State Bar Ethics Committee Report From November 2024

Below are the most pressing items addressed at the most recent Ethics Committee meeting at the State Bar. Included are links to the proposed amendments and opinions, which also include the address and email address to provide comments if you choose to do so. 

Rules Amendments

There were several Rules Amendments addressed at the meeting. Many are related to the implementation of the statute passed enacting several recommendations from the State Bar Grievance Review Committee. Find a brief article in Trial Briefs about the recommendations. These proposed amendments include changes intended to improve access of respondent attorneys to agency file information (especially early in the process), allowing repeat initiators of frivolous complaints to be designated vexatious and limited in their ability to file future complaints, allowing expungement of certain discipline from an attorney’s record, and imposing a standing requirement for filing grievances.

As detailed at the link above, some of these amendments have been approved and are awaiting approval by the Supreme Court, while others have been modified and republished for comment, or proposed as new rules.

Proposed Rules Amendments for Re-Publication Open for Comment Until Jan. 3. 2025

The revised and re-published amendments relate specifically to providing agency file information to respondents, and to the new rules governing expungement or sealing of certain disciplinary matters. These revisions modify the details of the proposed new rules and are worthy of your consideration. 

Proposed Rules Amendments Open for Comment Until Jan. 3, 2025 

• 27 N.C.A.C. 01B, Section .0100, Discipline and Disability Rules: This change is related to the amendments listed above and is similarly designed to implement the changes to the grievance process. This specific change would empower the chair of the Disciplinary Hearing Commission to address vexatious complainant determinations as well as the above-referenced issues of expungement and sealing of certain disciplinary matters. 
• 27 N.C.A.C. 01D, Section .1500, Rules Governing the Continuing Legal Education Program: The proposal would allow credit for live, in-house CLE programs that address ethics, well-being or technology. 

Ethics Opinions

Notably, NCAJ provided feedback on Proposed 2024 Formal Ethic Opinion 2, which addresses the practice of prosecutors making plea offers in district court contingent upon a defendant not seeking discovery. NCAJ provided a proposed revision of this opinion which emphasized the prosecution’s duties not to pursue cases without a sufficient basis and to provide exculpatory information to the defense. This proposed opinion has been referred back to subcommittee. 

The State Bar Council has adopted 2024 Formal Ethics Opinion 1 Use of Artificial Intelligence in a Law Practice, which was discussed in prior Ethics Updates.

Proposed Ethics Opinion Open for Comment Until Dec. 21, 2024 

Proposed 2024 Formal Ethics Opinion 3: Law firm notes that estate planning attorneys increasingly are being requested to provide testimony, respond to discovery requests, etc. related to litigation that arises after estate planning work is performed. Firm wishes to include a provision in its fee agreements to require payment of fees and costs incurred in responding to any such requests. The opinion states that the provision proposed by the firm is not permissible. First of all, it could lead to excessive fees because it does not except for litigation related to the firm’s negligence. Second, it is too vague to comply with Rule 1.5(b) because the fees and services are not sufficiently defined. It is important to note that although the opinion rejects the proposed language submitted by the firm, it does not conclude categorically that such a provision is impermissible. In fact, the opinion discusses the revisions that would need to be made to such a provision and even provides sample language that would be allowed.