Legal Affairs/Appellate Assistance
The North Carolina Advocates for Justice is a nonpartisan association of legal professionals dedicated to empowering a strong community of trial lawyers by protecting people, preventing injustice and promoting fairness.
As part of NCAJ’s Advocacy Strategic Plan, NCAJ has developed an Advocacy Mission Statement:
Working for fair laws and a level playing field across all branches of government for our members and those we represent.
If you have a case that presents a new or unresolved question of law, and its resolution may have a broad impact on your area of practice or NCAJ’s mission, consider asking NCAJ to participate as amicus. Click here for summary of recent amicus briefs filed by NCAJ.
NCAJ will assemble a panel of volunteer judges to conduct a moot court. Members who take advantage of this opportunity inevitably rave about how it helped them in oral arguments.
State Bar Ethics Committe
NCAJ monitors the State Bar Ethics Committee activity and works closely with State Bar staff to provide updates to NCAJ’s membership. Below is a recent update from Brian Oten, State Bar’s Director of Special Programs:
The Ethics Committee continues to consider potential inclusion of anti-discrimination language in the Rules of Professional Conduct. A subcommittee studying these changes has recommended the publication of a new provision in the Preamble stating that, in carrying out the state constitutional responsibility to see justice administered “without favor, denial, or delay,” a lawyer should treat all persons encountered in a professional capacity equally, courteously, respectfully, and with dignity regardless of personal identifying characteristics. A second and separate subcommittee has been studying the issue of whether a lawyer’s competency encompasses awareness of implicit bias and cultural differences relative to a client that might impact the lawyer’s representation of the client. The subcommittee looking at competency has recommended publication of a new comment to Rule 1.1 stating just that. Both recommendations were reviewed and discussed by the Ethics Committee at its April 15th meeting. At the same meeting, the Ethics Committee voted to recommend the publication of proposed amendments to the Preamble and the comment to Rule 1.1. The State Bar Council reviewed and agreed with the recommendations at their April 16th meeting. Both proposals are set forth below with a current comment period that closes on Friday, June 25th:
Proposed amendment to the Preamble (new provision):
 The North Carolina Constitution requires that “right and justice shall be administered without favor, denial, or delay.” Public confidence in the justice system is strengthened when all participants are treated equally, fairly, honestly, and respectfully within the system. A lawyer, as a representative of and crucial contributor to the justice system, should foster public confidence in the administration of justice by treating all persons they encounter in their professional capacity equally, courteously, respectfully, and with dignity regardless of a person’s race, sex, national origin, religion, age, disability, sexual orientation, gender identity, marital status, or socioeconomic status.
Proposed new comment to Rule 1.1 (Competency):
 Competency includes a lawyer’s awareness of implicit bias and cultural differences relative to a client or anyone involved in a client’s matter that might affect the lawyer’s representation of the client. This is to ensure understanding of the client’s needs, effective communication with the client and others, and adequate representation of the client.
NCAJ has been monitoring the discussions of the Ethics Committee, along with the subcommittees. To help facilitate NCAJ’s feedback on the proposed language, NCAJ has formed an internal committee to study this issue, gather feedback from members, determine what position NCAJ should take on the matter and to then follow through with that position with the State Bar in future meetings and discussions. That committee is chaired by Sonya Pfeiffer and Stewart Poisson. If you have feedback on the proposed language set forth above, please provide by Friday, June 4th to firstname.lastname@example.org. All member feedback will be gathered and provided to the internal committee for their review in advance of the June 25th comment deadline.
At its meeting on April 16, 2021, the State Bar Council adopted one new ethics opinion: 2021 Formal Ethics Opinion 1, Contemporaneous Residential Real Estate Closings (opinion addresses conflicts of interest, communication, funding issues, and accountings in contemporaneous closings for residential real property).
At its April 15, 2021 meeting, the Ethics Committee considered a total of eleven ethics inquiries, including the opinion adopted by the council referenced above. Six inquiries were sent or returned to subcommittee for further study, including inquiries addressing a lawyer’s professional responsibility when asked by a client to take possession of evidence constituting contraband, the confidentiality of information contained in the public record, and a lawyer’s professional responsibility in utilizing machine learning/artificial intelligence in a law practice. Lastly, the committee approved the publication of the following four proposed opinions, the first two of which are republished, revised versions following receipt of comments during prior publication:
- Proposed 2019 Formal Ethics Opinion 4, Communications with Judicial Officials (proposed opinion discusses the permissibility of various types of communications between lawyers and judges);
- Proposed 2020 Formal Ethics Opinion 1, Responding to Negative Online Reviews (proposed opinion rules that a lawyer is not permitted to include confidential information in a response to a client’s negative online review but is not barred from responding in a professional and restrained manner);
- Proposed 2021 Formal Ethics Opinion 2, A Lawyer’s Professional Responsibility in Identifying and Avoiding Counterfeit Checks (proposed opinion discusses a lawyer’s professional responsibility to safeguard entrusted funds by identifying and avoiding purported transactions involving counterfeit checks); and
- Proposed 2021 Formal Ethics Opinion 3, Charging Fees to Opposing Party in Residential Real Estate Closing (proposed opinion rules that a closing lawyer representing the buyer in a residential real estate transaction may not charge a fee to a separately represented seller unless the seller consents to the fee and the lawyer complies with Rules 1.5(a) and 1.8(f)).
The Ethics Committee welcomes comments on the proposed formal ethics opinions. Comments may be submitted by email to email@example.com, and are requested by June 25, 2021. Please consider copying NCAJ on any comments submitted to the Ethics Committee by also emailing firstname.lastname@example.org. (Update provided by Brian Oten, Ethics Counsel for the State Bar)
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