PANDEMIC PROFESSIONALISM

PANDEMIC PROFESSIONALISM:

OPPORTUNITIES TO FIND AND EXTEND GRACE HELP ATTORNEYS BROADEN THEIR PERSPECTIVES AND FIND COMMON GROUND

BY RYAN SHUIRMAN | YATES, MCLAMB & WEYHER, L.L.P.

THE LAST SIX MONTHS have shown, more than ever, the importance of our being able to adapt to a changing environment in our family and social lives, as well as our professional lives. For some, loved ones have been lost to the virus, and that alone is reason to re-evaluate our routines and how we simply go about living.

In a landscape that changes frequently, subject to executive and judicial orders, we have searched for constants that can give us some comfort that all will eventually be well. We have to recognize that some things in our professional lives may not “go back to normal” and that there will be new ways of doing things that may have seemed foreign or impossible just a few months ago.

Professionalism has been one of those constants that, not surprisingly, has been on display throughout the pandemic and been a reassuring beacon in these not-so-reassuring times.

At the outset of the pandemic, and especially as our kids began virtual schooling in March 2020, we were met in the media (and social media) with frequent reminders to “show grace” to our children, family members, and colleagues who were all adapting to unprecedented circumstances without much guidance. Grace, in the form of patience, understanding, and forgiveness seemed only natural as we encountered a new wave of emotions and frustrations on a seemingly daily basis. Grace, in the form of professionalism, was thankfully natural as deadlines evaporated, meetings were canceled, and trial calendars all but disappeared.

The topic of pandemic professionalism came up at a recent meeting of the WCBA Professionalism Committee when members were invited to share displays of grace in their work lives in the past six months. A common thread was the opportunity the pandemic has given us to broaden our perspectives, put ourselves in others’ shoes, and consider anew the reasonability of another party’s goals, preferences, and risk tolerance.

Conducting meetings, depositions, and hearings remotely has not only proven convenient in many circumstances, but it has given us a window into the reallife experiences of our colleagues that previously may not have been so obvious. For those who have had the ability to set up “home offices,” you surely have noticed that not everyone in your family knows and appreciates that your office is where work is supposed to get done or that a telephone call may be the only conversation in which you can participate at one time.

When opposing counsel’s children interrupt a Zoom meeting, you realize that she or he is faced with the same work-life balance challenges that you are. It creates common ground. It fosters a sense of collegiality. And it gives you an appreciation that, while we may disagree about facts and the law, we now have tangible evidence that opposing counsel is just like you.

When your dogs (or your “security detail” as one colleague lovingly described them) decide to bark in the middle of your Zoom mediation, we all understand that these are different times and are reminded that there are humans facing shared challenges on the other side of a litigation matter.

While some have been fortunate to have the technology enabling effective home office set-ups, others have been confronted with limitations that, with a little grace or professionalism, have been addressed in ways we may have overlooked before the pandemic.

We were told of one instance in which a lawyer welcomed opposing counsel, who had unreliable internet service at home, to come to the lawyer’s office (with appropriate social distancing, of course) to conduct a remote deposition in a case. In another story, a lawyer was confronted with having to depose an adverse witness remotely while the witness wore a mask. Rather than have the deposition taken under suboptimal conditions with masks, precluding complete observation of the witness, opposing counsel agreed that he and the witness would travel to the lawyer’s office so the deposition could be conducted in-person and with social distancing so the witness would be more comfortable without a mask.

At the very outset of the pandemic, and due to the fragile health of several witnesses and an appreciation for varying risk tolerances, the lawyers in another case agreed to proceed with remote depositions that, if taken 60 days prior, would surely have been conducted in-person.

Lawyers have reacted differently to the social distancing requirements put in place and the impact of those requirements on how discovery is conducted in civil cases. For personal health reasons, or in accordance with witness preferences or comfort level with interpersonal interactions, some lawyers are requesting that all discovery be conducted remotely for the entirety of the case.

While a lawyer might disagree with the position taken by opposing counsel about the safety of appearing live, recognizing the reasonable basis for opposing counsel’s position is an important step toward extending grace in an otherwise contentious situation.

This pandemic has undoubtedly forced us to consider new ways of doing things. By keeping professionalism in mind as new approaches are considered, we can take advantage of the opportunities to make sure collegiality continues

WCBA COMMITTEE FOR DIVERSITY, EQUITY & INCLUSION DISCRIMINATION AND UNFAIR BIAS IN THE LEGAL PROFESSION?

STATE BAR CONSIDERS NEW ETHICS RULES

BY TAWANDA FOSTER ARTIS | SENIOR STAFF ATTORNEY, NORTH CAROLINA GENERAL ASSEMBLY UPON THE RECOMMENDATION of its Ethics Committee, the State Bar Council recently voted to publish for comment a proposed amendment concerning the adoption of anti-discrimination language in the Preamble of the Rules of Professional Conduct. The proposed amendment would make avoiding discriminatory conduct while employed or engaged in a professional capacity a fundamental value of the profession. The State Bar Council approved a substantially similar amendment to the Preamble in 2010; however, the North Carolina Supreme Court did not approve the amendment at that time.

The proposed 2020 amendment states while acting in a professional capacity, attorneys “should not discriminate on the basis of a person’s race, gender, national origin, religion, age, disability, sexual orientation, gender identity, marital status or socioeconomic status.” This responsibility would not prevent an attorney from making arguments on any issue or impede the attorney’s ability to accept, decline, or withdraw from a representation in accordance with the rules.

In addition to this published proposed amendment, the Ethics Committee is considering two other changes to the Rules of Professional Conduct. The first would amend Rule 8.4 Misconduct to include a provision that is the same or similar to ABA Model Rule 8.4(g) adopted in 2016. Paragraph (g) of ABA Model Rule 8.4 states that it is professional misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” This rule does not prevent an attorney from making arguments on any issue, or impede the attorney’s ability to accept, decline or withdraw from a representation in accordance with the rules.

The second issue involves studying a proposal to include awareness of implicit bias in the comment to Rule 1.1 Competency. Subcommittees of the Ethics Committee will study each of these issues.

Today, more than half of the states in the United States have adopted a similar rule to ABA Model Rule 8.4(g) and/or a comment related to the prohibition of discriminatory and harassing conduct by attorneys. No matter where the State Bar or Supreme Court ends up on these issues, their consideration has sparked important and relevant conversations around the impact of bias, harassment and discrimination in the practice of law in our state. Any questions or comments on these proposals can be submitted to the Ethics Committee. WBF

YLD UPDATE

PROBONOOPPORTUNITYWITHTRIANGLEFAMILYSERVICESNOVEMBER7

The WCBA YLD Public Service Committee will hold a remote YLD Virtual Pro Bono Clinic with Triangle Family Services on Saturday, November 7 from 10 a.m. to 1p.m. Clients and attorneys will be paired off in advance for 30-minute question-andanswer sessions, and we are looking to recruit one, or preferably two, lawyers in each of the following areas: (1) Criminal law; (2) Family law; (3) Benefits law; and (4) Immigration law. If you have any questions, please contact YLD Pro Bono Co-chairs Will Dickey (wdickey@lanierlawgroup.com) and Leigh Wiclair (leigh@ncprobono.org). Registration is open online. WBF

WELCOME NEW MEMBERS The following new WCBA members were approved by the Board of Directors during their August and October meetings.

John Austin | The Law Offices of John Austin, PLLC Shambree Bonner | Triangle Property Law Thomas Carruthers Calley Gerber | Gerber Animal Law Center John Green | NC Dept of Justice A. Hoomani | NC Department of Insurance Keir Morton-Manley Kevin Peach | Robert A. Brady, PLLC John Sullivan | Sullivan Law Office Ulysses Taylor | Solo Practitioner E. Turner | Solo Practitioner Michael F. Anderson | The Anderson Law Firm Robert Botkin Christy Coates Christine Eatmon | Eatmon Law Firm, PC Marie Farmer | Morningstar Law Group Stephanie Fields Katherine King William Lewis | MacDermid, Reynolds & Glissman, P.C. Candace Marshall Jennifer Reimer Giles Rhodenhiser Cecilia Santostefano | Marcari Russotto Spencer and Balaban PC Jonathan Trapp | Trapp Law William Walker | Brooks Pierce McLendon Humphrey & Leonard LLP

MACY FISHER AND MARK GUNTER CAPTURE 2020 WCBA TENNIS CROWN

Macy Fisher and Mark Gunter won this year’s Wake County Bar Association Championship Division doubles title on October 2 at Carolina Country Club, beating Jason Tuttle and David Peters in the final. Fisher and Gunter defeated Alice Stubbs and Rik Lovett in one semi-final, and Tuttle and Peters beat Jamie McCaskle and William Plyler in the other semifinal.

Duane Hall won the Open Division, and Gina Von Oehsen Cleary was the runner-up. The weather and the refreshments were great, and a good time was had by all. Congratulations to our 2020 winners!

FISHER & GUNTER

HALL & CLEARY

PETERS & TUTTLE