NCSB Publishes Proposed Comment to Rule 1.1 and Two Proposed FEOs

The State Bar Councilors met in October and approved for publication a revised version of the proposed comment to Rule 1.1 (Competency) addressing a lawyer’s awareness of implicit bias and cultural differences:  

This aspirational comment states that a lawyer should be aware of implicit bias and cultural differences relative to a client that might impact the lawyer’s representation of the client, and that such awareness enhances a lawyer’s representation of his/her clients. The language to the proposed comment is as follows: 

[9]A lawyer should be aware 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. Such awareness enhances a lawyer’s competency and works to ensure understanding of the client’s needs, effective communication with the client and others, and adequate representation of the client. 

Comment on the proposed comment may be sent to ethicscomments@ncbar.gov. Please consider copying NCAJ on any comments submitted to the Ethics Committee by also emailing legalaffairs@ncaj.com. 

Formal ethics opinions of the State Bar may be reviewed here: https://www.ncbar.gov/for-lawyers/ethics/adopted-opinions/.   

The State Bar Ethics Committee met in October of 2021 and proposed the following formal ethics opinions for public comment:   

• Proposed 2021 Formal Ethics Opinion 3, Charging Fees to Separately Represented 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 for services performed that primarily benefit the buyer 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 opinion also allows a closing lawyer to charge a seller for services performed that primarily benefit the seller if seller is notified in advance of the charge and has a reasonable opportunity to object to the charge. 
• Proposed 2021 Formal Ethics Opinion 6, Departing Lawyer’s Email Account  – Proposed opinion addresses a law firm’s ethical responsibilities as to a departing lawyer’s email account.  

Comment on the proposed formal ethics opinions may be sent to ethicscomments@ncbar.gov. Comment period ends Dec. 30. Please consider copying NCAJ on any comments submitted to the Ethics Committee by also emailing legalaffairs@ncaj.com.