By Chris S. Edwards

Judges in North Carolina’s state and federal appellate courts don’t reach for printed briefs much anymore (the Chief Judge of the Fourth Circuit, Albert Diaz, has said that he and his colleagues routinely read briefs only on their iPads). Instead, they read briefs just like you or I would, on a screen.

If judges are reading briefs on a screen, should that information change the way that we write briefs? I think so. Even though reading on paper has distinct advantages (readers comprehend information better and retain more of it when they choose paper over a screen), I’m guessing most judges would be hard-pressed to give up the convenience of screen reading.

That leaves one solution: because the way judges read has changed, so too must the way that lawyers write. So, how do we do that? Read more

By Keith A. Wood, Chris W. Genheimer, and Michael J. Allen 

Sometimes publicity is a bad thing, and notoriety is even worse. That seems to be the case with respect to an apparent major change in the IRS’s views on the tax treatment of contingent fee deferral arrangements that plaintiffs’ attorneys often use.

Structured attorney fee deferral arrangements (also known as “fee structures”) have been around for decades. Almost 30 years ago, the U.S. Tax Court seemed to validate the deferred tax treatment of fee structures in its 1994 decision in Childs v. Commissioner, 103 TC 634 (1994), aff’d without published opinion, 89 F.3d 856 (11th Cir. 1996). From the time of that decision until December 16, 2022, the generally held belief was that a properly constructed fee structure would not be met with IRS disapproval.

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By Amy Richardson 

The Supreme Court of North Carolina recently approved amendments to Rules of Professional Conduct 1.6 (Confidentiality of Information) and 1.9 (Duties to Former Clients). The amendments permit a lawyer to disclose information acquired during the representation of a former client if the information is contained in the public record and disclosure is not detrimental to the client. Prior to these amendments, an attorney was not allowed to disclose such information unless she had informed consent from the client.

In addition, the North Carolina Bar Council adopted and approved for transmission to the Supreme Court proposed amendments to Rule 1.15 and Rule 4.1. The proposed amendment to Rule 4.1 makes a technical correction to the language in the comment. The proposed amendments to Rule 1.15 contain new definitions of common ledgers used in monitoring a lawyer’s trust account and rearrange some parts of the rule for improved understanding and application. The Supreme Court has not yet acted on these amendments.

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By Matt Van Sickle

Hello Litigation Section Members. I am honored to serve the Litigation Section as Chair for the 2022-23 Bar Year, and will provide a roadmap for the coming year in another post.

The purpose of today’s post is to let you know the Administrative Office of the Courts has released the schedule for the initial rounds of eCourts training, taking place in September. There will be virtual options, and in-person training will take place in Cary and Lillington. If you have not kept up with the eCourts program, the four pilot counties for the program are Harnett, Johnston, Lee, and Wake. Once the program is live, all attorneys will have to use the eCourts File & Serve system for filings in those counties. The training announcement from the Administrative Office of the Courts can be accessed here.

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By PJ Puryear

With Covid came a new chapter in most litigators’ lives: remote depositions. There are no doubt lovers and haters of this development, but there is also no doubt this technological development is here to stay. Accordingly, everyone needs to be aware that N.C. Gen. Stat. § 10B-25, which authorized “emergency video notarization” and opened the door to this practice, has expired. There does appear to be a workaround, however.

Originally set to expire in March of last year, the General Assembly modified the statute to extend to December 31, 2021. Unfortunately, the General Assembly adjourned before Omicron ruined all of our well-laid holiday plans (and perhaps your plans for returning to in-person depositions), and before they could pass legislation continuing a court reporter’s ability to swear in a witness remotely. If you haven’t been to the Secretary of State’s webpage in the last two weeks, you haven’t seen Secretary Marshall’s notice to the public on this: “Notice: The temporary Emergency Video Notarization Law expired on 12/31/21 at 12:01 am. ALL notarial acts, traditional and electronic, revert to the original law requiring in-person, physical presence by the principal or principals.”

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