a contract, and not representing parties at mediation. There are certainly non-lawyers that advocate for clients before the legislature and government agencies. However, a large number of lobbyists are attorneys, and a good bit of what you do as a lobbyist seems to cross over into the practice of law – or at least could. And we are certainly dealing with clients, possibly opposing parties on the issue, and ultimately advocating a position.

With this in mind, the question arises as to whether the Rules of Professional Conduct (RPC) apply to attorneys while conducting lobbying activities. The short answer is “yes.” Although some rules directly deal with conduct of the attorney outside the practice of lobbying, such as conduct toward the tribunal, advocacy in court, etc., most of the rules of the RPC have general applicability to an attorney’s practice of lobbying. By way of example: Rule 1 -  scope of representation, confidentiality, conflicts; Rule 4 – truthfulness in statements to others, communications with persons represented by counsel; Rule 8.4 misconduct (just to name a few). And certainly our personal standards of right and wrong apply as they would in the general practice of law. An attorney-lobbyist should read these rules periodically.

There is a professional trade association for lobbyists: North Carolina Professional Lobbyists Association (NCPLA). The NCPLA has adopted a Code of Conduct: http://www.ncpla.org/aws/NCPLA/pt/sp/code_of_conduct, which addresses many of the topics covered by the Rules of Professional Conduct (honesty, provide accurate information, protect client confidences, avoid conflicts of interest). This Code of Conduct applies to members of the NCPLA and most lobbyists are members. The NCPLA does not license lobbyists, so the enforcement of the Code is limited to membership privileges.

The real “enforcement” lies with the State Ethics Commission and the NC Secretary of State’s Office. There are a number of state laws that apply to the practice of lobbying, including some that carry criminal penalties. NC General Statutes Chapter 120C, “Lobbying”, applies to individuals who “lobby” as that term is defined in G.S. 120C-100. There are distinctions in the law for those who are contract lobbyists, employees of companies that may only lobby as a small portion of their job, and those who are legislative liaisons for state or local agencies; and there are exemptions. Chapter 120C covers topics like when registration as a lobbyist is required, what reports must be filed with the NC Secretary of State’s office, prohibitions on contingency fees, prohibitions on gifts to “covered persons”, and other similar provisions. A number of federal statutes could also apply: the Hobbs Act (18 U.S.C. § 1951) – interfere with citizens’ right to government official’s honest service; and 18 U.S.C. § 666 – theft or bribery concerning programs receiving federal funds.

The RPC remains the foundation of how attorneys conduct themselves while lobbying. However, attorneys who lobby must be aware of these additional rules and regulations that apply to their lobbying practice. And we haven’t even breached the topics of campaign finance, election influence, and prohibited contributions by lobbyists…. we’ll save these for another blog article….

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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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Counsellor at Law

Posted By Colleen Glatfelter, Tuesday, October 17, 2017

By Leslee Ruth Sharp, Sharp Law Offices

Ask me for a form and you will likely get more than you asked for.  That form is, in my view, my livelihood.  Not the paper it is on, nor the particular words themselves, but the thinking, analysis, consultation and comparison that went into determining if those particular words fit the situation at hand. 

 

I heard a client (fortunately not mine) say recently "it's just a piece of paper, I could have copied that off the internet."  The client went on to express dismay at the amount of money paid to the lawyer for the "piece of paper."  Wow, what a great argument for the Legalzooms of our world.  I don't know about you, but my license to practice law in North Carolina says "Attorney and Counsellor at Law".  Likewise my California license (currently on voluntary inactive status)  says "Attorney and Counselor". 

 

Sure a computer program can populate a form with information based on answers provided by the user to a pre selected set of questions.  But can that computer counsel the user about the correct form to use? Can it determine which set of questions should be asked?  Can it really determine which form/tool/document is best suited to meet the needs and goals of the user/client?    

 

I strongly believe that it is in my role as counsellor (or counselor, depending on which spelling is applicable in the jurisdiction) that my greatest strength as a lawyer lies.

 

In its most general sense, the term "attorney" denotes an agent or substitute, or one who is appointed and authorized to act in the place or stead of another. Black's Law Dictionary 5th Edition 1979; see also Black's Law Dictionary online at thelawdictionary.org.  Likewise an attorney at law is generally understood to be one who has completed the requirements and obtained a license to act as an attorney or lawyer in a particular state.  See N.C. Gen. Stat. § 84-1 which requires taking an oath in open court and the Rules Governing the Admission to Practice Law in the State of North Carolina, Section .1302 which governs the granting of licenses. 

 

And "Counsellor at Law"? Black's definition includes those who are regularly retained in a cause for the purpose of advising as to the points of law involved. 

 

The phrase "practice law" is defined in N. C. Gen. Stat. §84-2.1 and specifically includes "assisting by advice, counsel, or otherwise in any legal work; and to advise or give

opinion upon the legal rights of any person, firm or corporation".

 

In our Rules of Professional Conduct we are directed to "reasonably consult with the client about the means by which the client’s objectives are to be accomplished" See N.C. Rules of Prof’l Conduct Rule 1.4 (a) (2).  We are charged with advising our clients, See N.C. Rules of Prof’l Conduct Rule 2.1 entitled Advisor:   

 

In 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.

 

Could it be more clear?  Look at the comments regarding our scope of advice: 

 

[2] 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. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice....

 

[3] A client may expressly or impliedly ask the lawyer for purely technical advice. When such a request is made by a client experienced in legal matters, the lawyer may accept it at face value. When such a request is made by a client inexperienced in legal matters, however, the lawyer’s responsibility as advisor may include indicating that more may be involved than strictly legal considerations.

 

You might have the greatest form for that trust George, father of four minor children and a wife who is the world's best stay at home mom ever, needs.  But is it appropriate for Sam, who has two highly successful adult children and is married to his third wife?

 

Your value in this relationship is not only the paper or document you hand to your client.  It is the counsel you give to your client, counsel that helps the client give you the factors you need to create the legal documents necessary to accomplish her goals. The training and education required to provide legal services to a client; at least when and where I went to law school, include counseling. Starting with the initial consultation, your role as counsellor is invaluable.  That client who called upon you to draft for her a new will?  Using your training and education, you elicit from her that she is newly engaged to the not-quite man of her dreams and is not just worried about her assets after her death, but what if this doesn't last... your training tells you maybe she really needs a pre-nuptial agreement.

 

So let's talk with our clients, not at them.  Communicate with each so that the legal advice you give is tailored to the specific needs and goals of the client in front of you not a form created generally or from a prior representation.  Your role as Counsellor is just as, if not more, important than the drafting of legal documents, pleadings or your representation in court.

 

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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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Opportunities to Mentor are Everywhere

Posted By Colleen Glatfelter, Wednesday, September 27, 2017

By Ryan Shuirman, Yates McLamb & Weyher LLP

 

            If you can remember back to when you first started practicing law, you might be frightened to think about how little you knew then as compared to the infinitely wiser present you.  If you’re like me, you then begin recalling all the other lawyers who got you where you are today through simple acts of kindness, a cautionary tale, or some shared advice in the midst of contentious litigation.  I will be forever grateful for the colleagues at my firm who have always had an open door and who have helped guide me over the years, and I often think back to lawyers and judges with whom I did not work directly who helped shape how I practice today.  The truth is, opportunities to mentor younger lawyers are everywhere, and they don’t just present in the most obvious situations.

 

            We are fortunate to practice in what I truly believe to be one of the more congenial legal communities in the country.  I frankly don’t know that I would enjoy this profession as much practicing outside this state.  As we celebrate the 20th Anniversary of the Creed of Professionalism in the Wake County and Tenth Judicial District Bars, we recognize how important it is to be a part of such a community.  To make sure the Creed lives on beyond us, however, we must make sure we truly pass it along to the next generation of lawyers who will one day take our place.

 

            Formal programs like Campbell Connections do a wonderful job pairing students and new lawyers with “more seasoned” members of our community.  For those of us who never stepped into a courtroom before passing the bar exam, the opportunity to gain the kind of exposure the Campbell Connections program offers would have been simply invaluable.  Yet while that program certainly could use more lawyers from our community to participate, opportunities for you to pass along the tenets of the Creed to younger lawyers abound every day.

 

            Perhaps your firm pairs new associates with specific lawyers for “mentorship.”  If it does not, make an effort to interact with new associates and introduce them to other lawyers at any available opportunity.  Take new associates to hearings, depositions, and especially trials.   Discuss with them the proceedings observed and your impressions of how the lawyers and judges involved conducted themselves during such proceedings.  If your firm has summer associates, make an effort to interact with them and show them the privilege it is to practice law in this community.  Demonstrating such an effort, regardless of whether you wind up working with the younger lawyer permanently, can only serve our cherished community well.  Summer associates are constantly looking for opportunities to see the practical side of practicing law, and you have a great opportunity to show them the right way to do it.  Indeed, opportunities present as early as on-campus interviews with prospective summer associates as they get a quick glimpse of what practicing in our community must be like.

 

            Even shorter interactions present opportunities to impress upon the next generation the importance of professionalism in the 10th Judicial District.  Participating in pre-bar exam interviews and the Swearing-In Committee of the Wake County Bar Association allow a unique opportunity to be a positive influence for soon-to-be practicing lawyers in our community.  Opportunities for you to pay it forward abound – even in the shortest of interactions and in the unlikeliest of contexts.

 

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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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Lessons from Time on the Grievance Committee

Posted By Colleen Glatfelter, Tuesday, September 26, 2017

By David L. Sherlin, Professionalism Committee Member

 

I have had the privilege of serving on the Tenth Judicial District’s Grievance Committee (“Grievance Committee” or “Committee”) for the past five years, and I have served as Chair for the past two years.  The Grievance Committee is charged with investigating complaints filed against attorneys.  Most often, these complaints are filed by clients of the subject attorney.  The most common thread that we see in complaints relates to a lack of communication, or a miscommunication, between the attorney and the client.  

 

As part of the investigative process, an attorney from the Committee is assigned the case.  That attorney reviews the complaint and the response from the subject attorney, conducts interviews if necessary, writes a report and summarizes his or her findings to the Committee.  During the report to the Committee, the investigating attorney makes a recommendation as to whether he or she believe there is probable cause that the subject attorney violated one or more of the Rules of Professional Conduct. 


From my time on the Grievance Committee, I have developed a Top Ten List of Do’s and Don’ts.  Some of these may seem like common sense…but as I heard one time, the only thing about common sense is that it’s often times not so common. 

 

  1. Respond in a timely manner to your clients. 

  2. Be clear at the outset of representation about what your fee does and does not cover as far as representation – preferably in writing.

  3. Do not use vulgar language in communication to opposing counsel, your client, or others.

  4. Set realistic expectations as to the length of time that a case may take.

  5. Appropriately supervise associates and paralegals.

  6. Do not disappear during mediation. 

  7. Consult the State Bar if you have any question about your duties and responsibilities under the Rules of Professional Conduct. 

  8. If when considering whether to take a potential client’s case, there are alarm bells going off in your head about the client, cut and run. 

  9. Do not agree to serve as co-counsel with someone unless you know him or her, or have carefully vetted both the lawyer and his or her firm.

  10. If you get to a point that you feel that you may need to withdraw from a case, do it as soon as possible, giving the client ample time to retain counsel well in advance of the applicable statute of limitations. 

This should go without saying, but following this list will not ensure that you comply with every single Rule of Professional Conduct, but I think it should get you a good part of the way there.

 

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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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Spoliation and Social Media

Posted By Colleen Glatfelter, Monday, September 11, 2017

By Whitney Waldenberg, The Brocker Law Firm, P.A.

Our firm often receives questions about whether an attorney may advise his or her client to delete Facebook posts or Tweets in anticipation of filing a lawsuit, or even during the course of litigation.  North Carolina Rule of Professional Conduct 3.4 prohibits a lawyer from obstructing another party’s access to evidence, and Rule of Professional Conduct 1.2 prohibits a lawyer from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent.  So, would deleting the social media posts constitute a violation of these rules?  The answer is a resounding “it depends.”

The North Carolina State Bar issued a formal opinion on this question, stating that the attorney “should examine the law on preservation of information, spoliation of evidence, and obstruction of justice to determine whether removing existing postings would be a violation of the law.” (2014 Formal Ethics Opinion 5).  Therefore, the attorney must look to case law for guidance on whether removal of a client’s posting will constitute spoliation of evidence, and each potential removal may need to be examined on a case-by-case basis.

The North Carolina State Bar has determined that as long as the removal of postings “does not constitute spoliation and is not otherwise illegal, or the removal is done in compliance with the rules and law on preservation and spoliation of evidence, the lawyer may instruct the client to remove existing postings on social media.”  (2014 Formal Ethics Opinion 5).  Importantly, the State Bar stated that for purposes of preservation, “the lawyer may take possession of printed or digital images of the client’s postings.”  (Id.)

However, even where an attorney determines that removal of a client’s social media postings would not violate the Rules of Professional Conduct or other laws, the lawyer may still want to consider the practical implications of advising a client to remove social media posts and the impact such deletion may have on his or her client’s case.   Sharp opposing counsel will likely ask a deponent about his or her social media accounts, whether any posts were deleted, and—you guessed it—for detailed explanations of the exact content of what was deleted.  Arguments may ensue about whether the deleted postings are relevant to the case, but the inference of having deleted the postings could be prejudicial (perhaps even more prejudicial than the content of the postings themselves), and could potentially cause lasting damage to the case.

As an alternative to deleting social media postings, lawyers may want to advise clients facing potential litigation to adjust the security and privacy settings on social media pages to the highest level of restricted access.  Again, it is the attorney’s responsibility to determine whether restricting access would violate any laws or court orders. (2014 Formal Ethics Opinion 5).   Although adjusting the security and privacy settings would not prevent discovery of social media postings through traditional methods (such as requests for production of documents pursuant to Rule 34 of the North Carolina Rules of Civil Procedure), it could provide counsel an opportunity to object to production of such posts on the grounds of relevancy, or at the very least, limit the opportunity for opposing counsel to examine your client’s social media pages as an “open book.”

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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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Why Serve?

Posted By Colleen Glatfelter, Tuesday, August 15, 2017
Updated: Tuesday, August 22, 2017

By Ashleigh Parker Dunston, Chair of the WCBA Public Service Committee

 

“We make a living by what we get, we make a life by what we give.”-Winston Churchill

This is the quote that the WCBA Public Service Committee chose to place on the back of our very first t-shirt design.  I personally love this quote because, as lawyers, we can be overly concerned with how much money we make, the square footage of our home, and the type of car we drive.  Due to the everyday stressors of being a lawyer, coupled with the public perception of how we should “appear,” we can easily become obsessed with the living that we’re making for ourselves and our families that we forget to have a life outside of work.  With our high stress rate, mortality rate, and suicide rate, we find ourselves saying that there’s no time to manage my caseload, let alone take on a pro bono client who likely will require more work than my paid client.  We question ourselves, “Who has time to work in the soup kitchen when I don’t even have time to cook at home?”  “How can I mentor a law student or high school student, when I’m so far behind at work?” “I mean, where’s the quid pro quo in adding one more thing to my already toppling plate?”

Would you believe me if I told you that serving others leads to more happiness, less stress, and a longer lifespan?  An article by Kathy Gottberg entitled “Volunteering—7 Big Reasons Why Serving Others Serves Us,[i]” is one of many that discusses and provides empirical evidence of why serving is good for all parties involved.  I never knew why I always felt good after serving someone, but it turns out that there’s a biological response to selflessly serving -- our brain releases dopamine,[ii] which increases happiness.  Volunteering not only helps put things into perspective, which contributes to mental health, but it also takes our mind off of pain[iii] and decreases blood pressure[iv] due to the reduction in stress.  Most importantly, over forty (40) international studies have shown that volunteering on a regular basis can reduce early mortality rates by 22%.[v]  Finally, according to John Raynolds’ book, “The Halo Effect,” volunteering can lead to a more fulfilling career because when we serve, we feel happy, confident, and energized and those feelings extend out to all areas of our lives.[vi]  A longer, less stressful life is something that we can all benefit from in our personal lives and careers.

So, here it is--my shameless plug to ask you to join the Public Service Committee of the WCBA.   We need you, our community needs you, and you need it, too!  Even if you’re unable to make it to the meetings, we just need you to offer yourself, your gifts, and your talents to serve.  It’s important for you and for our Bar to give so that we can make a life, instead of just a living.



[i] Gottberg, Kathy. “Volunteering — 7 Big Reasons Why Serving Others Serves Us.” Huff Post, 22 Dec. 2014, www.huffingtonpost.com/kathy-gottberg/volunteering7-reasons-why_b_6302770.html.

[ii] Post, Stephen Garrard. The Hidden Gifts of Helping: How the Power of Giving, Compassion, and Hope Can Get Us through Hard Times. Jossey-Bass, 2011.

[iii] Arnstein, Paul, et al. “From Chronic Pain Patient to Peer: Benefits and Risks of Volunteering.”Pain Management Nursing, vol. 3, no. 3, 2002, pp. 94–103., doi:10.1053/jpmn.2002.126069.

[iv] Sneed, Rodlescia S., and Sheldon Cohen. “A Prospective Study of Volunteerism and Hypertension Risk in Older Adults.” Psychology and Aging, vol. 28, no. 2, 2013, pp. 578–586., doi:10.1037/a0032718.

[v] Jenkinson, Caroline E, et al. “Is Volunteering a Public Health Intervention? A Systematic Review and Meta-Analysis of the Health and Survival of Volunteers.” BMC Public Health, vol. 13, no. 1, 2013, doi:10.1186/1471-2458-13-773.

[vi] Raynolds, John, and Gene W. Stone. The Halo Effect: How Volunteering Can Lead to a More Fulfilling Life--and a Better Career. Golden Books, 1998.

 

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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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The Golden Rule

Posted By Colleen Glatfelter, Friday, August 4, 2017

By: Leslee Ruth Sharp, Sharp Law Offices, Raleigh, NC

In the South, we say if you don't have a kind word to say about someone, don't say anything at all. But whether you are Southern or Northern, practice Christianity, Buddhism, or maybe don't practice a religion at all, the idea that you should treat others as you would want them to treat you is pretty universal. This isn't to say that life is a tit for tat; don't expect that there is reciprocity here. You will not necessarily garner from others what you give them. But rather you should strive to dish out that which you desire to receive. Of course, this has implications for several facets of each of our lives as an attorney but I'm here to talk about those sunset years. The horizon is golden with the prospect of retirement, or worse; an illness or other sudden “detour” has occurred that draws us to the end of our career as we know it.

Many of us have consulted with an estate planning attorney to draft a will (and hopefully financial and health care powers of attorney) that take care of our personal affairs. Your family will be thankful that you planned ahead. At the time of Uncle John’s unexpected death, his foresight in having a well-drafted will made the job of administrating his estate much easier. Okay, so in preparing his will, maybe Uncle John didn’t think about how if he were the surviving personal representative, he would be grateful that the deceased left a will, but he would be. And Uncle John’s family was glad he had taken those steps. Same with Aunt Catherine and her powers of attorney when dementia took over her life.

But how many of you have considered the implications for your law practice? What about your law partners, those you share office space with, your staff if you are a solo practitioner? If they leave unexpectedly wouldn't your life be easier if they had done some preplanning? Instead of wondering how you are going to do their tasks and your own for the future (a future that at this moment looks to stretch into infinity) wouldn't it be a calmer transition if they had taken some steps to put documents and measures in place to assist you with their absence?

Well the Golden Rule says do unto others as you would have..., okay you get it. You can and should formulate a written plan of action for your absence (short term or forever) that will assist your law partners, those you share office space with and/or your staff. Now if you are in a large firm, your partnership agreement probably has some provisions for you and your law partners. The firm won't implode because you are not present. Whether you die, become incapacitated, or are otherwise missing in action, the firm will continue its business operations and likely ethically meet the State Bar requirements for continuing your obligations as a provider of legal services.

But what about your spouse, your children, and their future? Your share of the business (law practice) is what has been putting food on the table and paying college tuitions. Don't you want to make provisions for their continued well-being? Wouldn't you want the family of each of your law partners to be taken care of were the roles reversed? There is no time like the present….

If you are in a small firm or a solo practitioner, think about partnering with another attorney for those short-term emergencies. Long-term? Should you mentor a younger attorney with the idea she can take over your practice when you are ready to retire? Should you consider a merger with another firm as you get nearer to your targeted retirement date and goals? Can you begin introducing your clients to trusted colleagues?

I don't know the answers, but only hope to get you asking the questions. Then you can find your own answers. Where would you be if your law partner, office mate or staff left you unexpectedly? Or even gradually? Think about what steps you would need to take to fill the void left by an absence, and write up a plan (Insurance? Succession Agreement?  Where is the contact number for the temp agency?) that you can share with those you believe would need that information.

Much like your personal plan (if you don't have powers of attorney and a will, those should be high on your to-do list as well), a plan for your practice would certainly make for a calmer transition in the lives of those you care about and leave to deal with matters if you are absent.  Although it doesn’t contain all the answers, you might take a look at the NCBA Transitioning Lawyers Commission website for some ideas. Check also ethical guidelines for how others can take over or wind down your practice. You might start with Rule 1.17 "Sale of Law Practice".  Then look at 98 FEO 6 (selling your firm to lawyers you already employ), 2008 FEO 8 (division of fees upon departure) and reacquaint yourself with those Rules of Professional Conduct that might have an impact.  See also Rules 5.1, 5.2, and 5.3. Your absence is going to impact the people in your office, your clients and your family.

At 25 we are invincible, at 50 we begin to understand that genetics play a part in our life expectancy and likely our quality of life. At 60 we are looking forward to the days when arriving first at the office is not the most important task of the day. Help those you will leave behind by providing a plan, leave them with some written articulated guidance, as you hope they would each leave you with guidance should they become absent.

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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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When “Good Enough” is Not Good Enough

Posted By Colleen Glatfelter, Thursday, July 27, 2017

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

Lawyers often come to us with funds in their trust account that they can’t identify.  Perhaps they hire an accountant or CPA to try to determine to whom the funds belong.  What I hear is invariably the same: “My CPA says he can’t trace the funds to any particular client.  So, the funds must be mine. He says that’s good enough for me to transfer these funds to myself.  Is that right?”  Unfortunately, no.  The State Bar’s position is that if you cannot conclusively determine that the funds belong to you, you may not transfer them to yourself.  You will have the burden of demonstrating that the funds are earned fees to which you were entitled, if you are ever audited.

So, ask yourself, can you trace those funds to an earned fee for a particular client?  Can you find the client ledger showing the disbursements, and the remaining funds in trust?  Can you locate the client fee agreement that demonstrates the basis for your fee?  There should be a paper trail that will support the transfer of those funds from the trust account to the operating account.

What if you can’t trace the funds in trust back to a particular client and demonstrate that they are fees owed to you?  Then, the funds must remain in trust until they can be escheated to the North Carolina State Treasurer. Rule 1.15-2(r) states that

[i]f entrusted property is unclaimed, the lawyer shall make due inquiry of his or her personnel, records, and other sources of information in an effort to determine the identity and location of the owner of the property….If the effort is unsuccessful and the provisions of G.S. 116B-53 are satisfied, the property shall be deemed abandoned, and the lawyer shall comply with the requirements of Chapter 116B of the General Statutes concerning the escheat of abandoned property.

If you need technical assistance concerning the escheat of funds, you can go to www.nctreasurer.com or call the Office of the North Carolina State Treasurer in Raleigh.

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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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Delay Tactics to Starve Out an Opponent

Posted By Colleen Glatfelter, Monday, June 26, 2017

By Tara Muller, Muller Law Firm


Nobody says lawyering is easy.  We must keep abreast of the ever-changing laws; abide by nuanced procedural rules (varying from county to county); fulfill myriad ethical responsibilities to our clients; and precisely reconcile the blasted trust account.  Wouldn’t it be fun if we also owed duties to third parties?  You guessed it – we do.    

 

Rule of Professional Conduct 4.4(a) imposes a duty to respect the rights of third parties: “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third party…” (emphasis added) Also, lawyers must make “reasonable efforts to expedite litigation…” (Rule of Professional Conduct 3.2) Embarrassing or burdening a third party?  That’s a no-brainer covered in every kindergarten anti-bullying campaign. 

 

However, the more nuanced tactic of litigation delay, at least in my experience, sadly has become commonplace, especially in unbalanced situations involving a low-income party facing off against a deep pocket.  Consider the drastically different effect a 30-day extension has on a multi-national corporation versus on a struggling start-up company or an injured worker awaiting trial.  For some vulnerable parties, procedural delays devastate.

 

Understandably, many experienced litigators thrive on a fighting mentality and recommend aggressively using any available tactic to win.  Zealously representing a client, though, means using every available legal and ethical means.  The approach of requesting unnecessary extensions solely to starve out an opponent, while perhaps ubiquitous, is treated no differently under the Rules of Professional Conduct than embarrassing an opponent by bullying.  Before filing that next motion for extension, ask yourself if you really need more time, or if you are just stuffing your opponent into a locker. 

 

Tara Muller is an attorney-mediator and legal writer. She can be reached at tara@mullerlawfirm.com.

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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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What Am I Supposed to Do Now?

Posted By Colleen Glatfelter, Tuesday, June 20, 2017

By Megan West Sherron, Professionalism Committee Member

 

Starting a legal career is a challenge that all attorneys have faced.  From the most basic tasks to the more challenging legal questions, getting acclimated to the legal profession can be a very daunting and confusing process.  Fortunately for new attorneys a welcome solution comes in the form of mentorship.

 

Mentorship is a simple but rich concept.  Merriam Webster defines mentor as “a trusted counselor or guide.”  As a new attorney, having a trusted counselor or guide provides you with opportunities for career development and personal growth.  A study on mentorship by Tammy Allen shows that individuals who have been mentored in their career report higher job satisfaction, increased compensation, and a greater intention of staying on the job. Mentorship also provides the opportunity for a new attorney to gain confidence in their abilities, a commitment to professionalism and an opportunity to build a professional reputation.

 

The obvious next question is how do I get a mentor?  Fortunately the Wake County Bar has a solution offering all new attorneys (three years of practice or less) in the 10th Judicial District an opportunity to be assigned a mentor in the Campbell Connections Mentorship Program. Connections begins in the fall and runs through April.  We would love to have new attorneys join and learn from some of the very best mentors. We are also always looking for those qualified mentors that can provide the meaningful experience for our protégés.  For additional information on the program and requirements, please contact Megan West Sherron at sherron@campbell.edu.

 

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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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