Litigation Section Council Ethics Update

By Marilyn R. Forbes

At its July 2021 meeting, the State Bar Council approved a new aspirational provision in the Preamble to the North Carolina Rules of Professional Conduct, stating that a lawyer should treat all persons encountered in a professional capacity equally, courteously, respectfully, and with dignity, regardless of personal identifying characteristics. The proposed amendment will be sent to the North Carolina Supreme Court for potential adoption.

The State Bar Ethics Committee took the following actions:

  • adopted three formal opinions;
  • approved two new proposed opinions;
  • returned to subcommittee for additional study last quarter’s proposed new comment for Rule 1.1 (Competency) stating that a lawyer’s competency encompasses awareness of implicit bias and cultural differences in representing clients.

Adopted Formal Opinions

While a lawyer is not permitted to use confidential client information about a client who gives a negative online review, a lawyer is not barred from responding, so long as it is done in a professional and restrained manner. The opinion recognizes that online reviews are this era’s equivalent to personal recommendations and maintaining a positive online reputation is crucial. However, all client confidences must be maintained in any response to an online review. Responding to a negative online review does not qualify as one of the “self-defense” exceptions to Rule 1.6, which, for example, allows a lawyer to disclose information when a controversy arises between a former client and the lawyer.

A lawyer violated the duties of competency and diligence (Rules 1.1 and 1.3) by failing to investigate the authenticity of a foreign bank cashier’s check provided by a third-party debtor in the course of a representation to collect a debt owed to his client. The opinion notes that for at least ten years, lawyers have been warned about being targets of bank scams and therefore, “the lawyer’s mistaken reliance on the counterfeit check was unexcused.” The facts indicate that the client’s communication with the lawyer concerning the debt was unsolicited and the lawyer did not advertise debt collection as part of his practice. Additionally, by depositing the alleged debtor’s counterfeit cashier’s check into the firm’s trust account and then disbursing the money, the lawyer disbursed entrusted funds belonging to other clients in violation of Rule 1.15-2(a).

This opinion addresses a lawyer’s duties when informally communicating members of the judiciary. For example, the opinion finds that an email to a judge about a scheduling complication that fails to copy opposing counsel violates the Rule 3.5 prohibition of ex parte communications. The problem is not cured by sending an email or text to all judges in the district about the same scheduling difficulty. It is also improper to send an email to the court, even if opposing counsel is copied, if the email or text contains additional arguments about the matter before the court. Even though it is not a prohibited ex parte communication, it is an unsolicited communication outside the approved course of communication on the matter and is prejudicial to the administration of justice in violation of Rule 8.4(d). Note: With the adoption of this opinion, the council revoked opinions: RPC 237, 97 FEO 3, 97 FEO 5, 98 FEO 12, 98 FEO 13, 2001 FEO 15, and 2003 FEO 17, decided under prior iterations of the Rules of Professional Conduct.

Proposed Opinions:

  • The committee also approved the publication of the two new proposed opinions. Comments on the proposed opinions must be submitted by email to [email protected] no later than September 24, 2021.
  • Proposed 2021 Formal Ethics Opinion 4, Taking Possession of Photographs Portraying Minor Committing Sexual Acts:

A prior opinion established that a lawyer may not take possession of a client’s contraband if possession of the contraband is a crime. 2007 FEO 2. Since possession of child pornography is both a federal and North Carolina crime, a lawyer may not take possession of an illicit photograph of a minor child engaging in sexual activity, despite it being possibly relevant to a custody matter. N.C. Gen. Stat. §14-190 does not have a legal exception allowing a lawyer to possess banned material even if it is arising in a client representation.  The lawyer should also take the next step to determine if he and the client have a legal duty to report the existence of the photograph to law enforcement or the Department of Social Services. In a situation when a client emails the photograph without any prior notice to the lawyer, there is no change in ethical obligations.  The lawyer must review the duty to report and cannot possess the photographs.

When using an outside advertising agency, the lawyer has an ethical obligation “to make reasonable efforts to ensure that the services are provided in a manner that is compatible with a lawyer’s professional responsibilities.” Participation in certain LSA (local service advertisements) programs may potentially be prejudicial to the administration of justice in violation of Rule 8.4(d).  With certain plans, a lawyer’s LSA will link to a profile page created by the company, with an overview of the legal services and a “call button.” The call button is not the lawyer’s phone number – it instead activates a phone number assigned to the lawyer by the company. All phone calls are routed through the company. The company, its affiliates and their agents have access to these recorded messages, which are kept for 60 days. The lawyer must also authorize the company to disclose communications to third parties. Routed phone calls to lawyers use a “whisper message” letting the lawyer know that the call is from the company, will be recorded, and may not be privileged.  he whisper message is also heard by potential clients before the call is connected. During the routing process, “consumers are not told that the company may share the communication with additional third parties.” A consumer seeking the conversation should be on notice that the conversation is not exclusively between the consumer and the lawyer. There are historic expectations of privacy when communicating with a lawyer. The proposed opinion notes that the Ethics Committee is hesitant to classify an LSA consumer as a prospective client under Rule 1.8. However, the Committee remains concerned that the LSA routing and recording structure allows for the possibility that critical client confidences could be made vulnerable.

Marilyn R. Forbes is a Senior Lecturing Fellow at Duke University School of Law and Of Counsel, Womble Bond Dickinson. 

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