RECOGNITION OF NEW COUNCILORS – The following new councilors were recognized and welcomed:
David T. Phillips, District 4, Kenansville
George L. Jenkins, Jr., District 8, Kinston
Lewis A. Thompson, III, District 9, Warrenton
Margaret J. McCreary, District 14, Durham
John E. Gehring, District 17B, Walnut Cove
Margaret S. Burnham, District 18, Greensboro
Judy D. Thompson, District 26, Charlotte
Ronald L. Gibson, District 26, Charlotte

APPOINTMENTS – The Council made the following appointments:
Lawyer Assistance Program Board – The Council reappointed Victor J. Boone of Raleigh, Joe C. Coulter of Charlotte, and Donald Harris of Raleigh to three-year terms. Edward T. Hinson, Jr. of Charlotte and Sara H. Davis of Asheville, who were serving as chairperson and vice chairperson, respectively, were reappointed to those positions.

Client Security Fund – Theodore C. Edwards of Raleigh and Donald C. Prentiss of Elizabeth City, who were serving as chairperson and vice chairperson, respectively, were reappointed to those positions.

Board of Law Examiners – The Council decided to defer making an appointment to fill a vacancy on the Board of Law Examiners until April.

RANDOM AUDITS – Judicial districts randomly selected for audit during the first quarter of 2004 were District 4, consisting of Duplin, Jones, Onslow, and Sampson Counties and District 17A, consisting of Rockingham County.

ETHICS COMMITTEE – Upon the recommendation of the Ethics Committee, the Council adopted six new ethics opinions: Revised 2003 FEO 7 which rules that a lawyer may not prepare a power of attorney for the benefit of the principal at the request of another individual or third-party payer without consulting with, exercising independent professional judgment on behalf of, and obtaining consent from the principal; 2003 FEO 9 which rules that a lawyer may participate in a settlement agreement that contains a provision limiting or prohibiting disclosure of information obtained during the representation even though the provision will effectively limit the lawyer’s ability to represent future claimants; 2003 FEO 10 which rules that a Social Security lawyer may agree to compensate a nonlawyer/claimant’s representative for the prior representation of a claimant; 2003 FEO 13 which rules that an attorney may file a time-barred claim on behalf of a client, even when the defendant is unavailable and can only be served by publication; 2003 FEO 15 which rules that an attorney may provide an accounting of disbursements of sums recovered for a personal injury claimant as required by N.C.G.S. § 44-50.1; and 2003 FEO 17 which rules that an attorney may provide a judge with additional authority post-hearing only if the communication is permitted by the rules of the tribunal and a copy of the writing is furnished simultaneously to opposing counsel. The Ethics Committee decided to publish for comment three new proposed opinions and one revised proposed opinion. Proposed 2004 FEO 1 rules that a lawyer may participate in an on-line service that is similar to both a lawyer referral service and a legal directory provided there is no fee sharing with the service and all communications about the lawyer and the service are truthful; Proposed 2004 FEO 2 rules that an attorney may not offer promotional merchandise in a targeted direct mail solicitation letter as an inducement to call the attorney’s office; Proposed 2004 FEO 3 rules that a lawyer may represent both the lender and the trustee on a deed of trust in a dispute with the borrower if the conditions on common representation can be satisfied; and Proposed Revised 2003 FEO 11 rules that a lawyer must deal honestly with the members of her former firm when dividing a legal fee.

GRIEVANCE COMMITTEE – During the quarter the Grievance Committee considered 511 cases. Of those cases, four resulted in letters of caution, twenty-eight resulted in letters of warning, nine resulted in admonitions (one lawyer had two cases), three resulted in reprimands, two resulted in censures (one lawyer had both cases), three were referred to the Lawyer Assistance Program, one was referred to the Lawyer Assistance Program and the Law Management Assistance Program, and twenty-five were referred to the Disciplinary Hearing Commission (three lawyers had three cases each and five lawyers had two cases each).

REAPPORTIONMENT OF THE STATE BAR COUNCIL – G.S. 84-17 provides that the sixteen at-large members of the State Bar Council must be reapportioned every six years in accordance with a mathematical formula to reflect the relative lawyer populations in the thirty-nine judicial districts. The Council was last reapportioned in 1998 at which time shifts in lawyer population during the preceding six years necessitated that the delegation from the 21st District (Forsyth) be diminished by one representative and that the delegation representing the 26th District (Mecklenburg) be increased by one member. Although the lawyer populations of the 10th District (Wake) and the 26th District have continued to increase faster than the lawyer populations in the state’s other urban areas, the application of the formula in January 2004 did not require any further reapportionment.

CARROLL F. GARDNER – The Council acknowledged the passing of one of its most prominent and esteemed members, Carroll F. Gardner of the Surry County Bar. Mr. Gardner, who was, because of illness, required to resign his position as councilor from the 17B District in the midst of his third term, died on January 5, 2004. By unanimous vote, the Council adopted a memorial resolution at its January meeting reflecting upon the life and achievements of Mr. Gardner.

RULE AMENDMENTS
PROPOSED AMENDMENTS – At its meeting on January 16, 2004, the Council voted to publish the following proposed rule amendments for comment from the members of the bar. (The complete text of each of the proposed amendments is available from the State Bar offices.)

Proposed Amendment to the Rule on Composition of the Grievance Committee
27 N.C.A.C. 1A, Section .0700, Standing Committee of the Council
The proposed amendment clarifies that a lawyer who is not a member of the State Bar Council may serve on the Grievance Committee.

Proposed Amendments to the Procedures for the Authorized Practice Committee
27 N.C.A.C. 1D, Section .0200, Procedures for the Authorized Practice Committee
The proposed amendments give the Authorized Practice Committee the express authority to issue letters of caution when it finds probable cause to believe that the unauthorized practice of law has occurred.

Proposed Deletion of Rules on Appointment of Counsel for Indigent Defendants in Criminal Cases
27 N.C.A.C. 1A, Section .0700, Standing Committees of the Council
27 N.C.A.C. 1D, Sections .0400 and .0500, Rules and Regulations Relating to the Appointment of Counsel for Indigent Defendants in Certain Criminal Cases, and Model Plan for Appointment of Counsel for Indigent Defendants in Certain Criminal Cases
In August 2000 the General Assembly passed the Indigent Defense Services Act, which created a statewide Office of Indigent Defense Services (IDS Office) and the Commission on Indigent Defense Services (IDS Commission). The IDS Office and IDS Commission were charged with oversight of the provision of legal services to indigent defendants in criminal maters and others entitled to counsel at the state’s expense. The IDS Office assumed responsibility for overseeing indigent defense services on July 1, 2001, thus rendering unnecessary the State Bar’s rules regarding the appointment of counsel for indigent criminal defendants. In the absence of authority to regulate in this arena, it is proposed that these rules concerning the appointment of counsel be deleted.

Proposed Amendments to the Rules of Professional Conduct
27 N.C.A.C. 2, Rule 1.11, Special Conflicts of Interest for Former and Current Government Officers and Employees; Rule 7.3, Direct Contact with Prospective Clients
The proposed amendment to Rule 1.11 will clarify that a former government lawyer only has a conflict of interest if she proposes to represent an opposing party in a matter in which she previously participated personally and substantially as the government’s lawyer. The proposed amendments to Rule 7.3 is intended to eliminate any confusion regarding the use of the term “prospective client.”