Professionals and the Duty to Self-Report – Part I

It happens to the best of us.  As licensed or certified professionals, we strive to abide by the rules of our profession and fulfill our obligations, but you know what happens to the best-laid plans.  As careful as we may be, mistakes can happen, and situations can go awry.  The buyer in a real estate sale might feel the transaction did not go as promised and so they file a complaint against the selling agent.  Or life momentarily gets the better of you and you find yourself the defendant in court. 

If you are on the receiving end of a complaint or dealing with legal troubles, it’s natural to feel defensive or embarrassed.  You might want to handle it quietly and avoid anyone finding out.  It is important, however, that you immediately determine what you are required to report to your licensing authority. 

Many professional licensing authorities have specific requirements and deadlines to report complaints, judgments, or other matters that arise.  Failure to make the required report is often grounds for disciplinary action.  In the following, we provide a thumbnail sketch of proactive self-reporting requirements for several professions:  Attorneys, Mediators, Real Estate Brokers, Appraisers, and Certified Public Accountants.  In our next blog, we’ll look at some healthcare professions. 

This information is related only to proactive self-reporting and does not cover any other reporting that may be required when it is time to renew a professional license or certification. It is up to each individual to know the rules in your profession. Most professions have self-reporting obligations, but the specific duties vary significantly.    


The North Carolina Rules of Professional Conduct require an attorney to self-report promptly the misapplication or misappropriation of trust funds or other entrusted property.  See Rule 1.15-2(p).  Otherwise, there is no proactive self-reporting requirement related to other disciplinary issues under the Rules of Professional Conduct.  However, Rule 8.3(a) sets out a reporting requirement pertaining to the professional misconduct of another lawyer, although the rule is limited if the client objects to the lawyer making a report of confidential information.

NCDRC Certified Mediators

Under Rule 8 of the mediation rules for both civil superior court and family court, certified mediators must report to the NC Dispute Resolution Commission within 30 days of receiving notice of:  pending criminal charges; criminal convictions; restraining orders issued against them; failures to appear; pending or closed grievances of complaints filed with or disciplinary action taken against them by a professional licensing, certifying, or regulatory body; judicial sanctions; and civil judgments, tax liens, or bankruptcy filings.

For example, if you are an attorney and also a certified superior court mediator, and you receive notice that a former client has filed a grievance with the State Bar against you, your 30-day clock has now started to run.  You must report to the DRC within 30 days of when you receive notice that a grievance was filed.

Real Estate Brokers

Licensed real estate brokers must report to the NC Real Estate Commission within 60 days of a final judgment, order, or disposition of a case.  The applicable REC rule, 21 NCAC 58A .0113, provides for mandatory reporting of:  any felony or misdemeanor conviction; any discipline, conciliation agreement, or consent order with any agency in connection with any occupational license; and the restriction, suspension, or revocation of a broker’s notarial commission.

Real Estate Appraisers

               Licensed or certified real estate appraisers and registered trainees must report to the Appraisal Board within 60 days of a final judgment or final order against them.  Under GS 93E-1-12(b1) and 21 NCAC 57A .0409, licensees must report:  convictions for offenses involving dishonesty, fraud, or deceit; civil judgments against them for fraud, misrepresentation, or deceit in appraisals; disciplinary action against any professional license in North Carolina or any other state; and being adjudged mentally incompetent.  Under GS 93E-1-12(b)(4), licensees are also required to report denial of licensure in another state.

Certified Public Accountants

Certified public accountants must report to the CPA Board within 30 days of a final judgment, order, or settlement.  The applicable CPA Board rule, 21 NCAC 08N .0208, provides for mandatory reporting of:  any conviction for a criminal offense; a judgment or settlement in a civil suit, bankruptcy action, administrative proceeding, or binding arbitration; any written settlement in which a client or former client releases the CPA from liability grounded in, among other things, allegations of professional negligence, regardless of whether suit was filed; any inquiry or investigation by the criminal investigation divisions of the IRS of a state department of revenue pertaining to tax matters; and any lien filed by the IRS or any state department of revenue regarding failure to pay taxes.

Caveats and Conclusion 

If you find yourself dealing with a professional complaint or a legal problem, it’s critical that you immediately assess your obligation to report with respect to all the licenses and certifications you hold.  The longer you wait, the greater your risk of being disciplined simply for failing to report a matter that might otherwise have been minor. 

The above summary of reporting obligations is meant only for informational purposes to raise awareness of professional obligations that might exist.  A summary cannot capture all the relevant details for these reporting requirements.  Also, this is not an exhaustive list.  Our next blog will cover Physicians and Physician Assistants, Dentists, Psychologists, and Pharmacists.  If you maintain a license or certification from a different entity, or you have questions about other types of information you may be required to report (such as address changes), you should check your licensing authority’s governing statutes and rules. 

Finally, this is not legal advice and should not be relied upon exclusively in determining any professional’s reporting obligations.  Rules change and details matter.  If you have questions about your own situation, consult with legal counsel.  The attorneys in our office assist licensed and certified professionals with these kinds of inquiries every day.  We’re happy to see if we can assist you, too.

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Seven Tips for Being a Productive, Professional Remote Worker

My first taste of telecommuting was in 1999 as part of my former professional life as a technical recruiter in the Boston area.  My husband and I were relocating to Raleigh NC for his new job and my company didn’t want me to leave, so they set me up to continue working for them from the comfort of my new home. 

It was great to work from home.  At first.  But I had gone from an office full of colleagues and chats over coffee to relatively isolated days broken only by the occasional brief phone call.  I struggled to feel connected to my coworkers.  I didn’t have the resources I needed.  Minor issues became major issues.  It was not the idyllic situation that I had imagined it would be.

I learned a great deal from the experience.  Since then, I have worked remotely off and on for over twenty years, and I’ve gotten better at it.  I’ve learned how to maintain a positive, productive remote work life that meets my professional obligations and nicely balances with my personal and family life. 

If you’re new to remote work, you’re not alone!  Here are seven tips that may help you in your efforts to stay on an even keel in these rocky times. 

1.    Get ready for work each day

It’s very tempting to stay in pajamas all day, but it can have a significant impact on how you feel about yourself and, by extension, your work.  The simple act of getting dressed for work will wake you up and help you feel more ready to take on the day.  You don’t need to wear a suit, of course.  Just be clean and neatly dressed.  You’ll feel better and sharper, which will help you to be more productive throughout the day.

2.    Replace the value of your commute

When I drive to and from work, I often spend that 20-30 minutes listening to my favorite music or a good audiobook.  When I work from home, I miss that dedicated “me” time.  You might use your driving time to listen to sports radio, or maybe you take the bus and you read during the ride.  When you become a remote worker, you might be tempted to start working right away each day, and you might lose that dedicated “you” time.  Think about what you’ve lost, recognize the value it added to the quality of your day, and replace it.  Spend the first 20 minutes of your morning listening to sports radio while you drink coffee and watch birds out the window.  Or do 15 minutes on the treadmill with an audiobook.  It doesn’t cut into your workday in any meaningful way, and it’s an invaluable self-care activity that can put you in a positive frame of mind for the rest of the day.

3.    Structure your workday

If your office life was full of scheduled meetings, regular calls, opening the mail, the normal group lunch, etc., that routine helped to keep you moving.  When you work from home, those office-life events drop off sharply and you may find yourself wandering aimlessly through your day, which can severely undermine your motivation.  Create a structured routine that moves you purposefully through your workday.  Schedule daily events such as a morning strategy session with yourself to review your schedule and set priorities for that day, regular videoconferences and phone calls, your own lunch time, an afternoon break to snuggle your furry 4-footed “coworker,” a specific time to check and open your mail, etc.  Having regular activities and approaching each day with intentionality can help you to stay focused and be productive throughout the day.

4.    Connect with coworkers, customers, or clients by voice every day

Emails and text messages are great, but they can’t take the place of live personal contact.  Chatting with a colleague or client over the phone, even just to exchange social pleasantries and light jokes, can really brighten your mood.  Make it a point to speak to a real person every day, preferably multiple times a day.  This is especially valuable when you are struggling with a difficult issue, like how to handle an unhappy client or a tricky business transaction.  Phone a friend!  Talking through issues by brainstorming and problem-solving with a colleague has a near-magical tendency to help you identify better options and solutions than you would on your own. 

5.    Avoid social media during your work hours

Facebook, Twitter, Instagram, etc.  They can be a great way to connect with people, but they can be huge time-sinks.  The immediacy of posting and responding on social media can create a false sense of urgency, leading people to think that they have to take time RIGHT NOW to respond to comments.  YouTube and TikTok can be sensational!  It’s easy to fall down a rabbit hole and lose hours of productivity.  When you are working remotely, treat social media as a break-time activity.  Limit yourself to lunch time or set break times.  Also, avoid posting on social media about your non-work activity during working hours.  “At the groomer with Rex! Doesn’t he look handsome?!?”  Your colleagues, who thought you were working, are likely to squint loudly and grumble.  It creates a negative impression of your work ethic and professionalism, even if unwarranted.  

6.    Have a dedicated workspace

It’s old news that eating or watching TV in bed can make it more difficult for you to get restful sleep.  Your brain needs to associate your bed with sleep rather than with waking activity.  Similarly, if you work in bed, on your living room couch, and everywhere else in your home, then your brain will associate everywhere in your home with work, and you will have more difficulty relaxing and enjoying your personal and family time.  When you aren’t relaxed and rested, you have difficulty concentrating and become less productive at work.  It’s important to create a dedicated workspace in your home, even if it’s just a specific corner of the dining room table. For attorneys and medical providers, it is also important to choose a space with privacy for speaking with clients/patients and protecting confidential/health information.  A dedicated physical workspace enables you to make that mental shift into “work mode” during working hours.  You will reduce distractions and increase productivity.  You’ll also be able to “leave the office” at the end of your workday by shutting down the computer, turning off the light, and leaving the workspace.  The rest of your home then remains associated with personal and family time rather than work.

7.    Leave the office

Once you dedicate a physical space for your work, make sure you leave work every day!  Because they work from home, remote workers are often tempted to continue working during their off-hours.  Maybe you get an email from a client at 9:00pm.  Maybe your boss emails you on your day off.  Whatever the cause, it’s easy to think “I’ll just log in for a few minutes,” and then spend hours working when you’re supposed to be relaxing.  This doesn’t hurt occasionally, but be careful not to make this a regular practice.  Working long hours can increase risk of depression and illness, and lead to serious negative effects on family life.  It can also impair cognitive function and decrease productivity. The brain needs to rest.  So, at the end of your workday, log off and leave the office. 

Working from home is a new challenge for many companies and employees, adding to the rest of the challenges we face during the COVID-19 pandemic.  When the pandemic passes, this experiment with remote work might end up changing how some companies do business.  Now is the time to create your own routines and procedures to maintain your productivity, meet your professional obligations, and enjoy a personal life.  You might find this to be a useful experience in the future!

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NC Legal Ethics Minute: Mobile Deposits and Online Trust Accounting

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Zoom Wisely

The coronavirus pandemic and social distancing measures have spurred many attorneys to explore remote work and videoconferencing, some for the first time.  These work style choices have repercussions for the unwary.  The attorneys in our office are fielding many questions about how to remain ethical and compliant.

For videoconferencing with colleagues, clients, opposing parties, and even judges, some attorneys and other professionals are turning to Zoom.  Zoom is a flexible, easy-to-use tool for videoconferencing that is available across multiple computing platforms and operating systems, and it has become quite popular in recent weeks.  It supports video as well as audio-only connections, and has useful options like allowing screen sharing, whiteboarding, file transfers, and breakout rooms for different participants (a nice option for mediators).

The bells and whistles combine to make Zoom very appealing in these challenging times.  However, it’s important to know your technology and watch for potential compliance traps and pitfalls.  For attorneys, there are risks of leaking attorney-client privileged or confidential information.  For all professionals, there are security risks that can be disruptive to relationships and business.

For example, screen sharing can be useful, but we recommend that you consider changing the default settings before scheduling a Zoom meeting.  The default allows all participants to screen share.  That means anyone can share their screen with confidential, privileged, or even inappropriate content.  You can change the default to allow screen sharing only for the conference host.

You should also review Zoom’s options for password-protecting and locking your meetings to prevent uninvited guests, and for removing unwanted or disruptive participants.  As this recent article reports, Zoom meetings across the country are being “crashed” by uninvited and unwelcome hijackers engaged in “Zoom bombing.”  It might sound far-fetched, but it is happening and it only takes a few minutes to change your settings and minimize the security risks. 

Another important aspect of Zoom is that it collects a lot of data during videoconferences, and it allows the host of the videoconference to record and monitor more than the other participants might realize.  For example, participants have the option of sending private messages to each other during the meeting.  If the host chooses to record a Zoom meeting to his/her local drive and participates in a private chat with another participant, then the private chat exchange will be saved to the minutes folder for that meeting. If that minutes folder is not secured, then anyone with access to that folder will see what should have been a private chat. 

Check out some additional, easy Zoom security tips in this PC Magazine article.

As we adjust to the new normal of remote work and videoconferencing, it is inevitable that we’ll encounter these kinds of challenges.  Do your research, stay abreast of the news, and use the available measures to control risk for yourself and your clients as much as possible. 

Stay safe, and Zoom wisely.

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Unauthorized Practice of Law: Pitfalls for NC Attorneys and Out-of-State Law Firms

The more things change, the more they remain the same.

Recently, the ABA Section of Litigation published an article discussing a 2018 ethics opinion of the Indiana Supreme Court Disciplinary Commission warning its lawyers about the potential pitfalls in a trend of Indiana attorneys being approached by nonlawyer companies or out-of-state law firms to establish an ongoing affiliation for providing legal services in Indiana without registering with the state bar.  The Indiana commission cautioned that such an affiliation can put the Indiana attorney at risk of violating multiple ethics rules.  The ABA article noted similar warnings issued in other states.

In North Carolina, we have also seen an increase of this activity and the accompanying allegations of unauthorized practice of law [“UPL”].  Often, a national or out-of-state law firm approaches a young or solo NC lawyer to be “of counsel” to their firm so the firm can then provide legal services in NC. 

The details vary, but the fundamentals are consistent.  From a UPL standpoint, situations like this can be a potential pitfall for both sides of the equation.

Under North Carolina law, even if it hires an NC lawyer to handle NC cases, an out-of-state law firm looking to set up shop in NC must register as an interstate law firm with the NC State Bar.  As part of that registration, the NC lawyer must certify to the State Bar that all professional services rendered to NC citizens by the firm are only provided by a duly licensed active member of the NC State Bar, and that other lawyers in the firm not licensed in NC will abide by the NC Rules of Professional Conduct.  In addition to registering with the NC State Bar, the law firm will also likely need a Certificate of Authority to transact business as a foreign professional corporation from the NC Secretary of State’s office.

For the NC attorney, failure to follow the appropriate procedure may result in a bar grievance for assisting in the unauthorized practice of law in violation of the NC Rules of Professional Conduct, Rule 5.5(f).  The attorney may also face potential civil liability for assisting another person to commit the unauthorized practice of law.

The out-of-state law firm may also be exposed to potential civil liability and action by the NC State Bar for engaging in the unauthorized practice of law.  The NC State Bar Council and any of its committees appointed for that purpose (such as the Authorized Practice Committee) have the authority to investigate UPL allegations.  Following such an investigation, the State Bar may issue a warning letter, issue a cease and desist letter, or seek an injunction to prohibit a person or business from engaging in the unauthorized practice of law depending on the circumstances. 

There are also criminal law implications.  District attorneys may investigate and prosecute unauthorized practice of law as a misdemeanor criminal offense.  Other more serious felony offenses, such as false pretenses, could be involved where an unlicensed person accepts fees while in engaging in the unauthorized practice of law.

The facts may change, but these laws have remained the same.  Know the potential pitfalls for both the NC attorney and the out-of-state firm looking to practice in NC.  Review and follow NC law and the procedures outlined by the Administrative Rules of the State Bar, 27 N.C.A.C. Chapter 1E, Section .0200.  Under the right circumstances, an arrangement like this can be ethical and beneficial to the NC lawyer, to the interstate law firm, and to clients. 

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For Peace of Mind – Part II

In our last blog, we talked about Policies and Procedures manuals and the reasons it is important to have a manual for your firm – no matter the size.  This blog is going to focus on another important aspect of policies and procedures – your remote workers policy. 

More and more firms (and, of course, other businesses) are giving employees the flexibility of working from home.  In some cases, attorneys will work full time from their home offices.  Along with all of the benefits of working from home, there can be security concerns.  We need to make sure that we are guarding the confidentiality of our clients just as carefully in these home office situations.

Below is a list of items you may want to consider including in your remote worker policy:

  • Employee should have a dedicated workspace.
  • Computer provided by the firm, accessed by assigned user only, credentials are never shared, and it is used for work only.
  • Computer should be locked when not in use and should be password protected.
  • Malware/virus software should be maintained and updated by the firm’s IT personnel.
  • Wi-Fi/Internet at home – high-speed connection with ample signal strength and must be secured with WPA or greater encryption.
  • Laptops should not be accessed in off-site locations utilizing public/open Wi-Fi connections.  If the employee must work at an off-site location, the employee should use his/her phone as a hot spot.
  • Laptop should be password protected, encrypted, and kept safe and secure – preferably never left in the car.  If laptop must be left in the car, it should be put in the trunk or somewhere completely out of sight.
  • Any documents containing confidential, privileged or other protected information that are printed at home need to be shredded.
  • No work documents should be accessed from any personal computer.
  • When taking work-related phone calls at home (or at any other location), employee should make certain no one can hear the conversation.
  • Clients should only be contacted using firm email accounts.  Gmail and other web-based email accounts are not as secure. 
  • Employees should email personal contacts using only their personal email accounts.  Personal email accounts should not be integrated with the firm email account.

The above list is certainly not an exhaustive list but instead offers some suggestions to get you started. We also advise our clients to institute cell phone and e-security policies. We recommend working with your IT professional to develop your own comprehensive remote worker and e-security policies. 

Since statistics show that remote work is here to stay, it benefits us, our clients, and our employees to have clear, specific guidelines in place. 

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For Peace of Mind

Many small firms or solo practices do not have a written Policies and Procedures Manual (“PPM”). When I ask, attorneys usually respond that it’s just a solo practice with just a couple of employees so they don’t think it is necessary. Some attorneys say they want to do it, but don’t know where to start. Others say they have been meaning to do it and haven’t gotten around to it. And still others can’t see the benefit in having one, as they have never needed it before.

There are very good reasons to create a PPM for your law firm, no matter what the size. First, as an owner of a business, if you are trying to practice law and remember everything you are supposed to do to run your business, something’s gotta give. In other words, tasks may fall through the cracks because your focus is on your clients. A conflict check may get skipped, you might forget some aspect of staff training, or you could miss preparing a trust account reconciliation report. The PPM creates a sort of “to do” list for reference, so you don’t have to remember everything.

Second, the Rules of Professional Conduct require that you have measures in place “giving reasonable assurance” that all lawyers and non-lawyer staff conform to the Rules of Professional Conduct. Rules 5.1 and 5.3. Having a PPM is a reasonable step to help ensure you and your staff are in compliance with the ethics rules.

Third, having a PPM would be good evidence, in a disciplinary proceeding, to show that you do have measures in place to help ensure compliance. While having a written PPM is not specifically required under the ethics rules, it can persuasive evidence of compliance in response to a grievance.

Fourth, it will save you time and money in the long run. As a business owner, you can expect staff changes on a regular basis. You may have had a paralegal or a firm administrator who has been working with you for 20 years, and who has institutional knowledge about how things work at the firm. But what if they suddenly leave? Having a document you can show new hires about how your firm works, and procedures already in place to ensure smooth sailing, will streamline training, saving you time and expense.

Fifth, because a PPM can also serve as your playbook for running your law firm, it can help preserve this institutional knowledge when a longtime employee leaves.

Importantly, any PPM should be a dynamic, not a static, document. As your firm changes, grows, or improves efficiency, you should modify your PPM accordingly. Some topics to address in any PPM include, but are not limited to:

  • New Client Intake Procedures
  • Conflict Checking
  • Communications with Clients
  • Client Confidentiality
  • Record-Keeping; Maintaining Client Files
  • File Retention and Destruction
  • Trust Accounting
  • Escheatment of Unclaimed and Abandoned Property
  • e-Security Measures
  • Closure of Client File and Disengagement
  • Client Forms and Engagement Agreements
  • Time-keeping and Billing
  • Accounting
  • Managing Calendars and Deadlines
  • Nonlawyer Staff Training and UPL

The PPM can be as detailed as you need, and may cover a variety of law practice management issues or best practices as well. If you want to put together a PPM, it may be as simple as opening a Word document. A good place to start is writing down how you manage (or how you want to manage) a client matter from the first phone call from a client, through intake procedures, engagement letters, staff assignment, billing and collections, trust accounting, communications about the status of the case, until final resolution of the case. Think about what you would want your staff to do in every case, without fail, and write it down. Think about what you want your staff to know and how best to impart that knowledge to each and every new hire.

We regularly assist clients in creating or modifying their PPMs. Know that creating a PPM will take some time and thought on the front end, and will require that you revisit it periodically. An effective PPM will never be finished, but having it should give you some peace of mind.

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Retaining Good Employees — Begins with You

A consistent question I receive from practice owners and professionals is, “How do I keep good associates?”  Lawyers and other professionals come and go, and no law firm or profession is immune from this trend.  Young professionals seem to hop from firm to firm, or want to strike out on their own, once they get a bit of experience under their belt.  When you are training new associates, ideally, you are training them to be experienced, self-reliant, and productive–in other words–the kind of professional that could leave your firm and start their own practice.  The attributes that you want your associates to have are the same attributes that make them ready to practice on their own.

So, how do you keep good attorneys or any employees for that matter?  There is no magic bullet or sure-fire way to retain talented employees, but there are things that you can do, beyond paying a fair salary, to encourage your employees to stay. 

1)            Open Communication and Teamwork – Let your associates know that they can come to you with anything.  Foster an environment of open communication and working as a team.  Make clear that they can come to you with concerns, problems, or even if they make a mistake.  You can work together to find a solution.

2)            Be a Mentor – In addition to imparting knowledge in your field of practice, instill your own core values in your employees.  Show them how you care about and value your clients and your employees.  Show, by example, your values of honesty, trust, dedication, and perseverance, or whatever your core values may be.  You can also encourage your associates to take on more responsibilities and try different tasks.  Then you can show them patience and trust when working with them in these new areas.

3)            Get Feedback – Ask your staff how you are doing as a boss and listen to what they have to say.  Value their input, because they are part of a team.  Then implement changes based upon their input.  If you foster an environment of trust, employees will be more likely to share this kind of constructive criticism. 

4)            Create a Positive Environment – Again, this positive environment starts with your positive outlook and attitude.  Have a bit of fun or show your sense of humor.  Show gratitude for and appreciation of your employees.  Bring in lunch or dessert once a month.  Celebrate employee birthdays or work anniversaries. Engage in team building activities.

5)            Talk about the Future – Many professionals are reluctant to follow this advice, but it is important.  If you don’t share enough about what you see as the future of the firm, and how that associate fits into that future, you will likely lose that employee to a better offer or their willingness to risk starting their own practice.  Don’t keep your staff wondering or guessing about the future.  Share your vision with them and let them know you would like them to be a part of it.

Finally, it all starts with hiring the right person, i.e., an associate who is a good fit for your firm. A person who is solely interested in making a buck is not likely the person who will stay and is not likely a person whom you would want to stay in your firm.   So, choose carefully.

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For the Civil Procedure Pocket of Your Utility Belt

I like to believe every attorney has an inner nerd who loves to pick up cool procedural tips.  Maybe it’s just me.  I squirrel them away because you never know which procedural tidbit will become the difference between winning and losing a case. 

The North Carolina Court of Appeals recently issued a published opinion that was a little gift to our inner nerds.  It was a question of how a voluntary dismissal without prejudice in another state, and expiration of the time to refile in that state, affected a later suit on the same claim in North Carolina.

In Barefoot v. Rule, No. COA18-1160 (N.C. Ct. App. May 21, 2019), plaintiff Sheena Barefoot filed a personal injury claim in Tennessee on June 28, 2016, against defendant Jacquelyn Patricia Rule.  The claim arose out of an auto accident that occurred in North Carolina on July 3, 2015, but both parties were Tennessee residents.  The Tennessee statute of limitations for personal injury claims is one year, while it is three years in North Carolina.

On November 16, 2016, the Tennessee trial court entered an order granting Plaintiff Barefoot a voluntary dismissal without prejudice under Tennessee’s rule 41.01, which is similar to North Carolina’s Rule 41(a)(1).  Both rules permit re-filing within one year after the first dismissal even if the limitations period has run on the original claim.  

After the statute of limitations ran in Tennessee for both the original personal injury claim and the one-year period to re-file the lawsuit, on April 5, 2018, Plaintiff Barefoot filed suit in North Carolina alleging essentially the same claims.  Although her claim was barred in Tennessee, the statute of limitations as to the original personal injury claim had not yet run in North Carolina.

In the North Carolina lawsuit, Defendant Rule argued the claim was barred by the doctrine of res judicata because the plaintiff had failed to re-file her action within the time allowed after her voluntary dismissal in the Tennessee lawsuit.  The defendant argued the Tennessee dismissal had become a final judgment with res judicata effect as to the suit in North Carolina.  The trial court agreed and granted judgment on the pleadings in favor of the defendant.

The Court of Appeals, however, disagreed.  The issue at the core of the appeal, as the Court saw it, was how a voluntary dismissal without prejudice operates between states.

The Court of Appeals reviewed both Tennessee and North Carolina case law interpreting the effect of a voluntary dismissal without prejudice.  In both states, a voluntary dismissal without prejudice returns the parties to their original positions, as though the first suit had never been filed.  This frees a plaintiff to switch from state court to federal court or to switch from one state’s courts to another state’s courts to file a new lawsuit, and the rules of the second court will govern the new lawsuit. 

In this case, after the plaintiff dismissed her lawsuit in Tennessee, she was left exactly where she was before her Tennessee lawsuit commenced – she was free to file her lawsuit in Tennessee or North Carolina as an entirely new claim.  The Court therefore concluded the Tennessee dismissal order did not have res judicata effect as to the lawsuit in North Carolina.  The trial court’s decision was reversed and the case remanded.

Stash this one away in the civil procedure pocket of your litigation utility belt.  You never know when it might come in handy. 

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Take a Lawyer to Lunch

When I first began practicing law in North Carolina, one of my primary mentors told me about a strict policy he followed concerning filing sanction motions against an opposing attorney. His practice was to invite an opposing lawyer to lunch before potentially filing a motion for sanctions against that attorney.  The primary reason for this procedure was to ensure that he had considered the position and other potential facts and circumstances from opposing counsel.   It was essentially a private principle of professionalism to make sure he had the rest of the story, and potentially preserve an important professional relationship, before filing any pleading that explicitly or at least implicitly accused another lawyer of improper conduct.

            In the many years since getting that excellent advice, I have followed it consistently and fortunately have never filed a motion for sanctions against an opposing attorney. However, I’ve also expanded the principal to include other types of communications.  For example, before sending a letter or email to opposing counsel that might suggest some sort of improper conduct, I’ve strived to speak with the attorney either in person or at least by phone.  While I can’t say that this prevented me from sending every adverse communication over the years, there have been many instances where I was very glad that I reached out to make that personal contact and, in many instances, never sent the letter, email or other communication.  In contrast, on the rare occasions where I have sent that type of accusatory communication without making personal contact, I typically regret it and wish that I had done so.

            While this principle is not perfect, I believe that if opposing lawyers would have more personal communications, including going to lunch or some other meeting, there would be much less acrimony and fewer unprofessional exchanges among lawyers. It is simply harder to file pleadings and send other communications making allegations against an attorney that you know personally. Additionally, understanding others’ positions and being empathetic is a critical part of being a successful attorney.

            I strive to be like some of my mentors, Ed Gaskins and Judge Franklin Dupree, who treated all lawyers and everyone else involved in the legal and judicial process with respect and professionalism. Taking a lawyer to lunch, or otherwise having direct personal communication, before making any professional accusation is certainly a good way to start. 

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