State Bar Ethics Committee Report, July 2024

Below are the most pressing items addressed at the most recent Ethics Committee meeting at the State Bar. Links to the proposed amendments and opinions include the address and email address to provide comments.  

New Ethics Opinion: 2023 Formal Ethics Opinion 3: 2023 Formal Ethics Opinion 3 | North Carolina State Bar (ncbar.gov)

Regarding proposed location of a self-serve kiosk from a vendor selling ignition locks in the office of an attorney primarily handling DWI cases.

Proposed Ethics Opinions Open for Comment Until 10/15/24: Proposed Opinions | North Carolina State Bar (ncbar.gov)

Proposed 2024 Formal Ethics Opinion 1 responds to several different inquiries regarding the use of artificial intelligence (AI) in a law practice. I provided information about this opinion in a previous report, but it was then further studied and modified based on comments received by the State Bar. This is a lengthy and detailed opinion, and I encourage anyone who is considering use of AI in their practice to study it and consider providing feedback to the Bar. Although the opinion does not offer a blanket ban on the use of AI or the entry of confidential information into an AI program, it does discuss the potential ramifications of these actions in detail. The opinion consistently reminds readers of various ethical obligations that may be implicated by the use of AI, none of which are abrogated by the use of AI. For example, AI should not be used to expand into practice areas an attorney is otherwise incompetent handle, a lawyer is responsible for the security of information input into an AI program, and AI does not diminish a lawyer’s responsibility to have a good faith basis in law and fact for positions taken during a representation (including when signing documents generated by AI). The opinion also discusses the circumstances under which a lawyer must inform a client that AI is being used, and the effects of AI on billing. As to the latter, although a lawyer cannot bill three hours for a task that only took one hour due to the use of AI, the attorney could consider other types of billing (flat fees, charges for costs of using AI) subject to other ethical obligations and client consent.  

Proposed 2024 Formal Ethic Opinion 2 responds to an inquiry about a potential criminal plea in district court. The prosecutor offers a plea in district court (where there is little right to discovery), but conditions the deal on defendant not requesting discovery, and goes further to indicate that the deal will be withdrawn if the defendant does in fact seek discovery. The Opinion states that this is permissible so long as the prosecutor complies with the obligations of Rule 3.8, which include duties to provide exculpatory evidence to the defense, to not prosecute charges unsupported by probable cause, and to seek justice not merely to convict. The Opinion further states that defense counsel may agree to such a plea with full disclosure to the client.  

Rules Amendments Awaiting Supreme Court Approval: Proposed Amendments to the Rules of Professional Conduct | North Carolina State Bar (ncbar.gov)

Process for transfer from administrative suspension to inactive status. 

Allowing eligibility for the Trust Account Compliance Program to be set by policy/guideline rather than by rule, and facilitating staff referrals to the program resulting from trust account audits. 

Proposed Amendments Open for Comment Until 10/15/24: Proposed Amendments to the Rules of Professional Conduct | North Carolina State Bar (ncbar.gov)

Proposed Amendments to the Rules Governing Discipline: There are numerous amendments proposed, and I recommend reviewing these in detail and considering providing comments to the Bar. Many of the proposed amendments follow the statute passed enacting several recommendations from the State Bar Grievance Review Committee. My brief article in Trial Briefs about the recommendations can be found here. 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.

In addition, the proposed amendments include detailed changes with regard to the Trust Accounting Compliance Program, as well as individual deferrals for certain respondents. 

Proposed Amendments to the Rules Governing the Specialization Program: The proposed amendments reduce the number of CLE hours required to be certified as a specialist in Immigration Law.