Over the last twelve months, there have been a number of changes to the North Carolina Rules of Professional Conduct. The Ethics Committee for the NCBA Administrative Law Section has done a great job of compiling some important ethics changes in 2021. Some of the below ethics opinions and rules are applicable to those in private practice, while others may be more applicable to those who represent Boards or Agencies.

Responding to Negative Online Reviews – Adopted July 16, 2021

For those in private practice or those who represent Boards/Agencies, having a negative review online can substantially impact one’s public image. While we all would like to fully explain and defend ourselves against possibly misleading or untruthful statements, the State Bar of North Carolina prohibits discussing any confidential information regarding a client’s case when responding to a client’s negative online review. However, an attorney is not barred from responding to the review in a professional and restrained manner. Opinion #1 does state that the “[l]awyer may deny the veracity of the review, but lawyer may not use confidential client information to include a comment from the client regarding the lawyer’s services as well as some type of ‘rating.’” So, while an attorney may deny that a statement posted by the client is true, the attorney is prohibited from going into any detail as to why the attorney believes the client statement to be true.

Departing Lawyer’s Email Account – Proposed 2021 Formal Ethics Opinion 6

When a lawyer departs a firm or leaves the employ of a Board or Agency, it can create a bit of a question mark as to what the firm does with the prior attorney’s firm email account. This includes emails the firm continues to receive from clients who have transferred representation with the outgoing attorney. The North Carolina State Bar’s Proposed 2021 Formal Ethics Opinion 6 gives multiple examples on what to do with emails and the email account of the outgoing attorney, including what outgoing auto-reply message should be placed on the departing lawyer’s email account.

Communications with Judicial Officals – 2019 Formal Ethics Opinion 4 (Adopted: July 16, 2021)

Another important topic that was adopted by the Ethics Committee last July involves communications with judicial officials. This opinion addresses a lawyer’s responsibilities under the current Rules of Professional Conduct regarding a lawyer communicating with a member of the judiciary during the course of litigation when an opposing party is represented by counsel and when an opposing party is not represented by counsel. This Opinion gives a number of specific examples of proper communications with judicial officials as well as improper communications with judicial officials. The Opinion breaks communication with judicial officials and attorneys into three categories which are as follows: “1) clearly permissible communications, e.g., formal pleadings and arguments during public proceedings and other communications authorized by law or court order; 2) clearly prohibited communications, e.g., spontaneous, in-person ex parte communications about the merits of a case; and 3) informal communications (e.g., email communications about scheduling dilemmas).” Informal communications are the primary focus of this Opinion. A number of examples can be found in this adopted Opinion.

I would like to give a big thank you to the Ethics Committee of the NCBA’s Administrative Law Section for making this ethics information available to us.

North State Law is owned and was founded by Nicholas Dowgul in 2019. Nick, as he prefers, has been engaged in the practice of law since 2008. The focus of North State Law is in helping professionals in North Carolina keep their professional licenses. The firm strives to help others continue to practice in their chosen profession so they can continue to serve others.

January 19, 2022/by Administrative