THE NORTH CAROLINA STATE BAR

WINTER JOURNAL2019

IN THIS ISSUE Our New President, C. Colon Willoughby Jr. page 6 Mental Health in the Legal Profession page 8 IOLTA’s Future and How You Can Help page 14

THE NORTH CAROLINA STATE BAR JOURNAL FEATURES Winter 2019

Volume 24, Number 4 6 An Interview with Our New President, Editor C. Colon Willoughby Jr. Jennifer R. Duncan 8 Mental Health in the Legal Profession: Starting a Conversation with the

Lawyers of Tomorrow © Copyright 2019 by the North Carolina By Peter Nemerovski State Bar. All rights reserved. Periodicals postage paid at Raleigh, NC, and additional 10 LAP and its Regulatory Purpose offices. Opinions expressed by contributors By Robynn Moraites are not necessarily those of the North Carolina State Bar. POSTMASTER: Send 13 Book Review About Our Legacy as address changes to the North Carolina State Legal Professionals Bar, PO Box 25908, Raleigh, NC 27611. By John Phillips Little Johnston The North Carolina Bar Journal invites the submission of unsolicited, original articles, 14 What We Know and Don’t Know essays, and book reviews. Submissions may about IOLTA’s Future and How You be made by mail or email (jduncan@ ncbar.gov) to the editor. Publishing and edi- Can Help torial decisions are based on the Publications By Mary Irvine

Committee’s and the editor’s judgment of 17 Life as a Small Town Lawyer—Two the quality of the writing, the timeliness of the article, and the potential interest to the Perspectives readers of the Journal. The Journal reserves By John E. Gehring and Dustin T. Nichols the right to edit all manuscripts. The North Carolina State Bar Journal (ISSN 10928626) is published four times per year in March, June, September, and December under the direction and supervision of the council of the North Carolina State Bar, PO Box 25908, Raleigh, NC 27611. Member rate of $6.00 per year is included in dues. Nonmember rates $10.73 per year. Single copies $5.36. The Lawyer’s Handbook $16.09. Advertising rates available upon request. Direct inquiries to Director of Communications, the North Carolina State Bar, PO Box 25908, Raleigh, North Carolina 27611, tel. (919) 828-4620.

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THE NORTH CAROLINA STATE BAR JOURNAL 3

DEPARTMENTS 30 Pathways to Wellbeing 40 Resolution of Appreciation 5 State Bar Outlook 33 Proposed Ethics Opinions 41 Client Security Fund 20 The Disciplinary Department 34 Rule Amendments 42 Law School Briefs 22 Legal Ethics 43 In Memoriam 24 Trust Accounting BAR UPDATES 44 Annual Reports of Boards 25 Legal Specialization 37 State Bar Swear In New Officers 47 February Bar Exam Applicants 26 IOLTA Update 38 Fifty-Year Lawyers Honored 50 Selected Financial Data 28 Lawyer Assistance Program 39 State Bar Hosts Opioid Summit

Officers 15: Michael R. Ramos, Shallotte 38: Timothy L. Patti, Gastonia 16: Dorothy Hairston Mitchell, 39: Rebecca J. Pomeroy, Lincolnton C. Colon Willoughby Jr., Raleigh Durham 40: Anna Hamrick, Asheville President 2019-2020 William S. Mills, Durham 41: H. Russell Neighbors, Marion Barbara R. Christy, Greensboro 17: Charles E. Davis, Mebane 42: Christopher S. Stepp, President-Elect 2019-2020 18: Charles Gordon Brown, Chapel Hill Hendersonville Darrin D. Jordan, Salisbury 19: William C. Fields Jr., Raeford 43: Gerald R. Collins Jr., Murphy Vice- President 2019-2020 20: David F. Branch Jr., Lumberton Alice Neece Mine, Chapel Hill 21: Richard Buckner, Rockingham Public Members Secretary-Treasurer 22: Alan S. Hicks, Roxboro Thomas W. Elkins, Raleigh G. Gray Wilson, Winston-Salem Matthew W. Smith, Eden Dr. Joseph E. Johnson, Greensboro Past-President 2019-2020 23: Thomas W. Anderson, Pilot Mohan Venkataraman, Morrisville Mountain Councilors 24: Patrice A. Hinnant, Greensboro Executive Director By Judicial District Stephen E. Robertson, Greensboro Alice Neece Mine 1: C. Everett Thompson II, Elizabeth 24H: Raymond A. Bretzmann, High City Point Assistant Executive Director 2: G. Thomas Davis Jr., Swan 25: Jay White, Concord Peter Bolac Quarter 26: David N. Allen, Charlotte 3: Charles R. Hardee, Greenville Robert C. Bowers, Charlotte Counsel 4: Debra L. Massie, Beaufort A. Todd Brown, Charlotte Katherine Jean 5: Kevin Joseph Kiernan, Clinton Mark P. Henriques, Charlotte 6: W. Allen Cobb Jr., Wilmington Dewitt McCarley, Charlotte Editor 7: Takiya Fae Lewis, Ahoskie Gena Graham Morris, Charlotte Jennifer R. Duncan 8: Charles S. Rountree III, Tarboro Eben T. Rawls, Charlotte 9: C. Branson Vickory III, Goldsboro 27: Jennifer Davis Hammond, Salisbury Publications Editorial Board 10: Heidi C. Bloom, Raleigh 28: John Webster, Albemarle Andrea Capua, Chair Walter E. Brock Jr., Raleigh 29: Richard Costanza, Southern Pines Stephen E. Robertson, Vice Chair Theodore C. Edwards II, Raleigh 30: H. Ligon Bundy, Monroe Phillip Bantz (Advisory Member) Katherine Ann Frye, Raleigh 31: George M. Cleland IV, Winston- Heidi C. Bloom Fred M. Morelock, Raleigh Salem Margaret Dickson (Advisory Member) Robert Rader, Raleigh Kevin G. Williams, Winston- John Gehring (Advisory Member) Donna R. Rascoe, Raleigh Salem Darrin D. Jordan (Advisory Member) Warren Savage, Raleigh 32: Kimberly S. Taylor, Taylorsville Ashley London (Advisory Member) 11: James Thomas Burnette, Oxford 33: Sally Strohacker, Mocksville L. Thomas Lunsford II (Advisory Member) 12: Eddie S. Winstead III, Sanford 34: John S. Willardson, Wilkesboro Christopher S. Stepp 13: Marcia H. Armstrong, Smithfield 35: Andrea N. Capua, Boone John Webster 14: Harold Lee Boughman Jr., 36: M. Alan LeCroy, Morganton Fayetteville 37: Clark R. Bell, Asheboro

4 WINTER 2019 STATE BAR OUTLOOK

A Cyberattack is What Happens While You’re Busy Making Other Plans

B Y ALICE NEECE MINE

I just completed my first year as executive computing “into the cloud.” But that was the who drove to the State Bar building as soon director of the State Bar. It has been a wonder- 2020 plan. SURPRISE! A cyber attack on the as the infection was confirmed and, racing ful year and I continue to be State Bar’s network on through the building, pulled cables from all humbled by the trust that has September 30, 2019, abruptly nine servers and 93 computers—only 20% of been placed in me. reminded me that only pre- the workstation computers were infected. My I started the year with four sumptuous fools plan.1 own computer was not so fortunate. When it goals (in addition to the ever- I was on the bus to the was turned back on, the message onscreen, green goals of ensuring that office on October 1 when I shown in the photo below, confirmed I was our usual regulatory functions read an email from Assistant infected. Unlucky indeed! continue in an orderly, effi- Director Peter Bolac with the I told the State Bar staff that it may be bet- cient, and cost-effective man- subject line, “This is not ter to be lucky than good but, when you are ner, and that the State Bar good.” Indeed. The State Bar unlucky, it is best to be surrounded by good Council and officers are well- was the target of a ran- people. And that we were. The managed serv- served by the staff). somware attack, a combined ices company stepped into the void and their The first goal was to refi- “infection” from the Neshta cloud engineer went to work using data back- nance the mortgage on the virus (possibly of Russian ori- ups to recreate our servers virtually “in the State Bar’s “new” headquarters (not quite so gin) and the Mr. December virus (as in “we cloud.” While the computers were down, the new at close to seven years) to reduce our are going to freeze your files,” I suppose). staff resorted to pen and paper to continue interest rate and monthly payments and to Together the viruses infected and encrypted their work whenever possible. When employ- eliminate some pesky financial covenants that the files stored on our network drives, and ees’ work required access to our databases, impeded efficient management. CHECK! propagated across the network, attempting to they still found ways to contribute. The can- The second goal was to migrate the State compromise as many machines (both servers do attitude of every member of the staff was Bar’s employee pension plan from an annual and workstation computers) as possible. inspiring and so greatly appreciated by the valuation, trustee-directed plan to a daily val- From the Incident Response Form prepared newbie ED. As a consequence of the good uation, participant-directed plan. This by our managed services company: “Mr. Dec work of the recovery team and our staff, we change would better protect and give will encrypt all of the infected host’s files… only had serious downtime for a half day; the employees more control over their own pen- the victim’s compromised machine files are website was down for a week; and we returned sion funds. CHECK! typically non-recoverable.” However, because The third goal was to facilitate the intro- of the rapid response of our internal IT guy— CONTINUED ON PAGE 38 duction of legislation raising the current statu- tory cap on membership dues for the first time in 15 years to ensure a healthy financial foot- ing for the State Bar going forward. Checkmate. Our bill remains in the Senate Rules Committee from which we hope it will emerge during the 2020 session. The fourth goal was to reimagine how the State Bar manages information technology (IT) to reduce our costs and increase our effi- ciency and security. The first step was to tran- sition to managed services for helpdesk and network security functions. CHECK! The next step was to move our data storage and

THE NORTH CAROLINA STATE BAR JOURNAL 5

An Interview with Our New President, C. Colon Willoughby Jr.

Raleigh attorney C. Colon Willoughby Jr. was sworn in as president of the North Carolina State Bar by Chief Justice Cheri Beasley at the State Bar’s Annual Dinner on Thursday, October 24, 2019.

Q: What can you tell us about your upbringing? I grew up on a small farm in eastern North Carolina that has been in our family for 100 years. We raised tobacco, cows, and grain. It was a wonderful place to grow up, where many of our neighbors had been friends for generations. Q: What was your first leadership position? I think it was probably leading the cows back to the barn. Q: When and how did you decide to become a lawyer? While I had thought about it for a num- With his wife Tricia looking on, C. Colon Willoughby Jr. is sworn in as president of the North ber of years, I made the decision while I was Carolina State Bar by North Carolina Supreme Court Chief Justice Cheri Beasley. working as a mortgage banker in the mid- 1970s dealing with troubled loans. Many of with Gerald Bass and Burke Haywood in a Attorney’s Office, and the impact they still the workout projects required me to get assis- general practice for seven years. We did a lot have on our courts and government in North tance from the legal department and I different things—civil, criminal, and domes- Carolina. thought it was very interesting work. I went tic litigation, closed loans, handled wills and Q: You were one of the elected State Bar to law school thinking I would be a corporate estates and incorporations, and did some land councilors for the 10th Judicial District Bar lawyer, and somehow got on a different path. use and zoning. It was much like a small town from 1998 to 2006, while you were still the Q: You were the elected district attorney for practice. From there I was a prosecutor for 27 DA for the district. Very few prosecutors the 10th prosecutorial district (Wake years in what may be the most interesting have served on the State Bar Council. Why County) for 27 years—one of North DA’s office in our state because of the interac- did you become involved in State Bar work? Carolina’s longest-serving prosecutors. In tion with state government. Most recently, I The work of the State Bar impacts not 2014, you joined McGuire Woods LLP as a have been practicing in the large international only the legal community, but also the busi- lawyer in the firm’s government regulatory law firm of McGuire Woods for five years and ness climate, many other institutions, and our and criminal investigations practice. Tell us getting the opportunity to work on some way of life here in North Carolina. The oper- how your career as a lawyer has evolved and interesting cases for a variety of clients. In ation of our courts and the regulation of our why you’ve chosen to take a different path leaving state government, I had a pretty steep legal system are important for our state’s after so many years in public service? What climb on the technology curve. growth and future, and the State Bar’s work has surprised or challenged you about pri- Q: What has been your proudest achieve- helps insure that. What we do is not flashy, vate practice? ment as a lawyer? but it is important in protecting all our citi- I have been fortunate to have had a num- I am proudest of the talented staff of zens, and it seemed like a natural extension of ber of really good work experiences. My first lawyers and assistants we were fortunate my work in the DA’s Office. job was practicing in a small Raleigh firm enough to recruit to come to the District Q: What has your experience on the Bar

6 WINTER 2019 Council been like and how has it differed public policy? Do we deserve the public’s from what you anticipated? trust? I did not realize the amount of time and Self-regulation by the State Bar has been energy that so many volunteer lawyers put one of the great strengths of our legal system into protecting the public and the integrity of in North Carolina. History will show how we the legal system. Both the council and all the have done a conscientious job of scrutinizing committee volunteers really do a lot. I have lawyers’ conduct, holding them accountable, enjoyed and gotten so much out of the expe- and protecting the public. Our North rience. I wish more folks had the opportunity Carolina system has won high praise for to serve on the council and its committees. being the most transparent lawyer discipline Q: How has the work of the State Bar system in the United States. We are proud of changed since you first became involved? our record and will continue to uphold our The issues have gotten more complex, responsibility in a fair and open manner. particularly in the areas of technology, the Q: What do you think are the biggest issues unauthorized practice of law, and cyber secu- currently facing the State Bar Council? rity. We should be vigilant and continually We are in a dynamic time in our world review those subjects with the changes going today, and we must be responsive to the legal on in our society. needs of our citizens. Access to high quality, Q: Can you tell us about the most difficult affordable legal services presents challenges to issue you’ve faced as an officer or member of all regulatory Bars across the country. the State Bar Council? Insuring that lawyers provide competent serv- The issues surrounding the LegalZoom ices, and that justice in both the civil and matter and changes in residential real estate criminal courts is not a function of one’s closing processes were difficult struggles and wealth or position, continues to be our mis- created tension. Our officers and the council sion. Our lawyers are addressing those issues. guided us through those with skill and vision, Q: Programmatically speaking and other- and with the help of many lawyers and the wise, what do you hope to accomplish while legislature, we came out on the other side in a president of the North Carolina State Bar? We add value to your better place. Personally for me, some of the I hope we continue our assessment of reinstatement proceedings have been among Proactive Management Based Regulation, practice by extending your the hardest decisions I have had to make. look carefully at the issue of whether some expertise and helping your Q: During your tenure as a councilor you legal services can safely be offered to the pub- clients reach their chaired two very important committees, lic by alternative service providers and per- philanthropic goals. the Grievance Committee and the sons who are not lawyers, increase awareness Authorized Practice Committee. Some and protection from cyber threats, and be the people regard service on the Grievance catalyst for discussions about how to improve CALL 800.532.1349 Committee as the most important job at the legal system. I don’t know that we have NCCOMMUNITYFOUNDAATTION.ORG the State Bar. What did that involve and the answers to all of those questions, but I what did you learn from your work with hope we can have discussions that will ulti- the disciplinary program? What do think mately lead to the right answers. your fellow lawyers most need to know Q: To make room for innovation in the take the initiative to carefully self-assess our about the disciplinary program and the practice of law, several states (including regulations and shouldn’t have to have the authorized practice program? California and Utah) are investigating Supreme Court tell us that we need to change I wish all North Carolina lawyers could whether to abolish or modify the prohibi- our positions. There is no education in the see the meticulous care that the State Bar tions on sharing a legal fee with a nonlawyer second kick of a mule. staff puts into their investigations and and on nonlawyer ownership of and invest- Q: Do you foresee significant changes in the reports. They do an extraordinary job of pre- ment in law firms. What is your reaction to near future in the ways that lawyers practice senting the relevant information to make the these proposals? law in North Carolina? councilors’ job easier. Trying to determine if As a regulatory Bar, we have a continuing Like the rest of society, rapid technology there was a rule violation, and if so, whether responsibility to review our regulatory posi- development is driving changes in the prac- it was a careless or foolish mistake, or the tions to make sure they are constitutionally tice of law. Marketing and delivery of services result of a bad pattern and hard heart is sound and consistent with public protection. will be different for lawyers, just like every important. Having the staff present accurate, Over the years, various regulatory Bars have other business and profession. Cyber security balanced information is critical to us getting been required by the courts to reassess a num- concerns and protecting our clients’ vulnera- it right. ber of issues like fixed fee schedules, lawyer bility will become increasingly important. Q: In your opinion, does it make sense for advertising, and the provision of legal services lawyers to regulate themselves? Is it good through the Internet. We, as a Bar, should CONTINUED ON PAGE 12

THE NORTH CAROLINA STATE BAR JOURNAL 7

Mental Health in the Legal Profession: Starting a Conversation with the Lawyers of Tomorrow

B Y PETER NEMEROVSKI

here is a mental health crisis

in the legal profession.

Every week seems to bring ©iStockphoto.com/DrAfter123

another report of a promi- nent lawyer who diedT by suicide, or some other grim reminder of the sad state of affairs in our profession.

The numbers confirm that something is to find out they were seeking help, and con- daily medication for anxiety and depression, wrong. In a 2016 survey of 12,825 attorneys cerns regarding privacy or confidentiality. and in 2017 I went to rehab for alcohol across 19 states, 20.6% of the respondents As a law professor who teaches primarily abuse. By talking about these things with stu- exhibited problematic drinking, compared to first-year students, I recently decided to dents, I hoped to do my little part to reduce the 11.8% one would expect to find in a devote some class time to a discussion of the stigma and reinforce the truth that a highly educated workforce. The attorneys in mental health in the legal profession. I had lawyer can have a successful career while deal- the study also showed high levels of depres- three goals: First, I wanted to make students ing with mental health challenges. sion (28%), anxiety (19%), and stress (23%), aware of the serious issues facing the profes- Third, I wanted to hear from the stu- with 11.5% reporting suicidal thoughts dur- sion that they will soon be joining. With this dents. I wanted to know whether they had ing their legal careers. awareness, I hope they pay attention to their thought about mental health issues, what rel- All too often, lawyers facing mental health own mental health as they navigate their evant experiences they might be willing to crises fail to seek treatment, in part because of careers, and that they become part of a gener- share, and what they think solutions might the stigma associated with conditions like ation of lawyers that makes substantial look like. alcoholism, depression, and anxiety. In the progress in addressing these issues. The students and I had a productive dis- 2016 study, the two most commonly cited Second, I wanted to share with them some cussion, even though certain points I made barriers to treatment were not wanting others of my own mental health struggles. I take didn’t come out right. When I talked about

8 WINTER 2019 my own mental health history, I made it tions of power in their firms or other offices, riences, do so. sound like I was miserable practicing law to do their part to address the mental health • Don’t be part of the problem. In my six and that my job contributed to my depres- crisis in our profession. Based on my own years working in law firms, I saw many sion. That’s not true: I mostly enjoyed prac- experiences as an attorney and professor, here practices that are at best unhelpful and at ticing law. Moreover, I want my students to are some things I think practicing attorneys worst potentially harmful to attorneys’ be excited about the profession they’re join- can do to help: mental health: rewards for attorneys who ing and the work they will do, and some of • Talk to the new attorneys in your office bill unhealthy numbers of hours; a culture my comments were not helpful to that end. about mental health. You will find that they of heavy drinking at law firm social events; In addition, when I spoke about the need are ready for these conversations, and that and partners who think associates should for compassion and understanding toward they bring a wealth of knowledge and ideas to never turn down work. Not all of this is those facing mental health challenges, I the table. automatically bad, but firms and other law probably came across to some students as • Make mental health discussions a part of offices should consider the effects of their scolding them for being cruel to their class- existing programs in your office, such as ori- policies and cultures on their attorneys’ mates—again, not my intention and not entation for new attorneys, annual reviews, or mental health. what I believe. mentoring programs. Consider bringing in The lawyers of tomorrow are well aware For their part, the students were very experts to provide relevant training for attor- of the mental health crisis in the legal profes- aware of the crisis and willing to talk about neys in leadership roles. sion. They’ve given it serious thought, and it. Several pointed out that the stresses of the • Be open to talking about your own they are very open to talking about solutions. legal profession begin in the first year of law struggles with anxiety, depression, or addic- Some of them are already facing serious men- school, with students feeling enormous pres- tion. Doing so is not easy, but young attor- tal health challenges, and many more have sure to earn high grades, make law review, neys facing mental health challenges need to been impacted in one way or another by and get prestigious firm jobs or judicial know they are not alone. these issues. clerkships. • Make sure young attorneys are aware of I hope members of the bar, in North One student commented that despite our the resources available to them. The North Carolina and beyond, will continue this good intentions, the people in the room— Carolina Lawyer Assistance Program provides important conversation. n first-year law students and a professor who free, confidential assistance to lawyers dealing has not practiced law in nine years—cannot with addiction and other mental health Peter Nemerovski is a clinical associate pro- fix this problem alone. Indeed, we need prac- issues. If you’ve used the program yourself fessor at The University of North Carolina ticing attorneys, and especially those in posi- and are comfortable talking about your expe- School of Law.

THE NORTH CAROLINA STATE BAR JOURNAL 9

LAP and Its Regulatory Purpose

B Y ROBYNN MORAITES

here’s been a fair amount of discussion late-

ly, both nationally and in North Carolina,

about what services and programs should be

considered essential to the regulation of the legal profession. InT the course of this ongoing dialogue, I have been asked how the Lawyer

Assistance Program fits into this self-regulation framework. departments of the Bar itself. The OAAP conducted a study in 2001 involving 55 recovering lawyers who were in private practice for five years before their sobriety dates and five years after their sobri- There are some old studies on file effec- Lawyer Assistance Program make in curtail- ety dates, a ten-year period in all. The first tively demonstrating the correlation between ing these types of discipline cases? As we part of the study compared the incidence of impairment and harm to the public. In the often say, one cannot prove a negative. But malpractice claims for each of the five-year late 1990s, a study of the Client Protection maybe we can. periods, while a second part looked at disci- Fund cases in Louisiana examined the corre- Oregon is the only state in the nation that pline complaints. In order to assure that the lation between impairment and trust has a self-insured Bar. All lawyers are insured identity of the recovering lawyers would account violations. They found that 80% of by the Oregon State Bar Professional remain confidential, the study was conduct- trust account violation cases involved some Liability Fund; there are no outside liability ed by OAAP Attorney Michael Sweeney. form of substance use disorder or a compul- insurance carriers or providers. So the During the five years before sobriety, the sive gambling disorder (a process addiction). Oregon Bar has the ability to track 100% of 55 lawyers had 83 malpractice claims filed The Illinois Bar also conducted a study malpractice claims. The Oregon State Bar against them. The number dropped dramat- around that same time. Illinois looked at dis- Professional Liability Fund provides 100% ically—to 21 claims—in the five years after cipline cases broader than just trust account of the funding of the Oregon Attorney sobriety. This represents an astounding over- violations over a several year time span. Assistance Program (OAAP). The OAAP is all 75% decrease in total claims, specifically a Depending on the year, they found that any- also housed within the Oregon Bar, as is the 30% annual malpractice rate before sobriety, where from 40% to 75% of lawyer discipline Office of Disciplinary Counsel. So Oregon is and an 8% rate after sobriety. The same cases involved some form of substance use in the unique position to be able to track lawyers had 76 discipline complaints during disorder or mental health issue (like depres- malpractice claims, discipline cases, and the five years before sobriety and 20 disci- sion). Another study in Oregon found that involvement in the lawyer assistance pro- pline complaints during the five years after 80% of the Client Security Fund cases gram (i.e. recovery). It is the only state in the sobriety. This represents a similar overall involved a substance use disorder, gambling, nation capable of compiling reliable data that decrease of approximately 75%, with a 28% or mental health issue. is not based on self-reporting, but is rather annual discipline complaint rate before A reasonable follow-up question might based on statistics and demographics con- sobriety, and a 7% discipline complaint rate be, then, how much of an impact does a tained within the different divisions and after sobriety.

10 WINTER 2019 The study found that malpractice and discipline complaint rates for lawyers before recovery are nearly four times greater than for lawyers in recovery. In addition, applying Oregon’s average malpractice cost per claim in 2001 ($16,500) to claims made against the 55 lawyers in the study, the reduced inci- dence of malpractice resulted in a savings of approximately $200,000 per year—attribut- able to just 55 lawyers in recovery. The costs to the Oregon State Bar disciplinary process were less quantifiable, but it is obvious that sobriety brings savings that follow from the reduction in discipline matters in need of prosecution. The study then went a step further to compare lawyers in recovery to the general bar population. The study found that lawyers in recovery had lower malpractice and discipline complaint rates than the gen- eral population of lawyers. In 2001, Oregon’s annual malpractice claims rate for lawyers in private practice was 13.5%, compared to 8% for lawyers in recovery. Similarly, the annual The Oregon Attorney Assistance Program study found that malpractice and discipline complaint rates for discipline complaints rate for Oregon lawyers before recovery are nearly four times greater than for lawyers in recovery. lawyers was 9%, compared to 7% for lawyers in recovery. While medical and social science bad acts. treated, the lawyer is incapable of doing any- researchers are always careful not to equate If a lawyer made an honest mistake thing differently. The same holds true for correlation with causation, it seems pretty (lumping all mistakes from silly to egregious substance use disorders and a host of other clear from the OAAP study that substance in the stupid category), discipline might not impairments. use disorders (specifically alcoholism in this be warranted because it serves no real retribu- Lawyer assistance programs are posi- particular study) are a root cause of both tive purpose. From simply having been tioned to offer a unique and vital regulatory malpractice and discipline complaints, and involved in the discipline process, it is function that other programs of the Bar can- that the accompanying costs, whether lost unlikely that the lawyer will make the same not do as effectively. The discipline arm of dollars because of malpractice claims or the mistake again or will take extra caution in the the Bar, considered one of the core features of loss of favorable public opinion and reputa- future when unsure about what action to the self-regulatory function, operates in a ret- tion because of ethical violations and disci- take. But regulators may decide that disci- ributive framework after damage has been pline claims, are great. The study also makes pline is warranted for its deterrent effect to done and in response to harm that has pretty clear that recovery directly equates to hammer home the point that lawyers are in a already occurred to the public. Lawyer assis- less harm to the public. unique fiduciary role and extra care must be tance programs operate in a proactive capac- During one of our national trainings at taken to not make mistakes. ity. We are trying to reach lawyers before they the ABA conference for the Commission on If a lawyer is sick, however, discipline or commit ethical violations and before the Lawyer Assistance Programs, one of the pre- punishment will have no deterrent effect public has been harmed. We are also effective senters was discussing the regulator’s duty to whatsoever. The behavior will continue until after an ethical violation has been commit- effectively discipline lawyers who have com- the underlying ailment is treated and ted. In the example given above of the mitted ethical violations. I have repeated her addressed. Almost universally, when regula- depressed lawyer, a referral to LAP is appro- tongue-in-cheek analogy many times and tors are seeing the same lawyer churn back priate at any time in the process. We can will summarize it here. Part of the challenge through the discipline process again and never guarantee that a lawyer will recover, of discipline, if it is to be effective, is for reg- again, whether the lawyer is aware of it or but the lawyer will stand a much better ulators to determine in which bucket a par- not, there is usually an underlying impair- chance if given the opportunity earlier in the ticular offense/offender goes. There are three ment involved. If a lawyer is suffering from process. While the discipline arm of the Bar buckets to choose from: bad, stupid, or sick. major depression and is unable to return can include conditions requiring a lawyer to If a lawyer is a bad actor, discipline is client calls or meet critical filing deadlines get help for impairments, part of the benefit appropriate and effective. For a bad actor, month after month, year after year, it doesn’t of lawyer assistance programs is that we pro- discipline serves a useful retributive purpose matter how many times that lawyer is disci- vide the support, encouragement, and recov- and will hopefully deter future intentional plined. Until the depression is addressed and ering-lawyer community needed to forge a

THE NORTH CAROLINA STATE BAR JOURNAL 11 members of the North Carolina State Bar can be quite proud. n

Robynn Moraites is the executive director of the North Carolina Lawyer Assistance Program. Large sections of this article were reprinted and modified with permission from the Oregon Attorney Assistance Program. The Oregon Study authors were Ira Zarov, who is the now-retired CEO of the Oregon State Bar Professional Liability Fund, and Barbara S. Fishleder, who is the program director for the Oregon Attorney Assistance Program and the director of loss prevention for Oregon’s Professional Liability Fund. Tom Lunsford is the recently-retired executive director of the North Carolina State Bar.

Willoughby Interview (cont.)

The Oregon Attorney Assistance Program study found that lawyers in recovery had lower malpractice and discipline complaint rates than the general population of lawyers Q: If you had not chosen to become a lawyer, what do you think you would have done for a living? path to real recovery and to sustain it over the lawyers of North Carolina is about three I don’t know, maybe a farmer or a mort- course of a career. quarters of a million dollars. This is gage banker. Those were the only other skills I would like to conclude this article with around 8% of the State Bar’s total budget- I had. an excerpt from Tom Lunsford’s Winter ed expense for the year and is a testament Q: Tell us about your family. 2016 State Bar Outlook column, Going to the importance the council attaches to I have been very lucky to have a wonder- Overboard(s), wherein he described every the enterprise. The fact that the LAP is a ful family. I have been married for 46 years to program of the State Bar and how each fit State Bar program with an adequate my very patient, supportive wife, Tricia. Our within the Bar’s budgetary framework. source of recurrent funding is a double- two daughters and their spouses, along with The Lawyer Assistance Program, as noted edged sword, however. Because the our four delightful grandchildren, live about above, doesn’t really generate any income. money is readily available, the members five minutes from our home in Raleigh. My And it doesn’t give away any money. It of our staff are not involved in the sort of parents, who are both in their 90s, live does, however, dispense something more constant fundraising that preoccupies together near the coast. I get to see them and precious than gold—hope. Through its many of their counterparts who do simi- my sisters and extended family fairly often. professional staff and a large network of lar work in other states for LAP programs Life is good. dedicated volunteers, the LAP provides that are organized as 501(c)(3)s. Our peo- Q: What do you most enjoy doing when free confidential assistance to lawyers, ple are consequently free to work without you’re not representing clients or working judges, and law students in addressing distraction and with laser focus on a bur- for the State Bar? substance abuse, mental health problems, geoning caseload that reflects an almost Since I was a kid I have always enjoyed and other stressors that impair or may inexhaustible demand for LAP services. outdoor activities like fishing and hunting, impair the ability to practice law effective- The downside of State Bar affiliation is, even outdoor work. Exercise also helps keep ly. As is well-known, the State Bar is in the no doubt, that a great many suffering me focused. public protection business and so is the lawyers wrongly suppose that the LAP is Q: How would you like for your adminis- LAP. Although the program’s orientation in cahoots with the Grievance tration to be remembered when the history is humanitarian, its raison d’etre is regula- Committee. Although rising numbers of of the State Bar is finally written? tory. The LAP is funded by the State Bar self-referrals suggest that our efforts to Thoughtful. Competent. Grounded. n primarily because it saves clients. dispel that misguided notion have been However, I suspect that most of the people increasingly effective in recent years, it Colon Willoughby served as the elected dis- who support, serve, and staff the LAP do persists. That is unfortunate, to be sure, trict attorney for the 10th prosecutorial district so because it saves lives. but not reason enough to depreciate the (Wake County) for 27 years. He currently prac- The annual cost of the program to the program’s great success, of which we all as tices with McGuire Woods LLP.

12 WINTER 2019

Book Review About Our Legacy as Legal Professionals

B Y JOHN PHILLIPS LITTLE JOHNSTON

ou and I spent over Patrician Judge Waring witnessed the fail- Supreme Court decision of its time. 5,000 hours poring over ure of the justice system firsthand in 1946 Waring’s work reminds us that one coura- law books during our when he presided over the geous individual upholding three years in law school case against Police Chief the rule of law can right the before beginning our Lynwood Shull in wrongs of many. respective careers. For Batesburgh, SC. Chief Shull Judge Waring, along with the most part, reading constitutional law was charged with criminal his wife and children, was casesY was a necessary misery. misconduct when he pulled ostracized by Charleston We all read Plessy v. Ferguson, which in Sgt. Isaac Woodard off the society. Though Judge 1896 enshrined the doctrine of separate but back of a Greyhound bus in Waring and his wife stayed in equal. All of us read the 1954 landmark Batesburg, South Carolina, Charleston, their daughter, desegregation case Brown v. Board of and blinded him. At the time Ann, left their family home Education, which, in overruling Plessy, effec- of the assault, Sgt. Woodard and sought sanctuary in tively confronted the struggle between free- was returning home at the Manhattan. dom and tyranny on the world stage. There end of World War II in full Left totally blind and is no question that America’s former legal uniform, decorated with a penniless, Sgt. Woodard separation of its black citizens from its white chest full of medals awarded moved to the Bronx where he citizens under the Plessy doctrine adversely for combat bravery in the Pacific Theater. lived out his days as a contented and devout- affected our moral standing in the eyes of the According to the trial testimony, when ly religious man. Because he loved listening world and marred our international rela- Sgt. Woodard failed to say, “Yes, sir,” when to radio church services every Sunday morn- tions. More importantly, there was the need confronted by Chief Shull at the local jail, ing throughout his rich life, his family lov- to restore hope to those whose civil liberties Shull gouged out both his eye globes with his ingly referred to him as an “armchair had been so egregiously denied. nightstick. Christian.” At the age of 73, he was buried in UNEXAMPLED COURAGE: The An all-white jury quickly acquitted Shull obscurity in Calverton National Cemetery in Blinding of Sgt. Isaac Woodard and the of any crime. Judge Waring was conscience- New York. Awakening of President Harry S. Truman and stricken by the failure of the justice system to Both Woodard and Waring lived lives of Judge J. Waties Waring by United States hold the obviously culpable police chief unexampled courage and impactful service District Court Judge Richard Gergel, accountable. to others. Neither man allowed any bitter- breathes new life into the ofttimes dusty, dry This awakening by Judge Waring even- ness to suppurate in the hidden crevices of bones of constitutional law cases. tually led to a series of landmark civil rights their hearts. The author presides in the same decisions by Waring. His wife, Elizabeth, Forget crying; their unexampled courage Charleston courtroom as his courageous who left the courtroom in tears upon Shull’s will make you sob. predecessor, former United States District acquittal, supported his courageous stance This book is a tent revival for our heritage Court Judge J. Waties Waring, a judge whose in full. of legal professionalism. n lineage can be traced back eight generations Rocking the foundation of black disen- to his family’s slave-holding plantation socie- franchisement, Judge Waring’s 1951 Briggs v. Phil Johnston is vice-chair and co-founder of ty in Charleston. In reading both Gergel’s Elliott school desegregation ruling in which Koolbridge Solar, Inc. He has been a trustee of investigation of this wrenching part of histo- he declared segregation per se unconstitution- the University of North Carolina School of Law ry and the body of Judge Waring’s erudite al later became the reasoning and wording Foundation for 25 years. In 2019 he received legal opinions that ensued, we are reminded for the Supreme Court’s unanimous 1954 the Albert Nelson Marquis Lifetime of the enduring power of the rule of law. decision in Brown, the most famous Achievement Award.

THE NORTH CAROLINA STATE BAR JOURNAL 13

What We Know and Don’t Know about IOLTA’s Future and How You Can Help

B Y MARY IRVINE

or the better part of ten years, positive adjustments IOLTA programs across the were made to other country have felt the impact of products offered across the long economic downturn the bank. It is always a and declining interest rates. great day in the office HereF in North Carolina, if you are an avid when we receive news reader of the Journal, you have seen column of an impending after column lamenting the state of affairs for increase or open a NC IOLTA, constrained in our ability to pass monthly remittance to needed funds along to grantees due to the find an upward adjust- Great Recession. Of greatest concern during ment has been made. the downturn was the downstream impact of Frankly, however, other decreased revenue on low-income North increases were hard Carolinians in need of legal aid. During this fought as we proactive- time, many of IOLTA’s continuing ly undertook an evalua- grantees—a core group of legal aid providers tion last year which and administration of justice programs— asked banks to review experienced cuts from nearly all sources, some all of their products and forced to lay off staff, trim programming, or requested adjusted rates close offices. on IOLTA accounts Shortly after I took the reins in my new where a lag behind interest rates for other the future may bring for IOLTA, this is what role as executive director in 2017, State Bar similar products was identified. we do know. President Gray Wilson suggested I write an Last year, NC IOLTA saw an increase in article for the Journal about the future of year-to-year income of 67% compared to What We Know IOLTA. As I continued to settle into my role, 2017. But what’s next? Current headlines In all 50 states, the District of Columbia, I was not sure what to put on paper and in note the slowing growth of the economy and the US Virgin Islands, and Puerto Rico, print to go out to 28,000 lawyers about a forecast the potential for downward interest IOLTA programs have been established to topic which remains uncertain. I proceeded rate adjustments later this year. If these pro- provide funding for charitable causes, often to submit articles on other topics of interest jections are correct, it appears that right on focused, as is the case in North Carolina, on or direct our communications efforts toward the heels of last year’s positive increases, we providing civil legal aid to individuals who more tangible issues that I could say some- might again see some banks lower their inter- are unable to afford an attorney. Leaders of thing about with at least some certainty. est rates with associated drops in our IOLTA our State Bar who were involved at the pro- In the past year, the economy has revenue to follow. Since I started in 2017, gram’s inception have described the IOLTA improved and North Carolina’s IOLTA pro- together with the IOLTA Board, I have concept to me as picking found money up gram has enjoyed the benefits of that worked to consider the future for IOLTA in off the sidewalk. The collection and use of improvement. Some of the increase in rev- light of changes in the economy and the pro- revenue from interest earned on lawyers’ enue came to us with relative ease—banks fession as the board sets IOLTA’s future trust accounts is really a pretty simple con- adjusted their rates on IOLTA accounts as course. While we cannot say for certain what cept, though one that required the creativity

14 WINTER 2019 CHECKERED FLAG MEDIATIONS

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and perseverance of bar leaders, in other problems receive little to no legal assistance. has undertaken, average monthly balances jurisdictions and in North Carolina, to Combined with the above, this means nearly reported by banks holding IOLTA accounts become a reality. a million North Carolinians face a civil legal did take a dip for many years, but balances Civil legal needs remain high. We do problem each year and most of the problems have returned to pre-recession levels in many know that the vast need for the resources go unaddressed. As documented in the Justice instances. We will continue to monitor how IOLTA provides persists and may be deeper Index, North Carolina has about one civil average balances trend to better understand than it ever has been. The IOLTA movement legal aid attorney per 20,000 people in pover- the current impact on IOLTA revenue. spread at a time of great need in the 1980s ty, staffing which is plainly insufficient to Scams and fraud, another area of concern, when the Legal Services Corporation was fac- address all of the civil legal aid issues faced by have in some instances resulted in six-figure ing funding cuts and opposition. By every low-income individuals. losses by law firms with scammers becoming measure, the need for civil legal aid persists Changing technology impacts IOLTA rev- increasingly sophisticated. Common trust today. According to a report by the North enue. We also know that technology has account scams include, but are not limited Carolina Budget and Tax Center, one in impacted how both the banking industry to, fake client and check scams, forged trust seven North Carolinians—1.4 million peo- and legal profession operate, and presumably account checks, and impersonation of a ple—live in poverty. For families in poverty, evolving technology will continue to bring client through compromised wire instruc- this equals an annual household income opportunities and change in the future. tions. In light of growing concerns around below $24,600 for a family of four. In com- Some of these changes impact IOLTA and this problem, we have heard anecdotally that parison to other states, North Carolina ranks our revenue. some firms have adjusted their policies and 14th for the number of our residents living in For one, money moves more quickly practices, dictating that transactions that pre- poverty. As the economy has recovered from today than it did in years past. The concept viously would have passed through their the Great Recession, this recovery has not that drove IOLTA from its origin is that trust accounts are now happening wholly been shared evenly by all. On an income at pooled funds sit in trust accounts for some outside of trust accounts, handled by other this level or less, families cannot afford many period of time before payment or disburse- entities like title companies. Considering the basic necessities, let alone pay for an attorney ment, generating interest while in the risks, if law firms on a broader scale opt to when a civil legal issue arises. account. If the same amount of money is avoid handling funds, IOLTA revenue could The 2017 Justice Gap report released by moving through lawyers’ trust accounts but it take a hit. Conversely though, we have also the Legal Services Corporation indicates that is moving more quickly, it follows that the heard anecdotally that some firms have 71% of families experience at least one civil average daily balances in trust accounts would changed their policies in another direction to legal problem each year and 86% of these be lower. In the limited analysis NC IOLTA slow the process of disbursement, avoiding

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disbursement of funds on provisional credit. IOLTA convened to review available sources IOLTA accounts differ greatly. The eligible This has the opposite effect on revenues. of funding that might bolster revenue and bank list found on IOLTA’s website specifi- Opportunities for diversification ought to available funding for civil legal aid and other cally highlights the banks we call “Prime be considered. Turning from issues that administration of justice causes. Using Partners” that go above and beyond the specifically impact trust account revenue, resources and data available from the IOLTA eligibility requirements in their com- IOLTA programs nationally are also consid- American Bar Association, the committee mitment to improving access to justice in ering diversification of revenue. For many looked at every potential source of funds cur- their communities. Prime Partner banks entities that administer their state’s IOLTA rently being received and awarded by IOLTA exceed minimal compliance with Rule .1317 programs, IOLTA revenue represents just programs. The analysis developed from the by offering higher interest rates and waiving one of a host of funding sources. As the committee’s work continues to provide guid- service charges. If IOLTA staff can assist you American Bar Association lays out in the ance as new opportunities are considered. in navigating the process of opening a new handbook published annually on issues of account or moving an account from one interest to IOLTA programs, entities that What’s Next and How You Can Help bank to another, please give us a call. administer IOLTA are structured in a num- The path forward remains uncertain. As • Support cy pres. North Carolina’s cy ber of ways, each structure rooted within the relatively new executive director of this pres statute directs unpaid residuals in class unique state landscapes with their own set of program, who in general tends to be a glass- action litigation equally between the North opportunities for growth. half-full person, I look forward to IOLTA’s Carolina State Bar for the provision of civil Nationally, funds from interest on lawyers’ future with optimism. My optimism is, of legal services and the Indigent Person’s trust accounts represent less than one-third of course, moderated by the changing realities Attorney Fund for criminal legal services for the dollars that IOLTA funders receive. Other and ever-present need for increased funding. indigents. Distribution of settlement funds sources of funding include private giving, state The challenge for NC IOLTA remains grow- to the IOLTA program or legal aid providers legislative funding from filing fees and appro- ing and faithfully using the resources we do can also occur through mediation, arbitra- priations, cy pres awards, attorney general set- have, financial and otherwise, to promote tion, and settlement agreements. The NC tlement funds, escheated funds from attorney access to justice for all and provide critically- Equal Access to Justice Commission pro- trust accounts, other fees typically assessed on needed civil legal aid to low-income North duced a cy pres manual to provide informa- lawyers, and investment income. This other Carolinians. tion to attorneys and judges who may have revenue makes up 70% of income nationally As we continue to sit with some uncer- the opportunity to direct cy pres funds to received by entities that also administer tainty about what is next for IOLTA, I would legal aid, whether through the IOLTA pro- IOLTA dollars. In North Carolina, revenue call on all North Carolina lawyers to consider gram or directly to a legal aid provider. The from IOLTA accounts made up 70% of total how you can help to support the broader guide can be found on nciolta.org. revenue of the IOLTA program in 2018 (state goals of access to justice, in ways big and • Give. Give in any way that you can. legislative funds administered by IOLTA are small. Here are a few suggestions: Rule 6.1 calls on every lawyer to provide legal included to be consistent with the ABA’s • Where you bank matters. While I will services to those unable to pay with an aspira- national calculation). stop short of suggesting one bank over tional commitment of at least 50 hours of pro In 2015, as the economic recession per- another, where you bank matters. Interest bono service each year. Rule 6.1 also urges us sisted, a joint committee of the NC Equal rates and service charge policies at the 79 Access to Justice Commission and NC financial institutions that are eligible to offer CONTINUED ON PAGE 27

16 WINTER 2019

Life as a Small Town Lawyer— Two Perspectives

B Y JOHN E. GEHRING AND DUSTIN T. N ICHOLS

“We Need a Lawyer in Stokes County” moved to Walnut Cove and I opened my law UNC football game in Chapel Hill, the office By John E. Gehring practice. I soon learned the new legal terms closed at 10 AM. On other Saturdays, there “dependent spouse” and “supporting spouse” were no interruptions, with the exception of That was the first sentence of a letter when Jane was supporting our family from when my client Joe Lee McBride (not his real written by two business leaders in Walnut her job at Wachovia Bank and my earnings name) would appear at the door with his gui- Cove, and received at the UNC School of were almost in the negative zone. tar and a smile. My waiting clients knew that Law placement service in the My office was located next the law business would be suspended while early 1970s. The letter clearly door to the Nationwide Joe Lee played his guitar and serenaded the indicated that the area could, and Insurance agent, and his first crowd. “Suspended” is the operative word would, support a new lawyer. At visit to my office only proved and Joe Lee heard it often, especially when that time, there were three prac- the obvious, “You don’t have the next word was “sentence.” ticing attorneys in the county, any business, do you?” His plan My office opened every morning at 6 AM two in King and one in Danbury. was to have me, dressed in my and appointments usually took up the first Plus there was one judge, one dis- courthouse clothes, spend the two hours of each working day. I tried to then trict attorney, and one assistant morning in his office, and he be in court by at least 8:30 in order to meet DA. Only one of the practicing would tell his customers that I with other clients and the assistant DA for attorneys kept weekend office Gehring was his new lawyer and he rec- that day. It is said that the “early bird gets the hours, and I visited his office, ommended me as a trustworthy worm,” and in my case the worm represented without an appointment, the next and intelligent new addition to those clients who knew they could see me Saturday morning. After waiting the our community. while on their way to work. My clients had required amount of time for an unan- A few days later, the owner of the local never known an attorney who would sched- nounced visitor, I met with the attorney. We roller (feed) mill came into my office and ule an office visit at their convenience instead soon reached a tentative understanding that asked, “You don’t have any business, do you?” of the lawyer’s convenience. he would hire me as his associate, at one-half He wanted me to come to his mill, dressed in Some people say that the best time of their my then salary and no benefits, but one work clothes, i.e., blue jeans, and he would tell life is when they buy a beach house (or boat more meeting was required because he his farmers essentially the same as the insur- or horse) and that the second best time is wanted me “to meet someone.” The next ance agent told his customers. when they sell the same. I could say that Saturday morning I met Bruno Wright, the As my business slowly grew, my Lions description fits when taking on domestic rela- mentor of my new employer and the inter- Club associates, my church friends, my bar- tions cases or a real estate transaction. A deed view went like this: “Boy, what are your pol- ber, and others offered to help this young and/or note and deed of trust was all that was itics?” I answered “Democrat,” and he said, attorney. The local bail bondsman (the only needed (and the funds, of course) to complete “You’ll do!” Politics in Stokes County was one in Stokes County) asked me to give him the transaction. Now real estate matters very serious business at that time, and a “handfull” of my business cards. Not fully require numerous documents and multiple remains the same or similar today. This new knowing the State Bar ethics rules of the computers. journey was interesting from the beginning 1970s, I gave him only one card. When my Before long, thankfully, my practice cen- and I learned early on that politics were back was turned, he took his handfull. Soon tered on criminal and traffic defense work, more important than substance, and, in the my DWI and other criminal matters started which opened a whole new world for me. political world, the most expedient path to to blossom. Where else in the world could a person of travel was not necessarily the best path. Saturday morning office hours were a average intelligence make a good living talking A couple of years later, my wife Jane and I mixed bag of confusion. When there was a in a criminal courtroom. Actually, I believe

THE NORTH CAROLINA STATE BAR JOURNAL 17 to remember and practice the tenets of your faith. 2020 Meeting Schedule 11. Do you remember the story about the preacher who extolled his congregation to “tell it all, tell it all, brother” when confessing their Below are the 2020 dates of the quarterly State Bar Council meetings. sins? When the last parishioner finished his

confession, the preacher yelled at him, “I January 21-24 NC State Bar Headquarters, Raleigh would not have told that, brother!” April 14-17 NC State Bar Headquarters, Raleigh 12. Maybe I have told too much in this July 21-24 Renaissance Hotel, Asheville article. n October 20-23 NC State Bar Headquarters, Raleigh End of story.

(Election of officers on October 22, 2020, at 11:45 am) John Gehring, a former State Bar councilor and chair of the Publications Committee, is now semi-retired, which means that he “works less that trial lawyers must be part actor, part Advice for Aspiring Country Lawyers and enjoys it more.” showman, and also possess a knowledge of the 1. Move your family to the place where law all at the same time. The courtroom is you plan to open an office and become active truly “the theater of the real.” in community affairs. It would help if you The Five Keys to Success for Starting Most of my secretaries, or office managers, have a “supporting spouse” because you will a Practice in a Rural County have been middle aged (whatever that means) have lean years (plural) ahead of you. By Dustin T. Nichols with children. As a result, my secretaries knew 2. Never gossip about any person because many of the young speeders. you might be talking to his brother, cousin, “It is better to be a big fish in a small Our home was located 100 feet from my uncle, etc. pond than a small fish in a big pond.” Those office and three blocks from the Walnut 3. Return every phone call by the end of were the words of my uncle, a successful Cove Police Department. Normally, the first the day: No exceptions! small town attorney in Florida, when men- stop for my DWI clients was the breathalyz- 4. Remember that the most important and toring me about my legal career about 15 er room at the police station. The clients powerful person is not the judge or the DA or years ago. I remembered that advice when almost always exercised their right to have the high sheriff; it is the personnel in the my wife and I relocated from Florida to their lawyer present for the administration clerk’s office. They can make things go North Carolina so that my wife could pursue of the breathalyzer; phone calls usually start- smoothly for you or not. They can make you a career in medicine. It was 2010, shortly ed around 1 AM on Saturday and Sunday or break you. after the great recession, and jobs were scarce. mornings. Jane delighted in informing me 5. Establish a reputation for honesty in I quickly realized that, despite having a few that I was needed at the police station. The your business and personal dealings. years of legal experience under my belt, my amount of wine that we had consumed the 6. Learn to see the red flag when someone job prospects were bleak. Having grown up evening before would always dictate whether says, “You can trust me because I’m a (fill in out of state, I had no legal or professional I drove or walked to the police station. Most the blank).” connections of any kind to rely upon. I knew of the officers were my friends and they 7. Never charge a person for talking to him that I needed to create a job rather than to would smile when they saw me walking in, or her, especially if that person is a preacher, wait for one to fall in my lap. knowing that we had enjoyed wine with law enforcement officer, etc. You should prob- I began to research the rural counties sur- dinner. I often wondered if, offered the test, ably lower you fee or not charge a fee at all rounding Winston-Salem where we live. I would blow the same result as my client. because these people are noticeably underpaid Somewhat fortuitously, one of my wife’s I closed my physical law office about five for their service to the community. friends, also a lawyer, asked if I wanted to job- years ago when “we” (meaning both myself 8. Always arrive one hour (or more) early shadow her for the day as she traveled up to and Jane) decided that almost 50 years of for court. This will give you time for face-to- Stokes County to handle some domestic vio- practice was probably enough. Throughout face communication with the DA and officers lence cases. Having nothing else to do, of the years I have lambasted those attorneys in a non-adversarial atmosphere outside of the course, I agreed to go. On that first visit to the who practiced law with a license but without courtroom arena. Stokes County courthouse, I met a number an office. Whoever heard of anyone practic- 9. If you have an unusual name like of lawyers, clerks, and a few judges. Everyone ing law out of their car, with the exception of Gehring, try to adopt a persona that will set was extremely welcoming and encouraged me the “Lincoln Lawyer?” Well, guess what? My you apart from others; I always wear a bowtie to open a practice in Stokes County because, car now displays both my privilege license (the more colorful the better). Many bailiffs as they put it, they “needed the help.” and my shingle in the back window. Traffic over the years have told me that a client was After that first visit, I knew where I wanted tickets are now MY ticket to re-enter the the- looking for their lawyer, Bow Tie Man. They to open my practice. Shortly thereafter, I ater of the real and to visit, at least on a could not pronounce my name! found a little office to rent, adjacent to a dog monthly basis, with my second family—my 10. If you were blessed enough to have grooming business, and off I went. I started courthouse family. been reared in a religious environment, be sure with a laptop computer, an old desk, and few

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pieces of office furniture that I purchased from spread in a small town about the new lawyer have made a mistake or when a client has Craigslist. I printed business cards and headed who is willing to fight hard for his or her missed a deadline. Contrarily, I have watched to the courthouse to drum up some business. clients. colleagues not treat the clerks with the same Fast forward to almost ten years later, and I Third, get active in your local civic congeniality and they have received a vastly would submit the following five pieces of organizations and chamber of commerce. different reception. advice as the keys to establishing a successful Immediately upon opening my practice, I Finally, when you start a new practice you rural county practice. joined our local Rotary Club. will invariably run into numerous situations First, immediately get on Right from the start, every that you don’t know how to handle or how to every court appointed attorney Thursday morning I was having answer. Don’t be afraid to ask for help. Most list that your qualifications will breakfast with the city mayor, lawyers are very willing to help out a col- allow. It is important that you get local business owners, school league if they are just asked and appreciate in the courtroom as soon as pos- board members, and judges. that their advice was sought. It is always bet- sible and that you become a rec- Also, get out there and attend as ter to ask a colleague for advice than to guess ognized face in the local bar. many community events as your and get it wrong. There is simply no substitute for schedule allows. I have jokingly Opening a law practice can be a very time in the courtroom. been accused of seeking out nerve-wracking endeavor. However, if you fol- Second, make sure to personal- Nichols every free meal in the county. If low these five simple keys to success, I believe ly introduce yourself to every that means I’m out in the com- that anyone can open a successful rural county member of the local bar and let munity meeting people, then I practice. them know that you are opening a new law guess I’m guilty as charged. In a small town, Nearly ten years after starting my law prac- practice and accepting cases. Most estab- word of mouth can be your best advertising. tice, my level of satisfaction with my career is lished lawyers will refer out numerous cases Don’t be afraid to ask your clients and busi- at an all time high. I’m not quite sure yet if I’m per month that they are not interested in tak- ness contacts for referrals. considered a “big fish,” but I sure am enjoying ing. These cases are not typically the “best Fourth, treat the clerk of superior court my time in the pond. n cases,” but it is a great way to get your foot in and his or her assistants with the utmost the door. When you do get a case, work it respect. The clerks can be your most valuable Dustin Nichols is a solo practitioner practic- like you would a million dollar personal resource. I have had clerks go above and ing criminal and family law in King, North injury case. It is amazing how fast word can beyond their duties by notifying me when I Carolina.

THE NORTH CAROLINA STATE BAR JOURNAL 19 THE DISCIPLINARY DEPARTMENT

Grievance Committee and DHC Actions

NOTE: More than 29,000 people are eligible to practice law in North Carolina. Some share the same or similar names. All discipline reports may Wire Fraud Alert Committee issued permanent discipline to be checked on the State Bar’s website at three lawyers who failed to adequately pro- ncbar.gov/dhcorders. In 2015, the State Bar began receiving re- tect entrusted funds from email scams. One ports of criminals hacking into the email admonition, which is private discipline, Disbarments accounts of lawyers and real estate brokers, and two reprimands, which are public dis- Sarah Jane Brinson of Clinton was dis- altering wiring instructions, and diverting cipline, were issued. At its October 2019 barred by the Wake County Superior Court. loan payoffs and other disbursements from meeting, the Grievance Committee issued Brinson pled guilty to violating Title 8, United real estate transactions. Since then, the State one reprimand and three admonitions. All States Code, Section 1324(a)(1)(A)(iv), a Bar has written extensively about this dan- attorneys are advised to proceed with cau- felony, by encouraging and inducing an alien ger in its Journal and on its social media tion under any circumstance where funds to reside in the United States, knowing and accounts, and has spoken extensively about are to be wired, and to contact the State with reckless disregard of the fact that such this danger in continuing legal education Bar with any questions in this regard. The residency was illegal. programs. Because lawyers had not always following links contain important infor- George L. Collins of Jacksonville surren- taken appropriate precautions to protect mation about handling entrusted funds in dered his license and was disbarred by the entrusted funds, the Grievance Committee light of these dangers: Disciplinary Hearing Commission. Collins opened many grievance files. Initially, the wrote a will making himself executor of his Grievance Committee issued dismissals ac- bit.ly/WireFraud1 client’s estate, charged the estate $750 per companied by letters of warning, advising hour, misrepresented the services he would respondent lawyers of their professional ob- bit.ly/WireFraud2 provide, embezzled, did not properly main- ligation to protect entrusted funds. After tain and disburse fiduciary funds, commit- nearly three years of extensive education bit.ly/WireFraud3 ted perjury, made a false statement of mate- on this topic, members of the State Bar rial fact to a tribunal, and made a false rep- should now be fully aware of the dangers bit.ly/WireFraud4 resentation to the Grievance Committee. posed by these email scams. Accordingly, Erica Erickson of Pisgah Forest commit- at its July 2019 meeting, the Grievance bit.ly/WireFraud5 ted notary fraud on multiple occasions, made misrepresentations to a court, and misled unrepresented parties. She was dis- barred by the DHC. lected excessive fees, engaged in conduct Suspensions & Stayed Suspensions John Hanzel of Cornelius misappropri- involving deceit and misrepresentation, and Phillip H. Hayes of Point Harbor was ated entrusted funds. He was disbarred by obtained property by false pretenses. He was convicted of felony possession of cocaine, a the DHC. disbarred by the DHC. Schedule II controlled substance, in Gary Leigh of Shelby misappropriated Holly M. Owen of Florida surrendered Currituck County Superior Court. Hayes entrusted funds, structured banking transac- her law license and was disbarred by the agreed to apply the purchase price to reduce tions to avoid IRS reporting, and neglected Wake County Superior Court. Owen a balance owed to him for legal fees. He was two clients’ personal injury cases. He was admitted that she misappropriated entrusted suspended by the DHC for five years. After disbarred by the DHC. funds totaling at least $3,248.50. serving four years of active suspension, Steven P. MacGilvray of Raleigh surren- Marshall lawyer David R. Payne surren- Hayes may apply for a stay of the balance dered his license and was disbarred by the dered his law license and was disbarred by upon showing compliance with numerous DHC. MacGilvray stole a wallet containing the State Bar Council. Payne pled guilty to conditions. $1600 from the security screening area of violating 18 U.S.C. § 1014, a felony. He Kenneth B. Holmes of Statesville mis- the Wake County courthouse. He pled knowingly made false statements for the managed and unknowingly misappropriated guilty to misdemeanor larceny, but acknowl- purpose of influencing the Bank of entrusted funds. Holmes also borrowed edged that he committed felony larceny. Asheville, an institution with accounts money from a client. He was suspended by Clinton Moore of Charlotte neglected insured by the FDIC, in connection with a the DHC for five years. After serving two and did not communicate with clients, col- loan. years of active suspension, Holmes may apply

20 WINTER 2019 for a stay of the balance upon showing com- received three censures from the Grievance Greensboro lawyer Anthony P. Donato pliance with numerous conditions. Committee. In each case, Coxe did not com- was reprimanded by the Grievance Susan M. Lynch of Raeford represented municate with his court-appointed client, Committee. In 2015, Donato’s staff followed both the buyer and the seller in multiple real neglected his client’s case, and did not altered wiring instructions submitted by a estate transactions. Lynch did not communi- respond to the Grievance Committee. fraudster, resulting in the fraudster’s theft of cate with her clients; did not disclose a con- Michael DeMayo of Charlotte made an entrusted funds. In 2019, while representing flict of interest; did not obtain written overpayment to a client, then sent a letter to a different client, Donato again did not informed consent to the conflict; did not her entitled “Overpayment and Fraud” stat- properly supervise his staff. As a result, his exercise independent judgment and render ing that failure to return the overpayment by staff again followed altered wiring instruc- candid advice to her clients; made false state- a named date “will result in our being forced tions submitted by a fraudster, again result- ments; engaged in conduct involving dishon- to swear out a warrant for theft and conver- ing in the fraudster’s theft of entrusted funds. esty, fraud, deceit, and misrepresentation; and sion. This is very serious and it is a crime.” Ronald Garber of Raleigh was repri- engaged in conduct prejudicial to the admin- DeMayo was censured by the DHC. manded by the Grievance Committee for istration of justice. The DHC suspended her Mark Farbman of Charlotte was cen- engaging in conduct prejudicial to the for five years. After serving 18 months of sured by the Grievance Committee. In administration of justice by leaving a series of active suspension, Lynch may apply for a stay October 2014, Farbman undertook to repre- obscene phone messages for a courthouse of the balance upon showing compliance sent a client in a personal injury case. When official. with numerous conditions. he received settlement funds in March 2016, Thomas Goolsby of Wilmington was High Point lawyer Robert R. Schoch Farbman paid himself a fee and reimbursed reprimanded by the Grievance Committee. made misrepresentations to the court; advanced costs, but did not deliver funds to Goolsby did not act with diligence in repre- engaged in conduct involving dishonesty, which the client was entitled, telling his senting his client, did not communicate ade- fraud, deceit, or misrepresentation; engaged in client’s attorney-in-fact that he must retain quately with his client, and did not take steps conduct intended to disrupt a tribunal; used the funds pending receipt of a Medicare lien to protect his client’s interests upon termina- means that had no substantial purpose other demand. He took no action to resolve a tion of the representation. than to embarrass and burden third persons; Medicare lien. His client died in 2017. In Melissa S. Gott of Wilmington was rep- and engaged in conduct prejudicial to the April 2018, Farbman still had not complied rimanded by the Grievance Committee. She administration of justice. He was suspended with repeated requests to deliver the funds to did not ensure she had collected and dis- by the DHC for four years. After serving two new counsel retained by his client’s estate. bursed closing funds in accordance with the years of active suspension, Schoch may apply The Grievance Committee censured lender’s instructions despite repeated com- for a stay of the balance upon showing com- Patrice Featherstone of Monroe. munications from the mortgage broker and pliance with numerous conditions. Featherstone allowed an out-of-state compa- lender alerting her to an issue and asking her Brook M. Webster of Yadkinville was con- ny that is not registered to practice law in to confirm numbers before disbursing. She victed of secret peeping and trespassing on the North Carolina to use her name as the attor- also violated several trust accounting rules. Wake Forest University campus after he used ney of record in the preparation of 88 deeds. The Grievance Committee found multiple a mirror to look at female students under Featherstone did not provide any meaningful mitigating circumstances. desks in the WFU library. He was suspended legal work in connection with the deeds. She Franz Holscher of Washington was repri- by the DHC for two years. The suspension is refused to communicate with a seller to cor- manded by the Grievance Committee. He stayed for two years upon Webster’s compli- rect an error in the legal description of a represented a minor in a claim related to a ance with numerous conditions. deed. Featherstone had the same arrange- March 2013 bus accident. His client contend- ment with a prior company which used her ed that as a result of the accident she could not Interim Suspensions name on approximately 450 deeds. engage in physical activities. In response to The chair of the DHC entered an order of opposing counsel’s deposition questions, interim suspension of the law license of Reprimands Holscher’s client testified that she had not Charlotte lawyer Daniel Chappell Flint. In Glenn Barfield of Goldsboro was repri- played basketball since the accident and could October 2018, Flint was found guilty by a manded by the Grievance Committee for not engage in physical activities because she jury in California of violating Title 49, U.S.C. engaging in conduct prejudicial to the had not been released by her doctor. In §§ 46314(a) and (b)(2), a felony. He entered administration of justice, improperly seeking response to Holscher’s deposition questions, a secured area of an airport carrying a pouch an ex parte order without notice to opposing his client again testified that she had not containing approximately $148,145 that had counsel, making a misleading statement to played basketball since March 2013. In fact, not been screened by the TSA, falsely claiming an opposing party, and having direct com- Holscher had coached his client and her team- that it was a diplomatic courier pouch, and munication with a represented party. mates in a recreational basketball game in presenting documents purporting to support George C. Bell of Huntersville was repri- January 2015. Holscher told the Grievance the false claim of diplomatic status. Flint was manded by the Grievance Committee. He Committee that he had not remembered that sentenced to 14 months incarceration. obtained an order changing his client’s pro- his client played in the January 2015 game. bation from supervised to unsupervised by The Grievance Committee reprimanded Censures misrepresenting the client’s probation status Matthew Carl Coxe of Jacksonville to the court. CONTINUED ON PAGE 27

THE NORTH CAROLINA STATE BAR JOURNAL 21 LEGAL ETHICS

Proceed with Caution: Person to Person Payment Applications

B Y SUZANNE LEVER

y family has a dog named while other applications move the money the lawyer’s designated trust or fiduciary Zellie. She is a mixed through an intermediary “digital wallet.” account within a reasonable period of breed rescue from Saving Until recently, lawyers were prohibited time so as to minimize the risk of loss Grace, a wonderful dog from using intermediary payment services while the funds are in the possession of rescueM in Wake Forest, North Carolina. for entrusted funds. RPC 247 states that another, and to enable the collection of (Unabashed plug for Saving Grace—it is advance fees, mixed funds, and money interest on the funds for the IOLTA pro- fantastic; let me know if you are looking for advanced for costs must be deposited gram or the client as appropriate. See 27 a new family member!) “directly” into a trust account. RPC 247 N.C.A.C. 1B, Section .1300. Recently my daughter said she was going relied on Rule 1.15-2, which states that Under the revised comment, lawyers are to send me some money through Zellie. I “[a]ll trust funds received by or placed under permitted to use an intermediary payment thought that was weird. She lives in Atlanta the control of a lawyer shall be promptly service if the service is reliable and trustwor- and Zellie lives with me in North Carolina. deposited in either a general trust account or thy. The lawyer has the personal responsibil- Plus, Zellie is a dog. I couldn’t quite figure a dedicated trust account of the lawyer.” On ity to determine whether a particular service out the logistics. Turns out, she was going to March 27, 2019, however, the North meets those standards. Specifically, “the send the money through Zelle, NOT Zellie. Carolina Supreme Court approved the fol- lawyer has an obligation to make a reason- Honestly, I still didn’t understand the logis- lowing new comment to Rule 1.15: able investigation into the reliability, stabili- tics. My suggestion that she simply send me [13] Client or third-party funds on occa- ty, and viability of an intermediary to deter- a check was met with an audible eyeroll. sion pass through, or are originated by, mine whether reasonable measures are being Potential clients, particularly younger ones, intermediaries before deposit to a trust taken to segregate and safeguard client funds may have a similar reaction to a law firm or fiduciary account. Such intermedi- against loss or theft and, should such funds policy of accepting only cash, check, or aries include banks, credit card proces- be lost, that the intermediary has the chickens for the payment of legal fees. But sors, litigation funding entities, and resources to compensate the client.” what is a lawyer’s professional responsibility online marketing platforms. A lawyer The investigatory responsibilities set out when considering or using money transfer may use an intermediary to collect a fee. in comment [13] are no joke considering services such as Zelle? However, the lawyer may not participate the technical intricacies of the operations According to its website, “Zelle is an easy in or facilitate the collection of a fee by used by these payment services. The ABA way to send money directly between almost an intermediary that is unreliable or has opined that the risk profile of peer-to- any US bank accounts typically within min- untrustworthy. Therefore, the lawyer has peer transactions will be tied to the risk utes. With just an email address or mobile an obligation to make a reasonable profile of the underlying payment method- phone number, you can quickly, safely, and investigation into the reliability, stability, ology. According to the ABA, a peer-to- easily send and receive money with more and viability of an intermediary to deter- peer transaction will have greater protec- people, regardless of where they bank.” This mine whether reasonable measures are tions if it is based on a payment methodol- type of application is known as a peer-to- being taken to segregate and safeguard ogy that affords greater protection. The peer or person-to-person (P2P) money client funds against loss or theft and, ABA urges lawyers to choose a service that transfer service. should such funds be lost, that the inter- offers the same kinds of protections provid- There are numerous other P2P services mediary has the resources to compensate ed by other payment options, such as credit including Venmo, Cash App, PayPal, Google the client. Absent other indicia of fraud and debit cards. Pay, and Apple Pay. For your sake and mine, (such as the use of non-industry stan- Comment [13] specifically approves of I am not going to try to explain precisely dard methods for collection of credit the use of credit or debit cards for collecting how each of these payment services operate. card information), a lawyer’s diligence client funds. An exception to the prohibi- (For more details on these services, go ask a obligation is satisfied if the intermediary tion on intermediary payment services has millennial.) Broadly speaking, some of these collects client funds using a credit or previously been allowed for credit card pay- applications move money directly from one debit card. Unearned fees, if collected by ments. Interestingly, the Ethics Committee bank account to another bank account, an intermediary, must be transferred to approved of the use of “Master Charge and

22 WINTER 2019 other credit card services” in 1977. See CPR to manage a client trust account if the the transfer of funds into the user’s bank 129. Because the CPRs are not available in recordkeeping and fiduciary obligations in account of choice. In the case of entrusted the Handbook or online, CPR 129 is repro- Rule 1.15 can be fulfilled. The opinion client funds, this type of application essen- duced here in its enlightening entirety: states that a lawyer must use reasonable care tially places entrusted client funds in a CPR 129 to “minimize the risk of loss or theft of client nonattorney trust account until retrieved by (October 27, 1977) property specifically including the regular the lawyer. Revised comment [13] states that Inquiry: Is it ethical for an attorney to education of the firm’s managing lawyers on such funds “must be transferred to the offer Master Charge and other credit the ever-changing security risks of online lawyer’s designated trust or fiduciary card services to clients for the payment of banking and the active maintenance of end- account within a reasonable period of time fees charged for services rendered to such user security.” See also RPC 209 (noting the so as to minimize the risk of loss while the clients? “general fiduciary duty to safeguard the funds are in the possession of another, and Opinion: Yes. property of a client”) and 98 FEO 15 to enable the collection of interest on the Further guidelines for the acceptance of (requiring a lawyer to exercise “due care” funds for the IOLTA program or the client credit card payments are set out in RPC when selecting depository bank for trust as appropriate.” Considering the purpose 247, Payment of Fees by Electronic Transfer account). and language of Rule 1.15, including the (1997); 97 FEO 9, Credit Card Similar security concerns/obligations are vulnerability of client funds remaining in a Chargebacks Against a Trust Account emphasized in 2011 FEO 6, Subscribing to nonattorney trust account, the potential (1998); and 2009 FEO 4, Credit Card Software as a Service while Fulfilling the harm to be suffered by the client, and the Account that Avoids Commingling (2009). Duties of Confidentiality and Preservation lawyer’s requirement to safeguard those Pursuant to RPC 247, credit card fees or dis- of Client Property. The opinion provides client funds, anything less than prompt count charges assessed against the trust that: transfer of those funds to the lawyer’s trust account must be properly accounted for and the use of the internet to transmit and account upon becoming available would not must not be paid with client funds unless store client data [or, in this instance, data be reasonable. Such applications are also ripe the funds were specifically collected for that about client property] presents signifi- for potential commingling of the lawyer’s purpose. In discussing credit card charge- cant challenges. In this complex and personal funds, earned fees, and client backs, 97 FEO 9 provides that, “[u]nder all technical environment, a lawyer must be funds. At the very least, a lawyer would be circumstances, a lawyer is ethically com- able to fulfill the fiduciary obligations to wise to set up a separate account through pelled to arrange for a payment (from his or protect confidential client information which any transactions consisting of client her own funds or from some other source) and property from risk of disclosure and funds are directed. Though having multiple to the trust account sufficient to cover the loss. The lawyer must protect against accounts may be tedious (and will increase chargeback in the event that a chargeback security weaknesses unique to the inter- the lawyer’s record-keeping and monitoring jeopardizes the funds of other clients on net, particularly “end-user” vulnerabili- efforts), the potential for client harm and deposit in the account.” ties found in the lawyer’s own law office. related misconduct outweigh any concerns Regardless of whether the application The lawyer must also engage in frequent of convenience. uses an intermediary account, it is the and regular education about the security It is each lawyer’s responsibility to ensure lawyer’s responsibility to ensure that the use risks presented by the internet. that the transfer method employed by a P2P of the P2P application is compliant with all (Lawyers also need to consider the duty service complies with the lawyer’s profes- of the lawyer’s professional responsibilities. to protect client information as set out in sional responsibilities. This will be no easy Rule 1.15 requires a lawyer to manage a Rule 1.6. Certain P2P applications incorpo- task given the security concerns that arise trust account according to strict recordkeep- rate social media features. Lawyers need to with an application that involves the transfer ing and procedural requirements. The spe- be mindful of any social media aspects to a of client funds and links directly to a lawyer’s cific recordkeeping requirements set out in payment service that might disclose confi- trust account. For a lawyer who performs Rule 1.15 may prove problematic depend- dential client information, including pay- fixed or flat rate fee services, the risk of using ing on the operation of the P2P application. ments made by client to lawyer.) P2P payment services may be minimal. Above all, Rule 1.15 requires lawyers to Finally, lawyers need to consider whether However, with entrusted funds, the ethical safekeep entrusted property. Lawyers need the use of the P2P application will result in issues are more complex and include the to carefully scrutinize the security of the the comingling of lawyer and client funds. strict record keeping requirements and the application before linking their trust Rule 1.15 prohibits commingling of prohibition against commingling associated account to any mobile or online application. entrusted property and attorney funds. with traditional transfers and handling of 2011 FEO 7 addresses security concerns Some applications only allow a lawyer to entrusted funds. For these reasons, a lawyer that arise when a law firm uses online bank- choose one account where transferred funds may want to forego the use of these newfan- ing to manage a trust account. As noted in get immediately and directly deposited. gled P2P payment services when it involves 2011 FEO 7, “[f]inancial transactions con- Other applications accept payment on entrusted funds and stick with cash, check, ducted over the internet are subject to the behalf of a user and retain the funds in an credit card, or chickens instead. n risk of theft by hackers and other computer account within the application; the user criminals.” Nevertheless, 2011 FEO 7 pro- must then proactively retrieve the funds Suzanne Lever is assistant ethics counsel for vides that law firms may use online banking from the application’s account to complete the North Carolina State Bar.

THE NORTH CAROLINA STATE BAR JOURNAL 23 TRUST ACCOUNTING

Don’t Let Record Keeping Requirements Give You a HeadACHe

B Y LEANOR BAILEY HODGE, TRUST ACCOUNT COMPLIANCE COUNSEL

It is hard to believe that the 2019 year end moving client money. Wire fraud is often big third set of numbers that can be included on is clearly in view. There was a time when the and dramatic. It’s the type of fraud on a checks (these numbers must be a part of the end of the year was a person’s last chance to lawyer’s trust account that receives all the MICR line of all trust and fiduciary account make magazine purchases and secure a chance press, and based upon the reports I receive, checks) and which appears in the leftmost to win the Publishers Clearing House Sweep- also wreaks the most havoc on trust accounts. position of the MICR line. This third set of stakes. Every time I am asked a question about But what about ACH fraud on lawyers’ trust numbers is often the check number, but can automated clearinghouse (ACH) transactions, accounts—is it a thing? Does Rule 1.15 even also be other combinations of numbers. The I recall those commercials with lots of balloons allow ACH transactions to be conducted in Auxiliarly On-Us field is intended to com- and an oversized check that were the hallmark lawyers’ trust accounts? municate to financial institutions that the of the Publishers Clearing House Sweepstakes. I will take these questions out of sequence check that includes this field is not eligible for It’s ironic that I associate ACH transactions in and address the second question first. Rule conversion to an ACH debit. Thus, Rule which checks are converted to electronic trans- 1.15 does not specifically reference ACH 1.15, albeit indirectly, speaks to the issue of actions (bye-bye paper check) with the Pub- transactions within the text of the rule. ACH transactions in the language of the rule lisher’s Clearing House Sweepstakes which cul- However, Rule 1.15-3(a), which does not itself and limits automatic conversion of minates with the winner receiving the biggest mention the words ACH transaction, is checks to ACH transactions. physical check ever. directly aimed at safeguarding against auto- The subject of ACH transactions is The ACH Network is a batch processing matic conversion to ACH transactions. It addressed directly in three of the comments system in which financial institutions accu- provides that: “[a]ll general trust accounts, to Rule 1.15, comments [19], [20], and [21]. mulate ACH transactions throughout the day dedicated trust accounts, and fiduciary Comment [19] explains the ACH process for batch processing in the future. ACH accounts must use business-size checks that and its effect on the bank records produced. transactions result in paper checks being con- contain an Auxiliarly On-Us field in the Comment [20] spells out the relationship verted into electronic transactions. In ACH MICR line of the check.” I know first-hand between the Auxiliarly On-Us field and ACH transactions, the necessary funds transfer because of discussions I have had with several transactions, and the role of the Auxiliarly information, which is normally transmitted lawyers about this rule that, in many cases, On-Us field in preventing conversion of a by paper, is processed electronically instead. the reader’s eyes glaze over once he or she check to an ACH transaction without ACH transactions play a major role in how makes it past the words “business-size authorization. Lastly, comment [21] sets the funds move today. Two examples of common checks,” at which point the reader’s brain parameters of when a lawyer may permissibly ACH transactions are direct deposit and simply translates the remainder of actual conduct an ACH transaction in the trust online bill payment. Among the touted ben- words on the page into “blah, blah, blah.” account. It provides: efits of ACH transactions are the ability to Therefore, I will share with you the import of Authorized ACH debits that are electronic ensure that funds are delivered on a date cer- Rule 1.15-3(a). First, the MICR line of the transfers of funds (in which no checks are tain and more quickly. It seems like everyone check is the line of numbers on the bottom of involved) are allowed provided the lawyer is doing it, conducting ACH transactions— checks. It usually contains two sets of num- maintains a record of the transaction as even the IRS will direct deposit your tax bers: the bank account number and bank required by Rule 1.15-3(b)(3) and (c)(3). refund if you’d like. These days it seems it is routing number. Checks on which the MICR The record, whether consisting of the all about moving money fast. line only includes these two sets of numbers instructions or authorization to debit the If you have been reading my columns this may be automatically converted to ACH account, a record or receipt from the reg- year, you may have reached the conclusion transactions. If such checks are converted to ister of deeds or a financial institution, or that “fast” in the world of client money and ACH transactions, this may result in no dig- the lawyer’s independent record of the trust accounts is not always good. At least as I ital image of the check being retained. This transaction, must show the amount, date, wrote these articles, each of which was creates a problem, because lawyers are and recipient of the transfer or disburse- focused on the topic of fraud on lawyers’ trust required by Rule 1.15-3(b)(2) and (c)(2) to ment, and, in the case of a general trust accounts, I hoped you would give some maintain such digital images of checks. Now thought to slowing things down a bit when enter the Auxiliarly On-Us field, which is a CONTINUED ON PAGE 32

24 WINTER 2019 LEGAL SPECIALIZATION

Rebecca Redwine, Board Certified Specialist in

Business Bankruptcy Law

B Y LANICE HEIDBRINK, EXECUTIVE ASSISTANT OF LEGAL SPECIALIZATION

learning. Second, always introduce yourself. the North Carolina Bankruptcy Bar. I believe “Thank you counselor, and I Third, the Hardee’s across from the we have some of the best bankruptcy attor- Greensboro courthouse will tow your car. neys in the nation and it was inspiring to see mean that in both senses of the Q: What career accomplishments are you so many specialists in our state. I had several most proud of and why? members of our Bar encourage me and reach word.” I am most motivated when I see that what out to ask when I was going to take the we do makes a difference in the lives of our exam. There’s nothing like peer pressure to clients. My most memorable case was a make you sign up for something. However, A simple but poignant sentiment heard Chapter 11 debtor that was a large trucking seeing the successful careers of those I respect from a client that has resonated with Rebecca and towing operation, crippled by tax debt was the biggest motivator. Redwine throughout her career and subprime loans, with debt Q: Do you feel specialization has been good and serves as one of the greatest exceeding $4.4 million. The for the practice of bankruptcy law? compliments she received as an principal was a young widow, Yes, primarily as a networking referral attorney. It is but one of the many left to deal with the untimely source. There have been several instances compliments we can imagine she death of her husband and the over the past few years where I needed to receives as a result of the intelli- financial crisis of their business. refer a matter or piece of litigation to out-of- gence and compassion she brings Ultimately, the company restruc- state counsel. If I do not have any contacts in to her clients and her practice. tured and emerged from the area, my first search begins with that I had the honor of meeting Chapter 11 with a consensual state’s specialist list. Redwine when she sat for the plan involving 15 classes. That Q: What would you say to a lawyer who is business bankruptcy law exam in Redwine was a really great day. considering applying to become a North 2018, and even in a room full of Q: What’s the most rewarding Carolina board certified specialist? nervous examinees, Redwine professional activity that you Go for it. There’s no downside and the appeared calm and ready for the challenge. have been a part of? encouragement you will receive from your She passed the exam and became a business I am a council member of the North peers is unmatched. And there’s a large group bankruptcy law specialist in February Carolina Bar Association Bankruptcy of us who will take you out after you pass to 2019. Council, but I’m also the Pro Bono celebrate. Redwine grew up in Oxford, North Committee Co-Chair. In 2015, in an effort Q: What are you happiest doing? Carolina, and graduated from the University to inspire our section members, we created Sitting on a porch with our friends and a of North Carolina School of Law. She began an award recognizing outstanding pro bono cold drink, listening to music, and watching her career as an associate with the family law service. This will be the fifth year we will my boys, Finch (5) and Whitford (3), play in firm of Gailor Wallis Hunt in Raleigh. From honor one of our section members with the the backyard. there, she joined Everett Gaskins Hancock & NC Bar Association Bankruptcy Law Q: What’s something that most people Stevens as a bankruptcy associate. In 2010 Section Outstanding Achievement Pro Bono don’t know about you? she moved to Hendren & Malone, PLLC, Award during the statewide meeting at the I know the official state toast, I’ve sung on which became Hendren, Redwine & Malone NCBA Annual Bankruptcy Institute. I have stage with Smokey Robinson, and I usually when she became a partner in 2016. to say, reviewing the nominations of such wake up at 5 AM. Q: What advice would you give to lawyers inspiring people and presenting this particu- Q: What would your colleagues say you’re who are just beginning their career and lar award certainly counts as a great day in most passionate about? want to practice bankruptcy law? the world of being an attorney. Eating lunch. First, appreciate that we have a very colle- Q: What motivated you to get certified as a Q: What is your favorite food? gial and professional Bar, and it is full of kind specialist in bankruptcy law? BLT on wheat bread with Duke’s mayon- people who are willing to help those who are Honestly, it was my fellow members of naise. n

THE NORTH CAROLINA STATE BAR JOURNAL 25 IOLTA UPDATE

IOLTA Grantee Preserves North Carolina Land and Farms

ccording to a recent article by able to grow and thrive, for example, by pro- Stateline, rural African viding food and jobs to their communities. IOLTA Update American farm families held In 2018-2019, LLPP preserved land, homes, · Income received in 2019 between 16 million and 19 and farms with a total tax value of through August from participating millionA acres of farmland in 1910.1 Today, $2,915,276. Through the services they financial institutions increased by active farm land held by African American received free of charge from LLPP, farmers, 110% compared to the same time farmers amounts to just over 2.5 million homeowners, and landowners obtained period last year. acres, a staggering decrease of more than more than $2.6 million in debt relief, loan · Banks eligible to hold IOLTA 80%.2 In 2017, just 1.3% of farm producers modifications, and awards during the past accounts in North Carolina offer rates in the United States were African American.3 three state fiscal years. on the accounts ranging from .01% to Historically, the challenges associated with A recent client story illustrates the impact 1.88% with an average rate of .43%. heirs property as well as a history of discrim- of services provided by Land Loss NC IOLTA continues to work with ination against African Americans, including Prevention Project. Last year, LLPP worked banks across the state to ensure by the US Department of Agriculture in with the family spokesperson for a group of IOLTA receives a rate on all IOLTA their handling of requests for farm loans and heirs of family land comprised of 70 acres. accounts comparable to similar assistance, contributed significantly to the The heirs to the property, 73 in number, accounts offered by the institution. losses of black-owned land.4 sought to build a legacy to the deceased fam- · The IOLTA Board of Trustees Concerned by the loss of black-owned ily patriarch by making the inherited farm- will review 2019 grant applications land in North Carolina, a taskforce convened land income-producing for generations to and award grants at the December in 1982 to address the issue. Shortly there- come. LLPP attorneys assisted in refining grantmaking meeting. During the after, the Land Loss Prevention Project the terms of the limited liability company’s September planning meeting of the (LLPP) was founded by the North Carolina operating agreement to allow for continuity IOLTA Board, the trustees consid- Association of Black Lawyers to stem the epi- of family member ownership through the ered 2020 spending priorities and, as demic losses of black land by providing legal operation of the LLC. Attorneys also drafted funding allows, committed to (1) sig- support and assistance to black farmers. Over deeds to enable each family member to nificant investment in the reserve the years, the mission expanded and today grant their intestate interest in the property fund which has been used frequently LLPP provides such support for all limited to the LLC of which they were all members. over the last ten years due to the eco- resource and financially distressed farmers, With this laborious process complete, the nomic recession; (2) continued focus homeowners, and landowners across the family business now has a platform for eligi- on and anticipated increase in regular state. NC IOLTA has provided support for bility for agricultural programs to grow their grantmaking to core providers of LLPP since the first grants were awarded by business, which they could not have legal aid and administration of justice the IOLTA program in 1984. accessed previously. Further, members of the projects; and (3) consideration of LLPP’s case work is diverse, including LLC who have limited resources will be able new applicants and opportunities. agricultural law, real property, consumer pro- to leverage this family asset to improve their tection, wills and estate planning, civil rights, own economic stability and build a commu- zoning and municipal law, business issues, nity-based business. education. In addition, through their out- and bankruptcy when appropriate. Last year, In response to the need, LLPP has grown reach efforts, LLPP visits communities LLPP served nearly 400 clients in 71 out of the resources available through their across the state to share legal information North Carolina’s 100 counties. SmartGrowth Business Center, a program with more than a thousand farmers, The potential impact of the services pro- that provides business planning services to landowners, homeowners, and individuals vided by LLPP range from the personal and strengthen farms and farm businesses, and each year at workshops and seminars on var- local, like preserving a farm or home for an to also prevent problems that routinely lead ious topics of interest. individual client of limited means who can to farm loss. Services include business entity Over the last few years, LLPP has assisted continue to live and subsist on their own formation, contractual review, counseling in the establishment and growth of a property, to benefits impacting the broader regarding the availability of federal programs farmer’s market in an area designated as a public when families and farm businesses are and requirements, and risk management “food desert”—an area with little access to

26 WINTER 2019 affordable and nutritious food. Now, each regarding Internal Revenue Code classifica- Endnotes Saturday during the season, five or six ven- tion and exemption, and technical assistance 1. April Simpson, Black Farm Families Are Losing Their dors (mostly small- to medium-sized farms) supporting an application for free access to Land. New State Laws Seek to Help, Governing. sell produce and goods at the market to the equipment necessary to accept Stateline, June 21, 2019, bit.ly/32U1Fwp. approximately 2,500 visitors per year. Supplemental Nutrition Assistance Program 2. Ibid. Services provided by LLPP included prepa- (SNAP) benefits at the market. 3. United States Department of Agriculture, National Agricultural Statistics Services, 2017 Census of Agriculture, ration of foundational documents, research For more information about the work of April 2019, ACH17-2, nass.usda.gov/AgCensus. and consultation around securing a location Land Loss Prevention Project, visit their web- 4. Simpson. for the market, analysis and assistance site at landloss.org. n

The Disciplinary Department October 22, 2019. IOLTA’s Future and How You (cont.) Can Help (cont.) Reinstatements from Disbarment Greensboro attorney Jason Keith. A judge David Shawn Clark of Hickory was dis- each to voluntarily contribute financial sup- of the Federal District Court for the Middle barred in 2013. Clark had sex with a client, port to organizations that provide legal serv- District of North Carolina found that Keith made false statements to a tribunal and to the ices to individuals who are unable to afford a did not act with diligence, was not familiar Grievance Committee, attempted to suborn lawyer. NC IOLTA’s grantee partners across with the law, did not keep his clients perjury, was convicted of several criminal the state appreciate your valuable contribu- informed about their cases, and did not give charges including communicating threats and tions of volunteer time and financial gifts to his clients appropriate advice in several crim- obstruction of justice, intentionally disclosed expand their reach. If you need help connect- inal cases, but did not impose professional client confidences, and engaged in a conflict ing with a meaningful project or finding an discipline. of interest. The DHC recommended denial of organization that can make the best use of James W. Kirkpatrick of Waynesville did his petition for reinstatement. Clark appealed your talents and treasures, we can help you not properly supervise nonlawyer staff. As a to the council. At its October 25 meeting, the find that match. result, his staff did not verify wiring instruc- council voted to deny his petition for rein- • Inform. As lawyers, it is our job to be tions before transmitting a seller’s loan pay- statement. ambassadors for the law. The Preamble to the off. Kirkpatrick also did not immediately In 1982, James Walter Smith surrendered Rules of Professional Conduct calls on all report the wire fraud to the State Bar’s Trust his license and was disbarred by the council lawyers to seek improvement of the law, access Account Compliance Counsel. He was rep- following his conviction of armed bank rob- to the legal system, and the administration of rimanded by the Grievance Committee. bery. He withdrew his petition for reinstate- justice, and to use our civic influence to do so. J. Eric Skager of High Point was repri- ment after the State Bar took his deposition. We can each work to inform those in our manded by the Grievance Committee. He community—government officials, commu- neglected his client’s traffic case, did not Notice of Intent to Seek Reinstatement nity leaders, neighbors, coworkers, and promptly tell his client that a failure to Notice is hereby given that Robin Nicole friends—about the role of lawyers in fixing appear was entered in her case, and did not Knight Krcelic of Charlotte intends to file a community problems through the kinds of respond promptly to the Grievance petition for reinstatement before the Discipli- services offered by civil legal aid providers and Committee. nary Hearing Commission of The North Car- other projects that promote the administra- olina State Bar. Knight was disbarred effective tion of justice. If you are interested in sharing Transfers to Disability Inactive Status January 31, 2005, and surrendered her license the message of access to justice with a commu- Robert C. Soles Jr. of Tabor City was on January 26, 2005. The complaint alleged nity leader or group in your area, please con- transferred to disability inactive status by the that while operating her law practice, client tact me. chair of the Grievance Committee. funds received from real estate closings were • Reach out. As noted, it took thoughtful, misappropriated. Subsequent findings after committed leaders many years ago to start Reinstatements from Suspension surrender of her law license and disbarment IOLTA programs across the country. No In June 2016 the DHC suspended found that a nonlawyer assistant in her law doubt, countless changes promoting access to Michael P. Crowe of Winston-Salem for office embezzled client funds. justice over the years have required the same. numerous rule violations, including engag- Individuals who wish to note their con- You may have an idea for how we can do more ing in a conflict of interest, directing an currence with or opposition to the petition to increase our available funds or how we can assistant to execute a false notary, engaging for reinstatement should file written notice work together to support access to justice. I in dishonest conduct, and engaging in con- with the secretary of the North Carolina would love to hear from you. n duct prejudicial to the administration of jus- State Bar, PO Box 25908, Raleigh, NC, tice. The DHC suspended Crowe for three 27611, before February 1, 2020 (60 days Mary Irvine is the executive director of NC years. He was reinstated by the DHC on after publication). n IOLTA.

THE NORTH CAROLINA STATE BAR JOURNAL 27 LAWYER ASSISTANCE PROGRAM

The Enlightened Lawyer: Overcoming Stress and Creating Balance

B Y DR . GERALYN DATZ

You’ve already been at the office for nine and far between. While some cases may be hours. The senior partner is on your case won, the time between “wins” can be long about a research memo you haven’t had a and arduous. Sometimes a “no-win” media- chance to begin. That difficult client who tion or ambiguous success can leave a lawyer insists on calling several times a week to com- feeling over-compromised and empty. There plain about everything under the sun is at it is always the pressure to perform, to log again. Oh, and you’ve got a brief due tomor- hours, and to appear “together” despite row and you have no idea how you’re going to chaotic circumstances. finish it on time. You’re exhausted and over- Finally, the context of practicing law is whelmed. It’s only Monday! based on an adversarial paradigm, often involving some conflict, dispute, or wrongdo- The Environment and Culture of Law ing. Sometimes there is resolution, but not Most people have no idea how they get always. Cases are won and lost through the “burned out” or why. It’s hard to grasp that distortion of reality. This can create a tainted we could actually harm ourselves while trying reality for the practicing attorney. Legal cases to work hard or while helping others. This is and clients themselves pertain to social devia- late and stay sedentary, thinking we need a very real—and very misunderstood—prob- tions, misbehavior, law breaking, mistreat- more rest when, in fact, we should exercise. lem in the legal profession. ment, and injustice. There is a side to the We seek outward relief and escape from The practice of law can be so all-encom- world, your city, and your workplace that recreational drugs when we should be turning passing that there doesn’t seem to be an “off” may be sinister. It is inspiring to overcome the inward and creating peace and new habits. switch—irrespective of the practice environ- odds, bring justice where there is none, and We ignore the sources of support that would ment (sole practitioner, large firm, small firm) contribute to a precedent. However, at other normally bring us relief (spouses, children, or practice area (criminal, corporate, enter- times it can feel like you against the world. family, parents, friends, even pets) because we tainment, immigration, health, family, per- The outcome of a case can be dark and unfair, are in a “bad mood,” judgmental, or just too sonal injury, real estate, tax, intellectual prop- and there are other compromises that must be exhausted to socialize. We structure our time erty, labor, or international). The boundaries made in the interest of income, time, or so we can’t take a break, or feel too drained to of personal, work, family, and spiritual life tenure in the job. reach out to our spiritual community when may cease to exist, either temporarily or per- Humans, as a group, tend to fare poorly we need replenishment. Under extreme stress manently. That can take an enormous toll on under these circumstances. we tend to make poor and impulsive deci- a person. When the toll becomes toxic to sions. Some turn to sexual infidelity or take health and wellbeing, this is called “burnout.” Are You in Balance? risks (such as fast driving or aggressive behav- It is important to understand why the In the same way that we need air, water, ior), which release temporary “feel good” hor- legal profession is uniquely positioned to and food to survive, our minds need certain mones and neurotransmitters, but are ulti- take a toll on a human being. Being a lawyer conditions to feel vital and healthy. We need mately self-sabotaging. places one in a unique environment of to feel as if we have accomplished something, When our levels of stress become toxic, “demandingness”—from the clients who are that we have a purpose, that we are loved and this can progress to burnout. Burnout is a distressed, self-focused, and sometimes enti- understood, and that we have “down” time state of overwhelming, long-term exhaustion tled, to the employers who expect top-quali- away from intense stress. When we do not and diminished interest in work. Professional ty, super-human results. Also a daily foe is an have these, we become out of balance. symptoms of burnout include depression, uncontrolled, high-contact, often urgent When we are out of balance, we often try cynicism, boredom, loss of compassion, and schedule that does not understand daycare to create balance in ways that will never discouragement. The problem of burnout pickups, birthdays, vacations, sporting achieve it. We create doses of pleasure by results from working long hours with limited events, or sleep. Lawyering can be a hyper- overeating (particularly carbohydrates and resources, experiencing ambiguous success, stressful setting where the rewards are few “junk” food) or by drinking alcohol. We iso- and having contact with difficult clients.

28 WINTER 2019 The opposite of burnout is engagement. burnout. Burnout and stress will actually in your profession, confidentially and con- Engagement is the state of feeling energized, hasten a depressive episode, a drug relapse, tinuously available. The LAP staff are all clin- effective, and connected to one’s life, career, or chronic pain, and increase the frequency ically trained, seasoned professionals. They and surroundings. of panic attacks. That is why it is so impor- are easy to talk to and not pressuring. They Which category do you fall into? tant to address the signs of burnout as soon know when a problem is serious and needs as they appear. immediate help, and when someone just The Effects of Stress needs to talk. Asking for help is hard, but the Stress can become toxic to our bodies and Taming Burnout LAP makes it easy. The LAP team knows all mental health. Constant exposure to adversi- If you are experiencing the effects of the best resources and can easily demystify ty or stressful work conditions can activate chronic stress and burnout, there is hope. the process of treatment support and recov- our fight-flight-freeze response. This is a bio- One method is to begin looking at your ery. They help people change and take con- logical response that, when used in small “energetic bank accounts,” consisting of trol of their lives again. They will literally doses, is very helpful. It helps in the court- the physical, emotional, and spiritual areas save months of extended suffering and many room when you need to be on your feet and in your life. I encourage and coach clients hours of searching for answers (and might convincing. It can help you be aggressive in a to take an inventory of their physical just save your life). meeting, and it gives you the edge over the health, their emotional state, and spiritual The LAP is a tremendous resource that competition when they aren’t as passionate as connectedness. should not be a last resort. Frequently in my you. It also can help you “walk away” from a Ask yourself the following questions: mental health practice, I hear clients tell me bad negotiation rather than continuing to • How is your health? Your energy level? they waited until things were really bad argue. The stress response can help you What is your weight and strength level? before coming to see me. Why? Why do we “freeze” when provoked, which may allow a • How do you feel emotionally? Are you wait so long for help? Help can be given at better negotiating position later. getting your needs met in relationships? At any stage of suffering, but certainly it makes However, when the fight-flight-freeze work? sense to use resources that are useful system is constantly activated, health con- • How connected are you to feeling like BEFORE a problem becomes severe (from a cerns may follow. The body and mind your work makes a difference? Is your work a physical and mental health perspective, as become depleted by the constant flux of meaningful path for you? Are you connected well as a familial, personal, and occupational hormones (cortisol) and neurotransmitters to any kind of faith, healing, charity, or spiri- standpoint). In the case of burnout, it is an (adrenalin and epinephrine). Healthy tissues tual community? avoidable phenomenon when the right steps are degraded in the body, such as cardiac tis- If your answers are not what you wish are taken early in the process. sue. The immune system is suppressed. them to be, it is important to start making The journey from burnout to recovery is Sleep patterns change and lessen. Fatigue “deposits” into these areas of your life. well described in Joan Borysenko’s book, increases due to the constant rushes of stress For example, physical health can be Fried: Why You Burn Out and How to Revive. hormones. Digestion changes and the body’s changed by paying attention to eating habits “Revival from burnout is always about the ability to lose weight is reduced. Sex drive and activity levels. Exercise is crucial to regu- recovery of lost authenticity. It’s waking up to decreases. Headaches, depression, and panic lation of stress hormones, sleep, appetite, and who we really are and realizing that heaven is attacks increase. energy levels. not a destination, but a state of mind. If being The effects of chronic stress often bring Emotional health can be refueled by fried can bring us to a point where we recon- people to the doctor, but that “stress” usually increasing positive social interactions, learn- nect to our own true nature, then it’s worth carries other names—insomnia, impotence, ing meditation and relaxation techniques, every moment of separation to rediscover the constipation, frequent colds or flu, weight attending psychotherapy or counseling, and heaven that has been inside of us all along.” n gain, fatigue, uncontrollable temper, high learning time management and assertiveness blood pressure, canker sores, ulcers, eczema, skills (e.g., learning how to say no!). Dr. Geralyn Datz, Ph.D., a licensed clinical psoriasis, nightmares, chest pains, anxiety Spiritual practices can be enhanced for- health psychologist in Hattiesburg, MS, is a attacks, infertility, concentration problems, mally or informally through re-identification nationally recognized speaker and provides edu- bodily pain, painful muscle tension or muscle with religious beliefs, attendance at services, cation about the impact of stress, medical illness- spasms, and headaches. or spending time acknowledging a higher es, addiction, and burnout. She has been a lec- Contrary to some beliefs, you don’t have power or developing connectedness and turer for Louisiana State Bar Association pro- to have a diagnosed mental health condition mindfulness. The method must always grams since 2005. to be affected by stress and burnout. Stress match the person’s preferences and needs. Reprinted from Louisiana Bar Journal, Vol. and burnout have their own independent This is often the most challenging part of 62, No. 4, December 2014/January 2015, pub- effects on the body and mind. But if another overcoming burnout: changing behaviors. lished by the Louisiana State Bar Association. mental health problem is present, the stress Assistance from an experienced professional The North Carolina Lawyer Assistance and effects of burnout are going to make the can help. Program is a confidential program of assistance original problem worse because any remain- The importance of a program like the for all North Carolina lawyers, judges, and law ing emotional and physical resources that North Carolina Lawyer Assistance Program students, which helps address problems of stress, the person has will be expended with the (LAP) cannot be underscored enough. It is additional effects of chronic stress and crucial to have support available from people CONTINUED ON PAGE 32

THE NORTH CAROLINA STATE BAR JOURNAL 29 PATHWAYS TO WELL-BEING

Building a Firm Foundation for Well-being Programs

B Y LAURA MAHR

Where to Begin What the ABA is As the buzz builds nationally for Asking of Firms improved mental health and decreased sub- Second, when stance abuse in the legal field, firms of all considering options sizes are considering how to best provide for well-being pro- well-being programs in-house. While it may gramming, it is bene- be our lawyerly nature to spring into action ficial to understand when tasked with solving a problem, when the specific recom- ©iStockphoto.com/Juergen Sack creating well-being programs and policies, mendations the ABA meaningful discussions are a great place to offers for improving begin. First assessing your firm’s need for well-being at the firm well-being programming and reviewing level. To “improve existing policies and practices may help to the substance use and funnel resources to the areas of greatest need. mental health land- This article shares six topics for firms to dis- scape of the legal pro- cuss to build a strong foundation for in- fession,” the ABA’s house well-being programs. Working Group to Advance Well-being ABA Calls Law Firms to Action in the Legal Profession launched a campaign (6) Show that the firm’s core values First, when initiating discussions about asking legal employers (including law firms, include taking care of yourself and getting well-being programming at your firm, it’s corporate entities, government agencies, and help when needed by regularly and actively helpful to orient your leadership team and legal aid organizations) to consider promot- supporting programs to improve physical, later your workforce to what initially ignited ing the following “seven point framework for mental, and emotional well-being. the well-being buzz in the legal field. The building a better future:” (7) Use the Lawyer Well-being Pledge, national conversation about lawyer well- (1) Provide enhanced and robust educa- and the firm’s commitment to these princi- being began in earnest in 2017 when the tion to attorneys and staff on well-being, ples, to attract and retain the best lawyers and ABA’s National Task Force on Lawyer Well- mental health, and substance use disorders. staff. being released a lengthy report entitled “The (2) Reduce the expectation of alcohol at It may be useful to print the colorful info- Path to Lawyer Well-being: Practical firm events by seeking creative alternatives graphic that depicts the seven point frame- Recommendations for Positive Change.” and ensuring that nonalcoholic alternatives work (bit.ly/2Myasxc) and use it as a conver- (bit.ly/2x3WRHm) are always available. sation starter for well-being programming at In it, the task force urged all stakeholders (3) Partner with outside providers who your firm. in the legal field, including legal employers, are committed to reducing substance use dis- to take action to improve well-being in our orders and mental health distress in the pro- Address Beliefs that Hinder the Success profession. This call to action was a response fession. of Well-being Programming to the findings of the first national study on (4) Provide confidential access to addic- Third, before launching well-being pro- “The Prevalence of Substance Use and Other tion and mental health experts and resources, gramming, it is important for firm manage- Mental Health Concerns Among American including free, in-house self-assessment ment to examine the beliefs they as individ- Attorneys” published in the Journal of tools. uals and collectively as a team hold about Addiction Medicine (bit.ly/2GhpjI9). The (5) Develop proactive policies and proto- well-being. It is useful to explore and discuss study revealed that attorneys have alarmingly cols to support assessment and treatment of the following topics: high levels of “problematic drinking” and substance use and mental health problems, Well-being and the bottom line: One of significant mental health distress including including a defined back-to-work policy fol- the most important beliefs to probe regards high levels of anxiety and depression. lowing treatment. how firm management perceives workforce

30 WINTER 2019 well-being impacting the bottom line. ness, meditation, exercise, eating well, rest, programming that’s relevant and interesting Historically, firm management teams have and taking a break after a stressful event— and promotes firm-wide well-being.” Other held the belief that well-being programs, also improve our productivity and cognitive programs that firms are offering include on- while nice, are not necessary for financial functioning. site chair massage and yoga classes or free gym success. Many firm owners or management memberships. Some firms pay for one-on- teams read the ABA’s seven point framework What Policies and Programs are Already one resilience coaching for attorneys, and and wonder, “Is this going to cost us money in Place? some larger firms bring resilience coaches or but give us no benefit?” Legal employers may Fourth, take time to review policies and therapists in-house to have mental health be hesitant to spend time or money on well- programs your firm currently has in place experts at the ready. being programs without a better understand- that support well-being. Then discuss ways ing of how they promote financial success. If to level up their efficacy. It is important to Resources for Firms discussions reveal that there is no manage- review not only the written policies and pro- Sixth, when you are ready to move for- ment team “buy in” for well-being program- tocols, but also look at how they are imple- ward with in-house well-being programming, ming, it is advisable to bring in an outside mented. you may wish to hire an outside consultant to expert to educate firm management about For example, if your firm has paid vaca- help guide the process, facilitate discussions, the impact employee well-being has on the tion but staff aren’t using their vacation hours, and provide expertise. If you are looking for bottom line. it may be helpful to understand why not. Or, well-being ideas, the ABA Presidential Substance abuse and the bottom line: if your firm has a “wellness week” but only a Working Group to Advance Well-being in Bringing in an outside expert on mental handful of support staff and zero attorneys the Legal Profession published a substantial health and substance abuse disorders to talk attend the week’s offerings, discuss what is toolkit for legal employers loaded with prac- with firm management may bring to light inhibiting attorneys and support staff from tical suggestions (bit.ly/2LTItqX), along with numerous ways alcohol and drug impair- taking part. a companion “nutshell” version: ment impacts the firm’s financial picture. For bit.ly/2B3W1Me. ABA Immediate Past- example, working under the influence of What’s Working at Other Firms? President Bob Carlson says, “The toolkit drugs or alcohol increases the likelihood that Fifth, many law firms for which I consult offers practical guidance to help attorneys and an attorney makes an error that results in begin our discussions with this question: employers acknowledge problems, encourage ethical violations, malpractice claims, and “What’s everyone else doing?” Many firms help-seeking behaviors, and foster civility decreased client satisfaction—all of which are finding it’s a lot more efficient to follow throughout the profession.” impact firm image and the bottom line. the pack than blaze the trail in creating in- Well-being as a risk management issue: house well-being programs. Robynn Start Here It may also be helpful to consult with in- Moraites, director of the NC Lawyer If while reading this you feel over- house or outside risk management experts Assistance Program, also often hears this whelmed, pause and assess a reasonable next who can help frame well-being as a risk man- question from firm leaders. She reports, best step. Firm management may start by agement issue. In so doing, well-being may “Many firms are now asking what other having management-level discussions about transition from a “nice to have” into a “must firms are doing. For better or for worse, the topics recommended in this article. have” element of firm infrastructure. Perhaps because this is such a new horizon, not much Associates may bring this article to firm lead- funds earmarked for risk prevention educa- precedent has been set. Firms are learning ers to initiate a discussion of their interest in tion may be used for well-being educational along the way what works in their culture well-being. Support staff may share this arti- programming and mental health/substance and what doesn’t. In three to five years we cle and their concerns about well-being with abuse CLEs. will have really good feedback about what supervisors. While this may be a time for dis- Self-care and productivity: Bringing in works and what doesn’t based on the initia- cussion, assessment, education, and even an expert to shed light on the connection tives firms are starting to implement now.” some experimentation, it’s likely that the ben- between attorney well-being and professional It can be helpful to learn what other firms efits of moving slowly and intentionally will resilience may be eye opening and paradigm are doing and discern whether their approach advance your firm’s well-being programming shifting for firm leaders. Many attorneys may work at your firm. Robynn shares some quickly in the long run. n hold the belief that taking care of themselves of the initiatives firms are trying: “What I am decreases productivity and impedes success. seeing for the first time is law firms going Laura Mahr is a NC lawyer and the A number of us have built successful careers beyond an EAP or a wellness newsletter. I’m founder of Conscious Legal Minds LLC, pro- and businesses through self-sacrifice and seeing general counsel and managing partners viding mindfulness based well-being coaching, believe that this is the only way to succeed. taking seriously the idea of well-being for training, and consulting for attorneys and law Our legal community is just now beginning their lawyers—not only from a risk manage- offices nationwide. Her work is informed by 11 to embrace the idea that working from a ment standpoint, but also from a firm culture years of practice as a civil sexual assault attor- place of resilience grows success. I regularly standpoint.” She adds, “Firms are getting seri- ney, 25 years as a student and teacher of mind- educate firm leaders on the surprising neuro- ous about figuring out how to create mean- fulness and yoga, a love of neuroscience, and a science research showing that well-being ingful engagement around well-being by reg- passion for resilience. Find out more about practices that grow professional resilience— ularly offering in-house mental health CLEs, Laura’s work at consciouslegalminds.com. things like meaningful self-care, mindful- mindfulness programs, and other well-being If you would like to connect with other

THE NORTH CAROLINA STATE BAR JOURNAL 31 lawyers interested in learning about mindful- Conference/Detail/1636. ness and resilience in the practice of law, join “Mindfulness for Lawyers: Building Laura as she presents at these upcoming Resilience to Stress Using Mindfulness, events: Meditation, and Neuroscience” (online, on AILA Midwinter CLE Conference, January demand mental health CLE), consciouslegal- 24, 2020, Curacao, agora.aila.org/ minds.com/register.

Trust Accounting (cont.) Lawyer Assistance Program (cont.) account, also show the name of the client or other person to whom the funds belong. Rule of Prof’l Conduct 1.15, depression, alcoholism, addiction, or other comment [21] problems that may impair a lawyer’s ability to As you can see from the discussion above, practice. For more information, go to nclap.org Rule 1.15 does address the issue of ACH or call: Cathy Killian (Charlotte/areas west) at transactions in lawyer trust accounts, and 704-910-2310, or Nicole Ellington (Raleigh/ while it requires some safeguards, it does not down east) at 919-719-9267. prohibit these transactions provided they do not involve checks and can be conducted such that the records required by Rule 1.15-3 are generated and maintained. Now on to the other question. Sadly, yes, IMPORTANT Change for 2020 ACH fraud on lawyers’ trust accounts is a Membership Fees Invoicing thing. This year, I have received several The State Bar will no longer mail reports of fraudulent ACH transactions on paper invoices for the collection of lawyers’ trust accounts. In each case, the fraud membership fees and the annual IOLTA was discovered when the lawyer noticed on certification. Instead, members will the bank statement among the list of dis- receive a postcard reminder to pay and bursements from the trust account an ACH certify online, along with the usual transfer (often to a business entity like a credit email notifications. card company or utility) that he or she did What you can expect to receive from not authorize. Typically, the amounts the State Bar: involved in ACH fraud are significantly less • Email notifications than those lost due to wire fraud. For exam- • Postcard reminder ple, ACH fraudulent transactions have gener- What is required of you NOW: ally been for amounts in the hundreds and • Maintain a current email and mail- thousands of dollars. By contrast, the losses ing address associated with wire fraud have been in the • “Whitelist” or mark as not spam: tens and hundreds of thousands of dollars. As [email protected] is the case in wire fraud, protecting from loss- What is required of you once you es associated with ACH fraud also requires begin receiving the membership fees slowing down. However, what should be notifications: done while slowing down is different. In the • Pay and make your IOLTA certifi- case of ACH fraud, guarding against it cation online OR print your mem- requires slowing down and taking time to bership fees invoice from your online perform the required monthly bank state- account and submit a check along ment reviews so the fraud may be detected with the invoice and brought to the attention of the financial • Law firms wishing to make a single institution for correction. Instances of ACH payment should print out the invoic- fraud on the trust account must also be es for each attorney and mail them in reported to law enforcement and to trust along with a check account compliance counsel in accordance Questions? Call 919-828-4620. with Rule 1.15-2(p). n

32 WINTER 2019 PROPOSED OPINIONS

Council Adopts Opinions on Virtual Currency, Self- Laudatory Groups, and Incentivized Social Media Interaction

Council Actions with judges and a new inquiry concerning At its meeting on October 25, 2019, the whether the Rules of Professional Conduct State Bar Council adopted the ethics opin- permit a lawyer to advance a client’s por- ions summarized below: tion of settlement proceeds. Lastly, the Rules, Procedure, 2018 Formal Ethics Opinion 8 committee approved for publication a pro- Comments Advertising Inclusion in Self-Laudatory posed opinion on the use of attorney eyes List or Organization only disclosure restrictions, which appears All opinions of the Ethics Committee are Opinion rules that a lawyer may advertise below. predicated upon the North Carolina the lawyer’s inclusion in a list or membership Rules of Professional Conduct. Any in an organization that bestows a laudatory Proposed 2019 Formal Ethics interested person or group may submit a designation on the lawyer subject to certain Opinion 7 written comment – including comments conditions. Attorney Eyes Only Disclosure in support of or against the proposed 2019 Formal Ethics Opinion 5 Restriction opinion – or request to be heard concern- Receipt of Virtual Currency in Law October 24, 2019 ing a proposed opinion. The Ethics Practice Proposed opinion rules that a lawyer may Committee welcomes and encourages Opinion rules that a lawyer may receive agree to an “attorney eyes only” disclosure the submission of comments, and all virtual currency as a flat fee for legal services, restriction without client consent. comments are considered by the com- provided the fee is not clearly excessive and mittee at the next quarterly meeting. Any the terms of Rule 1.8(a) are satisfied. A lawyer Inquiry: comment or request should be directed may not, however, accept virtual currency as Lawyer represents Client in a wrongful to the Ethics Committee c/o Lanice entrusted funds to be billed against or to be discharge action and seeks production of Heidbrink at lheidbrink@ ncbar.gov no held for the benefit of the lawyer, the client, discovery related to other employees later than January 6, 2020. or any third party. (including employee personnel files). Due 2019 Formal Ethics Opinion 6 to the sensitivity of the information, oppos- Offering Incentive to Engage with Law ing counsel agrees to produce the requested Practice’s Social Networking Sites material only if Lawyer agrees to a Opinion rules that, depending on the “Stipulated Protective Order” containing an Public Information function of the social media platform, offer- “Attorney Eyes Only” provision, which pro- ing an incentive to engage with a law prac- vides that opposing counsel may designate The Ethics Committee’s meetings are tice’s social media account is misleading and certain sensitive or highly confidential public, and materials submitted for con- constitutes an improper exchange for a rec- information as “Attorney Eyes Only,” and sideration are generally NOT held in ommendation of that law practice’s services. discovery materials designated as “Attorney confidence. Persons submitting requests Eyes Only” may not be disclosed to Client. for advice are cautioned that inquiries Ethics Committee Actions Lawyer reasonably believes that the should not disclose client confidences or The Ethics Committee considered a requested material is necessary for Lawyer sensitive information that is not necessary total of six inquiries at its meeting on to effectively advise and represent Client. to the resolution of the ethical questions October 24, 2019, including the three Lawyer is concerned that refusal to accept presented. opinions listed above that were subsequent- the “Attorney Eyes Only” restriction will ly adopted by the State Bar Council. Of the cause opposing counsel to object to the dis- remaining three inquiries, two inquiries covery request and/or move for a protective request for the material. were returned to subcommittee for further order, resulting in delayed production, May Lawyer agree to the Stipulated study, including an inquiry addressing the entry of a protective order for the requested permissibility of certain communications material, or an order denying Lawyer’s CONTINUED ON PAGE 36

THE NORTH CAROLINA STATE BAR JOURNAL 33 RULE AMENDMENTS

Amendments Approved by the Supreme Court

At a conference on September 25, 2019, North Carolina State Bar the North Carolina Supreme Court approved 27 N.C.A.C. 1A, Section .1000, Model the following amendments to the rules of the Bylaws for Use by Judicial District Bars North Carolina State Bar: The amendments reflect the elimination Highlights of judicial district bar fee dispute programs. • Supreme Court approves rule Amendments to the Rules on Election, amendments eliminating the annual Succession, and Duties of Officers Amendments to the Rules on Discipline 6.0 cap on online CLE credit hours. 27 N.C.A.C. 1A, Section .0400, Election, and Disability of Attorneys • Proposed amendments to the Plan Succession, and Duties of Officers 27 N.C.A.C. 1B, Section .0100, for Certification of Paralegals will per- The amendments expressly authorize the Discipline and Disability of Attorneys; mit an applicant to qualify to sit for president to act in the name of the State Bar Section .0200, Rules Governing Judicial the certification exam based upon under emergent circumstances when it is not District Grievance Committees work experience as an alternative to practicable or reasonable to convene a meet- The amendments acknowledge the qualifying by education. ing of the council. Actions taken pursuant to Grievance Committee’s authority to operate this authority are subject to ratification at the the Attorney Client Assistance Program and next meeting of the council. the Fee Dispute Resolution Program. They also reflect the elimination of judicial district of a pending Client Security Fund (CSF) Amendment to the Rule on Standing bar fee dispute programs. claim or CSF claim that has been paid in full; Committees and Boards of the State Bar and provide that, ordinarily, a fee dispute will 27 N.C.A.C. 1A, Section .0700, Standing Amendments to the Rules Governing the be processed before a companion grievance. Committees and Boards of the State Bar Practical Training of Law Students The amendment eliminates the require- 27 N.C.A.C. 1C, Section .0200, Rules Amendments to the Rules and ment that the Grievance Committee establish Governing the Practical Training of Law Regulations Governing the Administration and implement a disaster response plan to Students of the Continuing Legal Education assist victims of disasters in obtaining legal The amendments facilitate compliance by Program representation and to prevent the improper North Carolina’s law schools with the ABA 27 N.C.A.C. 1D, Section .1500, Rules solicitation of victims by lawyers. accreditation standards for law schools by Governing the Administration of the supporting the development and expansion Continuing Legal Education Program; and Amendments to the Rules Governing the of supervised practical training of varying Section .1600, Regulations Governing the Organization of the kinds for law students including clinics, field Administration of the Continuing Legal placements, and pro bono activities. The Education Program amendments also ensure that the clinical legal Amendments in both sections of the rules Preorder education programs at the state’s law schools governing the administration of the CLE satisfy the requirements for legal practice by program eliminate the annual 6.0 cap on the 2020 law students in N.C. Gen. Stat. § 84-7.1. online CLE credit hours. In addition, an amendment to Rule .1518 eliminates the Lawyer’s Amendments to the Rules on Standing requirement that all attendees of the Committees and Boards of the State Bar Professionalism for New Admittees program 27 N.C.A.C. 1D, Section .0700, must complete a course evaluation to receive

Handbook Procedures for Fee Dispute Resolution CLE credit. The amendments to numerous rules in Order a hard copy Section .0700 accomplish the following: elim- Amendments to the Rules of Professional by submitting an order form (found on inate judicial district bar fee dispute programs; Conduct the State Bar’s website at eliminate language that would allow a third- 27 N.C.A.C. 2, Rule 1.5, Fees bit.ly/2qXcDTA) by March 27, 2020. party payor of legal fees or expenses to file a fee The amendments to Rule 1.5 expand the The digital version will still be available dispute petition; state that the fee dispute pro- information a lawyer must communicate to a for download and is free of charge. gram does not have jurisdiction over disputes client before the lawyer may initiate legal pro- regarding fees or expenses that are the subject ceedings to collect a disputed fee.

34 WINTER 2019

Amendments Pending Supreme Court Approval

At its meeting on October 25, 2019, the Committee practice requirement for specialty certification. North Carolina State Bar Council voted to The proposed amendment will allow adopt the following rule amendments for service of a notice to show cause via publica- Proposed Amendment to Immigration transmission to the North Carolina Supreme tion in the State Bar Journal when the State Law Specialty Standards Court for approval. (For the complete text of Bar is unable to serve a member using other 27 N.C.A.C. 1D, Section .2600, the proposed rule amendments, see the Fall authorized methods. Certification Standards for the Immigration 2019 edition of the Journal or visit the State Law Specialty Bar website: ncbar.gov.) Proposed Amendment to The Plan of The proposed amendment permits the Legal Specialization Board of Legal Specialization to offer the Proposed Amendment to the Rules 27 N.C.A.C. 1D, Section .1700, The immigration law specialty exam either annu- Governing the Administrative Committee Plan of Legal Specialization ally or every other year based upon the rec- 27 N.C.A.C. 1D, Section .0900, The proposed amendment clarifies the pro- ommendation of the Immigration Law

Procedures for the Administrative hibition on waiving the minimum years of Specialty Committee.

Proposed Amendments

At its meeting on October 25, 2019, the tice of immigration law, but not less than (DOL), U.S. Immigration and Natural- council voted to publish the following pro- 400 hours in any one year. Service as a law ization Service USCIS, Homeland Se- posed rule amendments for comment from professor concentrating in the teaching of curity Investigations, or the U.S. De- the members of the Bar: immigration law for two semesters may partment of State in employment-related be substituted for one year of experience immigration matters and filings or U.S. Proposed Amendments to the to meet the five-year requirement. Information Agency. Immigration Law Specialty Standards (2) An applicant shall show substantial (C) Naturalization and Citizenship. 27 N.C.A.C. 1D, Section .2600, involvement in immigration law for the Representation of clients before the U.S. Certification Standards for the Immigration required period by providing such infor- Immigration and Naturalization Service Law Specialty mation as may be required by the board and judicial courts USCIS in naturaliza- The proposed amendments update and regarding the applicant’s participation in tion and citizenship matters. clarify the requirements for substantial at least five of the seven categories of activ- (D) Administrative Hearings and Ap- involvement for certification as a specialist in ities listed below during the five years peals. Representation of clients before immigration law. immediately preceding the date of appli- immigration judges in deportation, ex- cation:. For the purposes of this section, clusion removal, bond redetermination, .2605 Standards for Certification as a “representation” means the entry as the and other administrative matters; and Specialist in Immigration Law attorney of record and having primary the representation of clients in appeals Each applicant for certification as a spe- responsibility for presenting the case taken before the Board of Immigration cialist in immigration law shall meet the before the appropriate adjudicatory Appeals and the Attorney General, the minimum standards set forth in Rule .1720 agency or tribunal. Administrative Appeals Unit Office, the of this subchapter. In addition, each appli- (A) Family Immigration. Representa- Board of Alien Labor Certification Ap- cant shall meet the following standards for tion of clients before the U.S. Immigra- peals and DOL, Regional commission- certification in immigration law: tion and Naturalization Service and the ers, Commissioner, Attorney General, . . . United States Citizenship and Immi- Department of State Board of Appellate (b) Substantial Involvement - An appli- gration Services (USCIS) or the State Review, and or the Office of Special cant shall affirm to the board that the appli- Department in the filing of petitions and Counsel for Immigration Related Unfair cant has experience through substantial family-based applications, including the Employment Practices (OCAHO). involvement in the practice of immigration Violence Against Women Act (VAWA). (E) Administrative Proceedings and law. (B) Employment-Related Immigration. Review in Judicial Courts Federal litiga- (1) An applicant shall affirm that during Representation of employers and/or tion. Representation of clients in judicial the five years immediately preceding the aliens before at least one of the following: matters such as applications for before application, the applicant devoted an aver- the N.C. Employment Security Com- Article III courts in habeas corpus peti- age of at least 700 hours a year to the prac- mission, the U.S. Department of Labor tions, mandamus or Administrative

THE NORTH CAROLINA STATE BAR JOURNAL 35 Procedures Act complaints and declara- (B) a certificate from a qualified tory judgments;, criminal prosecution paralegal studies program and an of violations of matters involving immi- associate’s or bachelor’s degree in any Proposed Opinions (cont.) gration law;, district court naturaliza- discipline from any institution of post- tion and denaturalization proceedings, secondary education that is accredited Protective Order containing the “Attorney or petitions for review or certiorari in by an accrediting body recognized by the Eyes Only” provision? judicial courts; and ancillary proceedings United States Department of Education in judicial courts. (an accredited US institution) or an Opinion: (F) Asylum and Refugee Status. equivalent degree from a foreign Yes. Rule 1.2(a)(3) allows a lawyer to Representation of clients in these mat- educational institution if the degree is “exercise his or her professional judgment ters before USCIS or immigration determined to be equivalent to a degree to waive or fail to assert a right or position judges in applications for asylum, from an accredited US institution by an of the client.” Accordingly, a lawyer may withholding of removal, protection organization that is a member of the agree to receive information under certain under the Convention Against National Association of Credential restrictions such as an “attorney eyes only” Torture, or adjustment of status for Evaluation Services (NACES) or the condition if the lawyer determines that refugees or asylees. Association of International Credentials doing so is in the client’s best interest and is (G) Employer Verification, Sanctions, Evaluators (AICE); or in accordance with applicable law. In eval- Document Fraud, Bond and Custody, (C) a juris doctorate degree from a law uating an “attorney eyes only” disclosure Rescission, Registry, and Fine Proceed- school accredited by the American Bar restriction, the lawyer should consider ings. Representation of clients in these Association; or whether such a restriction is appropriate in matters. Applications for Temporary or (D) a high school diploma or equivalent the client’s specific matter. If the lawyer Humanitarian Protection. Representa- plus five years of experience (comprising concludes that such a restriction is reason- tion of clients before USCIS, Immigra- 10,000 work hours) as a legal ably necessary to obtain relevant materials tion and Customs Enforcement (ICE), assistant/paralegal or paralegal educator to effectively represent his or her client, the immigration judges, or the Department and, within the 12 months prior to the lawyer can receive the information pur- of State in applications for Temporary application, completed one hour of CLE suant to the restrictive conditions, but the Protected Status, Deferred Action for on the topic of professional lawyer should consider negotiating for the Childhood Arrivals (DACA), responsibility. Demonstration of work least restrictive disclosure requirement. Nicaraguan Adjustment and Central experience may be established by sworn Nevertheless, the lawyer may rely on his or American Relief Act (NACARA), parole affidavit(s) from the lawyer(s) or other her professional judgment to receive the in place, humanitarian parole, deferred supervisory personnel who has information pursuant to an “attorney eyes action, orders of supervision, U and T knowledge of the applicant’s work as a only” or other limiting agreement. Rule visas, or other similar protections and legal assistant/paralegal during the 1.2(a)(3). benefits. entirety of the claimed work experience. A lawyer, however, should proceed with (2) National Certification. If an applicant caution when evaluating an “attorney eyes Proposed Amendments to The Plan for has obtained and thereafter maintains in only” agreement. The use of an “attorney Certification of Paralegals active status at all times prior to application eyes only” disclosure restriction may create 27 N.C.A.C. 1G, Section .0100, The (i) the designation Certified Legal Assistant a conflict of interest for the lawyer under Plan for Certification of Paralegals (CLA)/Certified Paralegal (CP) from the Rule 1.7(a)(2) in that the lawyer’s represen- The proposed amendments eliminate the National Association of Legal Assistants; tation of the client may be materially limit- educational prerequisite for paralegal certifi- (ii) the designation PACE-Registered ed by the lawyer’s responsibilities to oppos- cation for applicants who satisfy work experi- Paralegal (RP)/Certified Registered ing counsel via the disclosure restriction. ence requirements. To be certified, applicants Paralegal (CRP) from the National This is particularly true in a criminal case, who satisfy the work experience requirements Federation of Paralegal Associations; or (iii) where a lawyer’s duties under such an must pass the certification examination. another national paralegal credential agreement could conflict with the client’s approved by the board, the applicant is not statutory or constitutional rights to receive .0119 Standards for Certification of required to satisfy the educational or work certain information. In addition, the Paralegals experience standard in paragraph (a)(1). lawyer must promptly inform his or her (a) To qualify for certification as a (3) Examination. The applicant must client of the discovery agreement. See Rule paralegal, an applicant must pay any required achieve a satisfactory score on a written 1.4. If the lawyer and client cannot agree fee, and comply with the following standards: examination designed to test the about the means to be used to accomplish (1) Education or Work Experience. The applicant’s knowledge and ability. The the client's objectives, and the lawyer can- applicant must have earned one of the board shall assure that the contents and not reach a mutually acceptable resolution following requirements: grading of the examinations are designed with the client, the lawyer may need to (A) an associate’s, bachelor’s, or master’s to produce a uniform minimum level of withdraw from the representation. Rule degree from a qualified paralegal studies competence among the certified 1.2, cmt. [2]. n program; paralegals. n

36 WINTER 2019 BAR UPDATES

State Bar Swears In New Officers

Committee. the Authorized Practice Committee, Willoughby has Grievance Committee, and Legislative been extensively Committee, and as chair of the Ethics involved in the Committee. community. He has Christy and her family live on a small served on the Board farm in the Snow Camp community where of Governors of they raise beef cattle, honey bees, and fruit Summit House, trees. She is a member of Saxapahaw United Willoughby Christy Jordan Inc., as director of Methodist Church where she has been the Artspace, Inc., as a long-time church pianist. member of the Willoughby Installed as President Raleigh Rotary Club, on the Triangle Jordan Elected Vice-President Raleigh attorney C. Colon Willoughby YMCA Board of Directors, and on the Salisbury Attorney Darrin D. Jordan was Jr. was sworn in as president of the North Board of Directors for NCLEAF. He also is sworn in as vice-president of the North Carolina State Bar by Chief Justice Cheri an active member of White Memorial Carolina State Bar by Chief Justice Cheri Beasley at the State Bar’s Annual Dinner on Presbyterian Church, where he serves as an Beasley at the State Bar’s Annual Dinner on Thursday, October 24, 2019. Elder. Thursday, October 24, 2019. Willoughby earned an undergraduate Jordan earned his BA from Catawba degree in business administration from the Christy Sworn In as President-Elect College in political science and accounting University of North Carolina at Chapel Hill, Greensboro attorney Barbara R. Christy in 1987, and his JD from Campbell and an MBA from East Carolina University. was sworn in as president-elect of the North University School of Law in 1990. In 1979 he graduated from Campbell Carolina State Bar by Chief Justice Cheri A partner of Whitley Jordan & Inge, PA, University’s Norman Adrian Wiggins Beasley at the State Bar’s Annual Dinner on he has been a board certified specialist in School of Law. Thursday, October 24, 2019. criminal law since 2004. He maintains a Willoughby is a partner with the Raleigh Christy earned her BS magna cum laude state and federal criminal law practice in firm McGuireWoods, where he focuses his from Appalachian State University, and her Salisbury and he is admitted to the federal practice on government, regulation, and JD from the University of North Carolina district courts in both the middle and west- criminal investigations. Prior to joining School of Law. ern districts. McGuireWoods, he worked as a mortgage A member of Schell Bray, her practice Jordan was a member of the North banker, as a member of the faculty at Peace focuses on commercial real estate transac- Carolina State Bar Council representing College, as a private practitioner, and served tions. Judicial District 19C from 2010– 2018, as the elected district attorney in Wake Christy’s professional activities include during which time he served as chair of the County for 27 years. volunteering with Legal Aid of North Ethics and Communications Committees as His other professional activities have Carolina’s Lawyer on the Line initiative. She well as the Lawyers Assistance Program included serving as president of the Wake is also a North Carolina State Bar board cer- Board. County Academy of Trial Lawyers, director tified specialist in real property law—busi- Jordan currently serves as a commission- of the Wake County Bar Association, presi- ness, commercial, and industrial transac- er on the NC Indigent Defense Services dent of North Carolina Conference of tions, a fellow with the American College of Commission, a position he has held since District Attorneys, and a member of the Real Estate Lawyers, and a member of the 2014 and was recently named chair of that Board of Directors of the National District Piedmont Triad Commercial Real Estate commission. In 2012, he was presented Attorney’s Association. He is also a fellow in Women. Additionally, Christy is involved with the Professor John Rubin Award for the American College of Trial Lawyers. with her community, serving on the Board Extraordinary Contributions to Defense Willoughby served as a State Bar coun- of Directors for Southern Alamance Family Training Programs, which is awarded each cilor for the 10th Judicial District from Empowerment, Inc., and is a past member year by the Indigent Defense Services 1998-2006, and was elected again in 2014. of the UNC Law Foundation, Inc. Board of Commission in honor of its namesake at During his time as a councilor he served as Directors. the UNC School of Government. He has chair of the Authorized Practice Committee, As a Bar councilor for the 18th Judicial and as vice-chair of the Grievance District, Christy has served as vice-chair of CONTINUED ON PAGE 49

THE NORTH CAROLINA STATE BAR JOURNAL 37 BAR UPDATES

Fifty-Year Lawyers Honored

Members of the North Carolina State Bar who are celebrating the 50th anniversary of their admission to practice were honored during the State Bar’s Annual Meeting at the 50-Year Lawyers Luncheon. One of the honorees, Howard Satisky, addressed the attendees, and each honoree was presented a certificate by the president of the State Bar, Gray Wilson, in recognition of his or her service. After the ceremonies were con- cluded, the honorees in attendance sat for the photographs below and on the following page. n

First row (left to right): Zeb E. Barnhardt Jr., Joseph R. Beatty, Thomas C. Duncan, William M. Claytor, Lawrence W. Hewitt, Ronald J. Bowers, Robert F. Fleming, William F. Hamel, William E. Anderson, Leon M. Killan III Second row (left to right): Frederick Thorns Craven Jr., Albert A. Corbett Jr., David F. Meschan, Charles Darsie, Charles L. Becton, Ellis Jackson Harrington Jr., Robert C. Hunter, Richard H. Hicks Jr., Mickey A. Herrin, Richard B. Howington, John E. Lansche Sr., Gerald W. Hayes Jr. Third row (left to right): David V. Liner, David M. Lawrence, Stephen T. Daniel Jr., K. Edward Greene, Charles W. Kafer, Robert P. Hanner II

State Bar Outlook (cont.) criminals who kidnapped our network; and our servers and databases could not have the State Bar is up and operational. been reconstructed from backups. My blood to almost complete functionality within nine The silver-ish lining to the cloud is the has been stirred enough for the present. I business days. cloud: our data storage and computing are think I will make little plans for next year.3 n We are not whole yet. Unfortunately, now fully “in the cloud” where it is clearly safer because some of our backups were corrupt- to be because of the multiple layers of security Alice Neece Mine is the executive director of ed, some data was lost and must be re- a cloud storage facility provides to its tenants. the North Carolina State Bar. entered. Some departments are experiencing We cannot rest here, however. We have plenty “latency” (it takes a long time for the com- of work to do figuring out the most secure, Endnotes puter to respond to commands) because our economical, and efficient way to fulfill the 1. “You cannot plan the future. Only presumptuous fools data and commands must travel across fiber State Bar’s technology needs going forward. plan. The wise man steers.” Terry Practchett, Making back and forth from the State Bar building to So, the end of the story is that the 2020 Money. the cloud computing hosting site. But the plan for our network was jump started in 2. The demand was two bitcoin per server, or roughly good news is that no data was stolen (“exfil- 2019 by the cyberattack. But I don’t get a $17,200 per server. trated” in geek speak) from our computers; CHECK for this goal this year: “this is not 3. “Make no little plans; they have no magic to stir men’s blood…” Daniel Hudson Burnham, 1910. we did not pay a penny of ransom2 to the good” might have been really, really bad if

38 WINTER 2019 First row (left to right): Samuel T. Wyrick III, Thomas C. Worth Jr., W. McNair Tornow, James F, Morgan, Burley B. Mitchell Jr., Robert F. Page, Daniel T. Perry III, David M. Moore II Second row (left to right): William L. Sauls, James Peeler Smith, Robert K. Smith, Harry B. Crow Jr., James R. Prevatte Jr., A. Thomas Small, Carl L. Tilghman, Russell G. Walker Jr. Third row (left to right): Phillip C. Shaw, Jerry J. Rutledge, Charles P. Wilkins, Gary E. Trawick, Sarah Parker, Neill G. McBryde, David F. Meschan, Edwin J. Walker Jr., Howard P. Satisky

State Bar Hosts Opioid Summit

The North Carolina State Bar Opioid clients who are opi- Summit/CLE was held on October 4, 2019, oid users. at the State Bar building in downtown The afternoon Raleigh. At this day-long CLE, attendees included a heart- heard from individuals in recovery, impact- breaking account ed family members, leading experts, and from Charlotte practicing lawyers about the opioid epidem- Senior Deputy City ic in North Carolina and how it impacts the Attorney Hope legal profession. Chief Justice Cheri L. Root, who spoke Beasley and State Bar President Gray Wilson candidly about her gave introductory remarks, followed by a son’s struggle with keynote address from North Carolina opioid use. Attorney General Josh Stein. The day conclud- The morning agenda included presenta- ed with a panel of North Carolina Attorney General Josh Stein addresses attendees at the tions on the state’s response to the epidemic practicing lawyers North Carolina State Bar Opioid Summit. (Anna Stein, NCDHHS), the science of discussing represen- opioid use (Dr. Blake Fagan), a view from tation of clients who the bench (Judge J.H. Corpening), and the suffer from opioid use disorder, which was bit.ly/2PKHhKk (a link to the video is also prosecutor’s perspective (District Attorney deftly moderated by Smithfield Lawyer available on the State Bar website). Note: Ben David). Marci Armstrong and State Bar Ethics Lawyers must watch the video in an During lunch, attendees were inspired Counsel Brian Oten. approved video replay setting to receive by a panel of individuals, most in long- Thanks to support from the NC CLE credit. term recovery from opioid misuse, who Administrative Office of the Courts, the As one attendee noted, the Opioid serve their communities in many ways, Opioid Summit was livestreamed to nearly Summit CLE was “not just a home run, it including efforts at harm reduction. The 20 local district bars across North Carolina, was a grand slam.” The information from panelists gave frank answers about their from Cherokee to Columbus Counties. the program will help lawyers be better dealings with the justice system and how The event was recorded and is now avail- lawyers, and the emotional impact of the lawyers can improve relationships with able on the State Bar’s YouTube page at program will also be felt for years to come. n

THE NORTH CAROLINA STATE BAR JOURNAL 39 Resolution of Appreciation for G. Gray Wilson

WHEREAS, G. Gray Wilson was elected by his fellow lawyers from Judicial District 21 in 2007 to serve as their representative in this body. Thereafter, he was elected for three successive three-year terms as councilor; and

WHEREAS, in October 2016, Mr. Wilson was elected vice-president and in October 2017, he was elected president-elect; and, on October 25, 2018, he was sworn in as president of the North Carolina State Bar; and

WHEREAS, during his service to the North Carolina State Bar, Mr. Wilson has served on the following committees: Appointments Advisory Committee, including as vice-chair and chair; Authorized Practice Committee; Attorney Client Assistance Committee; Distinguished Service Committee; Ethics Committee; Executive Committee, including as vice-chair and chair; Facilities Committee; Finance and Audit Committee, including as vice-chair and chair; Grievance Committee, including as vice- chair; Issues Committee, including as vice-chair and chair; Legislative Committee; Program Evaluation Committee; Program Evaluation LAP/Grievance Subcommittee; and Publications Committee, including as chair; and

WHEREAS, for six years, Mr. Wilson served with distinction as a member of the Board of Paralegal Certification, earning the respect and admiration of certified paralegals across the state; and, in his role as chair of the board for three years, he was known for welcoming input from all quarters “for the good of the order;” and

WHEREAS, Mr. Wilson organized, promoted, and led the Living Law, a continuing legal education program hosted at State Bar headquarters that used the Socratic method to encourage lawyers to explore moral, philosophical, and professional ideals through literature, music, and film; and

WHEREAS, during his year as president, Mr. Wilson initiated special projects to enhance the protection of the public by strengthening the State Bar’s regulatory program and facilitating the efficient provision of legal services, including committees to study Proactive Management Based Regulation, courthouse access, and official identification for deponents, as well as a liaison committee to facilitate communication and coordination of effort between the North Carolina State Bar and the North Carolina Bar Association; and

WHEREAS, President Wilson conceived and led the Opioid Summit held at State Bar headquarters and live streamed across the State, facilitating discussion of the crucial role lawyers and the legal system must play in helping to resolve the opioid crisis; and

WHEREAS, during the transition following the retirement of long-serving Executive Director Tom Lunsford, President Wilson provided steady leadership and unfailing support and encouragement to Mr. Lunsford’s successor; and this wise and patient leadership was particularly important to the State Bar staff in the aftermath of and recovery from a malicious ransomware attack; and

WHEREAS, Mr. Wilson’s friends and colleagues are often puzzled but are always delighted to be addressed by him in Italian, German, Russian, Polish, French, Latin, or the Southern vernacular; and

WHEREAS, Mr. Wilson successfully thwarted any lugubrious attitudes by championing innovative ideas that were “bold and wet;” and

WHEREAS, throughout a lifetime of distinguished service, Mr. Wilson has by example inspired his peers, friends, and colleagues to strive for greater wisdom, erudition, and professionalism.

NOW, THEREFORE, BE IT RESOLVED that the council of the North Carolina State Bar does hereby, and with deep appreciation, express to G. Gray Wilson its debt for his personal service to the State Bar, to the people of North Carolina, and to the legal profession, and for his dedication to the principles of leadership, generosity, integrity, and scholarship.

BE IT FURTHER RESOLVED that a copy of this resolution be made a part of the minutes of the Annual Meeting of the North Carolina State Bar and that a copy be delivered to G. Gray Wilson.

40 WINTER 2019 BAR UPDATES

Client Security Fund Reimburses Victims

At its October 24, 2019, meeting, the determined that Cabe was retained to file insurance premium. Lafferty failed to pay North Carolina State Bar Client Security several small claims actions for a chiropractor the title insurance premium. Due to misap- Fund Board of Trustees approved payments against a family of clients he had treated. propriation, Lafferty’s trust account balance of $155,878.73 to 18 applicants who suf- Cabe failed to file any claims or provide any is insufficient to pay all of his clients’ obliga- fered financial losses due to the misconduct meaningful legal services for the fee paid. tions. Lafferty was disbarred on April 5, of North Carolina lawyers. Cabe was disbarred on November 25, 2018. 2019. The payments authorized were: The board previously reimbursed five other 11. An award of $22,886.23 to an appli- 1. An award of $4,000 to a former client Cabe clients a total of $43,316.48. cant who suffered a loss because of John O. of Dee W. Bray of Fayetteville. The board 7. An award of $1,500 to a former client Lafferty Jr. The board determined that determined that Bray was retained to handle of Michael S. Eldredge, formerly of Lafferty was wired funds from a real estate a client’s criminal matter. Bray entered an Lexington. The board determined that closing in his capacity as a fiduciary for the appearance with the court, but failed to pro- Eldredge was retained to represent a client on beneficiaries of the trust that sold the proper- vide any meaningful legal services for the fee a DWI charge. Eldredge failed to provide ty. Lafferty disbursed shares of the funds to paid prior to being placed on disability inac- any meaningful legal services to the client for three of the four beneficiaries then disbursed tive status by the court on February 2, 2017. the fee paid. Eldredge was disbarred on the fourth portion to himself. The board previously reimbursed 24 other August 17, 2017. The board previously reim- 12. An award of $198.75 to a former Bray clients a total of $176,650. bursed six other Eldredge clients a total of client of John O. Lafferty Jr. The board 2. An award of $3,500 to a former client $75,237.92. determined that Lafferty was retained to of Dee W. Bray. The board determined that 8. An award of $273 to a former client of close a couple’s revocable trust’s purchase of Bray was retained to handle a client’s DWI David Gurganus of Williamston. The board real property. From the closing proceeds, and disorderly conduct charges. Bray failed determined that Gurganus was retained to Lafferty retained funds to pay a title insur- to provide any meaningful legal services for handle a client’s speeding ticket, and was ance premium, but failed to pay the premi- the fee paid by the client prior to being paid for the representation, the court costs, um. Due to misappropriation, Lafferty’s trust placed on disability inactive status. and the fines. Gurganus got the matter account balance is insufficient to pay all of 3. An award of $9,000 to a former client reduced to a city code violation, but failed to his client obligations. of Dee W. Bray. The board determined that pay the court costs and fines. Gurganus was 13. An award of $363 to a former client Bray was retained to represent a client on suspended until further order of the court of John O. Lafferty Jr. The board determined serious criminal charges. The client paid on August 30, 2018. The board previously that Lafferty was retained to handle a client’s $9,000 of Bray’s quoted $15,000 fee. Bray reimbursed one other Gurganus client a speeding ticket in December 2018. Lafferty failed to provide any meaningful legal servic- total of $4,650. failed to provide the client with any mean- es for the fee paid prior to being placed on 9. An award of $925 to a former client of ingful legal services for the fee paid prior to disability inactive status. Steven Troy Harris of Durham. The board surrendering his license in April 2019. 4. An award of $4,000 to a former client determined that Harris was retained to draft 14. An award of $100,000 to a former of Sarah Brinson of Clinton. The board and send a letter to a client’s ex-wife seeking client of John O. Lafferty Jr. The board determined that Brinson was retained to changes to their custody agreement. determined that a client retained Lafferty to prepare a U-Certification and a U-Visa for a Although he attempted to provide the servic- close his purchase of his sisters’ interest in client. Brinson failed to provide any mean- es, Harris knew or should have known that inherited property. The client paid Lafferty ingful legal services to the client for the fee his license was administratively suspended the amount necessary to purchase his sisters’ paid. Brinson was disbarred on August 7, prior to accepting the fee for this matter. interest plus his third of the shared costs for 2019. Harris was administratively suspended on the legal work. Lafferty received and accept- 5. An award of $3,030 to a former client November 12, 2015. The board previously ed the funds days after the effective date of of Sarah Brinson. The board determined that reimbursed four other Harris clients a total his disbarment and deposited those funds Brinson was retained to handle the appli- of $34,000. directly into his operating account. Lafferty cant’s husband’s immigration matter. 10. An award of $307.75 to a former did prepare and file two easements, but Brinson failed to provide any meaningful client of John O. Lafferty Jr. of Lincoln. The failed to use the remaining $112,361.30 to legal services to the client for the fee paid. board determined that Lafferty closed a real provide any of the other services or pay the 6. An award of $1,275 to a former client estate purchase for a client and retained of Paige C. Cabe of Sanford. The board funds from the closing proceeds to pay a title CONTINUED ON PAGE 49

THE NORTH CAROLINA STATE BAR JOURNAL 41 BAR UPDATES

Law School Briefs

of evidence in criminal cases; the role of risk in 30 years on February 7-8, 2020, the Festival Campbell University School of Law criminal outcomes; and addressing a person’s of Legal Learning is the premier conference Campbell Law School ranked fifth in the treatment needs as an alternative to arrest and for you to satisfy your annual CLE require- nation in Fordham University School of Law’s incarceration. It will also examine the needs of ments in a day and a half. Visit Trial Competition Performance Ranking formerly incarcerated persons who are re- law.unc.edu/cle. (TCPR) for the 2018-19 academic year. entering society. A central goal of the center is Carolina Law receives $374,000 grant Campbell Law is the only North Carolina law to convey the results of research to stakehold- from Lumina Foundation—The grant will school to make the list’s Top 25. Campbell ers in the criminal justice system. fund the study of the relationship between Law is tied for fifth with the University of The center is led by Brandon Garrett, the debt, achievement, and equity in higher Arkon School of Law with 12 points. Since L. Neil Williams Jr. professor of law and a education, with a specific focus on Latino/a Fall 2016, Campbell Law ranks sixth among leading scholar of criminal procedure, scientif- students. the top advocacy programs—tied with Baylor, ic evidence, and wrongful convictions. Alumni establish scholarship for first-gen- Cumberland, and Loyola Chicago Law The center is supported by a $4.7 million eration law students—Charles and Sue Schools with 25 points each. The TCPR is an grant from the Charles Koch Foundation, Plambeck have bequeathed and pledged $1 objective snapshot of achievement in inter- which supports research and educational pro- million to support the UNC School of Law, scholastic law school trial competitions, grams in areas such as criminal justice and UNC College of Arts & Sciences, the Center according to Fordham’s Brendan Moore Trial policing reform, free expression, foreign poli- for the Study of the American South, the Advocacy Center. Professor Joe Lester and cy, economic opportunity, and innovation. American Indian Center, and the Wilson Faulkner Law School compiled all the compe- Additional support for Garrett’s research has Library Special Collections. Their largely tition results at trialteamcentral.org. been provided by Arnold Ventures and the unrestricted gift enables university leaders to Campbell Law School students launched Center for Statistics and Applications in direct dollars where they’re needed most, with the inaugural Campbell Law Reporter (CLR) Forensic Evidence. special funds set aside for a scholarship at the Podcast on Wednesday, October 16, 2019. With additional philanthropic support, law school. CLR is a legal podcast that strives to expand Duke hopes to expand the focus of the center’s Prosecutors and Politics Project studies the university’s mission to lead with purpose educational mission to supporting students DA’s roles in shaping state criminal justice by reporting with purpose. “We hope to who are entering criminal justice careers policy—A $55,000 gift from the Charles breathe new life into the dusty reporters on through scholarship aid, internship funding, a Koch Foundation will support the study and the shelves by reporting the content through criminal-justice focused curriculum, and allow for ten students to assist Professor captivating discussion,” says Hunter Koehl opportunities for interdisciplinary engage- Carissa Hessick. ‘20, editor-in-chief of the podcast. Episodes ment with graduate and undergraduate stu- White House nominates Professor Richard will be released every other Wednesday dents. The law school also hopes to launch a Myers ’98 to be a judge of the United States throughout each semester. This semester the criminal justice clinic to provide training in District Court for the Eastern District of podcast features interviews with NC Court of how to litigate a criminal case at the pre-trial North Carolina—Myers, who joined the Appeals Judge Allegra Collins ‘07, Professor and trial stage. UNC Law faculty in 2004, was nominated Zac Bolitho, Admissions Director Morgan by President Trump to fill the longest-stand- Cutright, Professor Elizabeth Berenguer, and University of North Carolina School ing vacancy in the federal courts. Professor Robert Montgomery. of Law UNC ranks No. 1 with 93% July NC bar Wake Forest School of Law Duke Law School exam passage rate—For the third time in a Wake Forest Law to host an executive edu- New Duke Law center delves into science row, Carolina Law held the top spot for over- cation program on blockchain and fintech— of criminal justice—A new center based at all bar passage rate among North Carolina “Blockchain, Crypto, & Fintech Law: Duke Law School is applying legal and scien- law schools. Ninety-three percent of the 126 Decoded and In Practice” will bring together tific research to reforming the criminal justice Carolina Law graduates who took the bar nationally recognized experts for a daylong system. The Duke Center for Science and exam in July passed. First time test takers also executive education program that includes Justice brings together faculty and students in performed well with a 94% passage rate for courses on blockchain, cryptocurrency, and law, medicine, public policy, and arts and sci- the 124 Carolina Law graduates who took the fintech. Designed and led by Wake Forest Law ences to pursue research, policy and law North Carolina bar exam. Professor Raina Haque, this event will focus reform, and education in three areas: accuracy Earn CLE credit at festival—Celebrating on training and applying core concepts to

42 WINTER 2019 multiple businesses that span industries. instance where the body camera footage can police accountability, body cameras, and hate The program will be held on Friday, be quite helpful,” she said, noting that the crimes. She is the director of the Wake Forest February 7, 2020, at Wake Forest University police officer did not identify himself as law Law Criminal Justice Program and is an asso- Charlotte Center in Charlotte, NC. Attendees enforcement. ciate provost for academic initiative at Wake will receive a certificate of completion. Seven Professor Chavis is a renowned expert on Forest University. n NC and SC CLE credits are pending. Go to wfu.law/blockchain to learn more and register. WFU ranked no. 1 in NC for trial com- petition performance since 2016—Wake Forest School of Law is ranked first in NC In Memoriam Robert Gilliam Kittrell Jr. Henderson, NC and among the top three schools nationally for Trial Competition Performance since Joseph Edward Anthony Harold Powers Laing 2016, according to the latest Fordham Law Durham, NC Wrightsville Beach, NC Ranking. Harold Walton Berry Jr. I. Beverly Lake Jr. Since 2017, Wake Forest School of Law Raleigh, NC Wake Forest, NC has brought home four national champi- onships in just two years with the National Christopher Powell Brewer James Edward Landers Jr. Trial Team most recently winning the 2018 Raleigh, NC Winston-Salem, NC National Board of Trial Advocacy (NBTA) Patricia G. Bruce Charles Stuart Lanier Tournament of Champions. The win makes Mooresville, NC Jacksonville, NC Wake Forest the only law school to win the AAJ Student Trial Advocacy Competition, the Eugene Joseph Cella Ted Brooks Lockerman National Moot Court Competition, the Morrisville, NC Clinton, NC American College of Trial Lawyers National Richard C. Craven Henry Clyde Lomax Trial Competition, and the Tournament of Aberdeen, NC Charlotte, NC Champions in consecutive years. WFU Law receives several accolades from James Lee Davis Janet Marie Lyles PreLaw Magazine—Wake Forest School of New Bern, NC Morehead City, NC Law was recognized as a 2019 Best Value Law Thomas Sims Erwin John Benjamin Morrow School as well as the number seven Best Value Raleigh, NC Gastonia, NC Law School among private US law schools, according to the National Jurist’s PreLaw Harry McCarley Giles Jr. Michael R. Philips Magazine. The publication also named Wake Greensboro, NC Westerville, OH Forest as a top school for business law, making Kay R. Hagan Steven Edward Philo it the fourth year in a row that the school has Greensboro, NC Franklin, NC been distinguished as a leader in business law by the magazine. Stephany C. Hand James Bethel Richmond Wake Forest was also named among the Durham, NC Durham, NC nation’s top for human rights law and family David Vernon Hartley Vernon Haskins Rochelle law by PreLaw Magazine, with the publication Cary, NC Morehead City, NC also naming Wake Forest a high performer for Rodney Gene Hasty Julius A. Rousseau Jr. big law firm placement. Asheville, NC Winston-Salem, NC Professor Kami Chavis adds to national discussion on police accountability—Professor Lanny Lee Hiday Henry MacMillan (Mac) Tyson II Kami Chavis contributed to national discus- Chapel Hill, NC Shallotte, NC sions on the two fatal shootings of unarmed Jonathan Lee Hipps James Quimby Wallace III black community members in Dallas and Charlotte, NC Morehead City, NC Fort-Worth, Texas, by white police officers. In response to the verdict of Dallas ex-cop Harold Thomas Jarrell Jr. Thomas Wilson Warlick Amber Guyger, Chavis told USA Today that Greensboro, NC Newton, NC “The confluence of racial stereotypes, racial Dale Patton Johnson Cynthia Leigh Wittmer profiling, and police use of aggressive tactics is Clinton, NC Raleigh, NC a challenge in confronting police brutality.” She also spoke with NPR Morning Robert Watkins King Jr. William Michael Workman Edition’s Steve Inskeep to discuss policing Charlotte, NC Charlotte, NC and procedure following the fatal police shooting of Atatiana Jefferson. “This is an

THE NORTH CAROLINA STATE BAR JOURNAL 43 BAR UPDATES

Annual Reports of State Bar Boards

Board of Continuing Legal Education that attendees of the Professionalism for New tion. Of the 2019 applicants, 76 met the sub- Submitted by George L. Jenkins Jr., Chair Attorney’s program complete a course evalu- stantial involvement, CLE, and peer review Lawyers continue to meet and exceed ation to receive CLE credit. The court also standards for certification and were approved their mandatory continuing legal education approved numerous non-substantive amend- to sit for the specialty exams that are being requirements. By mid-March 2019, 25,853 ments that improve clarity of the rules. administered in the State Bar building and at annual report forms had been filed either The board strives to ensure that the con- the Mecklenburg County Bar in Charlotte electronically or by hard copy for the 2018 tinuing legal education requirements mean- this month. compliance year. I am pleased to report that ingfully advance the competency of North To assist lawyers interested in becoming 99% of the active members of the North Carolina lawyers. We welcome any recom- certified specialists but who are not yet quali- Carolina State Bar complied with the mendations or suggestions that councilors fied, in 2018 we successfully created and mandatory CLE requirements for 2018. may have in this regard. On behalf of the implemented a new process allowing lawyers The report forms show that North Carolina other members of the board, I thank you for to fill out a Declaration of Intent form. This lawyers took a total of 375,557 hours of the opportunity to contribute to the protec- form allows our staff to track, communicate CLE in 2018, or 14 CLE hours on average tion of the public by overseeing the mandato- with, and assist interested lawyers regarding per active member of the State Bar. This is ry continuing legal education program of the the lawyer’s eligibility under the applicable two hours above the mandated 12 CLE State Bar. certification standards. I am happy to report hours per year. that this new process has been both successful The CLE program operates on a sound Board of Legal Specialization and appreciated by members of the profes- financial footing and has done so almost from Submitted by Larry H. Rocamora, Chair sion, with over 225 individuals submitting its inception over 30 years ago. Funds raised North Carolina’s Legal Specialization pro- declarations to this point. from attendee and non-compliance fees not gram exists for two reasons: First, to assist in In May 2019, the Board of Legal only support the administration of the CLE the delivery of legal services to the public by Specialization held its annual luncheon to program, but also support three programs identifying lawyers who have demonstrated honor both long-time and newly certified that are fundamental to the administration of special knowledge, skill, and proficiency in a specialists at the Marriott Crabtree Valley in justice and the promotion of the professional specific field, so that the public can more Raleigh. At the lunch, the specialists who conduct of lawyers in North Carolina. The closely match its needs with available services; were certified in November 2018 were recog- program’s total 2018 contribution to the and second, to improve the competency of nized and presented with specialization lapel operation of the Lawyers Assistance Program the Bar. 27 N.C.A.C. 1D, .1701. I am proud pins. The board also recognized 47 specialists (LAP) was $211,076. As of September 30, to report that, under the guidance of the who were originally certified in 1989 and 2019, the board has also collected and distrib- Board of Legal Specialization, and with the 1994 and who have maintained their certifi- uted $300,768 to support the work of the tireless efforts of the specialty committees and cations for the past 30 and 25 years, respec- Equal Access to Justice Commission and staff, our program is stronger than ever and tively. Additionally, we had the honor of pre- $301,009 to support the work of the Chief continually achieving the very purpose for senting the board’s three Service and Justice’s Commission on Professionalism. In which the State Bar Council created the pro- Excellence Awards named in honor of past addition, the CLE program generated gram in 1985. On top of that, our program is chairs of the board. The Howard L. Gum $75,222 to cover the State Bar’s costs for entirely self-sufficient. Excellence in Committee Service Award was administering the CLE-generated funds for With the addition of 62 new specialists given to Tom Fulghum, an immigration law the LAP and the two commissions. last November, there are now over 1,100 cer- specialist from Durham, for his dedication, This fall the Supreme Court approved tified legal specialists in North Carolina. service, and leadership as chair of the amendments to the rules governing the CLE Notably, in 2018 we became the first state in Immigration Law Specialty Committee. The program to eliminate the six hour on demand the nation to administer an exam and certify James E. Cross Leadership Award was pre- cap on CLE courses. Education is the pri- specialists in privacy and information security sented to Matt Cordell, who is a privacy and mary purpose of CLE and lawyers should law, an ever-growing field and is increasingly information security law specialist in have more opportunities to satisfy their in demand amongst the public. The State Greensboro, for his widely recognized requirements with the removal of the cap. Bar’s specialization program certifies lawyers knowledge and dedication to the field. The The Supreme Court also approved an in 13 specialties. This spring we received 86 Sara H. Davis Excellence Award was present- amendment eliminating the requirement applications from lawyers seeking certifica- ed to Angela Doughty, a certified specialist in

44 WINTER 2019 trademark law from New Bern, for serving as Ackerman previously provided psychometric ually achieving the very purpose for which an exceptional role model for other lawyers analysis for the program’s exams for several the State Bar Council created the program in and exemplifying excellence in her daily law years, and Dr. Ackerman has resumed that 2004. Importantly, our program is entirely practice. role in providing valuable psychometric self-sufficient. In June 2019 the board held a reception in analysis for each of our specialty exams to Fourteen years after the first application Charlotte at the Mecklenburg County Bar ensure they remain valid and reliable. We also for paralegal certification was accepted by the Center. At the reception we recognized the continue to utilize ExamSoft and its recently board on July 1, 2005, there are today over newly certified specialists as well as those who released testing program, Examplify, for all of 3,900 North Carolina State Bar certified have maintained their certifications for the our testing needs. Examsoft is a secure, cloud- paralegals. This year, 101 paralegals sat for the past 25 years who could not attend the annu- based software that is used by many law April 2019 exam; of that number, 66 passed al luncheon in Raleigh. Additionally, we schools and on most bar exams. The pro- the exam. We recently administered our asked our Charlotte-area specialists to invite a gram’s significant capabilities help streamline October 2019 exam, for which 165 paralegals peer to the reception who they felt should all aspects of the testing process, from writing were eligible. We anticipate designating well pursue specialty certification. Throughout and storing exam questions to grading and over 100 new certified paralegals after the the reception, these lawyers took advantage of analyzing exams. results of the October exam are released in the opportunity to speak with our current Also in this year’s specialization news, the November. specialists and learn about the specialization State Bar Journal featured interviews with Also in 2019, the board will have consid- program, the application process, and the Christon Halkiotis, a state criminal law spe- ered over 3,600 recertification applications. beneficial impact specialization has had on cialist who was at the time with the Guilford To maintain certification, a certified parale- the public and their individual practices. County District Attorney’s Office (Ms. gal must complete six hours of continuing Feedback from the reception was overwhelm- Halkiotis has since moved into private prac- paralegal education (CPE) credits annually, ingly positive, and we hope to hold similar tice); Darrin Jordan, a state criminal law spe- including one hour of ethics. I am pleased to events in different parts of the state during the cialist from Salisbury; Linda Johnson, an report that certified paralegals have contin- coming years. estate planning and probate law specialist ued to improve their competency by taking I am also happy to report the Jeri L. from Fuquay Varina; and Deonte’ Thomas, a over 21,000 hours of CPE in the last 12 Whitfield Legal Specialty Certification state criminal law specialist with the Wake months. Scholarship Fund established to provide County Public Defenders Office. Regrettably, The board held its annual retreat in May scholarships for specialization application the chair of the board, Robert A. Mason, a at the State Bar building in Raleigh. Among fees for prosecutors, public defenders, and specialist in elder law from Asheboro, rotated the various agenda items were consideration non-profit public interest lawyers who wish off of the board this year. We are thankful for of work experience as a qualifying factor to to become certified specialists was very suc- the council’s addition of our new board mem- allow an applicant to sit for our certification cessful in 2019. The fund is administered ber, Matthew Ladenheim, a trademark spe- exam, and the initiation of new outreach by the North Carolina Legal Education cialist from Huntersville, as well as the coun- efforts to strengthen our paralegal communi- Assistance Foundation (NC LEAF). We cil’s appointment of Kim Coward, a residen- ty. As to the proposed amendment regarding received several donations during the spe- tial real property law specialist from Cashiers, exam qualifications, after discussion in May, cialists’ luncheon in April and several spe- as vice-chair of the board. the board considered and approved a pro- cialists made donations when paying their On behalf of the board, I want to express posed administrative rule amendment allow- annual specialization fees. The fund balance my sincere appreciation to the members of ing paralegals who achieve substantial work at the beginning of 2019 was $440, and we the council for your continuing support of experience as a paralegal to sit for the certifi- received an additional $1,612 for the schol- the Legal Specialization program. cation exam. Previously, and with the excep- arship fund thus far in 2019. All contribu- tion of paralegals who were certified at the tions are tax deductible and can be made Board of Paralegal Certification inception of this program, individuals could through NC LEAF. As a result of this schol- Submitted by Warren Hodges, Chair only sit for the paralegal certification exam if arship fund, I am pleased to report that four North Carolina’s Paralegal Certification they satisfied certain paralegal-related educa- public interest applicants received scholar- program exists for two reasons: First, to assist tional requirements. Our rules, however, did ships this year, thereby offering these in the delivery of legal services to the public not permit our state’s valuable and experi- lawyers the opportunity to not only attain by identifying individuals who are qualified enced paralegals who did not obtain particu- certified status, but also instill trust and by education and training and have demon- lar degrees to sit for the exam. This proposed confidence in the legal services received by strated knowledge, skill, and proficiency to rule amendment seeks to change that by the clients they serve. perform substantive legal work under the enabling those paralegals who have obtained Our exams continue to be a strong and direction and supervision of a licensed lawyer; at least five years of paralegal experience to sit objective measure of proficiency for the vari- and second, to improve the competency of for the certification exam. We believe this ous specialties, and we are ever-striving to those individuals. 27 N.C.A.C. 1G, .0101. I rule appropriately recognizes the value of improve both the content of the exams and am proud to report that, under the guidance real-life paralegal experience, while also the testing experience. In 2019 we re-initiated of the Board of Paralegal Certification, and upholding and respecting the value of a para- our working relationship with Dr. Terry with the tireless efforts of various volunteers legal education as it relates to our certifica- Ackerman with the University of Iowa. Dr. and staff, our program is thriving and contin- tion process and our overall mission to pro-

THE NORTH CAROLINA STATE BAR JOURNAL 45 tect the public. This rule is before the State released testing program, Examplify, for all of to now be at all six schools. Our pilot year Bar Council for consideration at the October our testing needs. Examsoft is a secure, went well. Volunteers interacted with 150 law 2019 meeting, and we hope the council joins cloud-based software that is used by many students. Students of every class (1L, 2L, 3L) us in supporting our experienced paralegals. law schools and on most bar exams. The pro- either made private appointments in advance As to the new outreach efforts, after dis- gram’s significant capabilities help streamline or dropped by our table to talk and ask ques- cussion by the board, our program decided all aspects of the testing process, from writing tions. The topics of greatest interest were 1) to initiate new efforts to reach out to and and storing exam questions to grading and questions about the character and fitness por- strengthen our paralegal community in analyzing exams. We are currently speaking tion of the bar application, and 2) general 2019. We kicked off this initiative by hosting with different paralegal schools around the anxiety and stress related to law school. We a certified paralegal lunch event in June at state in an attempt to offer our certification had several students schedule appointments the Mecklenburg County Bar Center in exam at their facility using ExamSoft. If we with our clinical staff, some without ever Charlotte. We had over 120 individuals succeed in this endeavor, we will be able to stopping by the table. UNC invited LAP to attend, with some traveling over two hours offer the certification exam in a number of be part of its student orientation last year and to attend the event, and we reached our max- convenient locations, thereby increasing this year. NC Central had LAP volunteers imum capacity for the event approximately paralegals’ access to our program and the present at a stand-alone, special event during one week after registration opened. During public’s access to certified paralegals. mental health week, which was widely the event, paralegals heard an update on the We welcomed State Bar Councilor attended. We hope these office hours and program from myself and from our program Matthew W. Smith of Eden and attorney related activity will become a fixture at each director, Brian Oten, and were encouraged Benita Powell of Fayetteville to the board in school going forward. to network with each other over lunch. 2019. Both Matthew and Benita have LAP staff continued providing in-house Following lunch, Brian Oten presented a impressively acclimated to their new roles, trainings for midsize and large law firms that CLE to the group on the State Bar, detailing offering fresh insight and contributing to our participated in either the risk management the role the State Bar plays in theirs and discussion and vision of the program in roundtable or the summit hosted by Lawyers attorneys’ lives, the various functions of the invaluable ways. We thank the State Bar Mutual Insurance. Large firms in NC are State Bar, and the resources available to both Council for its thoughtful consideration in beginning to evaluate their culture, their HR lawyers and paralegals through the State Bar. appointing the leadership of our program. policies (and whether those policies encour- The stated goal of this event was to assist in The Board of Paralegal Certification looks age lawyers to seek assistance when needed), improving the competency of our certified forward to continued success certifying qual- and to develop wellness initiatives and pro- paralegals through education and through ified paralegals to help with the delivery of grams. Many firms have asked LAP to pro- the creation of opportunities to interact with legal services to the citizens of North vide ideas and input. LAP has historically and build productive professional relation- Carolina. We welcome any recommendations worked one-on-one at the individual level ships amongst our certified paralegals. The or suggestions that councilors may have for and will continue to do so. Systemic and response—both in terms of registration and ways in which the board might improve the institutional change like real and effective in- to the content of the event—was over- paralegal certification program. On behalf of house wellness programs are new territory. I whelmingly positive. The success of this the other members of the board, thank you have attended brainstorming sessions at sever- event clearly demonstrated to our program for the opportunity to contribute to the pro- al firms. Each firm is starting from scratch the need for such events and confirmed the tection of the public by overseeing this given this is a growth edge (for all of us—the direction we intend to travel for our pro- important program of the North Carolina entire profession) with no best-practice road gram. We have a similar lunchtime event State Bar. maps yet established (here in NC or national- scheduled for certified paralegals in ly). As these initiatives take hold and we eval- November in Greenville, and we intend to Lawyer Assistance Program uate their efficacy, I hope that within a few host additional events over the next years Submitted by Robynn Moraties, Director years LAP will be able to share information throughout the state. Now in our 40th year, your NC Lawyer about those that appear to have the greatest Our exam continues to be a strong and Assistance Program (LAP) staff and volun- impact and value. objective measure of proficiency for parale- teers remain dedicated and extremely busy. LAP staff and volunteers gave 75 CLE gals, and we are ever-striving to improve The ABA’s Task Force Report on Lawyer presentations this year. Attendance at the both the content of the exam and the testing Well-Being created a groundswell of support Minority Outreach Conference remains experience. In 2019, we re-initiated our across the nation and the profession. As a strong and we hope to break our record high working relationship with Dr. Terry result, LAP is now working more closely of 600 registered for the 2020 event. Ackerman with the University of Iowa. Dr. with certain stakeholders like law schools Due to the State Bar ransomware attack, Ackerman previously provided psychometric and large national and multi-national law LAP’s data was corrupted and had to be analysis for our program’s exam during the firms. restored. As a result, at the time of this print- early years of our existence, and Dr. Last year at the time of this report, LAP ing, we do not have final numbers for the Ackerman has resumed that role in providing volunteers had just begun holding office number of new files opened and closed. LAP valuable psychometric analysis to ensure our hours at five of our six law schools. Based on will be issuing its annual report with those exam remains valid and reliable. We also the success of the first academic year, we have figures in time for the quarterly State Bar continue to utilize ExamSoft and its recently been invited back this academic year and plan council meeting in January. n

46 WINTER 2019

BOARD OF LAW EXAMINERS

February 2020 Bar Exam Applicants

The February 2020 bar examination will be held in Raleigh on February 25 and 26, 2020. Published below are the names of the applicants whose applications were received on or before October 30, 2019. Members are requested to examine it and notify the board in a signed letter of any information which might influence the board in considering the general fitness of any applicant for admission. Correspondence should be directed to Lee A. Vlahos, Executive Director, Board of Law Examiners, 5510 Six Forks Rd., Suite 300, Raleigh, NC 27609.

Brian Akers Orlando, FL Matthew Darr Sanford, NC Zachary Green Jacksonville, NC Khristen Boyette Greensboro, NC Theodore Fort Greensboro, NC LaShon Albert Durham, NC James Davis Raleigh, NC Alexix Greene Winston Salem, NC Marissa Branson Davidson, NC Kara Foster Morrisville, NC Dawnwin Allen Greensboro, NC Lindsey Davis Raleigh, NC Susan Gregory Charlotte, NC Joshua Brantley Raleigh, NC Kerese Foster Sarasota, FL Daniel Allison Cana, VA Nichad Davis Greensboro, NC Kirsten Grieser Hillsborough, NC Jolie Brown Charlotte, NC Savannah Fox Raleigh, NC William Apple Goldsboro, NC Hollie DeBaro Greensboro, NC Prerna Gupta Lakeview, NC Kelly Brown Greensboro, NC Nicholas Fracassi Woodside, NY Zeliha Arslan Goldsboro, NC Katherine Devine North Wilkesboro, NC Lejla Hadzic Washington, DC Miya Bryant Asheville, NC Joshua Franks Concord, NC Mili Banerji Rocky Mount, NC Lauren Deyo Raleigh, NC Sierra Hagg Charlotte, NC Hai Bui Greenville, SC Charles Fraser Granite Falls, NC Victor Bao Baytown, TX Greg Dixon Charlotte, NC Benjamin Hahn Palmetto Bayt, FL Nathan Bunch Elizabeth City, NC Kelly Frecker Greenville, NC Joshua Barfield Raleigh, NC Alexander Doernberg Miami, FL Shaun Haines Sharpsburg, NC Adam Burton Cary, NC Montre Freeman Weddington, NC Sontina Barnes VA Beach, VA Kate Easwaran Roanoke Rapids, NC Christian Hairston Raleigh, NC Alaina Byrd Matthews, NC Louis Fristensky Greensboro, NC Elizabeth Barnette Charlotte, NC Preston Edwards Wayneville, NC Donald Haley Monroe, NC LeRon Byrd Greensboro, NC Sarah Fuentes Charlotte, NC Nancy Baron Chapel Hill, NC Heidi Eggles Charlotte, NC Sara Hall Raleigh, NC Micah Byrd Fort Mill, SC Regina Fulton Raleigh, NC Julia Bartz Winston-Salem, NC Leonard Elder Raleigh, NC Li’Vahn Hamden Stem, NC Tyler Carpenter Cary, NC James Futrell Chapel Hill, NC Sana’a Bayyari Charlotte, NC Savannah Eliseo Durham, NC Donald Hamilton Cincinnati, OH Lasley Cash Colfax, NC Lydia Gabbard Morrisville, NC Joey Beasley Charlotte, NC Rebecca Elliott Chapel Hill, NC William Handy King, NC Jon Causey Greensboro, NC Natalie Galvez Charlotte, NC Katheryn Berlin Salisbury, NC Christina Ellison Gastonia, NC Edmond Haney Charleston, SC Mackenzie Ceraso Morrisville, NC Richard Gambs Haw River, NC Samera Beshir Charlotte, NC Cherif Elsheikh Charlotte, NC Cameron Hardesty Miami, FL Erik Chamberlin Long Beach, CA Lisa Garner Raleigh, NC Kimberley Beyer Charlotte, NC Matthew Esterline Greensboro, NC Thomas Harding Glenville, NC Annabelle Chambers Rocky Mount, NC Tukesia Garner Durham, NC Graham Billings Winter Park, FL Whitney Eudy Charlotte, NC Aaron Harris Charlotte, NC Yanique Chambers Mount Pleasant, NC Jacquelyn Gauntlett Durham, NC Brandye Birdsall Charlotte, NC Margaret Eury Greensboro, NC Kia Harvey Elizabeth City, NC Jingchi Chen Greensboro, NC Damon Gialenios Winston-Salem, NC Livia Birtalan Washington, DC Corrie Evans Fuquay-Varina, NC David Hasenauer Raleigh, NC Katherine Clark Leland, NC Kiarra Gilliam Raleigh, NC James Bobbitt Huntsville, AL Michael Fanous Charlotte, NC Suzanne Haynes Raleigh, NC Lisa Cline Monroe, NC Jonathan Gilmartin Greensboro, NC Jennifer Bobbitt Winston-Salem, NC Joshua Farkas Charlotte, NC Sabrina Heck Raleigh, NC Monica Cloud Davie, FL Joseph Giovinazzo Chapel Hill, NC William Bomar Silver Spring, MD Jonathan Fernandez Cornelius, NC Jessica Henry Greensboro, NC Brandon Cook Coral Gables, FL Richard Glenn Charlotte, NC Tyana Bond Greensboro, NC William Fields Greensboro, NC Thornton Henry Whitsett, NC Nadia Cooper North Charleston, SC Erica Glover Hendersonville, NC Danielle Boram Greensboro, NC Thomas Finch Sanford, NC Michelle Herd Raleigh, NC Kristen Covington VA Beach, VA Steven Goralski Charlotte, NC Katherine Bordwine Darlington, SC Patricia Fishback Fort Mill, SC Carrie Hill Morganton, NC DeLisa Daniels Sanford, NC Mary Grasta Hudson, OH Erin Bowman Greensboro, NC Charmaine Ford Vernon, CT Sydney Hobson Chattanooga, TN Bethany Dargatz Charlotte, NC William Gray Greenville, NC Maergrethe Box Fuquay Varina, NC Kelley Fore Kinston, NC Nicole Hoikka

THE NORTH CAROLINA STATE BAR JOURNAL 47 Los Angeles, CA Lori Kidd Washington, DC Roshni Patidar Weaverville, NC Larry Holder Carolina Beach, NC Jasmine Meikle Charlotte, NC Michelle Scott Raleigh, NC Nicolas Kirby Charlotte, NC Dwayne Pennant Winston-Salem, NC Sarah Holmes Hamden, CT Daniel Mendez Charlotte, NC Gregory Seaborne McLeansville, NC Rakia Kirby Arden, NC Daniel Perry Charleston, SC Haley Honeycutt Durham, NC Deborah Mergner Greensboro, NC Belinda See Bakersville, NC Samuel Knisley High Point, NC Robert Pharr Mooresville, NC Allison Hopkins Siler City, NC Morgan Miano Charleston, SC Edith Serrano Kernersville, NC Je’vonne Knox Greensboro, NC Jacob Pickett Wendell, NC Jenna Hornik Greensboro, NC Russell Michalec Greensboro, NC Autumn Shipman Chapel Hill, NC Daniel Knudsen Salisbury, NC Blanca Pilgrim Durham, NC Sadie Huggins Monroe, NC Nakisha Midder Raleigh, NC Casey Simmons Casar, NC Jennifer Labbe Durham, NC Chelsea Polly Charlotte, NC Lawrence Hundley Loxahatchee, FL David Miller Westerville, OH Heather Sirna Charlotte, NC Joshua Landreth Charlotte, NC Alexandra Porte Charlotte, NC Michelle Iqbal Greensboro, NC Catherine Mitchell Charleston, SC Bradley Smith Charlotte, NC Jessica Lazenby Durham, NC Jose Posada Marshville, NC Tucker Irvine Asheville, NC Ahmed Mohamed Charlotte, NC Gregory Smith Charlotte, NC Clifford Leagan Greensboro, NC Chelsea Preddy Cameron, NC Olivia Izze Mount Airy, NC Sonia Molina Mount Pleasant, NC Hannah Smith Huntersville, NC Sangeun Lee Charlotte, NC Ismaail Qaiyim Bostic, NC Antoine Jameson Garden Grove, CA Andrew Monthey Charlotte, NC Samantha Smith Franklin, NC Zachary Levins Charlotte, NC Allison Rackley Greensboro, NC Cameron Joe Charlotte, NC Casey Moore Durham, NC Taylor Smith Durham, NC Ira Lifland Havelock, NC Shane Raley Raleigh, NC Cameron Johannesen Greensboro, NC Ciara Moore Raleigh, NC Yvonne Smith Greensboro, NC Tyler Lindley Charlotte, NC Sonyr’ Randolph Liberty, NC Aysha Johnson Knightdale, NC Alice Moscicki Greensboro, NC Paola Soler Greensboro, NC Stephen Lindsay Charlotte, NC Kelli Rawlinson Long Beach, CA Douglas Johnson Chapel Hill, NC Sade Moten Mooresville, NC Robert Sosower Delray Beach, FL Joshua Lingerfelt Greensboro, NC Gary Redding Durham, NC Jerri Johnson Greensboro, NC Timberley Motsinger Halifax, VA Avery Staley Goldsboro, NC Paul Lipof High Point, NC Stacy Reid Monroe Mooresville, NC Robert Johnson Hayesville, NC Michael Munn Charlotte, NC Mary Stamato Charlotte, NC Alexa Litt Chapel Hill, NC Gloria Rice Clover, SC Casey Jones Charlotte, NC Gilbert Munoz-Cornejo Charlotte, NC Danny Stamey Wilson’s Mills, NC Jasmine Little Fuquay Varina, NC Cally Richter Pasadena, CA Chanelle Jones Winston-Salem, NC Jerry Murphy Charlotte, NC Robert Stewart Chesapeake, VA John Logan Tyler, TX Lisa Roach Durham, NC Dax Jones Rocky Mount, NC Kyle Murphy Charlotte, NC Mary Stillwell greensboro, NC Haley Lohr Charlotte, NC Michael Robinson Raleigh, NC George Jones Graham, NC Edward Nappi Winston-Salem, NC Joshua Stone Greenville, NC Guadalupe Lugo Sanford, NC Joya Rodgers Charlotte, NC Keren Jones Charlotte, NC Ivory Narcisse Charlotte, NC Bradlee Suggs Greensboro, NC Eliza Lynch Fayetteville, NC Teresita Rodriguez Darlington, SC Robonetta Jones Cary, NC Alexandria Neal Miami, FL Jeffrey Swing Durham, NC Michael Maddox Charlotte, NC Lindsey Rogers-Seitz High Point, NC Anthony Josephson Hendersonville, NC Angel Neal Colorado Springs, CO Georgios Tarasidis Cary, NC Kathryn Magoon McLeansville, NC Matthew Roller Greensboro, NC David Joyner Greensboro, NC Talicia Neal Lexington, NC Landy Tate Mount Olive, NC Donna Mansfield Raleigh, NC Sara Royster Arlington, TN Marianna Kacjuba Holly Springs, NC Jasmine Nethels Pinnacle, NC John Taylor Denver, NC Jasmin Martin Charlotte, NC John Ryan Ahoskie, NC Spencer Kahn Sanford, NC Devon Newton Mount Olive, NC Calleesha Teel Greensboro, NC Kelsey Martin Durham, NC Mariam Sabra Winston-Salem, NC Marko Karadzic Kernersville, NC Robert Northington Raleigh, NC Adam Thomason Atlanta, GA Joseph Martinez Greensboro, NC Tatiana Saporito Charlotte, NC Mackenzie Karnes Valdese, NC Mukeni Ntumba Holly Springs, NC Anastasia Tramontozzi Greensboro, NC Donovan May-Parker Charlotte, NC James Sattin Greensboro, NC Haviland Kebler Raleigh, NC Rolie Ohl Charlotte, NC Shannon Traynor Saint Petersburg, FL Kyle McConnell Greensboro, NC Stephanie Sautelle Chapel Hill, NC Cameron Keen Winston-Salem, NC David Ortiz Charlotte, NC Alexis Tremble Durham, NC Kia McCormick Raleigh, NC Elizabeth Savage Charlotte, NC Sean Keenan Raleigh, NC Myles Owens Raleigh, NC Ravyn Tyndall Kinston, NC Andre’ McCoy Greensboro, NC Christina Saxon Raleigh, NC Reed Kegel Charlotte, NC Gunsel Ozcan Greensboro, NC Elizabeth Usery Greensboro, NC Samantha McHone Charlotte, NC Jana Schaal Jacksonville, NC Stephanie Keller Mount Airy, NC Chester Palumbo High Point, NC Shawna Vasilko Greensboro, NC Laurie McNaught Briggs Valrico, FL Jeffrey Schlemmer Youngsville, NC Morgan Kendall Charlotte, NC Heather Pasek-Delaney Vero Beach, FL Erin Verdell Polkton, NC Cody McPherson Villa Hills, KY Abigail Schuette Charlotte, NC Jonathan Kidd Greensboro, NC Alexios Pathenos Charlotte, NC Beutrice Walker Rutherfordton, NC Morgan McPerson Wilmington, NC Melissa Schwartz Knightdale, NC

48 WINTER 2019 Tiffani Wardle Christopher Williams Greensboro, NC Wilmington, NC Caroline Waugh Jamika Williams Mooresville, NC Moorseville, NC Michael Way Justin Williams Durham, NC Rocky Mount, NC Holly Webster Kristin Williams Orange Park, FL Apex, NC Ashley Weeks Ronald Williams Greenville, SC Greensboro, NC Karen Wellington Daniel Wright Wilson, NC Wake Forest, NC Shelby Wellmon Karah Yager Thomasville, NC Greensboro, NC Norvell West Jessica Young Wilmington, NC Greensboro, NC Sherri White-Williamson Lauren Zickert Clinton, NC Greensboro, NC Adam Wilcox Tamara Zwick Nebo, NC Charlotte, NC Ashlee Wiley Durham, NC

Client Security Fund (cont.) board determined that Misocky was moving forward, and reminded the client retained to prepare a separation agreement that she owed $2,000 for further legal serv- clients’ sisters. for a client and his wife to sign. Misocky ices. The client paid the $2,000, but again 15. An award of $620 to former clients of failed to provide any meaningful legal serv- changed her mind about seeking custody John O. Lafferty Jr. The board determined ices for the fee paid. The board previously and asked Nelson for an accounting and a that a couple retained Lafferty to petition for reimbursed three other Misocky clients a refund of the remaining balance. Nelson the adoption of their adult foster child. total of $7,455. provided no accounting or refund and pro- Lafferty failed to provide any meaningful 18. An award of $2,000 to a former vided no meaningful legal services for the legal services for the fee paid. client of Suzanne Nelson of Raleigh. The $2,000 fee paid above the retainer. 16. An award of $500 to a former client board determined that a client sought legal After considering items 10 and 12 above, of Nikita V. Mackey of Charlotte. The advice from Nelson regarding guardianship and being advised by its counsel that John board determined that Mackey was retained or custody of her niece. The client paid an Lafferty’s trustee had discovered that many to file an answer to a civil complaint against initial nonrefundable retainer of $1,500 for clients who had paid Lafferty for title insur- the client’s company. Mackey neglected the which Nelson sent a partially drafted com- ance premiums would be filing claims as matter, failed to communicate with the plaint for the client to fill out and sent the Lafferty failed to complete final title opin- client, and never filed the answer to the client a letter and a link to information ions and never disbursed the premiums to complaint on behalf of the company. The about guardianship and custody. Shortly the title insurance company, the board board previously reimbursed one other thereafter, the client decided not to move authorized its counsel to reimburse those Mackey client a total of $500. forward with a guardianship. A few months clients who got no policy for the premium 17. An award of $1,500 to a former later, Nelson contacted the client with an paid without those claims having to be pre- client of Christi Misocky of Monroe. The update that indicated that she had a plan for sented to the board. n

State Bar Swear In New and was a Commissioner of Chief Justice Kannapolis. In 2011, he received the District Mark Martin’s Commission on the Award of Merit for service to the Kannapolis Officers (cont.) Administration of Law and Justice where he District, Central North Carolina District of served on the Criminal Adjudication and the Boy Scouts of America. coordinated annual continuing legal educa- Investigation Committee. He is a member of Fulton #99 Masonic tion programs in Rowan County for the last In addition to his numerous professional Lodge in Salisbury and he attends Harvest 12 years in the areas of criminal law and activities, Jordan formerly served on the Board Community Church in Kannapolis. He family law. of Directors for Elizabeth Hanford Dole Red resides in Kannapolis with his wife and two Jordan is a member of the North Cross and the Rowan Helping Ministries. For children, who both attend college, and he Carolina Advocates for Justice, where he six years he was the Cub Master of Cub Pack enjoys fly fishing, vegetable gardening, and currently serves on the Board of Governors, 254 of Bethpage United Methodist Church in raising honey bees. n

THE NORTH CAROLINA STATE BAR JOURNAL 49

The North Carolina State Bar and Affiliated Entities Selected Financial Data

Other assets 672 3,732 The North Carolina State Bar The NC State Bar Plan for Interest on $373,436 $392,202 2018 2017 Lawyers' Trust Accounts (IOLTA) Liabilities and Fund Equity Assets 2018 2017 Current liabilities 60,581 75,532 Cash and cash Assets Fund equity- equivalents $8,134,482 $7,858,566 Cash and cash retained earnings 312,855 316,670 Property and equivalents $2,881,365 $1,723,201 $373,436 $392,202 equipment, net 14,674,655 15,460,710 Interest receivable 426,347 216,852 Revenues and Expenses Other assets 859,850 1,056,065 Other assets 6,318,318 9,397,027 Operating revenues $704,819 $708,094 $23,668,987 $24,375,341 $9,626,030 11,337,080 Operating expenses (708,634) (736,563) Liabilities and Fund Equity Liabilities and Fund Equity Non-operating revenues - - Current liabilities $6,484,668 $6,477,580 Grants approved Net (loss) income $(3,815) $(28,469) Long-term debt 9,199,750 9,701,118 but unpaid $3,896,665 $4,597,745 15,684,418 16,178,698 Other liabilities 374,817 1,209,834 Board of Legal Specialization Fund equity- 4,271,482 5,807,579 2018 2017 retained earnings 7,984,569 8,196,643 Fund equity- Assets $23,668,987 $24,375,341 retained earnings 5,354,548 5,529,501 Cash and cash Revenues and Expenses $9,626,030 11,337,080 equivalents 158,430 164,785 Dues $8,586,298 $8,449,799 Revenues and Expenses Other assets 443 3,502 Other operating Interest from IOLTA $158,873 $168,287 revenues 980,445 1,030,945 participants, net $3,016,977 $1,818,133 Liabilities and Fund Equity Total operating Other operating Current liabilities 12,038 12,154 revenues 9,566,743 9,480,744 revenues 132,265 88,573 Fund equity- Operating expenses (9,437,543) (9,407,056) Total operating retained earnings 146,835 156,133 Non-operating revenues 3,149,242 1,906,706 $158,873 $168,287 expenses (341,274) (373,445) Operating expenses (3,465,210) (3,266,308) Revenues and Expenses Net income $(212,074) $(299,757) Non-operating revenues 141,015 125,103 Operating revenues- Net income (loss) $(174,953) (1,234,499) specialization fees $195,600 $184,535 Operating expenses (204,898) (206,060) Board of Client Security Fund Non-operating revenues - - 2018 2017 Net income $(9,298) $(21,525) Thank You to Our Assets Cash and cash Board of Paralegal Certification Annual Meeting Sponsors equivalents $1,432,123 $1,448,612 2018 2017

Other assets 1,080 4,850 Assets

Lawyers Mutual Liability $1,433,203 $1,453,462 Cash and cash Insurance Company Liabilities and Fund Equity equivalents $406,749 $424,871 Current liabilities $31,240 $48,653 Other assets 825 3,754 McGuireWoods, LLP Fund equity-retained $407,574 $428,625 earnings 1,401,963 1,404,809 Liabilities and Fund Equity $1,433,203 $1,453,462 Current liabilities - Revenues and Expenses accounts payable 44,079 65,893 Thank You to the Sponsors of the Operating revenues $914,342 $1,726,154 Fund equity- Operating expenses (917,299) (863,855) retained earnings 363,495 362,732

State Bar Opioid Summit Non-operating revenues 111 137 $407,574 $428,625

Net loss $(2,846) $862,436 Revenues and Expenses Lawyers Mutual Operating revenues-

Board of Continuing Legal Education fees $249,955 $256,660 The American Academy of 2018 2017 Operating expenses (249,192) (285,898) Matrimonial Lawyers Assets Non-operating revenues - - Cash and cash Net income $763 $(29,238) equivalents $372,764 $388,470

50 WINTER 2019

The North Carolina State Bar PO Box 25908 Raleigh, NC 27611

Winter 2019