In Process: Closing Attorney Brochure

RELANC members are building a new handout in brochure format, that you can share with your local agents and clients to educate them on the importance of an attorney closing.  North Carolina real property owners are best protected and served when a licensed North Carolina represents them at closing and is available to assist them with the many legal issues involved when buying and selling real estate.

IMG_2205.jpg

From left, Jim Arges, Rob Love, Jon Biggs and Carey Ewing, meeting in Durham to update the content of the new brochure before the soft rollout at the Real Property Section Annual Meeting, at which RELANC is a sponsor and exhibitor. Contact the Executive Director at BonnieBiggs@relanc.com for a copy of the latest draft if you would like to contribute.

January 2018 NC State Bar Ethics Committee Actions

Proposed 2018 Formal Ethics Opinion 1
Participation in Website Directories and Rating Systems that Include Third Party Reviews
January 25, 2018: These opinions are published for comment.

 Proposed opinion explains when a lawyer may participate in an online rating system, and a lawyer’s professional responsibility for the content posted on a profile on a website directory.

Inquiry #1: May a lawyer “claim her profile” or set up a profile on a website directory or business listing service such as Google’s My Business, LinkedIn, or Avvo and provide information for inclusion in the profile?  Opinion #1: Yes, if the information provided by the lawyer and as presented in the profile is truthful and not misleading. Rule 7.1(a).

Inquiry #2: May a lawyer pay to be included in a website directory of lawyers?  Opinion #2: Yes. A lawyer may pay the reasonable costs of advertisements. Rule 7.2(b).

There are eight more Inquiries and Opinions on this topic. Please go to the NC State Bar web site at https://www.ncbar.gov/for-lawyers/ethics/proposed-opinions/ to read the rest and provide your comments to the Ethics Committee.

Officers & Directors for 2018

Chair – Ashleigh Black, Raleigh
Vice-Chair – Jim Arges, Durham
Secretary – Dan Portone, Charlotte
Treasurer – Sal Balsamo, Charlotte

Directors:
Jim Arges, Durham
Ashleigh Black, Raleigh
Chris Salyer, Fayetteville
Casey Heim, Raleigh
Dan Portone, Charlotte
Kim Rosenberg, Raleigh/Pinehurst
Elizabeth Harrison, Raleigh
Mike Gorenflo, Sandhills
JC Hearne, Wilmington
Alan Ferguson, Greensboro
Ken Gwynn, Raleigh
Dan Terry, Charlotte
Julian Robb, Winston-Salem
Michael Thompson, Asheville
Veronica Colvard, Asheville

RELANC New Member Welcome

We are delighted to post the following list of 77 new members for 2018. Some of you were members in 2016 or prior years, and we are so pleased to welcome you back.

Archie, Richard J.
Ballard, Jillian Winston
Barringer, Brent D.
Belcher, Derek Randall
Bibb, Eleanor Broderick
Bogues, Jonathan Matthew
Bradley, Justin Michael
Brewer, Sherri L.
Bridges, III, Benjamin
Briggs, III, John G.
Brown, Suzanne E.
Burris, Robert N.
Cartner, David W.
Chapman, Brian Fred
Christian, Daniel G.
Ckezepis, Justin Anthony
Crone, III, John W.
Donaldson, Karen M.
Dowell, Katherine Marie
Drake, Kathryn S.
Fleming, Tamara A.
Garner, Max A.
Gillam, III, Moses B.
Glenn, Julie B.
Gordon, Kiersten M.
Grainger, Gates E.
Harrison, Elizabeth R.
Hartman, Mark Spence
Hudson, John T.
Hutchins, Robert Wendel
Jonas, Richard E.
Karr, Nicholas Edward
Koonce, Elizabeth M.
Lagesse, Brian Patrick
Lee, III, Junius B.
Lewis, Jr., Richard M.
Livingston, John Charles
Lockamy, Patrick Ryan
Mason, Tonya Anne
McConnell, Robert Kevin
McNames, John Price
Mikaloff, Justine Camille
Miller, Christopher D.
Moyer, Amanda Marie
Norrell, William Pendleton
Odom, Robert W.
Oertel, III, Paul L.
Offord, Lauren Elizabeth
Pack, Jr., Kenneth Duane
Pearman, Larry W.
Pela, Cynthia Schafer
Presel, Alan M.
Raynor, Misa B.
Redhead, Candice Williams
Rhoton, III, W. Porter
Roper, Wayne A.
Saintsing, James R.
Satterfield, Thomas Michael
Schlachter, Sharon Faulkner
Scott, Janalyn R. W.
Sellers, Timothy G.
Shannon, Kyle Edward
Shields-Cook, Lisa Marie
Shor, Nina
Slaughter, James H.
Sneed, Ronald E.
Sutton, Faison Gibson
Taylor, Jr., Joseph O.
Thebeau, Cheri A.
Tindall, Erin Roberts
Tisdale, Norwood B.
Trask, Frances Y.
Van Trigt, Andrea Matt
Wagoner, Anna Gregory
Wilkie, Jessica Odom
Williamson, Sonya L.
Willis, Jarald N.

New Member Matching Gift Program

New Member Matching Gift Program: Investors Title Insurance Company has committed a $100 match for every NEW member joining before February 25, 2018. This is in addition to their generous matching donation following the 2017 Fall Gathering.

We have seen more change in our profession in the last 5 years than at any other time in the last 30 years.  Change will continue to come, and RELANC is on the battlefront with collective and effective strategies and responses.  There are several matters on the horizon that could have a major effect on how we practice real estate law — it is so important to have as many attorneys as possible aware of the issues affecting our practices.

Watch your emails for updates and send your friends to us!

NC State Bar Proposed 2017 Formal Ethics Opinion 6 Update: January 25, 2018

At its meeting on January 25, 2018, the Ethics Committee voted to return proposed 2017 Formal Ethics Opinion 6, Participation in Platform for Finding and Employing a Lawyer, to a subcommittee for further study. Suzanne Lever, Assistant Ethics Counsel at NC State Bar, wrote an article outlining the issue for the NC State Bar Journal in its Fall 2017 issue, which was republished on the Lawyers Mutual web site in January 2018. Below is an excerpt from the article. Please keep following this issue and commenting when Opinions are released!

“I am sure many of you are aware of Avvo’s online legal directory. However, you may not know that Avvo, as well as a handful of other platforms, is now offering fixed fee limited scope legal services online.

How do these online legal service platforms work? In the case of Avvo Legal Services, Avvo determines the fee that will be charged for each discrete service and charges participating lawyers a percentage of the fee. The percentage charged to the lawyer, which varies depending on the particular legal service, is called a “marketing fee.” Avvo initially collects the entire legal fee from the consumer and deposits the funds in an Avvo bank account. On a monthly basis, Avvo pays the participating lawyer all legal fees generated by the lawyer in the preceding month. In a separate transaction, Avvo collects its marketing fees for these legal services by debiting the lawyer’s operating account.

“So basically, the business model for these online legal platforms involves the service collecting the legal fee from the client/consumer and then—wait for it—splitting the fee with the participating lawyer. Say what???

Now I know, and you know, that fee sharing is a no-no under the Rules of Professional Conduct. Rule 5.4(a) clearly states that a lawyer “shall not share legal fees with a nonlawyer, except” blah blah blah not relevant here. So what gives? Well, four jurisdictions give the thumbs down to this business model….

“The proposed opinion addresses many ethical issues implicated by the Avvo business model. In fact, 13 rules of professional conduct are cited in the proposed opinion, including Rule 5.4(a).  In its discussion of fee-sharing, North Carolina falls in line with the other four opinions in concluding that the structure of the payments in the business model is irrelevant to the fee sharing issue, and also agrees that “the fact the marketing fee is a percentage of the legal fee implicates the fee-sharing prohibition.” Now here is where we go rogue.

[writing on behalf of the committee] “Our proposed opinion focuses on the purpose for the fee-splitting prohibition — “to protect the lawyer’s professional independence of judgment.” The opinion references two current North Carolina ethics opinions approving payment arrangements similar to that of the Avvo business model. The payment arrangements in 2010 FEO 4, involving a barter exchange program, and 2011 FEO 10, involving an online group coupon, were approved because the nonlawyer receiving the payment exercised no influence over the professional judgment of the lawyer, and the fee was a reasonable charge for marketing or advertising services. Similarly, Proposed 2017 Formal Ethics Opinion 6 concludes that, “if there is no interference by Avvo in the independent professional judgment of a participating lawyer, and the percentage marketing fees paid by the lawyer to Avvo are reasonable costs of advertising…the lawyer is not prohibited from participating in [Avvo Legal Service] on the basis of the fee-sharing prohibition.” Mic drop.

“To clarify the committee’s position, the Ethics Committee is considering an amendment to Rule 5.4(a). The amendment addresses the payment structure utilized in the Avvo business model. The proposed amendment is an additional exception to the prohibition on sharing legal fees set out in Rule 5.4(a) and allows a lawyer to pay a portion of a legal fee to a credit card processor, group advertising provider, or online platform for identifying and hiring a lawyer if the amount paid is for payment processing or for administrative or marketing services, and there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship

“The proposed amendment to Rule 5.4(a) makes sense, but I’m not sure it solves the conundrum presented by Rule 5.4(a) and perhaps responsible for the inconsistent holdings in the ethics opinions. A literal application of Rule 5.4(a) would prohibit all payments by a lawyer to a nonlawyer employee or vendor if the source of the funds is legal fees previously earned by the lawyer. As already noted, comment [1] to Rule 5.4 states that the provisions of the rule “express traditional limitations on  sharing fees.” These “traditional limitations” may be unnecessary and even unworkable in today’s legal marketplace. The stated purpose for the prohibition against fee-sharing is met by other rules of professional conduct. Rule 2.1, Rule 5.4(c) and Rule 1.8(f), among others, protect a lawyer’s professional independence of judgment without establishing an unworkable restriction on the lawyer’s use of his own legal fees. Rule 5.4(a) states that a lawyer “shall not share legal fees with a nonlawyer.” Do lawyers who participate in Avvo Legal Services share legal fees with Avvo? Yes. Does it matter? I don’t think so.

“If you have gotten this far I would like to emphasize two very important things about Proposed 2017 Formal Ethics Opinion 6: (1) it is a proposed opinion, and (2) it is being published for comment. If this proposed opinion makes you want to pack up and move to South Carolina, Ohio, Pennsylvania, or New Jersey, please unpack and send us your comments and concerns instead.”

RELANC MEMBERS: Please keep following this issue and commenting when Opinions are released!

2018 Annual Meeting Agenda

We are delighted to publish the following Annual Meeting speaker and topic information:

Topics:

Business Meeting:
2017 Chair’s Remarks & Annual Report with Chris Salyer, Sal Balsamo and others
Legislative Priorities & Potential Issues, Membership Expansion Options, Revisiting Unauthorized Practice, Financial and Budget Reports, Presentations of Officers & Directors for 2018

Incoming Chair’s Remarks  by Ashleigh Black, Ragsdale Liggett, Raleigh 

Keynote Speaker: Ozie H. Stallworth, Electronic Notarization and Notary Enforcement Director at North Carolina Department of the Secretary of State

Panel Discussion: Committees, Task Forces, Liaisons: “How RELANC Members Are Positioned to Affect Policy and Legislation” Participants: Chris Salyer, Dan Portone, Kim Rosenberg, Randy Herman, Hunter Edwards, Ashleigh Black and others.

Lobbying Report with Jim Harrell

CLE: Conflicts, Common Concerns & Cyber Crimes for Real Estate Practitioners, with Troy Crawford, Lawyers Mutual 

 

What is Spear Phishing?

In short, it is phishing – sending fraudulent email – with one critical difference: the originator knows just enough information to slip past your defenses and those of your clients and real estate partners. YOU AND YOUR COLLEAGUES are being uniquely targeted using information that has been mined from the internet and/or compromised emails.
START HERE >>>

spear

One terrifying example of this is a fraudulent email instructing a buyer /client to wire funds to an alternate bank, without re-confirming the wiring instructions. It is essential to your business security that you discuss this possible source of fraud with your clients in advance. Best practices include confirmation phone calls to numbers previously on file, and using only secure email to relay client information.

image credit: Michael Collins/Linkedin

Updated Legislative Items

The following is an update about legislation we reported in the last newsletter as well as another bill signed into law addressing the trustee or substitute trustee and foreclosures.

 H454 (S372)-SL2017-27:  Changes the intent to modernize recording requirements and eliminate control corners in favor of Grid Control in the preparation of Plats and Subdivisions.

 H457 (S373): Performance Guarantees/Subdivision Streets. Passed third reading in the House and was referred to Committee on Rules and Operations of the Senate.  We will continue to track its path and support as long as a public data base is available to determine if a street is public or private.  Jim Harrell was instrumental in getting this Bill to the floor and not being overlooked.

 H488 (S401): Early Rental Termination by Military Members.  Re-Referred to Judiciary, If favorable, re-refer to Rules and Operations of the Senate.

 H584-SL2017-110: Real Prop./Error Correction & Title Curative.  RELANC’s Steve Brown was instrumental in keeping this bill tabled and ultimately being passed.

 H625 (S491):  HOA/Condo Crime & Fidelity Insurance Policies.  Referred to Committee on Rules and Operations of the Senate.

 H654 Reduce Mortgage Lender Surety Bonds.  Still in the House, referred to Committee on Banking.

 H770-SL2017-206:  In Summary Prohibits Attorneys who are serving as Trustees from representing either the noteholder or borrowers while initiating a foreclosure proceeding.  This modification to Chapter 45-10, in essence makes the ethical opinion law.

We will continue to monitor these and other bills in the coming legislative sessions.

If any RELANC members are also involved in these or other relevant legislative issues, please let Chris Salyer know, at Chris.Salyer@hutchenslawfirm.com. It will be helpful to know which of our members are also engaged in legislative activity. There is a lot of activity in the General Assembly this session and it is our goal to be aware of those which impact our clients and members, before they come to votes.

RELANC MEMBERS & COLLEAGUES  – WEBINAR ANNOUNCEMENT

bptf

RELANC MEMBERS & COLLEAGUES  – WEBINAR ANNOUNCEMENT

Contract to Closing: Protecting Your Clients and their Money from Cyber Fraud

REGISTER HERE
As this event is fully sponsored by RELANC, there is no charge for any participants. 

Meeting Description: 

In the current environment, real estate brokers, lawyers and your clients are targets for cyber criminals. A diverse panel of real estate professionals will answer FAQ’s about preventative measures to protect your clients and their money from cyber-criminals.  Invite your staff, colleagues, and real estate agents with whom you frequently work to this critically important and timely lunch-and-learn about protecting your firms and your clients!

Details 

Date: Wed, Oct 11, 2017
Time: 12:00 PM EDT
Duration:  1 hour 30 minutes
Host(s): Kim Rosenberg

Presenter Information

Troy Crawford
Claims Counsel, Lawyers Mutual Liability Insurance Company of North Carolina

Peter Bolac
Trust Account Compliance Counsel and District Bar Liaison, North Carolina State Bar

Janet B. Thoren
Director and Legal Counsel, North Carolina Real Estate Commission

Ashleigh Black, Moderator
Lawyer and Partner, Ragsdale Liggett, PLLC

HOSTED BY
The NC Closing Attorney Best Practices Task Force
The NC Bar Association Real Property Section
The NC Land Title Association and
The Real Estate Lawyers Association of North Carolina (RELANC)

RELANC Members: Please distribute this post via email, newsletter, website, or any other way you deem appropriate to encourage firms and staff and others in the real estate closing industry who may benefit from learning more about protecting themselves from the rampant cyber-crime we are seeing in the marketplace!

 

First 100% Virtual Paperless Closing of an e-Mortgage in North Carolina

On May 5th, North State Bank successfully launched its eMortgage platform with the first eClosing of an eMortgage where the attorney conducted the closing by virtue of video conferencing technology.  While there have been previous eClosings and eMortgages in North Carolina, this marked the first time that 100% of the necessary elements were digital.

Elaine Marshall, the North Carolina Secretary of State, was on hand to witness this step into the future.  In her comments about the historic eClosing, she specifically remarked that the following North Carolina requirements were met:

  • eNotary was physically present at the closing; and
  • A North Carolina licensed attorney was present at the closing (with the aid of modern video conferencing technology).

“For eClosings we [North Carolina] require[s] the physical presence of that notary plus the access to legal expertise—there is zero drop in standards for an eClosing—it is just faster, far more convenient and in my opinion more secure. . . . The eNotary is essential to moving legal filings into the digital age.  People and institutions still want to know that a notary was there in the room confirming the signer’s identity . . . ”

The North Carolina Secretary of State is the primary regulator for the state and as such has developed the standards and education curriculum for eNotary or electronic Notary. An eNotary can attach a digital representation of their notary seal and signature to digital documents, giving the documents the same legal effect as a paper document that requires a notary acknowledgement.

The Secretary proclaimed North State Bank’s eMortgage program to be a success and a big step forward in the Secretary’s ePilot Program for eMortgages.

 “This is a win-win-win scenario.  The lender gets their work done quick and easy, the borrower gets in and out on a schedule that fits for them, and the land records get recorded instantly at the county register of deeds. . . . We stand ready to work with all other North Carolina lenders to get them up to speed on this.”

The President of North State Bank, Ken Sykes, was also on hand to witness the culmination of North State Bank’s year-long effort and the state’s step into the future of residential lending.  The eClosing ceremony was performed by Ben Drayton, of the Hunoval Law Firm, via video conference from his office in Charlotte.  The borrowers, who were present (together with the eNotary) in the North State Bank branch in Hickory, reviewed the documents with counsel on a big screen television and executed the documents on digital pad.  Steven Brown, Vice President for Investors Title, monitored the eClosing on the part of Investors Title, which insured the transaction.

Annual Meeting Summary

The Real Estate Lawyers Association of North Carolina hosted its annual meeting on February 25, 2017, from 9:00 a.m. to 3:00 p.m. at The Carolina Hotel at Pinehurst, 80 Carolina Vista Drive, Pinehurst, NC 28374.

The meeting opened with a business session in which budgets and financial reports were reviewed and the 2017 slate of officers presented. Chris Salyer will succeed Hunter Edwards as Chairman, followed by Mike Gorenflo as the incoming vice-chairperson. New board members are Casey Heim, Dan Portone and Veronica Colvard. Retiring board members are Ben Kuhn, past chair, Holden Reaves and Kim Coward.

Members also reviewed a PowerPoint summarizing the responses to the 2017 member survey. To a significant degree, the membership instructed leadership to stay on task and on mission, following the legislature for bills and issues which will affect individual and commercial real property owners and the attorneys who represent them. 100% of the respondents ranked that their top priority. A clear second priority and new responsibility for the chair and advocacy teams is to provide a monthly membership email with updates on legislative matters and our progress in these areas. If you have any doubt that your email is correct, please update BonnieBiggs@relanc.com with your new information, and also please update your NC State Bar record, at www.ncbar.gov, as we use that information to update our records periodically. Membership is still eager to receive quarterly newsletters and occasional relevant CLE, but actively chose not to ask for member affinity programs or general CLE.

 

The one-day event featured a keynote legislative panel discussion with Representatives Duane Hall, Darren G. Jackson, and David R. Lewis, moderated by Jim Harrell, who also provided his annual legislative update, presenting matters relevant to our membership. We are delighted to have these special guest panelists, and had a lively, interesting discussion across a wide range of topics of interest to all of us.

Representatives Hall and Jackson are real estate attorneys licensed in North Carolina, and Representative Lewis was most recently Chairman of the House Rules, Calendar, and Operations Committee. Rep. Hall’s bio is on his firm’s web page at this link, and Rep. Jackson’s bio can be found on his firm’s web page at this link. Representative Lewis’ web site provides additional background.

 Another presentation addressed the Electronic Notarization Program, with discussion led by Nancy Ferguson of Chicago Title, using information provided by Ozie H. Stallworth, Electronic Notarization Director, in the NC Secretary of State’s office. Paul “Skip” Stam also provided information regarding what Map Act property owners, and you as their attorneys, should know about inverse condemnation and usual condemnation. The meeting concluded with a presentation by Troy Crawford of Lawyers Mutual, covering the required trust accounting instructional materials and providing one hour of Ethics CLE to participants.

Thanks to all who attended this productive and informative meeting.

2017 Dues Announcement

As you all may know, RELANC is a 501(c)(6) entity. Contributions to section 501(c)(6) organizations are not typically deductible as charitable contributions on the donor’s federal income tax return. However, they may be deductible as trade or business expenses if ordinary and necessary in the conduct of the taxpayer’s business.

We are delighted to announce that this year, our accounting firm has determined that dues for RELANC members for 2017 are 85% deductible.