NC State Bar Council Adopts 3 Opinions, Approves Proposed Rule Revisions

This summary is provided by Brian Oten, Ethics Counsel, North Carolina State Bar.

The North Carolina State Bar Council adopted three opinions at its January 2022 meeting:

• 2021 Formal Ethics Opinion 3, Charging Fees to Separately Represented Party in Residential Real Estate Closing,
• 2021 Formal Ethics Opinion 4, Taking Possession of Photographs Portraying Minor Committing Sexual Acts, and
• 2021 Formal Ethics Opinion 6, Departing Lawyer’s Email Account. All three opinions can be found on the State Bar’s website.

In addition to adopting the three opinions described above, and following favorable votes from both the Ethics Committee and the Executive Committee, the council adopted and approved for transmission to the Supreme Court the previously published proposed comment to Rule 1.1 (Competency) addressing how a lawyer’s awareness of implicit bias and cultural differences enhances competency.

Lastly, the council approved for publication revisions to Rule 1.6 and Rule 1.9 regarding a lawyer’s professional responsibility in handling confidential client information. The proposed revision to Rule 1.6 adds language to the comment clarifying that the scope of Rule 1.6 does not encompass a lawyer’s legal research and legal knowledge gained during the course of a representation. The proposed revisions to Rule 1.9 permit a lawyer to use and/or disclose confidential client information when that information is contained in the public record, was disclosed at a public hearing, or was otherwise publicly disseminated. A revision to Rule 1.9(c)(2) limits the new permitted disclosure to instances where the disclosure will not be embarrassing or detrimental to the client. The full text of the proposed amendments is published in the latest edition of the State Bar Journal and on the State Bar’s website here.  

Ethics Committee

At its meeting on Jan. 20, the Ethics Committee received reports and recommendations from subcommittees studying proposed amendments to the Rules of Professional Conduct: one studying the adoption of anti-discrimination language in the text of the Rules of Professional Conduct, and the other studying potential amendments to Rule 1.19 (Sexual Relations with Clients Prohibited). Both subcommittees will continue their work over the next quarter. Additionally, the Ethics Committee considered a total of eight ethics inquiries, including the three opinions adopted by the Council referenced above. Three inquiries were returned to subcommittee for further study, including inquiries addressing the ethical considerations surrounding a lawyer’s participation in an online advertising platform such as Google’s Local Service Ads, and a lawyer’s professional responsibility in providing limited representation to an indigent client in a criminal matter. The committee also approved the publication of one new proposed opinion: Proposed 2022 Formal Ethics Opinion 1, Attorney Serving Dual Role of Guardian ad Litem and Advocate. The proposed opinion is published on page 40 in the latest edition of the Journal and on the State Bar’s website.