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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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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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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.]

 

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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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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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Money Gone Missing: When a Third Party Steals Trust Funds

Posted By Colleen Glatfelter, Thursday, March 2, 2017
Updated: Tuesday, March 7, 2017

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

 Under Rule 5.3, a lawyer has an obligation to properly supervise nonlawyer assistants who have access to the trust account. Thus, if that nonlawyer assistant embezzles entrusted client funds, the lawyer has a professional responsibility to replace the funds. What about when the loss occurs through fraud by an unaffiliated third party?

Does a lawyer have a professional responsibility to replace funds stolen from his trust account by an unaffiliated third party where the bank honored counterfeit checks presented by the third party?

Formal Ethics Opinion, 2015 FEO 5, was adopted in October 2015 and provides:

…when funds are stolen from a lawyer’s trust account by a third party who is not employed or supervised by the lawyer, and the lawyer was managing the trust account in compliance with the Rules of Professional Conduct, the lawyer is not professionally responsible for replacing the funds stolen from the account.

The Opinion advises that lawyers must still investigate the matter, take steps to prevent further loss to entrusted funds, and make every effort to remedy the situation including: “…researching the law to determine if Bank is liable; communication with Bank to discuss Bank’s liability; asking Bank to determine if there is insurance to cover the loss; considering whether it is appropriate to close the trust account and transfer the funds to a new trust account; and working with law enforcement to recover the funds.”

Note that the Opinion requires that the lawyer “was managing the trust account in compliance with the Rules of Professional Conduct” before he is relieved of the duty to replace the stolen funds.  While the trust accounting rules may not be burdensome, they are specific.  One area where we see lawyers consistently missing the mark is by failing to reconcile the trust accounts quarterly and by failing to send a written accounting of funds to clients, annually and upon final disbursement.  The opinion also clarifies that “substantial compliance” would be sufficient to relieve the lawyer of the duty to reimburse the account, so it is likely that a mere technical violation of the Rules, such as failure to keep proper-sized cancelled check images, would not trigger the reimbursement requirement.

RPC 191

Compare this Opinion with RPC 191 which requires a lawyer to reimburse his trust account for any losses caused by disbursing before funds are irrevocably credited where the lawyer disburses against provisionally credited funds. In that case, if third party fraud prevented the funds from being irrevocably credited and the attorney disburses prior to that point, the attorney must reimburse the client funds.

Does a lawyer have a duty to replace stolen funds from the lawyer’s trust account when the theft occurs as a result of an unaffiliated third party gaining illegal access to lawyer’s computer and transferring the trust account balance to the third party’s account?

It depends upon whether reasonable security measures were in place.  2015 FEO 6 provides that the lawyer is not professionally obligated to replace the stolen funds as long as he has “taken reasonable care to minimize the risks to client funds by implementing reasonable security measures in compliance with the requirements of Rule 1.15.” 2011 FEO 7 provides some of those affirmative duties including:

  • educating himself regularly on the risks of online banking;

  • actively maintaining end-user security;

  • using encryption and security software;

  • hiring an IT professional to advise the lawyer and firm employees; and

  • insuring all staff members receive training and follow the security measures adopted by the law firm.

    Under the above two circumstances, may a lawyer deposit his own funds into the trust account while pursuing other remedies?

    As a general rule, there is a prohibition on commingling funds:  Lawyers should not deposit personal funds into the lawyer’s trust or fiduciary accounts.  There are, however, various exceptions to the rule which permit a lawyer to deposit personal funds into a trust account including funds sufficient to open or maintain an account and others which allow the lawyer to fulfill his duty to safeguard entrusted funds.

    Although it is not required for a lawyer to deposit his own funds into the trust account under the circumstances described in 2015 FEO 6, the opinion permits a lawyer to do so.  A lawyer may replace the stolen funds with his own, until the funds may otherwise be recovered from the bank, insurance, or elsewhere. The opinion provides that if the lawyer decides to deposit his own funds, the lawyer must make sure the trust account reflects the:

  • source of the funds;

  • reason for the deposit;

  • date of the deposit; and

  • client name for which the funds were deposited.

    In short, under these circumstances involving an unaffiliated third party, a lawyer may not have a professional responsibility to reimburse the stolen funds. However, the lawyer (1) may still have a legal responsibility to do so; and (2) must take certain steps which include reporting the theft to the NC State Bar’s Trust Accounting Compliance Counsel.

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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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Does Your Report Pass the “Tell” Test?

Posted By Colleen Glatfelter, Tuesday, February 14, 2017

By:  Leanor Bailey Hodge, Professionalism Committee Member

The legal profession is a self-regulating profession.  One of the ways in which the legal profession is self-regulating is that lawyers have an obligation to report ethical misconduct of other members of the profession.  N.C. Rules of Prof’l Conduct Rule 8.3 requires a “lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” to inform the North Carolina State Bar or the court having jurisdiction over the matter. 

This responsibility should not be taken lightly.  Those who have had occasion to make a report pursuant to Rule 8.3 have indicated that it is one of the most difficult professional actions they have had to undertake in their career.  In a profession where one often has to deliver bad news, this really says a lot about the gravity associated with the duty to make a report of misconduct by another lawyer. 

How do you know when you are under an obligation to report another attorney?  The “Tell” test can help you make this determination.  There are three parts to the “Tell” test. 

First, is a report to the State Bar required?  The rule requires that you have actual knowledge of a violation.  You should not report based on something you have only heard about through others.  The comment to Rule 8.3 gives additional guidance to the lawyer who must determine whether a report of misconduct is required pursuant to the Rule.  A report is not required where it would involve a violation of Rule 1.6 nor does a duty to report pursuant to Rule 8.3 apply to a lawyer retained to represent a lawyer whose professional conduct is in question.  Further the ethical duty to report lawyer misconduct cannot be a negotiation point.  For example, a lawyer may not condition settlement of a civil dispute on an agreement not to report lawyer misconduct. 

Second, what type of conduct should be reported?  The rule states the conduct must raise a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer.   Although honesty and trustworthiness are not specifically defined by the Rules of Professional Conduct, honesty is defined by Merriam-Webster’s online dictionary as “a:  fairness and straightforwardness of conduct” and “b: adherence to the facts” and one is trustworthy when he or she is able to be relied upon to do or provide what is needed or right – deserving of trust.  According to the comment to this Rule, “a measure of judgment” is required in complying with the provisions of Rule 8.3.

Additionally, the reporting obligation is limited to “those offenses that a self-regulating profession must vigorously endeavor to prevent.”  Comment [4], N.C. Rule of Prof’l Conduct Rule 8.3 (2003).  Some obvious examples that require reporting are situations involving another attorney’s criminal misconduct, knowing misrepresentations to a court or others, and fabrication of documents.  Perhaps a less obvious example deemed by the State Bar as implicating Rule 8.3 is another attorney’s disbursement of conditionally delivered settlement proceeds without satisfying all conditions precedent if the disbursement was made in knowing disregard of such conditions and if such information is not confidential.  Additionally, a lawyer must report a violation of the Rules of Professional Conduct as required by Rule 8.3 even if the lawyer’s unethical conduct stems from mental impairment.

Third, do I have to report if it will not be kept confidential?  Yes.  If a lawyer is required to make a report of misconduct to the State Bar pursuant to Rule 8.3, the State Bar’s regulations provide that the State Bar may keep confidential the identity of the lawyer or judge who reports such alleged misconduct.  Even if such a request is made, the State Bar may reveal the identity of a reporting lawyer or judge where such disclosure is required by law or by considerations of due process where identification is essential to preparation of the lawyer’s defense to a grievance or disciplinary complaint.

It is a very difficult thing to have to make a report of misconduct about a fellow lawyer.  If you are ever confronted with such a situation, make sure that you conduct the above, three-part “tell” test to confirm what your ethical obligations are before deciding how you will proceed.  And, remember, you can always contact the State Bar’s Ethics Department for advice about whether you have a duty to report pursuant to Rule 8.3.

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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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New Year Checkup for Your Practice

Posted By Colleen Glatfelter, Wednesday, February 1, 2017

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

It’s 2017, and many of us are already losing our battle to keep our resolutions.  Often, New Year’s resolutions are about personal growth, and that’s great.  It is hard to keep those resolutions when so many of them are not specific or concrete enough.  For example, we say we’ll go to the gym more, lose some weight, be a better person, and think more positively.  Unless your goals are specific, it can be hard to measure whether you have achieved any of these goals.  But what about your law firm? The new year is also a good time to take stock and perform a checkup of your firm.  Here is a check list with enough specificity to hopefully make it easier to stick to these resolutions:

1.      Trust Account – New rules were adopted in June of 2016.  If you haven’t already, read the new rules.  Then print out the three report forms that you will need to use from the State Bar’s website, www.ncbar.gov.  There is a monthly reconciliation report, a quarterly reconciliation report, and a quarterly review report.  Finally, vow to review the previous month’s trust records by the 15th of the following month.

2.      Insurance – Review your liability insurance, both your limits and deductible, and be sure you think they are sufficient, given the state of your practice in 2016.  Review your business/property insurance policy as well to be sure it covers any new purchases or property. Finally, with the prevalence of Ransomware, consider obtaining a cyber security insurance policy. These days, it’s becoming more a matter of when you will be hacked, rather than if. Lawyers Mutual has these kind of policies and can explain what they cover and why you may need one.

3.      Cyber Security – Make an appointment to sit down with your IT professional and ask them some questions.  How is my data being protected?  Tell me about my firewall.  Do I have two different ways to back up my data?  How can I keep client information on my computer safer? Do I need two-step authentication or encryption on laptops and other mobile devices such as employee smart phones and tablets where client information can be accessed?  What can I do to protect client information if one of those items is lost or stolen?

4.      Tax Planning – Once your CPA has a bit more time, make an appointment to talk about how your firm did last year, and whether you can do anything to save on taxes.  Discuss whether there are any employee benefits (401K, Health Reimbursement Accounts, Health Savings Accounts, etc.) that can help your business save in taxes.

5.      Marketing Assessment – List all of the ways in which you market your business.  Then figure out if any of those marketing tools is not paying off, and cut it.  Finally, think about how you can expand into at least one new market and brainstorm the best ways to reach those folks.

6.      Plan to Save – This sounds like a vague goal, but it doesn’t have to be.  Make an appointment with a financial advisor and figure out a new way to save, especially for retirement. Auto draft a certain amount monthly into a retirement account. If you are 50 years old, then you can step up savings into your 401(k) or other retirement accounts (yes, we only know this because we’re at that stage).  Consult your CPA on how you can maximize your retirement savings while saving taxes at the same time.

7.       Appreciation – Meet with your employees and let them know how much you appreciated their hard work this past year.  Start 2017 off on the right foot.

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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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With Great Power Comes Great Responsibility

Posted By Colleen Glatfelter, Thursday, January 19, 2017

By Crystal S. Carlisle, Associate Attorney, The Brocker Law Firm, P.A.

These days, you literally have the power to access any document in your law office through your cell phone, tablet or laptop.  Client files and communications may be accessed by touching a few characters on the keyboard.  It is very convenient and makes staying on top of things much easier, but there are also risks.  What happens if that device is lost or stolen?  Will your password provide the necessary protection to keep your client data safe?

When lawyers think about the security of their computerized data, the first things to come to mind may be virus protection, firewalls, and data back-ups.  These are all very important, but the security of end-user devices is just as important.  I recently attended an excellent CLE presented by Lawyer’s Mutual that opened my eyes to additional cybersecurity issues lawyers must be aware of and reminded me of Comment No. 8 to N.C. Rule of Professional Conduct 1.1 quoted below:

[8] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with the technology relevant to the lawyer’s practice, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.

Keeping abreast of the benefits and risks associated with the technology relevant to the lawyer’s practice, likely includes being aware of how someone could gain access to mobile devices and how to adequately protect them.  Several ways to protect the data on end-user devices were discussed at the CLE, including using multifactor identification when logging into a database with confidential information and using strong passwords.  But ultimately, best practice is to encrypt all laptops, mobile devices, and removable media, such as jump drives.  It is worth paying an IT professional to help you now, rather than facing the headache of a costly data breach later.  Along with the great power of easy and constant access to client documents comes the great responsibility as lawyers of protecting against disclosure of confidential information.   

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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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