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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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Repellant for the Perils of Anonymity

Posted By Colleen Glatfelter, Friday, September 30, 2016
Updated: Monday, October 3, 2016

By Leanor Bailey Hodge, Professionalism Committee Member

There is a rustling sound…you can feel someone breathing on your neck…did that chair across the room just move?  Surely this is all just your imagination because you are alone in this room – there is no one present but you.  I remember the anticipation of those scenes in television shows and movies when one of the characters becomes invisible and begins using his invisibility to his advantage and the disadvantage of those around him.  Do you remember?  The invisible character slips in unseen and is free to do as he pleases without having to account for it.  We don’t actually experience situations like this in real life because invisibility of this kind is only found on television and in movies.  However, there is something like invisibility that actually exists in reality:  anonymity.  Like invisibility, anonymity can be used to avoid accountability for mischievous deeds.  When a person is anonymous, it can be easier to push the envelope because the likelihood of being held accountable is diminished. 

In the practice of law, anonymity, both actual and perceived, can lead down a slippery slope into unprofessionalism.  Anonymity can make it easier for a lawyer to be disrespectful on occasion without accountability or to occasionally needlessly delay a response to opposing counsel without it becoming generally known.  There can be harmful effects to the local bar and legal system when anonymity results in such deeds.  Several seemingly isolated instances of this type can have the long term effect of changing the culture of a local bar with a high degree of professionalism to something lesser.  When a local bar, such as the Wake County Bar, becomes large, it becomes easier and more likely that there will be members who are unknown by many and thus who are anonymous. 

The Wake County Bar Association has a Creed of Professionalism that was adopted in February 1997.  The WCBA Creed of Professionalism has helped it protect against the perils than can come along with anonymity.  It serves to remind all members of the Wake County Bar of what we each commit to whether we are known and can be held accountable for it or are anonymous.  The Creed of Professionalism provides in part:

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 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 or clients disputes in a dignified matter.  I will pursue the most efficient and least costly solutions to problems and avoid unnecessary delay.

Take a moment once and a while to read the WCBA Creed of Professionalism and remind yourself of that to which we must commit in order to maintain the highest degree of professionalism and to do our part to combat the dangers of anonymity.  The Creed of Professionalism can be accessed via this link:  http://www.wakecountybar.org/?prof_creed.

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 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole. 

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Lessons from Political Trash Talk

Posted By Colleen Glatfelter, Thursday, September 8, 2016
Updated: Monday, September 12, 2016

By Tara Muller, NC Appellate Attorney 

Are you proud to be a lawyer?  Sure, but admit it…at some point, at some party, to some stranger, you hesitated before offering up your job title. Lawyers serve the community as leaders, activists, and civil servants, doing tremendous good for the world, so why the pond-scum reputation?     

Maybe we can learn from the ubiquitous political trash talk we’ve been enduring this election cycle:  Unfit for office...Crooked liar...Paid off by special interests." No wonder some folks unfairly write off all "politicians" as slimy, even though so many elected officials are wonderful and selfless. Could it be that, similarly, the public forms opinions about lawyers by the insults and insinuations we suggest about other lawyers?

My unscientific theory is that lawyer-about-lawyer trash talk is just as damaging as lawmaker-about-lawmaker trash talk. Sure, the lawyer version is classier, usually whispered over cocktails or a tennis match instead of on a 30-second TV ad. "How does she sleep at night…The whole firm is sloppy…Courthouse rat…Over-billing clients… Ambulance chaser…Selling out…Billboard lawyer…"  Of course members of the public will form negative opinions when they hear such things.  Monkey see, monkey do.

This phenomenon of in-fighting is curious, because as a whole, North Carolina lawyers are wonderful. During my 16 years of practice, I have benefitted from and witnessed courtesy, grace, and unexpected advice and assistance from my colleagues on both sides of the “v.” Sure, there’s an occasional bad apple, but that’s the case in any profession, so why dwell on that one guy or lady?  Maybe this week, each of us should take the opportunity to brag to a non-lawyer about the outstanding work of another North Carolina attorney. Let’s start our own grassroots campaign for North Carolina lawyers, from the inside out. What great things have you witnessed lawyers doing for our community?  It’s time to spread the word.

 

Tara Muller is a NC appellate attorney and mediator based in Raleigh. 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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Lessons from Political Trash Talk

Posted By Colleen Glatfelter, Thursday, September 8, 2016
Updated: Monday, September 12, 2016

By Tara Muller, NC Appellate Attorney 

Are you proud to be a lawyer?  Sure, but admit it…at some point, at some party, to some stranger, you hesitated before offering up your job title. Lawyers serve the community as leaders, activists, and civil servants, doing tremendous good for the world, so why the pond-scum reputation?     

Maybe we can learn from the ubiquitous political trash talk we’ve been enduring this election cycle:  Unfit for office...Crooked liar...Paid off by special interests." No wonder some folks unfairly write off all "politicians" as slimy, even though so many elected officials are wonderful and selfless. Could it be that, similarly, the public forms opinions about lawyers by the insults and insinuations we suggest about other lawyers?

My unscientific theory is that lawyer-about-lawyer trash talk is just as damaging as lawmaker-about-lawmaker trash talk. Sure, the lawyer version is classier, usually whispered over cocktails or a tennis match instead of on a 30-second TV ad. "How does she sleep at night…The whole firm is sloppy…Courthouse rat…Over-billing clients… Ambulance chaser…Selling out…Billboard lawyer…"  Of course members of the public will form negative opinions when they hear such things.  Monkey see, monkey do.

This phenomenon of in-fighting is curious, because as a whole, North Carolina lawyers are wonderful. During my 16 years of practice, I have benefitted from and witnessed courtesy, grace, and unexpected advice and assistance from my colleagues on both sides of the “v.” Sure, there’s an occasional bad apple, but that’s the case in any profession, so why dwell on that one guy or lady?  Maybe this week, each of us should take the opportunity to brag to a non-lawyer about the outstanding work of another North Carolina attorney. Let’s start our own grassroots campaign for North Carolina lawyers, from the inside out. What great things have you witnessed lawyers doing for our community?  It’s time to spread the word.

 

Tara Muller is a NC appellate attorney and mediator based in Raleigh. 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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Please Do Not Confuse Your Google Search with my Law Degree

Posted By Colleen Glatfelter, Monday, August 29, 2016

By Elizabeth L. Oxley, Attorney, Raleigh, North Carolina

 

   

 The message on the photograph above of a coffee mug, “Please do not confuse your Google search with my law degree” begs the question what do a law degree and license mean in these days of the super information highway?  Normally, a law degree is earned only by surviving a careful admissions screening process for character and ability, three years of demanding classes, clinical internships, and extracurricular activities, and many difficult course examinations.  Law students learn legal research and analysis skills, which require depth of understanding and precision in interpreting the law. Once a law graduate is granted permission to take the bar exam, passes the bar exam and earns a license to practice law, he or she keeps the license only by meeting certain ethical and professional standards on an ongoing basis.

 

Law school instruction,  law examiner board rigorous standards that law graduate applicants must meet before taking the formidable bar exam, codes of professional ethics, and state bar regulation of lawyers’ ethical and professional practices to keep practice standards high are necessary and effective counterpoints to the unregulated “Google” practice of law by non-lawyers.  These enforcers of high standards for prospective and current law licensees—law schools, boards of law examiners, and state bars-- promote high ethical and professional standards in the legal profession and practice of law and are necessary to maintaining an orderly society based on the rule of law.

 

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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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Let Hate, Let Hate Be Your Enemy

Posted By Colleen Glatfelter, Wednesday, August 17, 2016

By Brian Beverly, President, Wake County Bar Association and Tenth Judicial District Bar

 

Are you holding a grudge?  Does the mere sight of the person who offended you make your blood boil?  If so, do your best to let it go.  A quote that I often reflect on reads: “Resentment is like drinking a poison and expecting it to kill your enemies.”  The quote is most frequently attributed to Nelson Mandela, but he likely wasn’t the original author.  The phrase has enjoyed some variations over the years and has substituted “unforgiveness” (not a real word) or “holding on to anger” in place of the term ‘resentment’ in different publications.  Despite the difference in verbiage, the lesson is constant.  We only do ourselves harm when we harbor prolonged ill will in our heart for those whom we feel have crossed us.  So the next time that idiot cuts you off in traffic, take a deep breath and carry on.  When you see the opposing counsel who tried to play you for a fool some years back, smile and greet him/her as appropriate to serve notice that the hatchet is buried.  Hopefully none of us has to cultivate the level of forgiveness that Mandela mustered, but we can all afford to release some measure of resentment.  As one of my favorite Reggae bands Third World put it in their smash hit “Now That We’ve Found Love,”

 

You’ve got to forgive and forget

Let hate, let hate, be your enemy.

 

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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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Tips for Training New Lawyers on Confidentiality

Posted By Colleen Glatfelter, Monday, August 8, 2016

By Rebecca F. Hölljes

 

            Perhaps one of our most important responsibilities as attorneys is to maintain client confidences.  Despite its importance, the breadth and scope of an attorney’s duty to maintain client confidentiality can be less obvious to newer members of the Bar.  This post focuses on the importance of newer attorneys becoming familiar with client-confidentiality principles (even when those principles might otherwise seem self-evident) and ways to avoid unintentional disclosures.

 

Rule 1.6 of the North Carolina Rules of Professional Conduct addresses the confidentiality of information.  In essence, the rule, which includes many helpful comments and notes, proscribes revelation of information acquired during the professional relationship unless the client gives informed consent or impliedly authorizes the disclosure as part of the representation.  Although newer lawyers will have studied the rules of professional conduct more recently than most, applying those rules to everyday situations can be quite a different experience from answering questions on the MPRE exam.

 

For example, the rule’s duty of confidentiality can be violated by discussing client confidences among persons not obligated to maintain confidentiality, revealing client confidences even without identifying clients by name (but instead with information identifiable to a client), or by consulting with a lawyer who may represent the adverse party.  Even documents filed in court that become a matter of public record may not be disclosable if the information was gained during the course of representation and is not generally known. 

 

Ultimately, many of these potential problems will be avoided with experience, but training, mentoring, and leading by example in the interim are essential.  Advising newer attorneys not to discuss client cases or matters in office lobbies and elevators, to avoid leaving files unattended in public spaces (including courtrooms, conference rooms, and offices to which non-firm members have access), and to err on the side of speaking in hypotheticals rather than specifics can help avoid disclosures and develop habits that maintain confidentiality and privilege.  Because sanctions for violation of the rules and case law associated with confidentiality can have serious consequences to the practitioner, newer bar members should review the Rules of Professional Conduct and consider consulting with more experienced attorneys and lawyer helplines for additional guidance.

 

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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 Stressed Out Lawyer

Posted By Whitney D. von Haam, Wake County Bar Association, Wednesday, July 20, 2016

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

I am a natural born fretter. I tend to envision all the ways things could go wrong, and I tell myself it’s so I’ll be prepared when they (inevitably) do.  My sister-in-law often tells me to quit planning the wreckage of my future.  I know I need to find my zen zone, and try to deal with the stress that I inflict upon myself.  But if you’re like me, you know it is easier said than done.

The need to manage stress or the failure to do so seems to be the hallmark of the legal profession.  Apparently, the legal professional is number one — number one, that is, for the incidents of depression, out of 105 different professions. (1)   A fair number of the lawyers that I counsel suffer from depression, anxiety, and/or substance abuse.  I have wondered whether there is something about the legal profession that causes mental health issues, or is the type of person who is drawn to the law likely to be someone with characteristics that put them at risk?

According to Psychologist Martin Seligman, those traits which epitomize a good lawyer, may also translate into an unhappy person.  “[T]he legal profession is unique in that it is the only profession where pessimists–those who see problems as the norm and not the exception–out-perform optimists….[T]he legal profession calls for caution, skepticism, and anticipation that things will go wrong.”  (2) Combine that with the fact that lawyers as a group are particularly adverse to seeking help for mental health issues, and you have a recipe for disaster.

Given my personality, I have chosen the perfect profession for myself, so I should count that in the win column.  At the same time, if I allow the stress and worry to take too large a role in my life, I am at risk.  I attended a recent Lawyers Mutual presentation that tackled issues of stress and anxiety and how to cope with these factors in your life.  One takeaway from the program is that you need to schedule time to decompress.  Really.  Plan time away from your work, just like you would an appointment.  It doesn’t have to be as significant as a vacation.  Just think about how you can escape for a bit and find your happy place.  It could be getting outside, exercising, reading a good book, meditation, going to a concert, a change of scenery, spending time with family (or away from family), or anything else that makes you smile.

Schedule that time for yourself each and every day.  When you take better care of your mental health, you are in a better frame of mind – to make decisions, to get work done efficiently and to interact effectively.  In short, you’ll be a better lawyer.

Tags:  professionalism stress depression anxiety mental h 

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Think Twice Before Using a Liquidated Damages Clause

Posted By Colleen Glatfelter, Friday, July 1, 2016

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

 

NC courts generally give broad deference to parties entering into a contractual relationship to negotiate the terms of the contract, including legal remedies against each other.  One type of remedy which may be included is a liquidated damages clause.  Such a provision provides a pre-determined amount that a breaching party will owe the non-breaching party in the event of a breach.  This contractual provision has both positives and negatives.  On the one hand, it will typically be cheaper to negotiate the liquidated damages clause on the front end, as opposed to resolving the issues of damages in subsequent litigation. On the other hand, issues of the provision’s enforceability can, of course, be litigated and get very expensive.  Further, agreed upon damages at the time the contract was executed may prove insufficient at the time of a breach.

Can an attorney include a liquidated damages clause in a fee agreement with a client?  There does not appear to be any North Carolina ethics opinions or rules that expressly prohibit it.  Using such a provision, however, seems to force commercialism into the arrangement and ignores the heart of the attorney-client relationship — a relationship based on duty and trust.  Including such a provision also seems to be at odds with the fact that a client may terminate the services of an attorney at any time and for any reason.   Moreover, from a practical standpoint, clients may not appreciate these clauses, and wonder why an attorney would include the provision in a fee agreement. This provision may send the wrong message and a client may decide to go elsewhere.

Listed below are a few other considerations (but certainly not all) that weigh against using these provisions:

  • A liquidated damages clause in a fee agreement could result in a clearly excessive attorney fee.

  • Contract provisions, to be ethical, must also be lawful.  I have not found any NC law which would indicate that such a provision in a NC fee agreement would be unlawful or against public policy.  However, this is a relatively new area. In service or consumer contracts, as opposed to employment contracts, there is not much law on whether a service provider may include this kind of language in their contracts.  You will need to keep up-to-date on this emerging area.

  • Liquidated damages provisions will generally be construed against the attorney, to the extent there is any question about interpretation.  The attorney is in a position of trust, and the attorney and the client do not have equal bargaining power. The courts will likely find the client was not given meaningful opportunity to negotiate the terms of the contract.

  • It is also important that you are certain that the client is specifically aware of this contractual provision, so that you would be able to state that the client knowingly forfeited this right if ever challenged on the provision.

  • Finally, a liquidated damages clause cannot amount to a penalty, and it is hard to see how a liquidated damages clause in your ordinary attorney fee contract could be anything else. The NC Supreme Court notes, “It is well established that a sum specified in the contract as the measure of recovery in the event of a breach will be enforced if the court determines it to be a provision for liquidated damages, but not enforced if it is determined to be a penalty.”  Brenner v. Little Red School House, Ltd., 302 N.C. 207,214, 274 S.E.2d 206, 211 (1981).

All this is to say, it is better not to treat your client fee contract like an ordinary commercial transaction.  While you can adequately protect yourself in the event of a breach by having a written fee contract, keep in mind that your fee contract is the first step in setting the tone of your relationship with your client.   It shouldn’t start out by being an adversarial one.

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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 Best Mentoring

Posted By Colleen Glatfelter, Tuesday, June 21, 2016

By Megan West Sherron, Campbell University School of Law 

At various points in our careers, each of us can remember a law mentor who has stood out to us.  That person likely took us under their wing, using each opportunity to teach something and make us better.    My first legal mentor was my boss, Hoyt Tessener.  He took me everywhere he went, allowed me to learn from him and also taught me how to practice law with his guidance.  He promoted me to other attorneys and judges and made me feel like I was a capable and competent attorney. 

There are many characteristic of good mentors.  In fact, Dean Michael Schwartz of the University of Arkansas at Little Rock has started a project entitled “What the Best Law Mentors Do” to study just that.  (http://www.bestlawmentors.com/) Recently, at the 2016 National Legal Mentoring Consortium Conference, he discussed along with the other conference attendees what makes a good mentor.  The same themes were discussed over and over:  being a good listener, acting deliberately and consistently with opportunities to teach, championing a protégé’s success, leading by example, providing time and being trustworthy.   

The Campbell Law Connections Mentorship program has given me an opportunity to see the characteristics of great mentorship at work.  As one protégé described it, “Having a mentor has helped me in so many ways.  Watching [her] actions and the way she treats everyone with respect and dignity through a very difficult time has been one of the greatest lessons I will take with me as I begin my practice.”  Students and new attorneys have been given wonderful opportunities to learn from some of the most experienced and thoughtful mentors in Wake County.

We are looking for qualified mentors to help the next generation of new attorneys and law students.  We would also love to have new attorneys join and learn from some of the very best mentors.  If you are interested in participating in Connections, please consider joining the program for the upcoming 2016-17 year.  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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Liability Limits: Good Legal Advice, Bad Professional Practice

Posted By Colleen Glatfelter, Friday, June 3, 2016

By Douglas J. Brocker, Brocker Law Firm and Professionalism Committee Chair

In my day job, I am a provider of professional services; in my other roles, I also frequently am a consumer of professional services.  As a consumer, I have noticed a disturbing trend in agreements for professional services.  More and more professionals are inserting standard clauses in their agreements with consumers prospectively limiting their liability for negligence and other mistakes or misconduct. 

These limitations take various forms, but recently the trend seems to be to limit the professional’s potential liability to no more than the total fee they were paid by the consumer.  Assuming it is consistent with one’s professional obligations and is enforceable, these clauses allow a professional to commit negligence or other misconduct, potentially cause substantial damage to the consumer, but yet have no liability or financial obligation, other than to return the fee paid. That’s hardly a formula for fostering careful, diligent, and skillful professionals.   

Certain professions restrict liability limitation clauses but permit them under certain circumstances. For example, lawyers are prohibited from entering into any agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement, pursuant to NC Rule of Professional Conduct 1.8(h)(1).  Such a clause or agreement is considered a conflict of interest with the client.  This restriction effectively prevents the use of such clauses in form or standard contracts and agreements with lawyers but permits it when warranted and with appropriate safeguards.  Although there certainly are circumstances where such liability limitation clauses are appropriate, they should not be a routine contract clause in my view.  Restrictions, such as the one contained in the NC Rules of Professional Conduct for attorneys, prevent their widespread use in form agreements. 

Unfortunately, the regulations and ethics rules for most professionals in North Carolina do not prohibit or even restrict such liability limitation clauses.  Most professionals essentially are allowed to eliminate all such liability through a contractual provision without restrictions.  Hopefully, more profession regulators will recognize that placing at least some restrictions on these types of clauses will help limit their use to circumstances where justified and with appropriate protections, not merely as part of a form contract that most consumers never bother to read before signing away important legal rights.  

 As a lawyer, I realize that most of these clauses are inserted upon the advice of attorneys.  Although it may be good technical, legal advice to a professional, it is misguided, bad business, and unprofessional in my opinion.   As a consumer of services, the message that such clauses send me is that the professional is not confident in his or her abilities and doesn't want to be responsible for any mistakes or misconduct.  I have consistently refused to sign agreements or contracts containing these liability limitation provisions and instead seek out professionals who do not use them or are willing to delete them. 

I encourage you as a consumer to do the same thing and, as a professional, not to include such provisions in your agreements from a business and professionalism standpoint.  I want to deal with professionals who are competent, confident, careful, and diligent, but also willing to accept responsibility for any mistakes that may be made.  I believe that is what most consumers want in dealing with professionals.  Liability limitation clauses send the wrong message and create misguided incentives.   Sometimes good technical legal advice is bad for business and for your profession and professionalism. Any good professional should stand behind his or her work, not hide behind a liability limitation clause.    

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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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