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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 

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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Do Lawyers have a Professional Obligation of Community Service?

Posted By Colleen Glatfelter, Wednesday, May 31, 2017
Updated: Friday, June 9, 2017

By Dan Johnson, NC Department of Justice 

We all are aware that attorneys serve in the North Carolina Legislature.   For example, in 1967 there were 16 identifiable attorneys in the 50-person Senate.   This session there are 11 identifiable attorneys in the 50-person Senate.  These lawyers, past and present, are to be commended for their civic leadership in the legislative branch of state government.  There can hardly be a more important venue for a lawyer to serve his or her state than service in the elected bodies (House and Senate) responsible for our state’s statutory law.

While the demands of the practice of law, the increasing expense of legislative elections and the increasing length of legislative sessions may discourage civic leadership of attorneys through service in the State Legislature, there continue to be other avenues of civic leadership available to attorneys. 

Why should attorneys look for opportunities for civic involvement?  Because civic leadership and community service are aspects of professionalism.  This is made clear by at least three State Bar Rules.

Professionalism is, in part, defined by a description the State Bar has provided for “professionalism” CLE courses.  State Bar Rule 27 NCAC 1D §.1501 (14) defines “Professionalism” courses as follows:

(14) "Professionalism" courses are courses or segments of courses devoted to the identification and examination of, and the encouragement of adherence to, non-mandatory aspirational standards of professional conduct which transcend the requirements of the Revised Rules of Professional Conduct. Such courses address principles of … service to the community, and service to the disadvantaged and those unable to pay for legal services. (Emphasis added).

Rule 0.1 of the Rules of Professional Conduct, entitled: “Preamble: A lawyer’s Professional Responsibilities” is a pretty comprehensive discussion of Professionalism.   As it relates to civic leadership and community service, Rules 0.1[7] and 0.1[8] provide, in part:

[7] A lawyer should render public interest legal service and provide civic leadership.  . . .

 [8] . . .  It is the basic responsibility of each lawyer to provide community service, community leadership . . .

These professionalism authorities instruct us to “give back” to our communities.   Of course, attorneys have significant demands on their time such as building their competency, developing a client base and paying attention to family.  Despite these demands, attorneys should be on the lookout for things they have time to do in the public service realm.  An attorney should look for opportunities in his or her hometown, such as service on the local school boards, local nonprofit boards of directors, working with Habitat for Humanity, or volunteering at a blood drive.   Some of these activities, such as Habitat for Humanity, can even be family affairs.  Let’s all be conscious of the community service aspect of professionalism.

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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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Friends, Family, and Casual (Legal) Conversation

Posted By Colleen Glatfelter, Monday, May 15, 2017

By: Rebecca F. Hölljes, Ragsdale Liggett PLLC

 

         If you have been practicing law for any length of time (and maybe even before you became a licensed member of the Bar), someone probably has asked you for off-the-cuff legal advice.  This may have happened when you’re out having a drink with friends, attending a family reunion, or cold-called at the office by an in-law or friend-of-a-friend.  People reach out in the hopes that you can answer their “quick question” or sort out their issue “in just a few minutes.”  Many lawyers, especially younger ones (myself included), are inclined to jump in, and may do so free of charge.  We attorneys, however, are wise to keep in mind that a client–attorney relationship is not defined by whether legal advice is provided over drinks or in a conference room or whether we bill for our services.

 

         Under the North Carolina Rules of Professional Conduct, the client–attorney relationship generally begins after the client has requested the lawyer to provide legal services and the lawyer has agreed to do so.  See N.C. Rules of Prof’l Conduct R. 0.2 (2017).  Practically speaking, the relationship can develop in a much-less-formal exchange.  Whether a client–attorney relationship exists depends on the situation and may be a question of fact.  See id.  An attorney, therefore, is well advised to be thoughtful and circumspect when sharing legal advice to avoid the unintended or unknowing creation of a client–attorney relationship that could result in future allegations of legal malpractice.

 

         As one who is charged with knowledge of the Rules of Professional conduct, an attorney needs to be clear about his or her relationship with the friend or family member if he or she does not intend casual advice or conversation to establish a more traditional client–attorney relationship.  If you give advice, and that advice is wrong or ill-advised and the potential client relies on it to his or her detriment, you may be held responsible.  Relatedly, if you find out enough information about the friend or family member’s issue, but are not retained, your knowledge may conflict you out of representations related to the matter down the line.  See N.C. Rules of Prof’l Conduct R. 1.7.

 

         Consequently, if you make the decision to provide legal advice, consider following up in writing after your conversation stating what you understood the facts of the matter to be, the advice provided and, if applicable, that your representation has terminated.  Be up front about what you do and do not know.  Responding “I don’t know” or “that’s outside my practice area” may be the simplest way to ensure you will not face any potential claims of malpractice, legal liability, or disciplinary action and is often the easiest way to avoid messy friend/family representations. 

Do not forget that confidentiality rules apply in the context of the client–attorney relationship, so you will not want to discuss your friend’s matter with other friends or family.   If you work in a law firm with other attorneys, you may need to advise the firm of your conversation to avoid a conflict among clients.

 

         At the same time, do not feel you need to unconditionally refuse to provide advice to family and friends.  As an attorney, you offer particular insight into a realm that very few people have access to (and perhaps particularly so at the rates your services may demand), but which impacts everyone’s lives at one time or another.  Helping those you care about for free or at significantly reduced rates can be both personally rewarding and a good way to generate positive referrals and goodwill in the community, but it must be done in accordance with the Rules of Professional Conduct.  A lawyer, therefore, may decide to provide advice in response to requests that are made outside of the office setting, but when doing so, he or she should be aware of the ways this implicates his or her ethical obligations under the Rules of Professional Conduct.

 

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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 YOU DON’T KNOW ABOUT MEDIATION MAY BE AN ISSUE OF PROFESSIONALISM

Posted By Colleen Glatfelter, Thursday, April 27, 2017

By Mark Finkelstein, Smith Moore Leatherwood LLP

 

          The two largest changes in civil litigation over my 30 years of practice are the advent of mediation and the proliferation of electronic communications.  Much has been written about professionalism and E-communication.  Not enough has been written about professionalism and mediation. 

 

            Lawyer mediators must comply with both the Rules of Professional Conduct and the Standards of Professional Conduct for Mediators.  Advisory opinions are issued under both of these sets of rules.  Even if you are not a mediator, your duty of competence as a lawyer requires you to have some familiarity with the rules that apply to mediators if you mediate. 

 

            The rules applicable to mediators can be found here:

http://www.nccourts.org/Courts/CRS/Councils/DRC/Standards/Conduct.asp

The advisory opinions regarding these rules can be found here:

   http://www.nccourts.org/Courts/CRS/Councils/DRC/Standards/Opinions.asp 

 

            You may be surprised to learn that:

 

            1.         A mediator may not distribute something as small as “mouse pads with contact information thereon to existing or potential clients” with the hope of receiving referrals.  Advisory Opinion 33 (2016).

 

            2.         In a case where one party is represented by counsel and one is pro se, the mediator may not prepare the mediated settlement agreement for the parties to sign.  Under those circumstances, when the mediated settlement agreement is prepared by the represented party, the mediator must raise questions with the parties if the agreement does not include terms discussed in the presence of the mediator or are misstated.  Advisory Opinion 31 (2015).

 

            3.         Mediators are required to define the separate and distinct concepts of confidentiality (typically, unless agreed to otherwise, a party to a mediation can issue a press release describing the events of the mediation because a mediation is not confidential) and inadmissibility (typically statements made during mediation are not admissible at trial).  Advisory Opinion 29 (2014).

 

            Given that a significant percentage of cases are mediated prior to disposition, lawyer-advocates must be competent at mediation.  Giving due consideration to a strategic approach to mediation and properly preparing for mediation are the keys to mediation competence.   

 

Prior to mediation, you should discuss with your client the mediation process itself, possible opening settlement offers, information you want to seek during mediation, your client’s best alternative to a negotiated agreement, and your client’s role at mediation.  Your opening statement should also be considered.  Sometimes the best approach at mediation is to forgo an opening statement.  Sometimes the best approach is to bring an expert to the mediation and have him narrate a detailed PowerPoint presentation.  Between these two extremes in opening statement presentations are many other reasonable options.  Even though there are many potential right answers, due consideration to the proper approach to each aspect of mediation is always important.

 

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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:  Advocacy  Competence  Ethics  Law  Lawyer  Mediation  Professionalism 

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