State Bar Update: Five Ethics Opinions Published For Review; Preamble Amendment Under Subcommittee Study

By Abby Hammond

At its most recent meeting, the State Bar Ethics Committee approved five proposed opinions for review, now published in the winter edition of the State Bar Journal. In addition, the Ethics Committees has agreed to send a proposed amendment to the Preamble regarding discriminatory conduct to a subcommittee for further study. The committee has received comments on the Preamble amendment, which you can review here.

The Ethics Committee and State Bar Councilors welcome any feedback on these five published proposals. All comments received will be submitted to the Ethics Committee for its review at the January 2021 meeting. The deadline to submit comments is Tuesday, Dec. 22, by close of business. Send comments to ethicscomments@ncbar.gov. Please consider including NCAJ on your comment to the State Bar by copying emailing legalaffairs@ncaj.com on your email.

You can read and comment here on the proposed FEOs, summarized below.

• Proposed 2019 FEO 4 – Communication with Judicial Officials
  Proposed opinion discusses the permissibility of various types of communications between lawyers and judges.
• Proposed 2020 FEO 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 2020 FEO 2 – Advancing Client Portion of Settlement
  Proposed opinion rules that a lawyer may not advance a client’s portion of settlement proceeds while a matter is pending or litigation is contemplated, but may advance a client’s portion of settlement proceeds under other circumstance if the lawyer complies with Rule 1.8(a).
• Proposed 2020 FEO 5 – A Lawyer’s Responsibility in Avoiding Fraudulent Attempts to Obtain Entrusted Client Funds
  Proposed opinion discusses a lawyer’s professional responsibility to inform clients about relevant, potential fraudulent attempts to improperly acquire client funds during a real property transaction.
• Proposed 2020 FEO 6 – Commenting Publicly on Client Information Contained in Public Records
  Proposed opinion rules that a lawyer is prohibited from commenting publicly about information acquired during representation unless the client consents or the disclosure is permitted by Rule 1.6(b).

The proposed amendment to the Preamble identifies the avoidance of discriminatory conduct while employed or engaged in a professional capacity as a fundamental value of the profession. The State Bar received comments both supporting and opposing this proposal.

NCAJ is monitoring the subcommittee studying the Preamble rule change and has an internal working group being led by Legal Affairs Vice President Sonya Pfeiffer and Diversity Officer Stewart Poisson. Other NCAJ members serving on the task force are:

• Megan Callahan
• Mike Adkins
• Meghann Burke
• Brad Bannon
• Anabel Rosa
• Jonathan McGirt
• Margaret Rowlett