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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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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.

~~~~~

 

 *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.

~~~~~

 

 *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.

~~~~~

 

 *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.

~~~~~

 

 *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.

 

~~~~~

 

 *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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Two Unrelated Professionalism Gold Nuggets from the North Carolina General Rules of Practice

Posted By Colleen Glatfelter, Monday, April 17, 2017

By Ted Smyth, Cranfill Sumner & Hartzog, LLP

 

The North Carolina General Rules of Practice are somewhat publicity shy “B” listers in the celebrity world of famous and oft-quoted statutes and rules.  However, two of them in particular deserve some star power in the realm of professionalism, and this writer accordingly so lobbies herein.

 

RULE 16. WITHDRAWAL OF APPEARANCE

 

No attorney who has entered an appearance in any civil action shall withdraw his appearance, or have it stricken from the record, except on order of the court.  Once a client has employed an attorney who has entered a formal appearance, the attorney may not withdraw or abandon the case without (1) justifiable cause, (2) reasonable notice to the client, and (3) the permission of the court.  (See Smith v. Bryant, 264 N.C. 208, 141 S.E.2d 303).

 

[Observations: This Rule is highlighted for two reasons.  First, it sets forth in elegant simplicity that it takes an order to properly withdraw from representation in a civil action, and lays out the three essential requirements to do it properly.  Note here that some thinking and some advance planning need to go into the logistics of this process, in fairness to the client and in planning for the awkward circumstance of needing to disclose sufficient facts to support the motion, without prejudicing your client by disclosure of sensitive information.  This can be a much harder task than it sounds.

 

Second, this Rule effectuates, in this writer’s opinion, the underappreciated option, after one has been hired, but not too far down the road thereafter, to honestly and objectively evaluate the state of a representation of a client.  Some red flags for this writer: (1) heavy pressure to do something you have repeatedly strongly recommended against or declined to do; (2) highly stressful interactions that could probably be alleviated with a reset button using a new lawyer - though, many such problems are just intractable and not lawyer-centric; (3) a client who absolutely steadfastly refuses to hear or acknowledge the potential for an adverse outcome or result; or (4) you just absolutely completely dread working on the case and you haven’t figured out exactly why, but it likely involves personality dissonance.  Many cases are just not going to be enjoyable by their very nature, but if they seem largely within the realm of (1)-(4) above, don’t forget you can consider a possible withdrawal as an option, or raise that specter with the client.]

 

RULE 12: COURTROOM DECORUM (Edited Down to its Most Professionalism-Related Provisions)

 

* * * *

 

Business attire shall be appropriate dress for counsel while in the courtroom.

 

All personalities between counsel should be avoided.  The personal history or peculiarities of counsel on the opposing side should not be alluded to.  Colloquies between counsel should be avoided.

 

Adverse witnesses and suitors should be treated with fairness and due consideration.  Abusive language or offensive personal references are prohibited.

 

The conduct of the lawyers before the court and with other lawyers should be characterized by candor and fairness.  Counsel shall not knowingly misinterpret the contents of a paper, the testimony of a witness, the language or argument of opposite counsel or the language of a decision or other authority; nor shall he offer evidence which he knows to be inadmissible.  In an argument addressed to the court, remarks or statements should not be interjected to influence the jury or spectators.

 

Suggestions of counsel looking to the comfort or convenience of jurors should be made to the court, out of the jury’s hearing.  Before, and during trial, a lawyer should attempt to avoid communicating with jurors, even as to matters foreign to the cause.

 

Counsel should yield gracefully to rulings of the court and avoid detrimental remarks both in court and out.  He [or she!] should at all times promote respect for the court.

 

[Observations: These admonishments represent a common sense compilation of things that make you look bad (and thus potentially hurt both your client and the profession) and/or would anger you if implemented by the other side in an improper attempt at unfair advantage.  Whatever it is, someone else has tried it long ago, and for good reason, it is proscribed today.]

 

~~~~~

 

 *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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Payoff for Professionalism

Posted By Colleen Glatfelter, Wednesday, April 5, 2017

By Doug Brocker, Chair of the Professionalism Committee

What goes around, comes around -- Most people use this expression as a warning not to do bad things to others because a bad act may be done to you later in return.  The same principle applies for acts of professionalism, but in a positive sense.  Consistently treating others with professionalism most often pays off with professional acts extended back to you.  This principle applies to actions toward clients, judges, staff, as well as opposing parties and counsel.  

Portions of the Creed of Professionalism of the Wake County and Tenth Judicial District Bars is instructive on this issue:

To my colleagues in the practice of law, I offer concern for your welfare. As we work together, I will respect your personal and family commitments. I will share my learning and experience so that we may all improve our skills and abilities.


To the courts and to those who assist them, I offer respect, candor, and courtesy. I will respect and strive to improve the judicial process. I will serve as an officer of the court, encouraging respect for the law and avoiding the abuse or misuse of the law, its procedures, its participants, and its processes.


To opposing parties and their counsel, I offer honesty, fairness, and courtesy. I will seek truth and strive to resolve our clients’ disputes in a dignified manner. I will pursue the most efficient and least costly solutions to problems and avoid unnecessary delay.

Consider one not so hypothetical example:  Attorney A and Attorney B are frequently opposing counsel in often hotly contested matters.  Attorney B inadvertently files a pleading with the Court that is proper on its face but inconsistent with a prior discussion and agreement with Attorney A several months before.  Rather than filing an accusatory motion or other responsive pleading and likely damaging their relationship, Attorney A contacts Attorney B and has a frank but professional discussion reminding him of the prior conversation and the inconsistent information in the document he filed with the court.  As a result, Attorney B promptly files an amended pleading with the Court correcting the inadvertent error, obviating the need for what likely would have been a contentious court intervention on the issue.

Fast-forward about a year later in an entirely unrelated matter in which Attorney A and B again are opposing counsel.  In this case, Attorney A files an appeal of an adverse decision to her client.  However, a young associate in her office inadvertently misreads or misunderstands the requirements and serves opposing counsel but does not file the appeal within the time limit, as required in the applicable rule.  Rather than filing a motion to dismiss the appeal, which likely would be denied based on excusable neglect, Attorney B convinces his client not to pursue the issue and to defend the appeal on the merits.  Attorney B informs Attorney A after the decision has been made not to pursue a dismissal.  Again, Attorney B’s professionalism and courtesy to Attorney A avoids potentially permanently damaging their ongoing relationship and eliminates the need for court intervention, without likely changing the result to his client.    

In the future, you may find yourself in a situation like the above example, where you need an act of professionalism and courtesy from a colleague or opposing party.  It’s yet one more reason to consistently act with professionalism in all your dealings with clients, colleagues and opposing parties and counsel. Remember the old saying: what comes around goes around – and that can be a good thing.  

~~~~~

 

 *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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Have You Hugged Your Trust Account Oversight Officer Today?

Posted By Colleen Glatfelter, Thursday, March 23, 2017

By David Smyth, Brooks Pierce McLendon Humphrey & Leonard LLP  

 Have you hugged your Trust Account Oversight Officer today?  You should.  Wait.  Do you even have a Trust Account Oversight Officer?  Maybe you should consider getting one.  Last June, the N.C. Supreme Court approved amendments to the trust accounting rules, including Rule 1.15-4: Alternative Trust Account Management Procedure for Multi-Member Firms.  The rule allows appointment of such an officer to “oversee the administration of any such trust account in conformity with the requirements of Rule 1.15.”  The rule is technically voluntary, but there are good reasons to take advantage of its provisions.

Here’s some background: In the past, faced with misconduct or negligence in trust account management at multi-member firms, the State Bar has at times faced a quandary.  That is, if all of a law firm’s partners are in charge of the trust account, is it true that effectively none of them are in charge?  Put another way, if a single partner’s actions or omissions cause losses from a trust account, can the other partners fairly be held to answer for those losses?  Those are tough questions that can be extremely hard depending on the circumstances.  The other partners might reasonably argue that they were far too removed from the problems to be held accountable.

Enter Rule 1.15-4.  Now a multi-member firm is allowed to designate a Trust Account Oversight Officer (“TAOO”) to be the partner on the hook for administration of a law firm’s trust account.  In short, the rule allows for one throat to choke – and ends the quite plausible deniability for the rest of the partnership – if something goes wrong.  Of course, there are limits to the limits.  Lawyers who serve as primary counsel for a particular matter cannot deny responsibility for trust account issues associated with that matter.  See Rule 1.15-4(b). 

Also, a TAOO will have some significant and ongoing education obligations to maintain compliance with Rule 1.15-4(c).  Those obligations and the potential liability that could result may not be attractive features.  But opting out of Rule 1.15-4 and failing to designate such an officer could yield similar liability for every partner in the firm in the event that problems with a trust account are uncovered someday.

Weigh the benefits and risks, and think about hugging your TAOO.

~~~~~

 

 *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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