North Carolina State Bar Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the North Carolina State Bar, with full citations and source links on every page.
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Can a firm agree to stop billing its association client on uncollected collection cases and make up the loss by charging higher fees to the debtors from whom fees are recovered?
No. The opinion concluded that inflating the fee charged to recovered-from debtors to offset losses on uncollected cases produces a clearly excessive fee, and misrepresenting the actual fee to a court…
When a successor personal representative sues the former one, can the estate's lawyer disclose his file and prior advice, and does it matter whether the advice was given before or after the client qualified as personal representative?
It turns on capacity. The opinion concluded advice given to the widow personally, before she qualified, stays confidential, but advice given to her in her official capacity belongs to the estate, so t…
Before filing suit, can a lawyer send an unrepresented defendant a letter that explains the effect of a settlement on the defendant's personal liability and warns that the insurer's defense lawyer may have divided loyalties?
No. The opinion concluded the letter violated Rule 7.4(b) by giving the unrepresented defendant legal advice beyond the advice to secure counsel, and violated Rule 7.4(c) because its tenor implied the…
When an insurer's lawyer defends an accident claim in the name of an uninsured or underinsured motorist, may the plaintiff's lawyer interview that defendant without the insurer-lawyer's consent?
Yes. The opinion concluded the insurer's lawyer represents the insurer, not the individual defendant, so the no-contact rule does not apply; the plaintiff's lawyer may interview the unrepresented defe…
In a domestic case, may a lawyer listen to a tape recording the client made illegally so the lawyer can use it to impeach the opposing spouse or to develop other evidence?
No. The opinion concluded that listening to or using a recording the client made illegally would help the client benefit from her own illegal conduct and would be prejudicial to the administration of …
Can a lawyer represent a buyer, seller, or lender in a real estate closing when the lawyer's spouse, a real estate agent, will earn a commission only if the deal goes through?
Yes, with limits. The opinion concluded the lawyer may represent the seller without conflict, and may represent a buyer or lender only if the lawyer reasonably believes his judgment will not be materi…
Does the child-abuse reporting statute require a lawyer to report a client's suspected child abuse learned during an unrelated representation, even though the information is confidential?
No, not as an ethics matter. The opinion concluded disclosure is discretionary under Rule 4(c)(3), so a lawyer who in good faith concludes that reporting would substantially harm the client may declin…
Can an assistant district attorney or a DA's nonlawyer staff advise an unrepresented traffic defendant on plea options that would reduce insurance points or save a license?
No. The opinion concluded that the DA's lawyers and supervised staff represent the State, so they may not give legal advice to an unrepresented citizen charged with an infraction beyond advising the p…
Can a lawyer's fee agreement direct the clerk of court to send a domestic client's alimony or child support payments to the lawyer to cover unpaid fees?
No. The opinion concluded that directing support payments to the lawyer gives the lawyer a prohibited proprietary interest in the subject of the litigation under Rule 5.3(a); the advance-fee provision…
Can a closing lawyer own stock in a title insurance agency that earns compensation on the same real estate transactions the lawyer closes?
No, on these facts. The opinion concluded that even an insubstantial ownership interest in a title agency that is paid on the lawyer's own closings creates a conflict too great to allow, because the l…
Can a defense lawyer in a medical-malpractice wrongful-death case contact the pathologist who performed the decedent's autopsy, without the consent of the estate's lawyer?
Yes, unless a statute or case law prohibits it. The opinion concluded the privacy rule barring ex parte contact with a plaintiff's nonparty treating physician does not reach a pathologist who performe…
Can a lawyer let a legal assistant or paralegal examine a witness at a deposition, or appear for a client or witness being deposed by opposing counsel?
No. The opinion concluded that conducting a deposition requires the lawyer's independent legal judgment from moment to moment, so letting a legal assistant examine or appear at a deposition aids the u…
If a personal-injury client dies during the representation, must the lawyer tell the tortfeasor's insurer before continuing to negotiate the claim?
Yes. The opinion concluded that the lawyer must disclose the client's death to the insurer before continuing negotiations, because the death ends the representation and negotiating or settling without…
When a client gets new counsel and asks for the file but refuses to pay copying costs, who bears the expense of copying, and how is the file divided when the lawyer represented several clients in the same matter?
The opinion concluded the file belongs to the client and a withdrawing lawyer must deliver it, bearing the copy cost only for the one set she keeps for her own records; original documents that relate …
When a firm bills by the hour, may it charge a new client for legal research it already did and billed to an earlier, unrelated client?
No. The opinion concluded that under an hourly fee agreement, billing a client for reused work product the lawyer did not spend time on is dishonest conduct; the lawyer may bill for time tailoring old…
Can a lawyer advise a client to consult several other lawyers, with no intent to hire them, solely to create conflicts that bar those lawyers from representing the opposing spouse?
No. The opinion concluded that helping a client manufacture conflicts to keep the opposing party from hiring counsel of her choice serves merely to harass and is unethical, whether the lawyer or the c…
When defense counsel subpoenas a plaintiff's treating physician and the physician starts discussing the plaintiff's treatment, may the lawyer listen, or must the lawyer stop the conversation?
The lawyer must stop it. The opinion concluded defense counsel may not participate, passively or actively, in communications with a plaintiff's nonparty treating physician about the plaintiff's treatm…
Can a lawyer agree to a settlement that bars him from representing other potential plaintiffs against the same defendant, and can opposing counsel offer such a term?
No to both. The opinion concluded a lawyer may neither accept nor offer a settlement that restricts his right to practice law; a confidentiality term protecting the settlement's terms is, however, per…
After an insurer tenders its liability limits in an auto case, can the same defense lawyer stay in the suit to protect the insurer's underinsured-motorist interest, with the insured defendant's consent?
Yes. The opinion concluded that once the insurer waives subrogation and the plaintiff covenants not to enforce a judgment, the insured defendant has no personal exposure, so the interests are not adve…
If a paralegal who worked on one side of a case leaves and joins the firm representing the other side, must the new firm withdraw, or may it screen the paralegal?
The new firm need not withdraw. The opinion concluded the imputed-disqualification rules do not apply to nonlawyers, so the firm may keep both the client and the paralegal, but it must take extreme ca…
Can defense counsel in a personal-injury case contact the plaintiff's treating physician, even just to read handwriting in records produced in discovery, without the plaintiff's consent?
No. The opinion concluded that any communication with the plaintiff's nonparty treating physician about the physician's treatment of the plaintiff or the substance of his testimony is unethical withou…
When a lawyer sits on the board of trustees of a nonprofit hospital, may another lawyer in the same firm sue that hospital if the board member is screened from the case?
No. The opinion concluded that a firm lawyer's service on the board creates an irreconcilable conflict that screening cannot cure, so no lawyer in the firm may represent a client suing the board or ho…
Can a lawyer charge a sliding fee, scaled to the size of the claim, to collect a client's medical-payments benefits under the client's own auto insurance policy?
No. The opinion concluded that a fee for collecting med-pay scaled to the amount of the claim rather than the cost of the work is unreasonable under Rule 2.6(a), because most med-pay claims carry no r…
Can a criminal-defense lawyer lend a client the money to post a cash bond while representing the client in the case?
No. The opinion concluded that lending a client bond money is barred by Rule 5.3(b)'s prohibition on advancing financial assistance in pending litigation; it is not a litigation expense and it creates…
When an insurer hires a lawyer to defend its insured, can the lawyer just leave out a compulsory counterclaim and tell the insured to hire separate counsel to bring it?
Not without warning. The opinion concluded that defense counsel has no duty to assert the insured's compulsory counterclaim, but must timely apprise the insured of its compulsory nature so the insured…
Can a lawyer secretly tape-record a phone or in-person conversation with opposing counsel about a pending case without telling them it is being recorded?
Yes. The opinion concluded that recording a conversation with opposing counsel without disclosure does not violate the Rules of Professional Conduct, though as a matter of professionalism lawyers are …
Can the lawyer for an injured client also represent the client's health insurer in pursuing its subrogation claim against the same tortfeasor?
Yes, with consent. The opinion concluded that a lawyer may jointly represent the injured client and the subrogated health carrier if the lawyer reasonably believes the representation will not be adver…
Can a North Carolina lawyer get a client to waive in advance a conflict of interest that has not yet arisen?
Yes. The opinion adopted ABA Formal Opinion 93-372 and concluded that an advance waiver of a future conflict is permissible if it is in writing, the future conflict was within the parties' contemplati…
When a minor's parent refuses to pursue the minor's injury claim to protect the family's insurance rates, may the lawyer seek an independent guardian ad litem for the minor?
Yes. The opinion concluded that the lawyer satisfied his duty by advising the parent, but where the parent's only reason for not pursuing the minor's claim was protecting the family's insurance rates,…
Can a lawyer run a TV debt-relief commercial that promises creditors can be paid 'as little as $25 a week' without mentioning that the relief is bankruptcy?
No. The opinion concluded that omitting that the relief is bankruptcy makes the commercial materially misleading, the '$25 per week' claim creates an unjustified expectation, and the recorded phone me…
Can a lawyer treat an advance fee as immediately earned and spend it right away, and is a fixed traffic-case fee that covers fines and costs an improper contingent fee?
The opinion concluded that an advance fee is a deposit that must stay in trust and be refunded if unearned unless the lawyer clearly tells the client it is earned immediately and the client agrees; a …
When a former client asks for the file, does the lawyer have to hand over the lawyer's own title notes, and can the lawyer charge for copies of documents the client already received?
The opinion concluded that a lawyer's personal title notes are work product the lawyer need not release, and that the lawyer may charge a former client for additional copies of documents already deliv…
Can the lawyer appointed to represent a minor in a friendly suit to approve an injury settlement be paid directly by the defendant's liability insurer?
Yes. The opinion concluded that Rule 5.6 lets a lawyer be paid by a third party such as the liability insurer if the client consents after full disclosure, the lawyer's independent judgment is not imp…
Can a firm with an hourly-rate fee contract raise its rates during the engagement without getting the client's consent to the increase?
The opinion declined to construe the fee contract as a question of law, but held that a lawyer may renegotiate a fee for changed circumstances or good cause without abandoning or threatening to abando…
Can lawyers settle a patient's civil claim against a therapist on the condition that the patient agree not to report the therapist to the licensing board?
No. The opinion concluded that it is unethical for either party's lawyer to take part in resolving a civil claim of a therapist's sexual misconduct where the settlement is conditioned on the complaini…
Can a lawyer mail a confession of judgment to the unrepresented opposing party for signature so child support can be paid through the clerk of court?
Yes. The opinion concluded that a lawyer may draft and send a confession of judgment to an unrepresented adverse party for signature, as long as the lawyer does not advise the party about the document…
Can a lawyer run TV commercials using actors playing fictional satisfied clients based on the lawyer's representative cases?
No. The opinion concluded that dramatized commercials using actors as fictional clients are materially misleading under Rule 2.1, and a 'Dramatization' disclaimer does not cure the violation. The Stat…
When an insurer has paid its full limits and is released from the duty to defend, what must the lawyer it retained tell the insureds about whether they are still represented?
The opinion concluded that once the insurer has paid its full limits and is statutorily released from the duty to defend, the lawyer it retained must promptly inform the insureds in writing that he wi…
Can a lawyer charge a one-third contingent fee to collect delinquent child support for a custodial parent who cannot afford to pay legal fees up front?
Yes. The opinion concluded that an attorney may charge and collect a one-third contingent fee on funds recovered for delinquent child support where the custodial parent has insufficient means to pay l…
Can a lawyer represent a city council member while also handling matters that may come before the council, and appear before the council on other clients' behalf?
The opinion concluded that a lawyer may represent clients before an elected or appointed governing body while or after representing a member of that body, so long as the lawyer does not use the relati…
Can an insurance company's full-time staff attorney appear in court for the insured, or only for the company itself?
The opinion concluded that a staff attorney may appear only where the insurance company is the real party in interest representing the company itself; he may not appear for the insured, because a corp…
When a lawyer believes a client cannot competently handle his own affairs, can the lawyer seek a guardian or representative payee over the client's objection, and reveal confidential information to do it?
The opinion concluded that a lawyer may seek appointment of a guardian or representative payee without the client's consent if reasonably necessary to protect the client, but may disclose only the law…
Can a lawyer contact an adverse corporation's in-house counsel directly to settle when outside counsel of record is unavailable, if the in-house lawyer appeared at trial as a corporate representative?
The opinion concluded that the lawyer acted improperly. Because the corporation's assistant general counsel had participated at trial as a person having managerial responsibility for the company, Rule…
Can one lawyer represent the at-fault driver, the liability insurer, and the same insurer in its underinsured-motorist capacity in the same accident case?
No. The opinion concluded that the lawyer has a disqualifying conflict, because the UIM carrier's statutory subrogation rights against the at-fault driver make the driver's and the insurer's UIM inter…
After a conflict surfaces in a joint representation, can the lawyers refuse to give the former client her share of the joint file as privileged work product?
No. The opinion concluded that when lawyers jointly represented a nurse and a hospital as having the 'same interest,' the information lost its confidential character between them, so on termination th…
Can a prosecutor and defense lawyer let a defendant tell the judge under oath there is no plea agreement when a plea deal was in fact negotiated?
No. The opinion concluded that letting a defendant falsely deny a plea agreement and signing a transcript that hides it violates the bar on dishonesty and the bar on using false testimony; a district …
Can a lawyer let the bank 'link' a trust account and a business account so that credits and service charges offset across both?
The opinion concluded that a linked arrangement creates ethical problems because it makes it impossible to account for each account's interest and charges separately, so trust-account 'credits' could …
What can a lawyer do with a client's uncashed trust-account refund check, and can the lawyer set a fixed criminal-defense fee from the leftover after paying fines and costs?
The opinion concluded that a lawyer may not stop payment on an uncashed refund check and give the money to charity without the client's consent; the lawyer must try to reach the client and, failing th…
Can a lawyer pay another lawyer outside the firm a share of the fee just for a referral, when that lawyer did no work and the client never agreed?
The opinion concluded that lawyers not in the same firm may divide a fee only if the split is proportional to the work each did, or the client agrees in writing, each lawyer assumes joint responsibili…
Can a law firm pay a paralegal a monthly bonus calculated as a percentage of the fees from the closings the paralegal worked on?
The opinion concluded that the firm may not pay the paralegal a bonus calculated as a percentage of the legal fees the firm receives from matters the paralegal worked on, because that is sharing legal…
Can a law firm host a hospitality suite before a state bid letting and invite both existing clients and non-client contractors it knows will attend?
The opinion concluded that a firm may host a hospitality suite for its existing clients, because Rule 2.4 does not bar contact with existing clients, and may also invite non-client contractors it know…
Can a lawyer put a clause in a contingency fee agreement requiring the lawyer's consent before the client settles the case?
The opinion concluded that a lawyer cannot divest a client of the exclusive authority to settle, because Rule 7.1(c)(1) requires the lawyer to abide by the client's decision whether to accept a settle…
Can one lawyer represent an estate's executor and both the family trust and the charitable trust it must pay, and what happens if the family trust later defaults?
The opinion concluded that, with no default, there is no disqualifying conflict, so the lawyer may represent the executor, the family trust, and the charitable trust under Rule 5.1(b). If the family t…
Must a lawyer withdraw from defending an estate when the lawyer will likely be called to testify about assurances he allegedly gave a claimant?
The opinion concluded that the lawyer is disqualified and may not continue defending the estate, because his testimony will be necessary on disputed facts, especially whether he assured the claimant t…
Can a lawyer serve as a party-appointed arbitrator when one of that lawyer's law partners represents a party to the arbitration?
The opinion concluded that a lawyer should never serve as an arbitrator in a case in which his or her partner represents one of the parties, in order to avoid even the appearance of impropriety. The p…
Can a lawyer contact a city employee, manager, or council member directly about a matter when the city is generally represented by the city attorney?
The opinion concluded that a lawyer may contact a government employee or the city manager about a matter where the lawyer has received no notice that a government lawyer is participating in that parti…
Can defense counsel and a prosecutor ethically agree to a plea deal in which the defendant waives all appellate and postconviction rights?
The opinion concluded that lawyers may execute a lawful plea agreement waiving appellate and postconviction rights, except to the extent the agreement purports to waive remedies based on ineffective a…
When a contingency-fee lawyer wins a structured settlement paid over years, can the lawyer collect the full fee up front and without discounting the future payments to present value?
The opinion concluded that a lawyer entitled to a percentage contingent fee may collect immediately only the prescribed percentage of the total settlement reduced to its present value, when the recove…
Can a lawyer keep defending an insured and its employee after the insurer first denied coverage, then agreed to defend under a reservation of rights and filed a coverage declaratory judgment action?
The opinion concluded that the lawyer may continue to represent the nursing home and nurse, because nothing in the facts disclosed a disqualifying conflict of interest. The lawyer had represented only…
Can a lawyer sign adoption petitions prepared by a social services agency as an accommodation, without actually representing the adoptive parents or taking responsibility?
The opinion concluded that a lawyer may not sign a pleading as a mere accommodation, because signing a pleading that initiates a proceeding is an appearance that carries the full responsibility of rep…
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Legal ethics opinions from the North Carolina State Bar interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.