NCAJ Needs Your Feedback On Proposed Anti-Discrimination Language

The State Bar 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 15 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 its April 16 meeting. Both proposals are set forth below with a current comment period that closes on Friday, June 25:   

Proposed amendment to the Preamble (new provision):  

• [6] 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): 

• [9] 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 4 to legalaffairs@ncaj.com. All member feedback will be gathered and provided to the internal committee for their review in advance of the June 25 comment deadline.