THE NORTH CAROLINA STATE BAR

SPRING JOURNAL2019

IN THIS ISSUE Justice William Haywood Bobbitt page 10 Changes Coming for Raise the Age page 14 The Gauntlet to Political Asylum page 18 As this issue was going to press, we learned of the passing of former North Carolina State Bar President John B. McMillan. A more in-depth celebration of Mr. McMillan’s life will be published in a forthcoming issue of the Journal.

WHEREAS, it is believed that John McMillan has served the State Bar as a volunteer longer than anyone in the history of the organization. His service, first as a member of the Disciplinary Hearing Commission, then as its chair, then as a member of the council, and finally as an officer, has been as momentous as it has been long. He has led from the front with wisdom, steadfastness, and courage. He has enriched us all by his example, and honored us with his fellowship. In more than three quarters of a century we have had many fine presidents, but none better than John McMillan.

— Resolution of Appreciation, North Carolina State Bar Council, 2009

“I do not know of any attorney who has done more for the State Bar than John McMillan.”

— John Silverstein, Immediate Past-President, North Carolina State Bar

John B. McMillan August 31, 1942 – February 6, 2019 THE NORTH CAROLINA STATE BAR JOURNAL FEATURES Spring 2019 Volume 24, Number 1 10 William Haywood Bobbitt—A Justice Editor from an Earlier Time Jennifer R. Duncan By E. Osborne Ayscue Jr. 14 Raise the Age: What Changes Are Coming for Juvenile Justice? © Copyright 2019 by the North Carolina By Eric J. Zogry State Bar. All rights reserved. Periodicals postage paid at Raleigh, NC, and additional 16 Judges Under Attack—The Judicial offices. Opinions expressed by contributors Response Committee to the Rescue are not necessarily those of the North By Judge Robert H. Edmunds Jr., Judge John Carolina State Bar. POSTMASTER: Send C. Martin, Judge S. Gerald Arnold, and address changes to the North Carolina State Lisa M. Sheppard Bar, PO Box 25908, Raleigh, NC 27611. The North Carolina Bar Journal invites the 18 The Gauntlet to Political Asylum submission of unsolicited, original articles, By Helen Parsonage essays, and book reviews. Submissions may be made by mail or email (jduncan@ 20 Amendments to the North Carolina ncbar.gov) to the editor. Publishing and edi- Rules of Appellate Procedure torial decisions are based on the Publications By Judge Robert H. Edmunds Jr. Committee’s and the editor’s judgment of the quality of the writing, the timeliness of 22 The Heart of the Matter the article, and the potential interest to the By Peter F. Frost readers of the Journal. The Journal reserves 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 26 Lawyer Assistance Program BAR UPDATES 5 President’s Message 28 Pathways to Wellbeing 37 In Memoriam 8 State Bar Outlook 30 Legal Specialization 46 Client Security Fund 23 The Disciplinary Department 32 IOLTA Update 47 Law School Briefs 24 Legal Ethics 33 Proposed Ethics Opinions 49 Distinguished Service Award 25 Trust Accounting 36 Rule Amendments

Officers 15: Michael R. Ramos, Shallotte 37: Clark R. Bell, Asheboro G. Gray Wilson, Winston-Salem 16: Dorothy Hairston Mitchell, 38: Timothy L. Patti, Gastonia President 2018-2019 Durham 39: Rebecca J. Pomeroy, Lincolnton C. Colon Willoughby Jr., Raleigh William S. Mills, Durham 40: Anna Hamrick, Asheville President-Elect 2018-2019 17: Charles E. Davis, Mebane 41: H. Russell Neighbors, Marion Barbara R. Christy, Greensboro 18: Charles Gordon Brown, Chapel Hill 42: Christopher S. Stepp, Vice-President 2018-2019 19: William C. Fields Jr., Raeford Hendersonville Alice Neece Mine, Chapel Hill 20: David F. Branch Jr., Lumberton 43: Gerald R. Collins Jr., Murphy Secretary-Treasurer 21: Richard Buckner, Rockingham John M. Silverstein, Raleigh 22: Alan S. Hicks, Roxboro Public Members Past-President 2018-2019 Matthew W. Smith, Eden Thomas W. Elkins, Raleigh 23: Thomas W. Anderson, Pilot Dr. Joseph E. Johnson, Greensboro Councilors Mountain Mohan Venkataraman, Morrisville By Judicial District 24: Patrice A. Hinnant, Greensboro 1: C. Everett Thompson II, Elizabeth Stephen E. Robertson, Greensboro Executive Director City 24H: Raymond A. Bretzmann, High Alice Neece Mine 2: G. Thomas Davis Jr., Swan Point Quarter 25: Jay White, Concord Assistant Executive Director 3: Charles R. Hardee, Greenville 26: David N. Allen, Charlotte Peter Bolac 4: Debra L. Massie, Beaufort Robert C. Bowers, Charlotte 5: Kevin Joseph Kiernan, Clinton A. Todd Brown, Charlotte Counsel 6: W. Allen Cobb Jr., Wilmington Mark P. Henriques, Charlotte Katherine Jean 7: Vacant Dewitt McCarley, Charlotte 8: Charles S. Rountree III, Tarboro Gena Graham Morris, Charlotte Editor 9: C. Branson Vickory III, Goldsboro Eben T. Rawls, Charlotte Jennifer R. Duncan 10: Heidi C. Bloom, Raleigh 27: Jennifer Davis Hammond, Salisbury Walter E. Brock Jr., Raleigh 28: John Webster, Albemarle Publications Editorial Board Theodore C. Edwards II, Raleigh 29: Richard Costanza, Southern Pines Andrea Capua, Chair Katherine Ann Frye, Raleigh 30: H. Ligon Bundy, Monroe Stephen E. Robertson, Vice Chair Fred M. Morelock, Raleigh 31: George M. Cleland IV, Winston- Heidi C. Bloom Robert Rader, Raleigh Salem Margaret Dickson (Advisory Member) Donna R. Rascoe, Raleigh Kevin G. Williams, Winston- Darrin D. Jordan (Advisory Member) Warren Savage, Raleigh Salem L. Thomas Lunsford II (Advisory Member) 11: James Thomas Burnette, Oxford 32: Kimberly S. Taylor, Taylorsville Christopher S. Stepp 12: Eddie S. Winstead III, Sanford 33: Sally Strohacker, Mocksville John Webster 13: Marcia H. Armstrong, Smithfield 34: John S. Willardson, Wilkesboro 14: Harold Lee Boughman Jr., 35: Andrea N. Capua, Boone Fayetteville 36: M. Alan LeCroy, Morganton

4 SPRING 2019 THE PRESIDENT’S MESSAGE

Philip Sadler Tribute

B Y G. GRAY W ILSON

e like to think that things happen for provided similar service, but then I would be shorting someone else you may know, not to mention a number of my own mentors who a reason, but I have no way of prov- have taught me much over the years about how to practice law in a civilized, profession- al manner. I have absolutely ing that supposition, no personal knowledge of Mr. Sadler, much less any familial or professional and lawyers generally attachment that would impair my assessment of his career. So here goes; chalk it like suppositions. SometimesW I think that much that happens in this world is up to objectivity. Sadler was born October 27, 1915, in Silver Point, entirely random, or at least so far beyond human comprehension (and even the Tennessee (population sever- al hundred then, now 1,403). He grew up dirt Bible says there is a lot of that going on) as to appear without design. poor, one of nine children living in a large white farm house with a veg- etable garden in the back next to a large hog pen. His father was a carpenter, but during By way of example, I married a woman known as Duke University. Of course, I the great depression, there was little demand who decided to become a certified yoga knew none of this until one Saturday morn- for his skills, so everyone in the family had to instructor, or yogini, as she is now known. I ing last summer when I was approached, contribute to putting food on the table. then learned that yoginis not only like to after surviving another yoga session, by this Sadler began his education in a one-room practice “down dog” and all those assorted other yogini, one Elizabeth Edler Sadler schoolhouse that included grades k through bodily contortions, but they also like to hang Weiler. She presented me with the gavel I eight. He and his brothers were expected to out together after the session is over. Even now hold in my hand and asked me if I handle the more difficult outside chores on worse, my spouse began to drag me to some would accept it on behalf of her father. She the land, but Sadler preferred to read and of her yoga sessions, where I was exposed not explained a little bit about his life and serv- study. He would often hide in the hay barn only to my marked deficiencies in athletic ice to the profession, but I informed her as with a book. prowess, but also to other yoga practitioners, kindly as I knew how that I could not accept Sadler received a bachelor of science including other yoginis. such a valuable heirloom. She pressed me, degree from Tennessee Polytechnic Institute, Now, yoginis talk to each other—quite a stating that there were no other attorneys in formerly known as the University of Dixie (I lot, apparently—because at some point my her family and that she wanted me to take am not making this up) in 1938. He taught wife told another yogini that I was an attor- this gift so that it would have a proper high school and worked for the federal gov- ney, and that I had recently become a State home. So, I did, and it rests in my office dis- ernment, served in the US Navy during Bar officer. Well, it turns out that this yogini play case, except when I take it on the occa- World War II, then received his law degree was the daughter of an attorney from sional journey to show it off to other groups from the University of Virginia in 1947. Pulaski, Virginia, named Philip Sadler, who of attorneys in other district bars. During the war he served in Europe and just happened to be the State Bar president But in this age of misplaced superlatives, Asia, was awarded the Purple Heart for his of that commonwealth back in 1976, the there is a special reason I want to share the role in the Battle of Okinawa, and earned a year I obtained my law degree from that story of this humble man. I could point to a navy unit citation and battle stars for service out-of-state institution of higher learning hundred others in North Carolina who have in both theaters. He was stationed on the

THE NORTH CAROLINA STATE BAR JOURNAL 5 minesweeper destroyer Macomb, which how, but a number of others were sunk. For 1978. He was also vice president of the came under attack during the invasion of the this campaign, the Macomb was awarded the Virginia Bar Foundation from 1976-78 and island that claimed the lives of 14,000 navy unit commendation for having, “…by president in 1978. He was a member of the American soldiers, one of the highest casual- her own aggressiveness and the courage and Board of Directors of the Virginia ty rates in this last pacific campaign. The skill of her officers and men, contributed Association of Defense Attorneys in 1977, Macomb had already sunk a German sub- substantially to the success of the Okinawa and was selected to serve on the Judicial marine in the Atlantic Ocean when it was invasion….” Nominations Committee as the representa- ordered to the Pacific theater. There is a The Macomb proceeded to Saipan for tive of the ninth district of Virginia in 1983. North Carolina connection to the name of battle repairs following the May 3rd engage- He was also elected as a fellow in the preem- the ship. Captain William Macomb led the ment. Soon after the repairs were completed, inent American College of Trial Lawyers and union naval force in the bombardment and the war ended. The Macomb rendezvoused the International Society of Barristers. He capture of Plymouth, North Carolina, in with the 3rd fleet on August 13 en route to had a host of other professional affiliations. October 1869 during the civil war. the Japanese home islands. On August 29, That Sadler was an accomplished trial Sadler’s ship was providing radio picket just ahead of the battleships Missouri and lawyer was indisputable. Long-time partner station duty to alert the fleet of kamikaze Iowa, she dropped anchor in Tokyo Bay, Bob Ingram raved about his colleague. “Phil attacks from the north. The Macomb, partic- where she was witness to the formal surren- Sadler was a superlative trial lawyer...it has ipating in the entire campaign, shot down der. Sadler retired his commission with the been a joy to practice law with him these several enemy planes. On April 27, 1945, in rank of lieutenant commander. past 37 years. He was always a consummate the early predawn hours, an enemy aircraft After law school, Sadler entered private gentleman and a lawyer’s lawyer. He was a raid was picked up by her radar. For an hour practice with a law firm in Pulaski and even- fine example of what we are here for.” the Macomb fired almost continuously while tually became the senior partner in the law Debbie Blevins, a junior associate who had maneuvering at top speed; three planes were firm of Gilmer, Sadler, Ingram, Sutherland only been with the law firm for a few splashed. Her luck ran out on May 3rd dur- & Hutton, from which he retired on months, was told by a witness in a court- ing a twilight enemy raid. She downed one December 31, 1993, and moved to appointed criminal case that the client had Japanese kamikaze aircraft, but a second sui- Charlottesville. When he joined the law paid him to lie by providing a false alibi on cide plane, a “Tony” carrying a 500-pound firm, his senior partner was Howard Cecil the stand. The associate panicked and ran to bomb, came in fast and crashed into her aft Gilmer, friend and confidant of Judge Sadler, who calmed her down and walked five-inch gun mount, causing extensive dam- Thornton Lemmon Massie, one of the vic- her through the process of handling this age. Amazingly, the bomb went through the tims of the notorious Carroll County mas- challenging ethical issue with the witness, ship and out the other side without explod- sacre on March 14, 1912. client, and judge. She recalls, “He was a rock ing. Nevertheless, three men died—one While in practice, Sadler served as the in the midst of a tsunami of trouble. I wish fatally burned—three men were thrown into local county bar president from 1965-66. He for every young lawyer that kind of support, the water and went missing, and 13 others was elected to the Executive Committee of that kind of role model.” were injured, including Sadler. Sadler suf- the Virginia State Bar and served from 1971- Sadler was a man who would help anyone fered a serious burn to his arm, which he 73. He was a member of the Virginia State who walked in the door with a legal prob- always attempted to hide from his family Bar Council from 1971-74, and chaired sev- lem. His partner Ingram noted, “I never met later in life. At that moment, Sadler prayed eral State Bar committees. He became presi- a more compassionate man who truly cared to God that if he would only let him survive dent of the State Bar in 1975, completed that about his clients and the people of the com- the war, he would devote the rest of his life in obligation in 1976, and then served on the munity. It did not matter from what walk of his service. The destroyer stayed afloat some- National Conference of Bar Presidents until life or what their troubles might be. He was totally unselfish in his love and giving to them.” As a trial lawyer, Sadler often found himself in the role of advocate for the “underdog.” He routinely accepted cases pro bono, and was often paid with garden vegeta- Speakers Bureau Available bles, a country ham, and one time with some guinea hens. Speakers on topics relative to the North Carolina State Bar’s regulatory mission are But this history relates to the career of a available at no charge for presentations in North Carolina to lawyers and to members of lawyer. Aside from his professional commit- the public. Topics include the State Bar’s role in the regulation of the legal profession; the ment, Sadler was a humanitarian in the State Bar’s disciplinary process; how the State Bar provides ethical guidance to lawyers; truest sense of the word. For reasons the Lawyer Assistance Program of the State Bar; the Client Security Fund; IOLTA: unknown, he literally threw himself into the Advancing Justice for more than 20 Years; and current challenges to the regulation of the community where he lived and worked and practice of law in North Carolina. Requests for speakers on other relevant topics are wel- changed the face of Pulaski County, Virginia. comed. For more information, call or email Lanice Heidbrink at 919-828-4630 or lhei- From the Jaycees to the Chamber of [email protected]. Commerce, Sadler held too many member- ships and offices to list in civic organizations

6 SPRING 2019 that showered him with awards for public His work in helping the needy in Pulaski lost, oppressed, and dispossessed never service. He was instrumental in establishing County is an example of his humble brought him fame, fortune, or power, never the Pulaski County free clinic, and was an touch, that down to earth approach to put a racing stripe down his back, puffed avid supporter of New River Community people…he has been a distinguished citi- him up with overweening pride, or sent him Action, Habitat for Humanity, Pulaski Daily zen, but that is only part of the story. In off parading around the public domain with Bread (a local food bank), the March of both his public and private life, he has smug, self-righteous arrogance. How does Dimes, the American Heart Association, the demonstrated a deep and abiding feeling one fathom the motivation of an individual Tuberculosis Association, the Emergency for those whose opportunities have been who walks among us, leading the life of a Needs Task Force, Christmas All Year, and limited by circumstances or by cruel con- saint while engaged full time in a legal pro- SHARE! (self-help and resource exchange). ditions imposed on them by events fession rife with conflict, complexity, and He was active in the local school board, the beyond their control. He has more than frustrating—often maddening—courtroom Board of Visitors of King College, the outstanding ability; he has a sense of schedules and proceedings? YMCA, and, of course, politics. He stood as compassion. The two together give him Perhaps in this life there is no real, verifi- a candidate for the Virginia Senate, a politi- his distinction. able, empirical answer to such questions, but cal battle he narrowly lost. He was a lifelong Why does someone of such humble ori- I would offer two subjective observations member of the First Presbyterian Church of gin, who could have spent his life as a simple from one who has practiced trial law for over Pulaski, where he served as an elder. carpenter like his father, or lived like a coun- 40 years and seen just about everything, and When he relaxed, which apparently was try squire with a comfortable legal practice who now stands—honored beyond imagin- not often, he smoked Winston cigarettes devoted entirely to his own self-aggrandize- ing but acutely cognizant of my own unwor- and drank a Coke with a pack of peanuts in ment, head out into the world to serve oth- thiness—poised and privileged to assume the it. He also drank Schlitz beer when he could ers as this kind and gentle man did? Can it helm of the State Bar of this great and won- not have his favorite liquors, scotch and all be explained as a simple bargain one derful state. First, if there is a heaven beyond bourbon, both with ice and a little water. He makes with his maker under wartime stress? this burned out cinder we inhabit, Sadler was diagnosed with lung cancer in late 1993 What is it that drives the heart and soul of a surely resides there in high standing. Second, and died seven weeks later on January 27, man or woman to accomplish what Sadler Philip Sadler is a true hero. n 1994. did, to lift up a corner of the world and carry One of the earlier tributes in the local it on his shoulders without complaint or G. Gray Wilson is a partner with the media described the life of the man in this material reward? Winston-Salem firm of Nelson Mullins Riley & fashion: Sadler’s herculean efforts on behalf of the Scarborough LLP.

THE NORTH CAROLINA STATE BAR JOURNAL 7 STATE BAR OUTLOOK

New Shoes

B Y A LICE N EECE M INE

After it was announced last year that I No, I cannot fill Tom’s shoes—literally or actually read. Tom often joked about his “15 would be taking Tom Lunsford’s place as sec- figuratively—because I am not Tom. But not dedicated readers.” But I know for a fact that retary and executive director of the State Bar to worry, I will be bringing my own shoes as there are hundreds (thousands?) of lawyers upon his retirement at the end of 2018, I was I step into the position of executive director. who opened the State Bar Journal each quar- told on numerous occasions that I “would Perhaps the most important aspect of my ter for no other reason than to read Tom’s have big shoes to fill.” In the literal sense, this shoes is that they are not new. I have 26 years State Bar Outlook column (and maybe peek 1 is absolutely true, Tom is a man’s size 10 ⁄2; I of experience assisting in the administration at the discipline page). Often starting with 1 am a women’s size 7 ⁄2. In the of the State Bar as assistant some reference or analogy to an episode of figurative sense, it is also true. executive director. I know The Andy Griffith Show (Tom’s favorite), Tom has been an exceptional how things are done at the Tom’s articles are superb essays on the issues leader of the State Bar for 27 State Bar and I know how to impacting the North Carolina State Bar and years—a tremendous run. At get things done. the legal profession in general. Writing well the low end of the evaluation There are some skills and about what is, admittedly, a very dry subject scale, during his tenure there characteristics that I do not is a great talent indeed. Alas, this is one was no scandal, no malfea- share with Tom, his cool aspect of Tom’s shoes that I acknowledge my sance by staff or officers, no intellectualism being at the shoes will only tap dance over. So I promise mismanagement. At the high top of the list. I can get pretty to write executive director columns only end of the scale, Tom created passionate about matters of when I have something to say and to say it as and maintained a culture of professional responsibility— concisely as possible. hard work, cooperation, per- perhaps a byproduct of my I am tremendously honored to wear the sonal responsibility, and 26 years as chief ethics coun- shoes of executive director of the North excellent work product among a staff that sel for the State Bar, during which time I Carolina State Bar. In case you are worried 1 grew under his leadership from 21 to 87 studied and applied our Rules of Professional that, at a women’s 7 ⁄2, my shoes aren’t big employees as the size of State Bar member- Conduct and formal ethics opinions to thou- enough, remember: I wear high heels.1 ship grew from 13,000 to 29,000. He guided sands of ethical dilemmas faced by lawyers the State Bar Council and officers through every day. From studying at the feet of the Alice Neece Mine is the executive director of troubled waters including the transition fol- master for 26 years, however, I have learned the North Carolina State Bar. lowing the termination and disbarment of his how to temper my passion with diplomacy predecessor for financial malfeasance; the and real-world analysis. Endnote Nifong disciplinary proceedings; and litiga- I intend to do a lot of walking in my 1. I promise not to use the theme of this article as a reason tion with LegalZoom. In 1998-1999 he over- shoes. I plan to visit more local bars and to to start every column with a reference to Sex and the saw a major renovation of the State Bar offices continue to make presentations across the City. on Fayetteville Street that required the staff to state, CLE and otherwise. I want to tap into migrate from floor to floor over an 18-month our incredible network of past and present period. In 2013 he proudly helped to cut the State Bar councilors to see what they think ribbon on the beautiful new State Bar the State Bar is doing well and what we can Need to rent a law office located Headquarters in downtown Raleigh, a project do better. I intend to ask our talented State within a law firm? Attorneys search that he managed from conception to execu- Bar staff the same questions. And I would for free in 40,000 zip codes. tion without an increase in dues for our like to hear from you: what are we doing well www.LawSpaceMatch.com Find the members. On every occasion, Tom was calm, in our efforts to regulate the legal profession perfect amenities for renting a law collected, insightful, diplomatic, and deferen- in the best interests of the public and how office for your law practice instantly. tial to the ultimate authority of the State Bar might we improve? And don’t forget to post your attorney Council and officers, and always cognizant of Near the top of the list of things that Tom profile on our site for more exposure. the State Bar’s obligation to regulate the legal did exceptionally well is write an executive profession in the best interests of the public. director’s message that State Bar members

8 SPRING 2019

William Haywood Bobbitt—A Justice from an Earlier Time

B Y E. OSBORNE A YSCUE J R .

This reflection on the life of Chief Justice two more siblings. William Haywood Bobbitt, was written from a He recalled two legacies from Baltimore. combination of a 1985 interview recorded 11 First, a Boy Scout troop introduced him to a years after his retirement by two of his former lifelong relationship with that then-new law clerks, Willis P. Whichard and Eugene movement. In Charlotte, he helped to form Hafer, from a tribute by then Associate Justice its first Boy Scout troop and became its ini- Whichard, presenting a portrait of Bobbitt to tial First Class Scout. Second, Baltimore the North Carolina Supreme Court; from the public schools were, in his view, far more personal recollections of Bobbitt family stories advanced than those of Charlotte. He that came through the Justice’s son, the late, entered Charlotte High School, then only William Haywood Bobbitt Jr., to his law part- grades 8 through 11, so young that he grad- ner E. Osborne Ayscue Jr.; and from the author’s uated at age 16. Given the history of his aca- supplementary online research. demic career, his modesty probably gave the Baltimore schools more credit than was mer- ehind conventional land- ited, and his own intellectual capacity too marks in the life of William little credit. Haywood Bobbitt lies a A high school freshman on the verge of world that in many respects becoming a teenager, he always had a job. His seems no longer to exist, a father was usually “in rather straitened cir- worldB seen through the eyes of a bright, cumstances,” given the number of children modest, self-effacing man with a quiet smile, he had. During the school year, young a wry sense of humor, and a perpetual twin- Bobbitt clerked in a grocery store a part of kle in his eye. each day, then worked after school as a ship- Building, and the lawyers. Hearing of an Born in Raleigh on October 18, 1900, the ping department file clerk. In the summer- important case, he began to come to the fifth of five children born in his parents’ first time, he rode to the edge of the county on a courtroom to sit and listen. 11 years of marriage, William Bobbitt was a bicycle to work on a relative’s farm, returning Formal legal education in those days was little over a year old when his family moved in early afternoon to the YMCA to shower minimal. One relied on one’s own initiative to Baltimore. His father, a pharmacist, went and go to his afternoon job. and one’s mentors to learn both the law and there in the hope of marketing a patent med- From his early days, Bobbitt was drawn to the practice of law. With his trademark mod- icine he had invented. The medicine “did not the Methodist ministry. Both of his grandfa- esty, Bobbitt related that he “got along pretty measure up to the original expectations,” and thers had been high-profile Methodist minis- well” in high school and won a scholarship to a little over a decade later he sold it to a com- ters, as was his own oldest brother. His inter- William & Mary. After Tillett learned of his petitor and moved his family to Charlotte. est in legal matters came from his “stamping interest in the law, Bobbitt quickly received a In Baltimore, health was a common ground,” the YMCA, where lawyer Charles letter from University of North Carolina problem. Young Bobbitt almost died as a W. Tillett Jr. became a mentor to a group of President Edward Kidder Graham offering child. He remembered having to learn again boys. Another lawyer looked for some boy him a four-year scholarship to the University, to walk after his recovery. His mother died who might want to come to his law office to in Bobbitt’s words, “so long as my work was of complications following the birth of his run errands and learn what was going on in alright.” A “scholarship” in those days consist- sister when he was seven. His father remar- that world. Bobbitt responded and became ed of the year’s tuition, about $40. Beyond ried, and Bobbitt thereafter had acquired familiar with the courthouse, the Law that, one was on one’s own.

10 SPRING 2019 The United States was entering World War I. Still only 17, Bobbitt was not eligible for the draft. He found a temporary war- Leonard T. Jernigan, Jr., attorney and related summer job in Washington, staying adjunct professor of law at NCCU with an older brother who lived there. When School of Law, is pleased to announce the armistice was declared, he declined an that a new edition of Jernigan’s North appointment to Annapolis and returned to Carolina Workers’ Compensation: Law Chapel Hill. At the end of three years, one and Practice (5th Edition) is now course short of graduation, he entered law school while taking his remaining undergrad- available from Thomson Reuters- uate course, leaving two more courses to West Publishing (1-800-344-5009). complete his law school curriculum. n Board Certified Specialist in His class at UNC was a virtual Who’s Workers’ Compensation Law Who of early 20th Century North n NFL and National Hockey Carolina—future Governor and Commerce Secretary Luther Hodges, long-time univer- League Workers’ Compensation sity official W. D. Carmichael Jr., newspaper Panel Member publisher Jonathan Daniels, and early UNC Medical School Director Reece Berryhill. Bobbitt was not lost among them. In his freshman year he became a member of the THE JERNIGAN LAW FIRM Dialectic Society, a legendary debating socie- ty at the heart of the university. He accumu- Leonard T. Jernigan, Jr. 3105 Glenwood Avenue, Suite 300 lated numerous honors, including the Kristina B. Thompson Raleigh, North Carolina 27612 Bingham Debating Medal and the Wylie P. Mangum Medal in Oratory, and won second Practice Limited To: (919) 833-0299 place in a national Intercollegiate Oratorical Workers’ Compensation (919) 256-2595 fax Contest. In his senior year, he was president Serious Accidental Injury/Civil Law www.jernlaw.com of the Dialectic Society and permanent pres- ident of his class. He was inducted into Phi Beta Kappa. local firms, had no prospective lawyer sons on Supreme Court. By the end of 1922, Parker He was also inducted into the university’s the horizon—Bobbitt accepted the offer. had moved to Charlotte, and the firm became oldest and highest honorary society, the Upon reaching age 21, Bobbitt took the Parker, Stewart, McRae and Bobbitt. This Order of the Golden Fleece. Patterned after bar examination. With his classic humor, he remarkable confluence eventually produced the followers of Jason, sailing on the ship related, “[T]here was a rumor that I made the from one firm the longest-serving chief judge Argo in their mythical search for the golden best mark on that examination....I didn’t of a United States Court of Appeals, a repub- ram of Zeus, each Argonaut was given his investigate it too carefully; I just didn’t take lican, and a chief justice of the North sequential number. Bobbitt became any pains to deny it.” Given a percentage of Carolina Supreme Court, a democrat. Argonaut 144. Argonaut 143 was Thomas his firm’s net income with a minimum guar- Bobbitt practiced as a generalist for 17 C. Wolfe, the future author of Look antee, he comfortably proposed marriage to years. His trial work was composed principal- Homeward, Angel. Sarah Buford Dunlap. They were married on ly of civil cases. When Mecklenburg County Running out of money, Bobbitt applied February 28, 1924. Over the years, they pro- Superior Court Judge W. F. Harding for a job teaching at Charlotte High School. duced a son and three daughters. announced his planned retirement after 25 On the way to his school interview, he As a practicing lawyer, he quickly found years, those who first announced their candi- encountered attorney John McRae, a partner that his prior experience taught him more dacy were known for particular allegiances. in the firm of Stewart and McRae, who invit- about the practice of law than it did the The politics that shaped the judiciary in ed him to his office, asking what he was plan- black-letter law itself. After acting as McRae’s North Carolina—basically a one-party ning to do next. McRae instantly advised him assistant in his first trial, he took a solo case to state—rested primarily on personal loyalty to stick with the law. Asking how much the North Carolina Supreme Court, unsuc- and regional bias, and a sense of justice could money he needed to finish those two courses, cessfully representing, in the era of prohibi- easily cross party lines. Bobbitt had given no McRae offered to endorse his note at the tion, a defendant accused of aiding and abet- thought to the bench, but a group of local bank so that he could go back to summer ting in the manufacture of spiritous liquors. lawyers, both democrat and republican, school. After that, he assured him, “You can His firm was soon involved in a major began looking for someone to run. When come back here and work for us until you can case, one that involved a lawyer named John others on their prospective list declined, get your license.” Happy for the invitation to J. Parker, a republican, who, while losing sev- Bobbitt was given a long list of local lawyers “read law” with one of the town’s leading law eral statewide elections, had made a name for who promised to do everything they could to firms—one which, unlike other prominent himself in a case before the United States support him if he would run. His partner,

THE NORTH CAROLINA STATE BAR JOURNAL 11 Plummer Stewart, not eager for him to run, courthouse regularly on Saturday mornings, the back seat of a State Highway Patrol car nevertheless ultimately urged, “Now William, attending to matters within his jurisdiction as whose driver was assigned to transport the we will have to get up a brag sheet.” That was the resident judge of his two large counties. governor safely to and from Raleigh. not difficult to compose, and it succeeded. In his day, the course of elevation to the At his death, a Raleigh News and Observer Mecklenburg and Gaston Counties were in North Carolina Supreme Court might best editorial described his essence: “A merry one district. He clearly enjoyed campaigning, be described as a game of musical chairs mind, a merry twinkle...a merry fellow who spending much of his time in Gaston played without music. How members of the treated all who crossed his path with even- County, where he was less well known. With Court were selected depended on the circum- tempered fairness, whether they lived mod- bipartisan support and the aid of lawyers not stance. Retirement or resignation at the end estly or in mansions.” generally involved in politics, he was elected. of a term produced one result. Resignation or Bobbitt’s humor was indeed an essential He took office on January 1, 1939, and held retirement other than at the end of a term part of his view of the world. He once told his the seat until February 1954, when he went produced another result, one in which the son that, driving from Raleigh to Charlotte onto the North Carolina Supreme Court. governor made an appointment for the dura- on a Friday evening, he stopped at an old- The North Carolina Superior Courts tion of the departed justice’s term, and the fashioned country filling station with an were divided into three regional divisions. appointee ran for office for both the remain- attendant who came out and pumped the gas. Bobbitt’s division’s rotation stretched west der of that term and for the full term there- Noticing the vehicle’s license plate, he asked, from Cabarrus County to the far corner at after. Each governor kept a list of potential “Are you the lieutenant governor?” The jus- the Tennessee line and the northwest corner appointees to the Supreme Court, some of tice, with a twinkle in his eye, replied, “No.” of the Virginia line. Many districts were so whom would be appointed and some of The owner persisted. “The secretary of state?” distant from Mecklenburg County that whom came and went. Bobbitt was aware Answer: “No.” Finally, after another question Bobbitt, like many of his fellow judges, spent that he was long on many of these lists. When or two he asked, “Well, what is you then?” the week where they were holding court. Justice I. T. Valentine died in 1952, Bobbitt Bobbitt responded that he was the chief jus- His jurisdiction was both civil and crimi- ran against R. Hunt Parker, a superior court tice of North Carolina. The attendant nal. With no intermediate appellate court judge from the east, and lost in the primary in clapped his hands and uttered triumphally, “I above the level of minor local criminal infrac- reputedly the state’s closest statewide race in knowed you was some kind of a face card!” tions and small civil disputes, the superior over 30 years. When Chief Justice William A. Once a president of the Mecklenburg courts handled virtually all of the civil and Devin resigned in 1954, Governor William County Bar asked him to address its annual criminal trial load. Judges did not wear robes. B. Umstead appointed Maurice V. Barnhill as meeting and, knowing that the chief justice “It was ridiculous,” Bobbitt observed, “to chief justice of the Supreme Court and could not accept a traditional honorarium, wear robes when going to some of these Bobbitt as an associate justice. Barnhill’s term asked an innocent question that he hoped courthouses, where you could hardly find a expired in 1956, and R. Hunt Parker replaced might elicit a hint as to what charity Bobbitt nail to hang your coat on.” He noted that he him as chief justice. When Parker died on might be pleased to have honored. The justice never held court in a courthouse that had air November 14, 1969, the other justices went interrupted, exclaiming, “Why would anyone conditioning. as a body to Governor Robert W. Scott, want to pay to hear me talk?” His fairness, consideration, and learning requesting that he appoint Bobbitt to the When the UNC School of Law honored began to attract lawyers who sought to have seat. He served for the next five years until he him with its Distinguished Alumnus Award their cases heard in his court. Many observed reached mandatory retirement age. at a 1981 dinner at the Carolina Inn, those that, after studying the case files in his hotel The relationship of the Supreme Court in who could see the serving area saw the wait- room at night, by the time the case was tried, Bobbitt’s era was one of comfortable collegial- staff quietly filtering in, lining up against the he was more familiar with it than were the ity. When he first assumed the bench, the jus- back wall. When Bobbitt rose in response to lawyers. tices had no law clerks; however, within a year the dean’s presentation, he said, “Thank you His was a six-day-a-week job. Returning or so the General Assembly gave one to each all very much. I am not going to make a to Charlotte on the weekends, he was in the justice. In a recorded interview conducted by speech, but I would ask you to give a round two of his former clerks, Bobbitt said he felt of applause to my granddaughter Betsy (who, “closer to these fellows (his law clerks)” than in family tradition, was helping to work her Interested in acquiring/merging to any other group other than his own family. way through college) and all of her friends with estate planning law firms or For many years, his former clerks held a cele- who have waited on us this evening.” take over from retiring/deceased bration on his birthday. He took special pride Justice Bobbitt served as president of the attorneys especially in western in the elevation of one of them, Willis P. UNC General Alumni Association in 1954- North Carolina? We have 7 lawyers Whichard, through the judicial ranks to 55. The university awarded him an honorary and a full support team including become himself an associate justice. Doctor of Laws degree in 1957 and its probate. Very client­centric. Bobbitt’s collegiality was not confined to Distinguished Alumnus Award in 1976. Contact: Andrew A. Strauss at the Supreme Court building. When the Davidson College also awarded him an hon- [email protected] or Order of the Golden Fleece had its annual orary Doctor of Laws Degree. An American 828.210.0506. spring public tapping ceremony in Chapel Inn of Court bore his name. Hill, a smiling Justice Bobbitt was often seen Bobbitt’s wife, Sarah Buford Dunlap perched alongside Governor Terry Sanford in Bobbitt, died in October 1965. Thereafter,

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the remaining quarter century of his life was green than red, he is reputed to have turned Bobbitt would have each of them in great enhanced by his “special friendship” (his to the procession behind him and exclaimed, measure....intelligence, perceptiveness of words) with Justice Susie Sharp, the Court’s “They ought not to let them have but one legal issues, common sense, even tempera- first woman justice, who then succeeded him vote between them anyway.” ment, hard work, impeccable character, hon- upon his retirement. Her wit and humor In Bobbitt’s world, the cardinal principle esty (as a person and intellectually), a love of matched his own. Described as “two insepa- of the law was to see in every case a just and the law, the desire to excel as a judge, and a rable friends,” they dined together and sensible result, produced by knowledge and desire to see a just and sensible result reached shared a social life that included many signif- love of the law, ignoring concerns about in every case.” icant events in both of their public lives. whom the result would please and whom it In the world in which we now live, almost (Indeed, the recorded interview of Justice would displease. In the words of Associate 80 years after William Haywood Bobbitt Bobbitt on which this article is partially Justice Willis P. Whichard, one of Bobbitt’s began his career on the bench, we might well based was carefully begun and timed so as early law clerks, speaking at the dedication of pause to look back and contemplate the les- not to encroach on his usual lunch engage- the justice’s portrait in the Supreme Court, sons his life reflects. n ment with Justice Sharp.) “He authored many opinions which, at the The members of Bobbitt’s Court tradi- time, were of great importance to the public E. Osborne Ayscue Jr. is a retired member of tionally walked together along Fayetteville and to the jurisprudence of the state, and the Mecklenburg County Bar and a past presi- Street for lunch, with Justices Sharp and some of them will influence the jurispru- dent of that Bar, of the North Carolina Bar Bobbitt leading the parade. Once, they had dence of the state and the country for many Association, and of the American College of all been eagerly awaiting the day when the years to come....They reflect the author’s Trial Lawyers. He now lives in Chapel Hill, first strawberries of the season would appear. extensive knowledge of the law, his capacity where he spends much of his time writing. The When that day arose, Justice Sharp was ush- for clarity, and his soundness of judgment. seventh lawyer in Helms, Mulliss, McMillan & ered to the head of the buffet line, followed The opinions of other justices with whom he Johnston, the third largest firm in Charlotte by Justice Bobbitt. She chose ripe red straw- served also bear the stamp of his influence, for when he joined the Bar in 1960, he has berries from the top of the container, as then he concerned himself with the Court’s prod- observed the span of time from those days did Bobbitt in his turn. When Justice Carlyle ucts, and not with just his own.” through the remaining almost eight decades Higgins, the next in line, looked and saw that “If one were to list all the desirable quali- since Justice Bobbitt first went on the bench and the next layer of berries was perhaps more ties of a judge,” he continued, “Judge the changes that those years have brought.

THE NORTH CAROLINA STATE BAR JOURNAL 13 Raise the Age: What Changes Are Coming for Juvenile Justice?

B Y E RIC J. ZOGRY

n 2017 the North Carolina passed the Juvenile Justice Reinvestment Act. This legisla- tion increased the age of juve- nile jurisdiction from 16 to 18, along with other substantive and procedural changes. But what is “raise the age”?I This article will reveal a little histo- ry behind the issue, break down the main concepts of the new legislation, and provide ©iStockphoto.com/kali9 a glimpse into the future regarding next steps with the changes in the law regarding juvenile jurisdiction.

What is “Raise the Age”? Age is the factor which determines where a youth accused of committing a crime is processed. Currently, a youth at least age six but under age 16 on the date at century. The most recent movement began What are the Main Features of the which they are accused of committing an over ten years ago, when advocates, attor- New Law? offense is charged in juvenile delinquency neys, and legislators joined a broader Jurisdiction—The foundational change court (sometimes simply referred to as national discussion on juvenile jurisdic- in the law is that all 16 and 17-year-olds juvenile court). This is for any crime, from tion. The United States Supreme Court charged with a criminal offense will initially simple assault to first degree murder, and determined in several landmark decisions be processed in juvenile delinquency court. includes motor vehicle offenses. Up until that, for developmental reasons, adoles- This will occur regardless of the severity of last year, North Carolina was the only state cents should not be held as culpable as the charge. The only offenses that will be in the country that automatically prosecut- adults, and therefore not be subject to the excluded for this category of youth are ed 16-year-olds as adults, regardless of the death penalty or life in prison without con- motor vehicle offenses (although see below crime charged (a few states continue to sidering the possibility for parole. further discussion on this exclusion). The automatically charge 17-year-olds as Prompted by this shift in legal philosophy, law will be in effect for offenses committed adults). In recent years, a movement began there were several state studies of the issue. on or after December 1, 2019. If a juvenile in North Carolina to reconsider the law Most recently the North Carolina has been previously convicted of any crimi- and “raise the age” of juvenile jurisdiction Commission on the Administration of Law nal or motor vehicle offense prior to that from 16 to 18. and Justice studied and supported the date, the juvenile will be prosecuted as an change. The General Assembly considered adult. How Did We Get Here? several versions of the change in juvenile Currently, for 13, 14, and 15-year-olds, The law stating that juvenile jurisdic- jurisdiction before settling on the proposal the court must make two different findings tion ends at 16 has been in effect since found in the budget, Senate Bill 257, and hold separate hearings (probable cause 1919. The issue of whether to raise the age sometimes referred to as the Juvenile and transfer) to determine whether a juve- has been debated many times over the last Justice Reinvestment Act. nile should be transferred to adult criminal

14 SPRING 2019 court (except for the charge of first degree counsel and prosecutors will have read-only murder, for which the court must automati- access to delinquency information that cally transfer the case if probable cause is should assist in streamlining the court found). For 16 and 17-year-olds charged process. Attorney access was implemented with a Class A, B1, B2, C, D, E, F, or G July 1, 2018. felony, there will be a new transfer process. School Justice Partnerships—Recogniz- Upon a finding of probable cause, the court ing the increase in school-based offenses over must transfer these juveniles to adult crimi- recent years, the legislature provided that the nal court. In the alternative, the prosecutor director of the Administrative Office of the may seek an indictment from the grand jury, Courts (AOC) shall have the authority to and upon such finding may present it to the “prescribe policies and procedures” for chief juvenile court for transfer to adult criminal district court judges to help form what are court. known as “school-justice partnerships.” These In addition to the change in the ages of partnerships are voluntary agreements among initial jurisdiction, the new law also sets several stakeholders, including local courts, parameters for court supervision for 16 and schools, and law enforcement, to create poli- 17-year-olds. For 16-year-olds, court super- cies that provide for alternatives to criminal- vision ends at age 19, and for 17-year-olds, izing minor disciplinary school behavior. age 20. These same age parameters also Other Features—The new law creates a apply to juveniles committed to a youth gang enhancement punishment, similar to development center. an enhancement provided in the adult crim- Victim’s Rights—Under the current law, inal statutes. The enhancement provides for if a juvenile court counselor determines not a disposition level one higher than allowed to file a complaint (an accusation of a crime by law if the juvenile is found to be involved perpetrated) as a formal petition, the “com- in a gang and the offense occurred in a gang- plainant” may appeal that decision to the related incident. DACJJ is to prepare guide- prosecutor. In some circumstances, the lines for determining gang enhancement at “complainant” and the victim may not be the intake stage. Additionally, the law created the same person, so this statute allows the Juvenile Jurisdiction Advisory Committee alleged victims to appeal the decision not to (see below). file a complaint. In addition, the new law directs the Division of Adult Corrections What’s Next with Raise the Age? and Juvenile Justice (DACJJ) to create a sys- As part of the Juvenile Justice tem to provide information to alleged vic- Reinvestment Act, the General Assembly tims and complainants on the status of their created the Juvenile Jurisdiction Advisory cases. Committee (JJAC), comprised of 21 stake- Law Enforcement Access—Juvenile holders and juvenile justice experts. The information is kept under strict confiden- JJAC is to consider what issues will arise as a tiality. However, under the new provisions, result of the implementation of the raise the juvenile court counselors must now record age legislation. The issues can be related to consultations with law enforcement that did resources, policy, or other aspects of the sys- “Raise the Age.” There you’ll find the law, not result in the filing of a complaint. tem that may need to be considered or links, and other tools to help attorneys Additionally, in an effort to assist law adjusted for successful implementation. The understand the changes and apply strategies enforcement at the time of investigation, the JJAC has met several times and has created to provide quality representation. For more court counselor shall share, upon request of three subcommittees: Legislative and Legal information about this issue or anything law enforcement, information from the Issues, Housing of Transferred Juveniles, and related to juvenile defense, please contact court counselor’s record related to a juve- School Justice Partnerships. In January 2019 our office. n nile’s record of delinquency or prior consul- the JJAC submitted its first annual report to tations with law enforcement. the General Assembly, outlining fiscal, leg- Eric J. Zogry has been the North Carolina JWise Juvenile Attorney Access—JWise islative, and policy recommendations. The state juvenile defender since 2005. The Office is the court system’s database to help manage JJAC will meet until 2023 to continue to of the Juvenile Defender provides services and and provide collected information for cases assist with implementation. support to defense attorneys, evaluates the cur- in child welfare and juvenile delinquency rent system of representation and makes recom- court. Access to information in this database Find Out More mendations as needed, elevates the stature of in delinquency court had been limited to Check out our website, ncjuvenilede- juvenile delinquency representation, and works clerks and judges. However, the new law fender.com. If you click on “Information for with other juvenile justice actors to promote now provides that both juvenile defense Defenders,” you’ll see a subheading for positive change in the juvenile justice system.

THE NORTH CAROLINA STATE BAR JOURNAL 15 Judges Under Attack—The Judicial Response Committee to the Rescue

B Y J UDGE R OBERT H. EDMUNDS J R ., JUDGE J OHN C. MARTIN, JUDGE S. GERALD A RNOLD, AND L ISA M. SHEPPARD

here can be no question that an inde-

pendent and honorable judiciary is a

cornerstone of a free society and

essential to the existence of the demo- ©iStockphoto.com/DNY59 Tcratic form of government. History teaches us that the judiciary must adhere to high ethical standards to maintain the public’s con- fidence, and that the courts must be free from interference by the legislative and executive branches, owing allegiance only to the constitutions and laws of the governments they serve.

Thus, it is little wonder that history also courts have come under attack from the misleading postings on social media; judicial teaches us that those who would seek to media and dissident litigants who are criti- elections funded by special interests; polariz- undermine a democracy and pursue power cal of decisions that affect almost every ing criticisms of specific rulings by political for themselves often begin the process by aspect of daily life. activists on either or both ends of the polit- attacking the courts, trying to shake the Such attacks have been especially evident ical spectrum; and personal attacks on jurists public’s confidence in the judiciary. In in recent years, no doubt intensified by the who have rendered legally correct but social- modern times, this process has been exacer- evolution of the news media, from consid- ly unpopular decisions. bated by the trend toward resolving divisive ered and measured reporting to sensational- Yet, when such inaccuracies, unfounded issues in the courts rather than through ism and instant electronic postings and criticisms, intentional misrepresentations, public debate. As a result, judges and broadcasts; irresponsible, inaccurate, and and outright mocking of the courts have

16 SPRING 2019 occurred, the courts and individual judges to point out that the judge was acting in mind, in February 2018 the committee met are constrained by ethical rules from accordance with law. with newspaper editors who were attending responding to the attacks or commenting On the other hand, the committee recog- a convention in Raleigh. Media attorneys publicly about pending decisions and legal nizes the First Amendment’s guarantee of John Bussian, Amanda Martin, and Mark issues. For that reason, the organized bar has free speech and does not respond to media Prak, who are familiar with the viewpoints come to realize that public education about materials that, while critical, do not distort of both judges and editors, and who under- the critical role of the courts is essential, and the judge’s role or responsibilities. An edito- stand the importance of the committee’s that when courts and judges are unfairly and rial that blisters a judge for his or her deci- work, were instrumental in arranging the unjustly attacked, professionalism requires sion or opinion on the grounds that the rea- meeting. that leaders of the bar should rise to their soning is suspect or even that the opinion or Committee members, joined by former public defense. decision was “really” based on the judge’s Chief Justice Mitchell, explained the The detrimental effects of unfair and registration will not generate a response response process to the editors in atten- unjust criticism of the courts and judges from the committee. Such an editorial may dance, adding that the members are avail- have been recognized nationally by the be as lamentable as it is shocking, but it is able for consultation before an article or col- American Bar Association and in North protected by the Constitution. As demon- umn is published. The editors were interest- Carolina. Some years ago, then-Chief Justice strated on a daily basis by (fill in your choice ed in the committee’s function and generally Burley Mitchell had the foresight to create of newspaper here), editors are allowed to be expressed a willingness to listen if a member an informal committee of former judges and wrong. of the committee should call in response to leaders of the legal community in North Moreover, judges are public figures and a publication. The fact that the caller would Carolina to respond to unfair attacks on thus subject to greater scrutiny than are pri- be speaking on behalf of the Chief Justice’s judges and the judiciary. Today, that com- vate citizens. While most judges understand Commission may have helped. mittee has been formalized as the Judicial the need to be thick skinned, especially in an Of course, newspapers are not the only Response Committee of the Chief Justice’s election year or when a controversial case is pertinent medium. The committee is Commission on Professionalism. The before the court, sharp criticism can come as expected to respond to content in any for- Judicial Response Committee is composed an unwelcome surprise. The committee has mat, whether in traditional print, broad- of former Supreme Court Justice Bob the responsibility of telling upset judges cast, or social media. Where the material in Edmunds as chair, former Court of Appeals that, while the critical article may be unfair a medium is filtered through an editor, the Chief Judge Gerald Arnold, former Court of and their distress understandable, the article committee can quickly determine who to Appeals Chief Judge John Martin, and Lisa is not an attack for taking judicial actions contact to discuss a questionable report. M. Sheppard, executive director of the Chief required by law. Social media presents a less tractable prob- Justice’s Committee on Professionalism. This distinction between statements of lem because anyone with an account can The committee’s charter states that its opinion and misstatements of fact is critical. post, like, or forward an item without any role is to consider appropriate actions in A judge or justice who is subjected to media controls other than those imposed by the response “to specific media content directed criticism because of unfair and unjustified host site, which may be physically located at NC judges attacking them for performing editorial bias, or who is attacked during an in a different hemisphere. The committee their judicial duties,” when asked by the tar- election season because of a decision on a will always be a work in progress as long as geted judge. In other words, the committee controversial topic, will naturally wonder the definition of “media” continues to is designed to respond to op-ed columns, who will spring to their defense. As long as expand. editorials, “news” reports, advertisements, the criticism does not misrepresent the Several chief justices have supported the tweets, etc. that, intentionally or not, mis- judge’s job or the legal constraints under committee’s work. Among public figures, represent the responsibilities of a judge or which the judge operates, the committee judges are uniquely vulnerable in their the role of the judiciary, when doing so won’t respond. inability to strike back when hit below the would be appropriate in the circumstances The committee’s work in a particular case belt. All lawyers, as officers of the court, and would promote the public’s trust and begins with a complaint filed (usually, but should be willing to speak up in support of confidence in the judicial system. not necessarily, by the affected judge) with our judiciary. The committee is an ele- An example of the committee’s work Lisa Sheppard at the Commission on ment—but only an element—of the defense arose when a newspaper columnist ran two Professionalism. She will contact the other of our judges. Every lawyer reading this arti- articles sharply criticizing a judge for clear- members of the committee, who will cle is part of the team. n ing her courtroom when a notorious juve- promptly evaluate the complaint and decide nile matter was heard. Even though the clos- whether the material fits within the commit- Judge Robert Edmunds, a former justice on ing of the courtroom was mandated by tee’s charge. If so, the committee will consid- the North Carolina Supreme Court, statute, the articles ignored the law while er the appropriate response, if any. serves as chair of the Judicial Response accusing the judge of grandstanding and When the committee determines that a Committee. Judge Gerald Arnold and Judge deliberately subverting the public’s right to response is indicated in a particular situa- John Martin both served as chief judge on the open courts. The writer appeared indifferent tion, the nature of the response can vary. For North Carolina Court of Appeals. Lisa to the explanation for the judge’s actions, so traditional media, a personal touch may be Sheppard is the executive director of the Chief the committee contacted the writer’s editor the most effective remedy. With that in Justice’s Committee on Professionalism.

THE NORTH CAROLINA STATE BAR JOURNAL 17 The Gauntlet to Political Asylum

B Y H ELEN P ARSONAGE

ccording to

the 2017

Juvenile

Justice ©iStockphoto.com/coffeekai AnnualA Report, there were 2,740 children under the age of 18 in detention centers across North Carolina, of which only 102 were aged 11 or 12—the youngest ages listed. There were no children under the age of 13 in Youth Development Centers, which are reserved for those juveniles who have been adjudicated for violent or serious offenses or who have a lengthy delinquency history, and which only held 187 13-17-year-olds at the time of the report.

In contrast, the Department of Homeland unemployment. It has a population of rough- company which also runs the Stewart Security detains children as young as 12 ly 4,000 people, and it houses one of the Detention Center in Georgia and is the months old in a string of detention centers largest immigration detention centers in the object of several lawsuits alleging abuse and along the southern border. Currently about country. The facility, designed to hold up to forced labor violations.1 13,000 are detained. Some of those children 2,400 women and children, was opened by One September morning I drove the 70 are detained with their mothers in Dilley, the Department of Homeland Security in or so miles from San Antonio to Dilley to Texas. 2014 to house families seeking asylum at the spend a week as a volunteer lawyer, providing Dilley is a small town, just over an hour border. It was christened the South Texas legal information and preparation for the southwest of San Antonio and about the Family Residential Center, a name that con- women and children in advance of their same from the US Mexico border. Its econo- jures up something more akin to a homeless interviews with asylum officers. Those inter- my is based on watermelons and now shale shelter than a jail, but a jail it is. It is run by views would determine if they could stay and oil. There are nodding donkeys and a lot of Core Civic Corporation, a private prison pursue asylum in the immigration courts, or

18 SPRING 2019 if they would be sent back to Honduras, El this first hurdle requires showing a significant do. It was humbling. Girls as young as 12 and Salvador, or Guatemala, where they had fled possibility that the person will establish eligi- 13 told me about gang members who tried to horrific violence. I had read accounts from bility for asylum at a later hearing, not that abduct them into a life of domestic and sexual colleagues who had been before me, and I’d the person is eligible for asylum. Since volun- servitude as soon as they became teens. These spent countless hours in North Carolina’s teer attorneys began helping on the ground in women and girls were survivors. jails visiting criminal defendants, so I felt Dilley, more than 90% of the women passed Five 12-hour days later, I was exhausted prepared. I wasn’t. the initial interview and were able to go for- and moved by the experience. On my last The town itself is small and without a lot ward with a full-blown asylum hearing. day, during a rare quiet moment, I wandered of character. A couple of convenience stores For many of the women in Dilley, the towards the small playroom at the back of the and gas stations sit alongside a couple of door to asylum was opened in 2014, when hut. There was a television and a small stack motels. The two biggest features are the state the Board of Immigration Appeals decided of DVDs. This time there were one or two prison, and next door to it the Family Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA children staring raptly at the screen. They Residential Center (FRC). FRC is a sprawling 2014), in which a claim for asylum on the were watching Frozen, as so many millions of mass of beige portacabin-type buildings basis of domestic violence was recognized for American children do. I heard the familiar standing on an expanse of white gravel that is the first time. After years of litigation, women strains of “Let It Go,” but this time dubbed blindingly white and incredibly hot. Prison who could show that they were victims of into Spanish. I learned that the Spanish ver- fencing and barbed wire surround the whole domestic violence in a country where such sion of “Let It Go” is “Libre Soy.” That liter- compound, making it abundantly clear that violence was either expressly or tacitly con- ally means “I Am Free.” The detention center this is a prison. doned by the government, or where the gov- guard sat expressionless in the playroom, Volunteers enter through tight security in ernment proved ineffective (or ineffectual) to apparently impervious to the irony. one of the buildings and are admitted into prevent or punish it, could finally seek the Epilogue: Since I visited Dilley, the attor- what amounts to a double-wide. It’s like protection of the United States. I spent a lot ney general has sought to overrule Matter of being in a mobile classroom, with round of the time preparing clients for claims based A-R-C-G-. In Matter of A-B-, 27 I&N Dec. tables surrounded by rings of plastic chairs, on domestic abuse. 316 (A.G. 2018), he stated: “The mere fact and individual rooms along the side for client Most of the interviews had to be conduct- that a country may have problems effectively meetings. Unlike the 110 degrees outside, in ed with small children in the room. Although policing certain crimes or that certain popu- here it is freezing and I’m very glad I listened there is a playroom of sorts in the hut, most lations are more likely to be victims of crime, to the advice to bring a sweater. Looking out of the children are too anxious to be separated cannot itself establish an asylum claim,” and through the windows, the only sign that there from mom. This poses problems as women “[g]enerally, claims by aliens pertaining to are children here somewhere is a long line of recount details of domestic and sexual abuse domestic violence or gang violence perpetrat- strollers parked outside one of the huts. in front of their own children, many of whom ed by non-governmental actors will not qual- After a few moments, the doors are are old enough to understand what is said, ify for asylum.” Following Matter of A-B-, the opened to let in a large group of detainees— and some of whom have witnessed or experi- attorney general issued guidance to asylum mostly women and preschool- to-elementary- enced the same abuse. The women shiver, not officers conducting CFIs that, “claims based school aged children, with a small number of just from the memories, but from the cold. In on membership in a putative particular social teens. The uniform is jeans, sneakers, and a one interview I was able to open the window group defined by the members’ vulnerability rainbow of colored t-shirts. I have seen many just an inch or two to let in some of the swel- to harm of domestic violence or gang violence adults in prison uniform—seeing little ones tering heat, but I was later told not to. After committed by non-government actors will in prison uniform behind barbed wire is a the first day, I took in a shawl for my clients not establish the basis for asylum, refugee sta- sight I will not soon forget. to wear to keep warm—but they had to take tus, or a credible or reasonable fear of perse- Each morning we start with a group ses- them off before the guards saw them. It was cution.”2 This guidance was enjoined by an sion to do an introduction to the process, but one of the many rules that seemed heartless. order of the United States District Court for quickly we are into the small rooms to start Another forbade us from giving crayons to the District of Columbia in Grace v. preparing clients for interviews with asylum children to keep them entertained, in case Whitaker, 1:18-cv-01853-EGS on December officers and immigration judges. Over and they wrote on the walls. 19, 2018. over, women tell me gut-wrenching stories of Over the course of a day, I saw up to 12 Litigation in Matter of A-B- and in Grace rape, murder, threats, and violence. My job is individual cases, one after the other. What v. Whitaker is ongoing. In the meantime, the to take that raw material and help the women struck me most was the power and resilience FDC in Dilley, Texas, continues to detain express themselves in a way that will get them of these mothers. Most had fled from first- toddlers and small children. n past a credible fear interview (CFI). 8 U.S.C hand experiences of violence I could barely § 1158(a) allows any noncitizen inside the imagine, many with small children in tow. Helen Parsonage, partner at the law firm of US (regardless of whether they entered legally They had traveled hundreds of miles to reach Elliot Morgan Parsonage in Winston-Salem, is or not) to apply for asylum based on either safety. Yet, as they shared these personal certified as a specialist in immigration law and past persecution or a well-founded fear of accounts with me, they were at the same time state/federal criminal law by the North Carolina future persecution. For those who are inter- feeding their children and wiping their faces State Bar Board of Legal Specialization. cepted at the border and subject to expedited (there were a lot of coughs and colds), and removal, the first step is to pass a CFI. Passing doing those mundane daily things all moms CONTINUED ON PAGE 22

THE NORTH CAROLINA STATE BAR JOURNAL 19 Amendments to the North Carolina Rules of Appellate Procedure

B Y J UDGE R OBERT H. EDMUNDS J R .

n December 19, been wholly rewrit- 2018, the Supreme ten to address quali- Court of North fying juvenile Carolina issued an appeals filed under order amending the N.C.G.S. § 7B- North Carolina 1001 and similar Rules of Appellate cases “certified for Procedure. These amendments became effec- review by the appel- Otive on January 1, 2019, and apply to all late courts in which appeals currently pending in the appellate the right to appeal courts, no matter when the notice of appeal under this statute was filed. has been lost.” Many of the amendments focus on The prior ver- updates to the Appellate Rules necessitated sion of Rule 3.1 by the January 2019 statutory changes to addressed only qual- appellate jurisdiction in appeals of cases ifying juvenile cases involving termination of parental rights. that were appealed However, the amendments also streamline directly to the court and simplify the procedural rules applicable of appeals. As of Photo courtesy of the North Carolina Judicial Branch. to other Rule 3.1 appeals. January 2019, a Other amendments apply to all appeals, subset of qualifying juvenile cases (i.e., Under the previous version of Rule 3.1, including: (1) consolidating privacy and con- Termination of Parental Rights (TPR) cases) parties who could not reach an agreement fidentiality provisions within a single rule, (2) are now required to be appealed directly to regarding the contents of a record on appeal modifying the procedures and scope of the Supreme Court from the trial division. could file separate records on appeal. Under Appeal Information Statements, (3) reducing Revised Rule 3.1 now provides a unified pro- amended Rule 3.1, the settling of the record the number of copies to be filed, and (4) cedure for qualifying juvenile appeals taken will follow the procedures applicable to any modifying the method for calculating an to either appellate court. other appeal, though on an expedited sched- appellant’s briefing deadline in direct appeals. Revised Rule 3.1 also streamlines and ule. In other words, parties in Rule 3.1 cases The changes are found in Appellate Rules updates many of the procedures applicable in are now required to file a single record on 3, 3.1, 4, 9, 11, 12, 13, 18, 26, 28, 30, 37, Rule 3.1 cases. For example, new Rule 3.1(c) appeal using the tools supplied in Appellate 41, 42, and Appendices A, B, and D. While modifies the services terms applicable to Rule 11 (which can include Rule 11(c) sup- this memorandum describes the major transcripts in juvenile appeals. When a tran- plements or, in rare instances, requests for changes, practitioners should review the red- script is ordered for a Rule 3.1 appeal, the judicial settlement). line version that shows all the amendments. court reporter must serve copies of that tran- All documents in Rule 3.1 cases must be script on all parties to the appeal, not just the filed electronically. Counsel in these cases can 1. Qualifying Juvenile Appeals— party that placed the order. Moreover, tran- no longer file documents by hand-delivery or Appellate Rule 3.1 scriptionists in many instances will have a lit- by mail. The amended rules do not distin- In this revision, Appellate Rule 3.1 has tle extra time to deliver Rule 3.1 transcripts. guish between Termination of Parental

20 SPRING 2019 Rights appeals to the Supreme Court and the appellate courts. other Rule 3.1 appeals to the court of Finally, Rule 42(e) expands the category appeals. Consequently, the prohibition of items (“Identification Numbers”) that against e-filing records in the court of appeals “must” be excluded or redacted from all filed has been lifted for Rule 3.1 appeals. documents. The prior rule specifically Although several sections of Rule 3.1 pro- required redaction of social security num- vide for expedited deadlines applicable to the bers only. Rule 42(e) expands the list to parties, the provision in old Rule 3.1 that include driver license numbers, financial required the appellate courts to give Rule 3.1 account numbers, and tax identification cases “priority” has been removed. numbers. Even so, when particular identifi- Finally, while old Rule 3.1(b) addressed cation numbers are “necessary to the dispo- the protection of a juvenile’s identity, that sition of the appeal,” counsel may instead process has been moved to Rule 42, dis- move to seal the document in which the cussed below. numbers appear.

2. Sealed and Confidential 3. Appeal Information Statements— Information—Appellate Rule 42 Appellate Rule 41 New Appellate Rule 42 consolidates into Appellate Rule 41, which had previously one place all the rules addressing privacy and addressed Appeal Information Statements confidentiality on appeal that previously had (AIS) in the court of appeals, has been signif- been scattered throughout the Rules of icantly shortened. Amended Rule 41 now Appellate Procedure. Several aspects of requires that an AIS be filed in appeals to amended Rule 42 merit mention. both the court of appeals and the Supreme Under Rule 42(b), particular types of Court. The AIS must be filed before the appeal should automatically be treated by the appellant’s brief is filed and counsel must use parties and by the courts as sealed: (1) quali- the appellate courts’ electronic filing site to fying juvenile appeals (including TPR submit an AIS. appeals), (2) juvenile delinquency appeals, and (3) any appeal filed pursuant to 4. Only One Copy of Records and N.C.G.S. § 7A-27 involving a sexual offense Memoranda of Additional Authority committed against a minor. In fact, both civil Need Be Filed—Appellate Rules 9, 11, and criminal appeals that involve sexual 12, 18, and 28 offenses committed against minors are now Under the prior version of Appellate automatically sealed. When settling the Rule 12(c), only one copy of the printed record on appeal, appellate counsel must record on appeal was filed, but other record agree on the pseudonym or initials they will filings (such as documentary exhibits and use in appellate filings to identify a covered various record supplements) had to be filed party and include a stipulation to this agree- in triplicate. The 2018 amendments to ment in the record on appeal. Appellate Rule 12 (along with correspon- In addition, Appellate Rule 42 largely ding changes to Rules 9(b)(5), 9(d)(2), codifies the appellate clerks’ long-standing 11(c), and 18(d)) now allow parties to file a the printed record to the parties. (though unwritten) preference regarding fil- single copy of each component of the record ing information under seal in the appellate with the appellate courts. 6. Electronic Filings Now Mandatory courts. When an item is sealed in the trial tri- Similarly, amended Appellate Rule 28(g) for More Documents bunal, it remains sealed on appeal. No fur- requires a party to file only a single copy of a Prior to 2018, electronic filing in the ther order from an appellate court is Memorandum of Additional Authority. appellate courts was optional. In the amend- required. However, the parties must submit a ed rules, electronic filing in the appellate copy of the authority under which the item 5. New Method for Calculating courts was made mandatory for several types was sealed below when the sealed item is filed Appellant’s Opening Brief Deadline— of documents. An attorney who might be in the appellate division. Appellate Rule 13 involved in an appeal should register for e-fil- In contrast, when an item was not sealed Amended Appellate Rule 13, which gov- ing privileges in the appellate division long in the trial tribunal or doesn’t fall within a cat- erns the filing and service of briefs, has been before an appeal begins. n egory of matters that are automatically sealed, changed to provide that an appellant’s brief a party must move for permission to file an must be filed within 30 days (60 days in cap- Judge Robert Edmunds, a former justice on item under seal in the appellate division. ital cases) after the printed record is filed. the North Carolina Supreme Court, is chair of Rule 42 also provides details about how Under the old version of this rule, the 30-day the North Carolina Bar Association's Appellate parties should label sealed items filed with period was triggered by the clerk’s mailing of Rules Committee.

THE NORTH CAROLINA STATE BAR JOURNAL 21 The Heart of the Matter

B Y P ETER F. F ROST

ne of Graham ient as a need for proof. It is only when a mat- Seventh Amendment. No cruel or unusual Greene’s most endur- ter reaches a courtroom that the rubber, shall punishment? Eighth Amendment. Habeas ing novels explores a we say, must actually meet the road. corpus? Article I. And these are only the most man’s fear of judg- In court there are rules, to go along with well-known and glaringly obvious references. ment, in a religious the popular concept of the “rule of law,” and The fact is that our entire federal judicial sense, as he believes litigants and their counsel are inescapably and legislative system is designed by the he has committed mortal sin. Set in an bound by them. Known as the Rules of founders within the pages of our anonymousO equatorial colonial land, it con- Evidence, these little gems are well and care- Constitution, and state systems are almost cerns itself chiefly with the protagonist’s fully designed to separate the probative wheat universally based on those same provisions. attempt to come to terms with what he from the prejudicial chaff. They are designed And, as litigators, we get to work with them believes will be his fate of being eternally to ensure that gossip, conjecture, speculation every single day. We toil at the intersection of damned for his sin—heady stuff, to say the (to a degree), and otherwise unreliable state- human actions, societal expectations, and least. And, I would argue, indisputably at the ments and documents are excluded from our citizenry’s best attempts to oversee the heart of timeless human questions of good, consideration by the finder of fact. implementation of the founders’ vision: the evil, and moral judgment. These rules serve the extremely courtroom. My recent retirement from the Justice admirable purpose of ensuring objectivity It is a singular privilege. And one law stu- Department in Washington for different pas- and fairness in our judicial system, tenets dents and lawyers alike would do well to tures in North Carolina caused me to reflect that must be preserved and fostered if courts keep in mind, regardless of how difficult, on my 30-plus years of practicing law, and are to perform their function in society, unfair, or personally taxing they may some- on Graham Greene’s focus on morality and namely resolving disputes so that citizens do times think their chosen profession or course propriety. His title, in this context, seems to not resort to what is euphemistically known of study may be. You work, or seek to work, me to capture all that I and my many col- as “self-help,” i.e., fighting. This resolution at the heart of the matter. And you can make leagues have done—have been privileged to of civil disputes, whether contract or tort, all the difference. Make it matter. n do—in our own society. I don’t mean that and enforcement of criminal statutes, are we, as trial lawyers, are eternally damned for key to an orderly society. The founders most Peter Frost recently retired from a 25 year our sins...far from it. Rather, that we as attor- wisely lifted our own common law system career as a civil trial lawyer at the Department neys and individuals of all stripes have been lock, stock, and two smoking barrels from of Justice in Washington, DC. He has since privileged to toil away at the epicenter, the Great Britain, bringing with it an already relocated to the Outer Banks and hopes to con- very heart, of all that makes western, and well-developed record of civil decisions and, tinue his career there. particularly American, culture ultimately perhaps most importantly, the presumption worthwhile, namely our constitutional sys- of innocence in criminal matters. tem of courts. We, as lawyers, are the keepers of those In recent years it has become fashionable judicial flames. In perhaps no other profes- Gauntlet to Political Asylum to speak of the “rule of law,” particularly sion does one get to participate, so personally (cont.) when the speaker is unhappy with something and provocatively, every single day in the sys- a politician has done (or not done). Usually tem in which all of our society’s bases con- Endnotes the speaker is complaining that his or her verge—where the Constitution, in all its infi- 1. See e.g. Barrientos v. CoreCivic, Inc., U.S.D.C. (M.D. opponent is attempting to escape judgment nite wisdom and glory, informs and directs Ga.), Case No. 4:18-cv-00070-CDL; Ndambi, et al. v. for their actions, or taking action that is all that occurs. Right to trial by jury? Sixth CoreCivic, Case No.18-cv-3521, US District Court, District of Maryland. inconsistent with one alleged “rule of law” or Amendment. Right to remain free from 2. Guidance for Processing Reasonable Fear, Credible another. These protests, almost always implic- unreasonable searches and seizures? Fourth Fear, Asylum, and Refugee Claims in Accordance with itly or explicitly political, are also almost Amendment. Right not to incriminate one’s Matter of A-B-, PM-602-0162, July 11, 2018, always untethered to anything as inconven- self? Fifth Amendment. Double jeopardy? bit.ly/2unSV1v.

22 SPRING 2019 THE DISCIPLINARY DEPARTMENT

Grievance Committee and DHC Actions

NOTE: More than 29,000 people are eligible band’s endorsement on a check to take funds plaints before the claims were barred by appli- to practice law in North Carolina. Some share to which she was not entitled from their joint cable statutes of limitation. the same or similar names. All discipline reports investment account and filed a complaint The Grievance Committee reprimanded may be checked on the State Bar’s website at against her husband for money owed in Charlotte lawyer Allen Torres for making a ncbar.gov/dhcorders. which she made false statements and asserted false representation in response to a request frivolous positions. The DHC suspended her for production of documents. Disbarments for two years. The suspension is stayed for Alton Williams of Raleigh was repri- Charles K. Blackmon of Greensboro sur- two years upon Leon’s compliance with manded by the Grievance Committee. rendered his law license and was disbarred by numerous conditions. Williams did not tell his client that the client the State Bar Council on January 18, 2019. Hubert N. Rogers III of Lumberton vio- was called and failed, and did not diligently Blackmon admitted that he misappropriated lated multiple trust account rules. The DHC handle his client’s traffic case. Williams also and converted to his own use funds totaling suspended him for two years. The suspension neglected a client’s personal injury case by not at least $4,250 to which his law firm employ- is stayed for four years upon Rogers’ compli- communicating with the subrogation claim er was entitled. ance with numerous conditions. holder and the client about funds held in his Andrew Craig Jackson Jr. of West trust account. Jefferson surrendered his law license and was Interim Suspensions disbarred by the Wake County Superior The chair of the DHC entered an order of Reinstatements from Disability Court on November 1, 2018. Jackson interim suspension of the law license of Steven Inactive Status installed a video camera in the bathroom of P. MacGilvray of Raleigh after MacGilvray Elisabeth Murray-Obertein of his law office for the purpose of secretly pled guilty to misdemeanor larceny. Morganton petitioned to be reinstated from recording individuals using the bathroom disability inactive status to active status. The without their knowledge or consent. Reprimands DHC entered an order on December 6, The Grievance Committee reprimanded 2018, that will reinstate Murray-Obertein to Suspensions & Stayed Suspensions Alan Briones of Raleigh. Briones represented active status if she satisfies enumerated condi- Jeffrey Warren Ellingworth of Syracuse, a client in a time-sensitive civil claim. He tions. New York, and formerly of Charlotte, did delayed and neglected the case. He ultimately not inform clients that his license was sus- filed a complaint containing significant Reinstatements from Disbarment pended, engaged in the unauthorized prac- errors. When the client pointed out the Shawn David Clark of Hickory petitioned tice of law, neglected multiple clients, did not errors, Briones said he would file an amended for reinstatement from disbarment. He was participate in mandatory fee dispute resolu- complaint and later said he had filed it when disbarred in 2013 for having sex with a client, tion, engaged in conduct involving dishon- he had not. Briones did not respond timely to making false statements to a tribunal and to esty, fraud, deceit, or misrepresentation, and the Grievance Committee and, when he did the Grievance Committee, suborning a witness did not respond to the Grievance respond, falsely represented that the client to give false testimony, committing criminal Committee. The Disciplinary Hearing owed additional attorney’s fees and was acts including communicating threats and ob- Commission suspended him for four years. responsible for the lack of communication. struction of justice, engaging in conduct in- After serving two years of the suspension, The Grievance Committee reprimanded volving deceit and misrepresentation, and en- Ellingworth will be eligible to apply for a stay James A. Clark of Raleigh. When a lawyer gaging in a conflict of interest. The State Bar of the remaining two years upon showing left the interstate law firm with which Clark moved to dismiss the petition because it was compliance with numerous conditions. was associated, Clark took over representa- filed before Clark was eligible to apply for re- The DHC suspended former Superior tion of a client without explaining her right to instatement. Clark withdrew the petition but Court Judge Arnold O. Jones of Goldsboro remain with the firm or seek representation indicated that he intends to refile. for five years. Jones was convicted of the elsewhere. Clark did not timely pursue the felony of promising and paying gratuities to a client’s appeal. When the firm’s interstate law Orders to Show Cause public official in violation of 18 U.S.C. firm registration expired, Respondent assisted The Wake County Superior Court held 201(c)(1)(A). He attempted to induce a law the firm in the unauthorized practice of law. Charles L. Morgan Jr. of Charlotte in con- enforcement officer to unlawfully obtain his Rocky Mount lawyer Thomas J. Moore II tempt and censured him pursuant to N.C. wife’s text messages. was reprimanded by the Grievance Tania Leon of Charlotte forged her hus- Committee for failing to file three civil com- CONTINUED ON PAGE 45

THE NORTH CAROLINA STATE BAR JOURNAL 23 LEGAL ETHICS

A Client Threatens Suicide—What Can You Do?

B Y S UZANNE L EVER

One of the most difficult situations a is credible. (Disclosures made pursuant to Rule 1.14, cmt. [6]. The lawyer may want to lawyer can face is a client who is threatening Rule 1.14 are considered “impliedly author- contact his own physician, a knowledgeable suicide. I have received calls from frantic ized” under Rule 1.6(a)). While these two acquaintance, or a crisis hotline. The lawyers concerned about their client’s well- rules allow the lawyer to make a disclosure National Suicide Prevention Lifeline is a free being, but also concerned about their to prevent the client from harming himself, resource not only for people who are in crisis responsibilities under the Rules of they do not require it. The remainder of this themselves, but also for those who are con- Professional Conduct. Some lawyers believe article discusses what a lawyer may do in this cerned about someone else. A list of suicide they have an affirmative duty under the rules scenario, not what he or she must do. warning signs and risk factors is posted on to try to prevent the suicide, while others Both Rule 1.6(b)(3) and Rule 1.14(b) the Lifeline’s website (suicidepreventionlife- believe the rules prohibit them from taking allude to a lawyer’s “reasonable belief” that line.org/how-we-can-all-prevent-suicide). A any preventative action. Neither of these the client intends to harm himself. Lawyers lawyer may also contact the Lifeline directly assumptions is correct. often struggle with assessing the credibility for assistance at 800-273-8255. Lawyers often feel unqualified to appro- of the client’s threat. The Restatement If the lawyer determines that the client’s priately handle the situation and under- (Third) of the Law Governing Lawyers § 66 threat is credible, the lawyer may take “rea- standably want to seek professional assis- (2000) has recognized various factors to sonably necessary” preventative measures. tance in dealing with the client in crisis. consider in deciding whether the disclosure What particular measures are reasonably Lawyers seeking ethics guidance are often of confidential information is necessary to necessary depends upon the circumstances concerned that revealing the client’s suicidal prevent reasonably certain death or substan- and the facts known to the lawyer. intent to others will violate the duty of con- tial bodily harm, including the following: Reasonably preventative measures may fidentiality under Rule 1.6. Without a 1. The degree to which it appears likely include counseling the client against suicide doubt, the protection of client confidences is that the threatened death or serious bodily and encouraging the client to get help. In one of the most significant responsibilities harm will actually result in the absence of some scenarios, the lawyer may determine imposed on a lawyer. Rule 1.6(a) prohibits a disclosure; that reasonably necessary preventative meas- lawyer from revealing information acquired 2. The irreversibility of the consequences ures include disclosing confidential client during the professional relationship with a once the act has taken place; information to an individual or entity that client unless the client gives informed con- 3. The lawyer’s prior course of dealing has the ability to protect the client. sent, the disclosure is impliedly authorized, with the client; and Comment [5] to Rule 1.14 suggests contact- or the disclosure is permitted by Rule 1.6(b). 4. The extent of adverse effect on the ing family members, support groups, profes- Ideally, the lawyer will consult with the client that might result from disclosure con- sional services, or adult-protective agencies. client and obtain consent to disclose the templated by the lawyer. As with the consultation to evaluate the client’s intent to a third party. If the lawyer Cathy Killian, one of the clinical direc- credibility of the client’s threat, the disclo- is unable to obtain the client’s consent, the tors for the North Carolina State Bar’s sure of information to the individual or enti- question becomes whether the Rules of Lawyer Assistance Program, offers the fol- ty should be no more extensive than is rea- Professional Conduct mandate or permit lowing questions as a way of assessing the sonably necessary to prevent the harm to the disclosure without the client’s consent. situation: Is there suicidal ideation only, or client. In addition, “reasonably necessary” There are two provisions in the Rules of actual intent? If there is intent, is there an measures should be the least restrictive Professional Conduct that may permit a immediate risk? If there is an immediate actions under the circumstances. lawyer to disclose a client’s threats of suicide risk, do they have a plan? If they have a plan, Ms. Killian recommends that lawyers be to third parties. Rule 1.6(b)(3) provides that do they have the means to carry out this proactive in preparing to deal with clients in a lawyer may reveal information otherwise plan and is this plan truely lethal or just self- crisis, in addition to the basic familiariza- protected from disclosure to the extent the injurious? tion with the Rules of Professional lawyer reasonably believes necessary to pre- A lawyer may consult a mental health Conduct. One suggestion is for lawyers to vent reasonably certain death or bodily professional to help evaluate the credibility of have the contact information for the mobile harm. Rule 1.14(b) allows disclosure of con- a threat of suicide. However, the disclosure to crisis unit in their area or other appropriate fidential information when the lawyer rea- the mental health professional should be no sonably believes that a client’s suicide threat greater than necessary to obtain an opinion. CONTINUED ON PAGE 32

24 SPRING 2019 TRUST ACCOUNTING

Mark the Rea1Estate Guy

B Y L EANOR B AILEY H ODGE, TRUST A CCOUNT C OMPLIANCE C OUNSEL

For the lawyer, it began, as usual, with a The numbers were definitely not the same the names of the parties and the address loca- telephone call to her office answered by a and the discrepancy was certainly NOT the tion. That’s when Stacy remembered: the real paralegal. “Hello?” “Hi, I am calling to check result of a clerical error as he had hoped. In estate broker had emailed her an hour before on the status of the wire you sent for the pro- that moment, Lionel’s heart sank from his the closing with a last-minute change to the ceeds from the closing your office conducted chest to his toes…$348,636…this is going to wire instructions. Stacy was certain he would two days ago.” This exchange, common and be a major issue. Lionel decided that it was innocent enough, did not yet expose the time to inform Laurel, the lawyer who han- CONTINUED ON PAGE 31 extent of the problem at hand. The commu- dled this closing. Accordingly, Lionel nication, in typical fashion, continued with informed the seller that he had not been able the paralegal obtaining additional informa- to determine the cause of the issue and tion from the caller. “What was the address of informed her that Laurel would follow up the property that was the subject of the clos- with her later in the day. The seller, who was ing transaction?” “And the name of the concerned when she placed the call, reluc- buyer?...Your name?” As one would reason- tantly agreed to await a call from Laurel with ably expect, the caller was then placed on further information, but was now beyond hold while the paralegal, let’s call him Lionel, worried because she could hear the angst in conducted a brief investigation. Lionel’s Lionel’s voice. investigation began by finding and reviewing After Lionel disconnected from the call the physical closing transaction file. After a with the seller, he thought to himself: “This is brief examination of the documents in the DEFINITELY a problem,” and proceeded file, Lionel was slightly relieved to locate a directly to Stacy’s desk. Stacy was the parale- copy of the wire transfer confirmation sheet. gal who assisted Laurel with this transaction. However, the story did not end there. When Lionel approached Stacy, her attention Confidently and with the wire transfer and work space was dedicated to four closing confirmation sheet in hand, Lionel returned transactions scheduled to occur the following to the caller prepared to provide proof that day. Lionel nervously approached Stacy at her the law firm properly disbursed and transmit- desk: “Hey…can you tell me anything about ted the closing proceeds. However, Lionel’s one of the closings you did a couple of days confidence was short lived. As Lionel and the ago? I just got off the phone with the seller seller continued their discussion, it soon and she says they have not yet received the became evident that the account to which the sales proceeds.” Now no longer thinking funds were wired was not the account of the about the events of the next day, Stacy’s full seller. Although this was not ideal, Lionel did focus and attention shifted to Lionel. “Did not panic…yet. Instead, he continued his you cross-check with the seller to confirm investigation: “Would you please give me the that none of the numbers was transposed on wire information again…perhaps there was a the paperwork used to initiate the wire?” she typographical error on our end when submit- asked. Stacy had assisted with three transac- ting the wire instructions.” The seller duly tions that day, all of which involved wiring of provided the requested information and funds. Lionel confirmed that he performed Lionel dutifully listened and recorded each such a check and informed Stacy of his opin- digit. He repeated the number to the seller, ion that the issue was not caused by a typing who confirmed that the number Lionel mistake—the funds were wired to a different recorded was the same as that which the seller account using wiring instructions that were provided. Lionel then compared the number completely different than those provided by he wrote down to the number on the wire the seller. Stacy was concerned. “Which file confirmation sheet he obtained from the file. was it?” she asked hesitantly. Lionel provided

THE NORTH CAROLINA STATE BAR JOURNAL 25 LAWYER ASSISTANCE PROGRAM

Workaholics: An Honorable Addiction

B Y K AY G ILLEY

“I’ve achieved every goal I ever set, and I still long hours, but that alone does not make feel empty.” work an addiction. It is a far more complex problem than that. While many actual The words vary. The message is the same. behaviors of work addicts and non-addicts Uttered with defeat and resignation, they may be similar, the distinguishing character- lack the exhilaration promised from accom- istics lie both in how and why they are done. plished goals. The executives and profession- Workaholics live in survival mode with a als I work with share their desperation with need to prove something to themselves and me. On a treadmill through life, they race the world. While others know they have a faster and faster on a trip to nowhere. It does- choice about whether or how much to work, n’t seem to matter that achieving each goal work addicts do not. Non-addicted individ- brings bittersweet dissatisfaction. Work is a uals may occasionally launch into a project drug to which they are addicted, and they that they are excited about or which has a have been powerless to stop the cycle. deadline. Workaholics always believe they are With few exceptions, my clients are work “under the gun.” addicts. Unlike alcoholics and abusers of other substances, theirs is an addiction that is How Work Addiction Develops adult who learned to bury his or her feelings not only socially acceptable, it is actually Often the children of alcoholic or abusive as a child will continue to suppress them as encouraged and rewarded. parents, work addicts grew up literally learn- an adult. As our examples show, long hours Far from the skid row bum or the flop- ing to survive by being so perfect that there provide an escape from intimacy, making house junkie, by most standards they are would be nothing to instigate violence. Since relationships difficult. The inability to main- models of success. Top attorneys, physicians, preventing the eruption of an explosive or tain relationships extends to colleagues, sup- accountants, and entrepreneurs, they live in threatening parent almost always proves port staff, and even clients. One client prestigious neighborhoods and drive luxury impossible, the bar was always being raised refused to give his very competent paralegal automobiles. Their children attend the higher and higher. As a consequence, the cases that she could easily handle. Both she “right” private schools and universities. They work addict suffers from both feelings of and his secretary were frustrated as they are community leaders. inadequacy and responsibility for making watched the pile on his desk grow higher and But as one man lamented, “My wife took things work. Repeated accomplishments higher, while both of them were underuti- my family from me.” The truth was that he salve lagging self-esteem and make them feel lized and eager to help. It was only when he had left his family years before, falling victim worthy for short periods of time. But like the was about to lose both of them, at the very to the seduction of his addiction—work. drug of choice for other addicts, achievement time him wife threatened to leave and his In a paradox of monumental proportions, is a quick high always baiting the craving for unmarried daughter became pregnant, that these successful people who believe they are yet one more fix. the cold reality of his addiction forced him to engaged in this chase for their families often The workaholic rarely got unconditional examine how he would choose to live and lose their loved ones in the process. love and acceptance as a child. Love was work in the future. The husband of one woman reported something that had to be earned. So the that he’d grown accustomed to falling asleep child always sought to figure out what they Recapturing the Joy either before his wife got home or with her could do to earn love. As a consequence, the This man’s life reflects those of other working in bed beside him. Another had young person often excelled in school and workaholics that show up in my office at engaged in an extramarital affair for nearly a maybe athletics; as well as watch-dogging the midlife. Having allowed their race through year before his wife even noticed his frequent home front. It should not be surprising then life to rob them of the passion that reinvig- absences. Still another said if she couldn’t that the adult workaholic focuses on doing as orates and renews us, their lifestyle is a time find her workaholic partner at any hour, all a familiar way to both earn and show love. bomb waiting to go off, if it hasn’t already. she had to do was walk into the home office, Furthermore, because the feelings gener- Crippled relationships often create distract- and he’d be huddled over the computer. ated in the dysfunctional family were often ing personal crises with spouses and chil- Work addiction almost always involves too emotionally painful to cope with, the dren. The inability to participate as team

26 SPRING 2019 members frays relationships with colleagues. identified that when they get into their sur- may be the most difficult thing you have ever Physical self-neglect fosters a range of stress- vival mode, they either stop breathing or done. An encouraging friend will dramatical- related illnesses. breath very shallowly. The simple practice of ly increase chances of success. Those who have managed to “hang on” taking a deep breathe reduces the frustrations Verbal recognition and appreciation for and avoid a full-blown crisis are often lethar- of the day and allows us to focus completely new behaviors, such as, “It is great to have gic, alienated from their families, or “under on what is in front of us right now. you home for dinner,” can encourage repeat the gun” from a spouse who insists that Set aside a few minutes each day to do behavior. Another wonderful form of sup- something must change. Burned out and nothing. Don’t read, listen to music, watch port is to ask your support partner the ques- stressed out, by midlife the only alternative TV, sleep, or take a walk. Just do nothing. tion, “What can I do to support you right many see is bailing out of their careers at This will be a most challenging assignment, now?” It offers the recovering workaholic an their very prime. Professionals in every field but in just ten minutes each day, even the opportunity to listen to their own needs and are dropping out of their careers prematurely most severely addicted will shortly notice offer a range of responses which may work in record numbers, blaming the job for their that time spent just being is a powerful reju- for them at any moment. Possibilities might woes, rather than looking at the real culprit, venator. include, “I don’t need anything right now, which is the way they have chosen to relate Begin to be aware of what you feel and but thanks for asking,” to “I’d like some to their work. My task is to help them heal what you want as well as what you think. alone time,” or “I’d really like a hug.” their spiritual and emotional wounds so they Using “I” statements, rather than the imper- Get help from a professional who really can recapture the joy that work promises. sonal “we” or “you,” helps us distinguish understands the seriousness of this addiction. Recovering from work addiction is as between our unique wants and needs and Healing work addiction will be challeng- challenging as any. Alcoholics and other sub- what we may have assumed were universal ing, but the rewards are great. The compro- stance abusers break the control of their ones. mise of deeper, more meaningful relation- addictions by giving up use of their drugs. Get in touch with your physical senses as ships, improved physical health, and However, work addiction is a defensive atti- well. Literally take a few minutes each day to renewed vigor and passion for your profes- tude in which we attack life as if it were a smell the roses and consciously utilize your sion is the choice we make when we choose series of battles to be won rather than a ful- other senses. It is common by the second day true aliveness instead of the near-life experi- filling experience to be enjoyed. Even if we of my three-day intensive with clients for ence that most workaholics have had. could stop working, which most of us can’t, them to start noticing that birds sing more You see, life is not about money. Life is the behaviors are often turned to other activ- loudly and the flowers smell more sweetly. not about what we do or what we accom- ities. Breaking our work addiction demands Spend a few minutes listening deeply to plish. The one who dies with the most toys that we change our relationship to life. It someone you care about. Ask them how they still dies. requires us to be aware of the choices that we feel and what they want. Often you will dis- Life is consciously choosing to live our are making in each moment of our lives. It cover that ten minutes of your time is more own unique and special lives and to live them isn’t easy. It can be done. valuable to them than anything money could passionately. It is about having meaningful The following ideas are ones that I have buy. Those moments of connection will be relationships with those we love. And it really found most useful for both my clients and with both of you forever. is a choice. What will you choose? n myself. Start recapturing your hopes and dreams. The most important step in breaking the Identify something that you’ve always want- Kay Gilley earned her masters of science grip of the disease is to admit to being a ed to do and start doing it. I discovered a degree in industrial relations with a minor in workaholic and then to express the intention level of aliveness that I could not have imag- law from the University of Oregon Graduate to choose a different way of behaving in the ined when I began realizing a lifelong desire School of Management. Her books include future. to be a dancer. I’ve had clients who had Leading from the Heart and Alchemy of Acknowledgment allows the work addict always wanted to compose music, sing, Fear. She is a consultant on organizational to start becoming aware of their behaviors paint, write, sculpt, play a saxophone, and management and creativity to business and pro- and then begin changing them. Although it do stand-up comedy. Each reawakened fessionals. She can be contacted through her was a small step, when I was beginning my delight in life when they followed their for- website at intentional-leadership.com or by recovery process I would notice how often gotten dreams. calling 919-572-2879. I’d be charging into the grocery store on the Ask for support. This is very hard for a The North Carolina Lawyer Assistance way home from work as if I were ready to do work addict who is accustomed to taking Program is a confidential program of assistance battle. Just learning to take a deep breath charge and doing things alone, but it is essen- for all North Carolina lawyers, judges, and law and remind myself that it wouldn’t take any tial to recovery for several reasons. Asking for students, which helps address problems of stress, longer if I chose to enjoy my shopping trip support allows us to acknowledge that we are depression, alcoholism, addiction, or other always made a dramatic shift in both my not in this thing called life alone. We do have problems that may impair a lawyer’s ability to mental attitude and my physical body as I friends who want to help us. Furthermore, practice. If you would like more information, go relaxed. asking for help allows us to feel the intimacy to nclap.org or call: Cathy Killian (western areas Taking a deep breath is a powerful way to of being vulnerable with another person, of the state) at 704-910-2310, or Nicole come back into our bodies and into the pres- something for which we all yearn. Finally, Ellington (for eastern areas of the state) at 919- ent moment. Virtually all of my clients have changing a deeply ingrained survival pattern 719-9267.

THE NORTH CAROLINA STATE BAR JOURNAL 27 PATHWAYS TO WELLBEING

National Movement for Lawyer Wellbeing Takes Hold in NC Law Firms with a Mindfulness Focus

B Y L AURA M AHR

Last September I spoke at the ABA real conversations Commission on Lawyer Assistance Program’s about lawyer wellbe- (CoLAP) national conference on improving ing is a great improve- professional connections in the legal field ment. Not only in through mindfulness and on building North Carolina, but resilience to compassion fatigue. As a first- nationally. Histori- time attendee and presenter, I was honored cally, most large firms to meet advocates for lawyer wellbeing from have left these issues around the country, including LAP providers to in-house employee from almost all 50 states. After spending over assistance programs a decade as a lawyer advocating for the needs (EAP), which are of my clients, I was moved to be in the pres- rarely utilized. Re- ence of this passionate group of individuals cently, lawyer wellbe- whose focus lies in advocating for the needs ing is recognized not of lawyers. only as a risk manage- In my hallway conversations at the confer- ment issue, but also a ence, I discussed with others the Lawyer productivity issue. There is real support from Bar—the Continuing Legal Education (CLE) Wellbeing Movement that is gaining top management at firms of all sizes to take a Committee specifically—has shown incredi- momentum across the country. Terry Herrell, closer look at quality of life and firm culture ble support and foresight in approving mind- the chair of the ABA Working Group to issues, resulting in firms walking the walk and fulness and other stress reduction CLE pro- Advance Well-Being in the Legal Profession, not just talking the talk about ways to support grams. There are some states in which mental references this “movement” in her article lawyers’ mental health.” health CLE is not even permitted.” “How the ABA is Trying to Advance Lawyer Well-Being” (lawpracticetoday.org/article/ NC Firms Take Part in Shaping Lawyer NC Firms Bringing Mindfulness aba-trying-advance-lawyer-well). In the arti- Wellbeing Movement Trainings In-House cle, she says the movement is, “catalyzed I asked Ms. Moraites to talk specifically As Ms. Moraites mentioned, several pio- around the striking data published in articles about steps North Carolina law firms have neering law firms have brought Mindfulness about two large-scale studies—one on been taking to proactively address lawyer well- and Neuroscience for Building Resilience to lawyers and one on law students—that found being. She responded, “In 2016, LAP had the Stress CLE courses in-house. I created this that both groups experience substance use opportunity to present a Risk Management course and my business, Conscious Legal and mental health disorders at rates that sig- Roundtable, detailed in a 2017 Lawyer’s Minds, to help the legal field better under- nificantly exceed those of the general popula- Weekly article, (nclawyersweekly.com/2017/ stand the connection between mindfulness tion.” She further notes that, “both popula- 10/12/setting-the-pace-on-lawyer-health). In and practicing law, and to introduce lawyers, tions also were similarly reluctant to seek help the meeting, nine of the largest law firms in judges, and law school students to innovative for such problems.” the state came together to talk about attorney mindfulness and neuroscience tools to help mental health, addiction, and wellbeing. cope with stress. In the past three years, firms NC LAP Director’s Perspective on the Coming out of that meeting, many of the of varying sizes—urban and rural—began National Lawyer Wellbeing Movement participating firms began adopting the model contracting Conscious Legal Minds to tailor I asked North Carolina Lawyer Assistance policy promoted by the ABA. In addition, we mindfulness CLE courses for them in-house. Program Director Robynn Moraites her per- (LAP) have been conducting trainings with Some firms include the training at their annu- spective on the current state of affairs regarding lawyers and support staff from firms large and al lawyer retreat, others offer the course over a lawyer wellbeing. “There is a bit of a wellness small. Law firms across the state have spon- series of weeks at lunch; some offer the course revolution going on right now in the profes- sored in-house mindfulness CLE programs.” for lawyers only, others include support staff; sion,” she said. “The fact that we are having “In addition,” Robynn added, “the State some firms choose for me to conduct the

28 SPRING 2019 mindfulness training in-person, while others Resilience to Stress CLE course in-house. learned simple techniques that were easily prefer virtual trainings, and some choose a James Farrin: Our law offices brought incorporated into our day, and both the level combination of virtual and in-person. mindfulness training in-house because legal of need and the impact of mindfulness was work can be stressful, especially in a busy and evidenced in immediate requests for more What Firm Managers Have to Say demanding environment. Anything that we training. About in Promoting Lawyer Wellbeing can do to decrease stress and increase coping Cliff Homesley: It was an opportunity for I recently asked four of these pioneering skills should help with employee morale and self-examination and to learn to manage pri- firm leaders, “What role do you think firm retention and result in better service and out- orities so that we can give attention to the management has in promoting lawyer wellbe- comes for our clients as well. I had done some most important needs. ing through trainings and other benefits?” meditating previously and thought that it Linda Johnson: It was such a great team James Farrin, president and CEO, Law helped me personally, so I thought that some building event for the office. I believe that Offices of James Scott Farrin: I think it’s our of our attorneys and staff could benefit from each of us learned skills from the training to responsibility as managers to empower all of mindfulness training as well. apply during our work day. It was a great edu- our employees, and do what we can to pro- Brian Gillman: We brought mindfulness cation for learning about mindfulness. mote their wellbeing. Research shows that training to our firm because the pervasive attorneys can be particularly vulnerable to changes experienced in the legal industry Where We Go from Here stress, and some fall victim to substance abuse since 2008 have only served to increase our I’m inspired that in North Carolina, advo- and depression. Mindfulness training is rela- focus in identifying resources to assist our cacy for lawyer wellbeing includes law firm tively inexpensive, and it can give us skills that attorneys and staff in balancing the demands management and mindfulness programs, in not only make us more resilient and more of a successful law practice with those in our addition to historically more conventional productive in the workplace, but also allow us personal life. As our management team key players and more traditional wellness pro- to handle our personal and family lives better. became aware of the compelling impact of grams. As more and more firms step in as Why wouldn’t I want that for myself, my mindfulness techniques, we quickly began stakeholders for lawyer wellbeing, it is employees, and my loved ones? exploring ways we could introduce them at encouraging that established stakeholders are Brian Gilman, COO, Smith Debnam our firm. working together as well. “There is increasing Narron Drake Saintsing & Myers, LLP: A Cliff Homesley: Mindfulness is basically a collaboration between various stakeholders primary responsibility of management in any common-sense concept of living in the pres- that have lawyer wellbeing foremost in their organization is the safeguard and develop- ent moment. This is ultimately the only way mission in our state: the Chief Justice’s ment of its personnel. As lawyers and staff to properly address client needs and to inter- Commission on Professionalism, Lawyers spend nearly every day at the “tip of the act with our coworkers. We inherently live in Mutual Insurance, the Lawyer Assistance spear” of stress incumbent in the practice of the past or future, so it takes training to be Program, Bar CARES, the LAP Foundation law, promoting wellbeing in our most valu- able to stay present. of North Carolina Inc.” notes Ms. Moraites. able resource is easily identifiable as a man- Linda Johnson: I brought the mindfulness “While there is certainly always more that can agement priority. training to my firm because I believe that firm be done, North Carolina continues to be a Cliff Homesley, partner, Homesley & management needs to be extremely commit- leader in fostering and promoting multiple Wingo Law Group PLLC: Firm manage- ted to the lawyers and staff members’ physical approaches to address this important topic.” ment sets the tone for the priorities of the and mental wellbeing. An individual cannot New leadership from a variety of players firm. Though we all like to efficiently deliver function and do their best job for the client if across the state—not to mention increased client services, have a satisfying work place, they are not mentally and physically healthy. numbers of individual lawyers seeking mind- and make a good living, there are fundamen- Our jobs are very demanding, and we need to fulness and resilience-based executive coach- tals behind those things that must be empha- take care of ourselves and our staff members. ing—bodes well for our state holding its own, sized. The first being quality of life for the if not leading the way, in the National firm and its clients. Benefits Firms are Receiving from Movement for Lawyer Wellbeing. I am stay- Linda Johnson, managing partner, Sponsoring Mindfulness Trainings ing tuned to see where North Carolina firms Senter, Stephenson, Johnson, PA: Practicing Finally, I asked each of these leaders about go as we follow these trailblazers down the law is stressful for all members of the firm. some of the benefits the firm received from path toward a more mindful, collaborative, Our practice areas—estate administration sponsoring Mindfulness and Neuroscience and resilient Bar. n and guardianship administration—bring a for Building Resilience to Stress CLE train- lot of drama and stress to the office. I wanted ings at their firms. Laura Mahr is a NC lawyer and the founder to find ways for all of us to manage the stress James Farrin: Reduced stress and better of Conscious Legal Minds LLC, providing while working. focus. It’s easier to move on from a difficult mindfulness-based coaching, training, and con- call or encounter and be present for the next sulting for attorneys and law offices nationwide. Why Firm Managers are Bringing one when one practices mindfulness. Her work is informed by 11 years of practice as Mindfulness Training In House Brian Gillman: The response of naturally a civil sexual assault attorney and 25 years as a I was also curious about what interested skeptical attorneys to the mindfulness con- student and teacher of mindfulness and yoga, each of these firms in bringing the cepts introduced at our annual attorney and a love of neuroscience. Find out more about Mindfulness and Neuroscience for Building retreat exceeded our expectations. We all Laura’s work at consciouslegalminds.com.

THE NORTH CAROLINA STATE BAR JOURNAL 29 LEGAL SPECIALIZATION

Darrin Jordan, Board Certified Specialist in State Criminal Law

B Y L ANICE H EIDBRINK, EXECUTIVE A SSISTANT OF L EGAL S PECIALIZATION

“I thoroughly enjoyed working with Darrin Committee and the Editorial Board. In addi- crucial ways. First, it helps identify attorneys when he chaired the State Bar’s Ethics tion to these activities, Darrin finds time to who have dedicated a major part of their Committee. Darrin is an insightful and practi- volunteer with the Carolina Center for Civil practices to being the very best within an area cal leader who understands the nuances of the Education, coordinating the mock trial com- of law. Secondly, certification makes certain Rules of Professional Conduct, but petitions, and to serve as a pre- that those attorneys devote themselves to always seeks to apply them in a real- senter and organizer for several that area of law by concentrating their annu- world way.” continuing legal education al CLE credit on attending seminars that are —Alice Mine courses for the Rowan County specifically about their specialty practice area. State Bar executive director Bar. Q: How has specialization changed in your Darrin became a board certi- 15 years as a specialist? If you ask most of his col- fied specialist in state criminal I’m not sure that it has changed in my 15 leagues, you’ll find that Darrin law in 2004, and has been a years other than there seems to be an empha- Jordan makes an impression on strong advocate for the special- sis to encourage attorneys not in the private everyone he meets. Darrin is seri- ization program and the many sector (i.e. district attorneys and public ous and passionate about the prac- Jordan benefits that come from being defenders) to seek certification and scholar- tice of law, which you can sense certified. ships have been set up for that purpose. I immediately upon meeting him, but you Q; What originally motivated you to think that encouraging these individuals rais- also find pretty quickly that he is kind, become a specialist? es the quality of our entire judicial system thoughtful, introspective, and genuinely Encouragement from fellow criminal law and I support this effort. Anything that we cares about his community, fellow lawyers, specialists Marshall Bickett (now a district can do as a profession to increase public con- and everyone he meets. I had the pleasure of court judge) and James Davis. We met for fidence in attorneys and our judicial system interviewing Darrin and enjoyed getting to lunch frequently, and during those lunches is a step in the right direction. know more about an individual who has we would discuss new criminal law issues Q: Name the top three benefits you’ve expe- given so much through his devotion to help- and encourage each other to stay up to date. rienced as a result of becoming a specialist. ing not only the community, but lawyers James became a specialist first, then he First, it has encouraged me to always learn who want to join him in giving back to the recruited Judge Bickett, and they both more about being a criminal defense attor- profession. encouraged me to apply. ney, whether it is learning substantive law or Darrin grew up in Salisbury, North Q: What career accomplishments are you the trial advocacy skills that make me a better Carolina, and graduated from Campbell most proud of and why? trial attorney. Second, as I mentioned before, University School of Law in 1990. He went I have been blessed to have worked with it has given me an opportunity to meet other on to become an assistant district attorney in incredible individuals and lawyers during my criminal law specialists who I can rely on to Cabarrus County from 1994-1997 and service on the North Carolina State Bar give me their opinions and advice on issues I served as a Rowan County Assistant District Council as a councilor, as a commissioner on need help with in handling cases. Finally, I’ve Attorney from 1997-2000. the North Carolina Indigent Defense benefited by being a part of an implicit refer- Darrin is, in a word, busy. While practic- Services Commission, and as a member of ral network because specialists go to the ing law full-time, he also served as a member Chief Justice Martin’s Commission on the directory of board certified specialists when of NC State Bar Council for Judicial District Administration of Law and Justice. I’ve they are looking for an attorney in another 19C* (now district 27) from 2009 to 2018. learned so much from working with the North Carolina jurisdiction. The Ethics Committee and Legal Assistance members of these organizations, both profes- Q: What’s something that most people Program Board (LAP) are among the State sionally and personally, and I am grateful. don’t know about you? Bar standing committees on which he has Q: How does certification benefit the Despite all the work I have done on both served. He is currently serving as an advisory public? the state and local level for our profession, I member of both the State Bar Legislative Certification benefits the public in two really do practice law, go to court every day

30 SPRING 2019 (except when I’m at a meeting), and try jury stream with a fly rod in hand catching our trials on a regular basis (when called upon). only native trout, brook trout. I also love While I am sure my partners and support growing vegetables in my garden and keep- staff get frustrated with all the time I spend ing bees. In the winter months I enjoy away from the office, they are extremely sup- attending hockey games with my daughter, portive and, in kind, I am extremely grateful. Anna. n Q: What are you happiest doing, when you’re not working? For more information on how to become My first love (outside of my family) is certified, visit our website at nclawspecialists. standing in the middle of a cold mountain gov.

Trust Accounting (cont.) collectively resulted in losses exceeding mil- lions of dollars. be able to help her get to the bottom of and Pursuant to Rule of Professional Conduct resolve this issue. Unfortunately, when Stacy 1.15, a lawyer who receives funds that belong called the real estate broker and explained the to a client is required to safeguard such concern, she learned that he did not email funds. According to 2015 FEO 6, lawyers her to provide a change to the wire instruc- must use reasonable care to prevent third tions. Closer scrutiny of the email she parties, like [email protected], from received showed that the sender had subtly gaining access to client funds held in the altered the email address by changing the let- trust account and have a responsibility to ter “l” to the number “1,” so that instead of implement reasonable security measures. being sent by [email protected], it Calling a seller when there is a requested was actually from [email protected]. change in wire instructions has been deter- Stacy’s concern quickly turned into full mined to be one such reasonable measure. panic. She knew she needed to inform The following are a few additional steps Laurel, the closing lawyer, that the firm had lawyers may take to further their efforts to likely fallen victim to wire fraud. prevent third parties from gaining access to The increase in electronic banking has funds in the trust account: given rise to an increase in email scams 1. Have a written policy that requires any devised to gain access to electronically change in payment type or location be con- transmitted funds. The scammers gain firmed either by telephone using a known access to email accounts and monitor the number obtained at the beginning of the rep- email traffic for information about transac- resentation or in person; tions that are scheduled to occur. According 2. Confirm the routing number provided to the FBI, the email accounts hacked are to you is for the bank used by the other party; often chosen from publicly available infor- and mation on real estate listing sites. Also, 3. Regularly check your email account scammers have been known to target all log-in activity for possible signs of email com- parties to a real estate transaction. Once a promise. transaction is found, the scammer then per- The FBI recommends victims of fraud act petrates the scam by spoofing the email quickly upon discovering the fraud and take address of one of the parties to the transac- the following steps: tion (as occurred with Mark, the real estate 1. Contact your financial institution and broker, in the case above) and sends an request a recall of the funds; email to the lawyer’s office communicating 2. Contact your local FBI office and a change in the wire instructions for the report the fraudulent transfer; and transaction. The spoofed email usually 3. File a complaint with IC3 at ic3.gov, looks identical to the true email to anyone regardless of dollar amount. who is acting under time pressure. The end In addition to following the recommenda- result, if proper protective measures are not tions of the FBI, lawyers must also remember in place and followed, is the wiring of funds to report the fraudulent transfer to trust to the scammer instead of the true and account compliance counsel as required by intended recipient. Scams of this type have Rule of Professional Conduct 1.15-2(p). n

THE NORTH CAROLINA STATE BAR JOURNAL 31 IOLTA UPDATE

Interest Income to IOLTA from Participating Banks Begins to Recover

Income and All 2018 IOLTA income from participat- • $112,500 to projects to improve the Domestic Violence Victim ing banks that hold IOLTA accounts will not administration of justice. Assistance Report Now Available be received and entered until the end of An additional grant of $998,000 was January, after this edition of the Journal has made to the Home Defense Project Each year, as required by statute, NC gone to press. Participant income through Collaborative to support foreclosure preven- IOLTA produces a report to the General November 2018 was more than $2.5 mil- tion legal services provided by six legal aid Assembly detailing the funds adminis- lion, an increase of 64% over the same peri- organizations across the state. This grant was tered and outcomes achieved under the od in 2017. This increase during the same made with funds from the national Bank of Domestic Violence Victim Assistance period from 2016 to 2017 was only 2%. America settlement. Act. In 2017-2018, Legal Aid of North IOLTA revenue is still far from pre-recession The IOLTA trustees also dedicated funds Carolina and Pisgah Legal Services levels, but we hope this positive income to rebuild the reserve fund, which has a cur- closed cases for more than 6,300 victims trend will continue into 2019 to enhance the rent balance of $367,201. Though the of domestic violence. The full report can availability of funds for grantmaking. amount will not be finalized until all 2018 be found on our website, nciolta.org. income has been received, we anticipate a Grants contribution of at least $500,000. At the November 30 grantmaking meet- The General Assembly also appropriated ing, the IOLTA trustees approved 2019 State Funds $100,000 to Pisgah Legal Services for veter- IOLTA grant awards. Regular 2019 IOLTA In addition to its own funds, NC IOLTA ans’ legal services that NC IOLTA adminis- grants totaled nearly $1.85 million, an 11% administers the state funding for legal aid tered. To date, NC IOLTA has administered increase in grantmaking over 2018. under the Domestic Violence Victim $505,082 in domestic violence state funds • $1,447,000 to support providers of Assistance Act on behalf of the NC State Bar. for 2018-2019. $100,000 was appropriated direct civil legal services; In 2017-2018, NC IOLTA distributed to Pisgah Legal Services for veterans’ legal • $305,000 to volunteer lawyer programs; $1,060,596 in domestic violence state funds. services again in 2018-2019. n

Legal Ethics (cont.) confidence to the client that there is a more and then use your best judgment to deter- positive alternative to suicide.1 mine whether it is reasonably necessary to community resources readily available. She The Rules of Professional Conduct offer, reveal the client’s suicidal intent to others. also suggests that lawyers make contact with among other things, terms with which Err on the side of safety. If you are still not a few counselors in the community to which lawyers can resolve difficult situations that sure, contact a State Bar ethics lawyer and they can refer clients, and/or that can provide arise with clients. A client’s expressed suicidal seek advice. n the lawyer with guidance on dealing with thought or intention is one of the most diffi- suicidal clients. Another suggestion is that if cult scenarios we will face as lawyers. If you Suzanne Lever is assistant ethics counsel for the lawyer is aware that a client is seeing a ever find yourself in that situation, know that the North Carolina State Bar. mental health professional, the lawyer ask the it is not professional misconduct for a lawyer, client to sign a release at the beginning of the acting reasonably and in good faith, to exer- Endnote representation allowing the lawyer to contact cise her professional judgment to disclose or 1. Lawyer’s Mutual also has helpful information on this the professional if needed. Finally, the lawyer not to disclose in this most delicate and crit- issue on its website, including the article “Having a should know that expressing empathy and ical of situations. Evaluate the credibility of Plan in Place Could Save a Life,” by Monisha Parker, located at lawyersmutualnc.com/blog/having-a-plan- genuineness, and adopting a collaborative the threat to the best of your ability—and in-place-could-save-a-life. stance with the client, will help engender with any assistance that may be available—

32 SPRING 2019 PROPOSED OPINIONS

Committee Publishes Proposed Opinions on Sexual Relationships with Opposing Counsel, ERISA Plans, and Acting as an Intermediary in Domestic Cases

Council Actions not represent a client if the representation The State Bar Council had no action involves a concurrent conflict of interest. A items from the Ethics Committee this quar- concurrent conflict of interest exists if the ter. However, the Ethics Committee consid- representation of one client will be directly Rules, Procedure, ered a total of eight inquiries at its meeting adverse to another client, or the representa- Comments on January 17, 2019. Five of those inquiries tion of one or more clients may be materi- were sent or returned to subcommittee for ally limited by the lawyer’s responsibilities All opinions of the Ethics Committee are further study, including Proposed 2018 to another client. Rule 1.7(a). predicated upon the North Carolina Formal Ethics Opinion 8, Advertising Rule 1.7(b) recognizes that a conflict can Rules of Professional Conduct. Any Membership in Marketing Company with be resolved by client consent. However, interested person or group may submit a Misleading Title, as well as inquiries con- some conflicts are nonconsentable, mean- written comment – including comments cerning informal communications with a ing that the lawyer involved cannot proper- in support of or against the proposed judge, a lawyer’s ability to receive Bitcoin ly ask for such agreement or provide repre- opinion – or request to be heard concern- and other cryptocurrency in connection sentation on the basis of the client’s con- ing a proposed opinion. The Ethics with a law practice, attorney’s eyes only dis- sent. Rule 1.7, cmt. [14]. The commentary Committee welcomes and encourages covery agreements, and a lawyer’s ability to to Rule 1.7 further provides, the submission of comments, and all access the social media presence of repre- Consentability is typically determined comments are considered by the com- sented and unrepresented persons. Lastly, by considering whether the interests of mittee at the next quarterly meeting. the committee approved three new opin- the clients will be adequately protected if Any comment or request should be ions for publication, which appear below. the clients are permitted to give their directed to the Ethics Committee c/o informed consent to representation bur- Lanice Heidbrink at lheidbrink@ Proposed 2019 Formal Ethics dened by a conflict of interest. Thus, ncbar.gov no later than March 29, 2019. Opinion 1 under paragraph (b)(1), representation is Lawyer as an Intermediary prohibited if in the circumstances the January 17, 2019 lawyer cannot reasonably conclude that Proposed opinion rules that a lawyer may the lawyer will be able to provide com- not jointly represent clients and prepare a sep- petent and diligent representation. See Public Information aration agreement. Rule 1.1 (competence) and Rule 1.3 (diligence). The Ethics Committee’s meetings are Inquiry: Rule 1.7, cmt. [15]. public, and materials submitted for con- Lawyer represents clients in domestic In 2013 FEO 14, the Ethics Committee sideration are generally NOT held in relations matters. Lawyer has been contacted determined that, in most instances, com- confidence. Persons submitting requests by a married couple wishing to separate and mon representation in a commercial loan for advice are cautioned that inquiries then later obtain a divorce. No litigation has closing is nonconsentable. Common repre- should not disclose client confidences or been initiated. The married couple agree on sentation was found to be inappropriate sensitive information that is not necessary the terms of separation. The couple does not because of the “numerous opportunities for to the resolution of the ethical questions have sufficient funds to pay two lawyers and a lawyer to negotiate on behalf of the par- presented. wants Lawyer to prepare the separation ties” and “numerous opportunities for an agreement for both parties. May Lawyer pre- actual conflict to arise between the borrow- pare a separation agreement for both parties? er and the lender.” 2013 FEO 14. agreed on the terms of separation, there are These same issues and concerns are pres- potentially numerous opportunities for Opinion: ent in the case of a separation agreement. Lawyer to negotiate on behalf of the parties No. Rule 1.7 provides that a lawyer shall Although the parties may believe they have regarding, inter alia, custody, property divi-

THE NORTH CAROLINA STATE BAR JOURNAL 33 sion, and family support. In the event an ises made in the Agreement are binding tained herein is applicable to lawyers in actual conflict arises, the prejudice to the upon the promisor and the promisor’s attor- both criminal and civil matters. parties would be substantial. ney and requires the signature of the Lawyer has a professional duty to pro- promisor’s attorney. Lawyer A is an assistant district attorney vide competent and diligent representa- in District Q. Lawyer B represents criminal tion to each client and ensure that the legal Inquiry: defendants in District Q. Lawyer A and interests of each client are protected. Rules Do the Rules of Professional Conduct Lawyer B engage in a sexual relationship 1.1 and 1.3. When the clients are legally permit Lawyer to agree not to abandon or over a one- to three-month period. During adverse to each other in the same matter settle the Client’s claim without the the relationship, Lawyer A prosecutes sever- and there are numerous opportunities for approval of the Plan? al cases in which Lawyer B represents the Lawyer to negotiate on behalf of the par- defendants. Lawyer A and Lawyer B do not ties, impartiality is rarely possible. See Opinion: inform their respective clients or superiors 2013 FEO 14. Lawyer, therefore, cannot No. Lawyer may not agree to any terms about the relationship. adequately advise one client without com- in the Agreement that contradict Lawyer’s promising the interest of the other client. professional responsibility to abide by Inquiry #1: Because Lawyer cannot adequately repre- Client’s directives regarding the representa- Does Lawyer A’s and Lawyer B’s conduct sent the interests of each client, Lawyer has tion as set out in Rule 1.2. violate the Rules of Professional Conduct? a nonconsentable conflict and cannot pre- The Agreement requires Client and his pare the separation agreement for both counsel to fully prosecute the pending Opinion #1: parties. workers’ compensation claim and to obtain Yes. Rule 1.7(a) states that “a lawyer written approval from the Plan before aban- shall not represent a client if the represen- Proposed 2019 Formal Ethics doning or settling the claim. As to Lawyer, tation involves a concurrent conflict of Opinion 2 these requirements conflict with Lawyer’s interest.” The Rule goes on to say that a Conditions Imposed on Lawyer by professional responsibilities to Client as set concurrent conflict of interest exists “if the Client’s ERISA Plan out in Rule 1.2. Pursuant to Rule 1.2, representation of one or more clients may January 17, 2019 Lawyer has an ethical obligation to “abide be materially limited by the lawyer’s Proposed opinion rules that lawyer may by a client’s decisions concerning the objec- responsibilities to another client, a former not agree to terms in an ERISA plan agree- tives of representation” and “abide by a client, or a third person, or by a personal ment that usurp client’s authority as to the rep- client’s decision whether to settle a matter.” interest of the lawyer.” Rule 1.7(a)(2). Rule resentation. If Client signs the Agreement and subse- 1.7 addresses situations where there is both Lawyer represents an injured worker in a quently decides to abandon or settle the an actual material limitation and a poten- denied workers’ compensation claim. matter without the Plan’s approval, Lawyer tial material limitation. See id. (“...may be Client participated in a self-funded health has a professional obligation to follow materially limited...”) (emphasis added). benefits plan (Plan) though his workplace. Client’s directives. Lawyer may not agree to Comment 8 to Rule 1.7 states that “[t]he The Plan was established under the the conditions in the Agreement that usurp mere possibility of subsequent harm does Employee Retirement Income Security Act Client’s authority as to the objectives of the not itself preclude the representation or of 1974 (ERISA), 29 U.S.C.A. § 1001 et representation. require disclosure and consent.” Instead, seq. As a precondition to issuing payments the critical questions to consider in deter- for Client’s medical expenses, the Plan Proposed 2019 Formal Ethics mining whether a material limitation exists requested that Client and Lawyer sign an Opinion 3 as a result of a personal interest during a Agreement that includes the provisions Engaging in Intimate Relationship representation are “[1] the likelihood that a described below. with Opposing Counsel difference in interests will eventuate and, if The Agreement between the Plan and January 17, 2019 it does, [2] whether it will materially inter- Lawyer’s client (referred to as “the Proposed opinion rules that an ongoing fere with the lawyer’s independent profes- promisor”) sets out that the promisor was sexual relationship between opposing counsel sional judgment in considering alternatives injured on the job; that the promisor is cur- creates a conflict of interest in violation of Rule or foreclose courses of action that reason- rently proceeding or promises to initiate a 1.7(a). ably should be pursued on behalf of the claim against his employer; that the client.” Rule 1.7, cmt. [8]. Accordingly, promisor’s claim is disputed; and that the Introduction: determining whether a materially limiting promisor is in need of benefits under the The Rules of Professional Conduct personal interest exists depends on an Plan. apply to all lawyers in their various repre- examination of the surrounding circum- The Agreement states that, as a condi- sentative capacities. Accordingly, although stances of the situation at issue. If a materi- tion of receiving Plan benefits, the promisor this opinion is based upon a scenario ally limiting personal interest exists, repre- agrees to fully prosecute his pending claim involving representation in a criminal mat- sentation may only continue if the lawyer and agrees not to abandon or settle his ter, the conduct at issue may threaten the satisfies the terms of Rule 1.7(b), including claim without the written approval of the integrity of both the criminal and civil jus- that the lawyer reasonably believes that s/he Plan. The Agreement states that the prom- tice systems, and therefore the analysis con- will be able to provide competent and dili-

34 SPRING 2019 gent representation to the affected client, the prosecuting office during the represen- triggers the protection afforded to clients and the lawyer discloses the conflicting tation. Commonwealth v. Croken, 432 Mass. under Rule 1.7(a)(2). However, under the interest to his/her client and obtain the 266, 277 (2000). In reaching its conclu- circumstances presented in this inquiry, a client’s written, informed consent to con- sion, the court held: lawyer’s representation of a client is materi- tinue in the representation. See also Rule A lawyer’s personal interests surely ally limited by the lawyer’s personal interest 1.4(b) (“A lawyer shall explain a matter to include his interest in maintaining ami- in an ongoing sexual relationship with the extent reasonably necessary to permit cable relations with his relatives, his opposing counsel, and that conflict of inter- the client to make informed decisions spouse, and anyone with whom he is est requires the participating lawyers to sat- regarding the representation.”). comparably intimate. This interest is, of isfy the conditions of Rule 1.7(b) in order We have previously opined that spouses course, often significantly pecuniary in to continue the representation, including cannot participate in a matter as opposing character, but it also has irreducible disclosing the relationship to their clients counsel unless their relationship is disclosed emotional and moral dimensions, and it and obtaining their clients’ written, to the affected clients and the clients pro- heavily bears on how any ordinary informed consent. The personal interest vide written, informed consent to continue human being goes about making impor- conflict is not imputed to members of the in the representation. See RPC 11. Other tant decisions. It follows that in a case lawyer’s firm or office under Rule 1.10 so jurisdictions have similarly determined where a lawyer’s representation of a long as the conflict “does not present a sig- spousal relationships between opposing client may be significantly limited by his nificant risk of materially limiting the repre- counsel constitute a conflict of interest. See ties to his relatives and intimate com- sentation of the client by the remaining generally Mich. Formal Op. R-3 (1989) (“A panions, professional ethics are implicat- lawyers in the firm.” Rule 1.10(a). lawyer whose spouse represents the oppos- ed just as they would in a case where the ing party in a case may not continue to han- lawyer represents a second client with lit- Inquiry #2: dle the case unless the parties are informed igation interests potentially adverse to Assume Lawyer B notifies his client(s) of the relationship between the lawyers and those of the first client....We do hold and the provisions of Rule 1.7(b) were met. consent to continued representation.”). At that, where a criminal defense lawyer Does Lawyer A have an obligation to obtain least one jurisdiction (New York) found represents a client and a close relative or such consent? If so, from whom? that dating relationships between opposing an intimate companion is a colleague of counsel can constitute a conflict of interest the prosecutor who seeks to convict the Opinion #2: because “[a] dating relationship between client, the requirements of [Rule 1.7] Yes. Lawyer A also has a conflict and adversaries is inconsistent with the inde- must be met. must satisfy the requirements of Rule 1.7(b) pendence of professional judgment[.]” N.Y. Id. at 273. to continue in the representation. See State Bar Ass’n Op. 660 (1993). We find the reasoning expressed in the Opinion #1. Elected district attorneys are (“Whatever hereafter may be said of friend- New York and Massachusetts opinions per- entitled to enact their own internal office ships in varying degrees, we believe that a suasive. The nature of a continuing, sexual- policies in accordance with the law of this frequent dating relationship is clearly over ly intimate relationship between opposing state. The identification of the person or the line that separates ethically cognizable counsel during an ongoing dispute creates a governmental body to whom the assistant conflicting interests from those which are personal interest for the participating district attorney’s report should be made is a not.”) That same opinion found that crim- lawyers that materially limits the lawyers’ legal and policy question that is beyond the inal cases required heightened scrutiny in respective abilities to exercise independent purview of this committee. evaluating potential conflicts of interest judgment, preserve confidences, and other- resulting from personal relationships to pre- wise render unencumbered representation. Inquiry #3: serve the integrity of the criminal justice Such a relationship could also detrimentally Would the answer to Inquiry #1 change system. Id. (“Irrespective of the subjective impact the profession and the administra- if the relationship was a more long-stand- intent of the prosecutor and defense coun- tion of justice, as the relationship could ing, emotionally involved relationship? sel, and regardless of howsoever scrupulous serve as grounds for post-conviction or they may be in the conduct of their profes- post-judgment relief, as well as contribute Opinion #3: sional obligations, the appearance of par- to the negative image of lawyers. As noted No. The relationship described in this tiality in the administration of justice is so in comment 1 to Rule 1.7, “Loyalty and inquiry is more akin to a marital relation- strong that a couple who date frequently independent judgment are essential ele- ship and therefore must be disclosed to the should not be permitted to appear opposite ments in the lawyer’s relationship to a client to continue with the representation, one another in criminal cases.”) client.” A client should be informed of the in addition to complying with the other In Commonwealth v. Croken, the possibility that his or her lawyer may be requirements of Rule 1.7(b). See RPC 11; Supreme Court of Massachusetts vacated a professionally or emotionally compromised see also N.Y. State Bar Ass’n Op. 660 trial court’s denial of the defendant’s motion due to the lawyer’s ongoing sexual relation- (1993). The added circumstance of a long- for a new trial based in part on the question ship with the opposing lawyer. standing, emotionally involved relationship of whether the defendant’s counsel engaged This opinion does not undertake the enlarges the personal interest conflict and in a conflict of interest by participating in task of determining the point at which a creates a likelihood of material limitation in an intimate relationship with a member of personal relationship with opposing counsel violation of Rule 1.7(a)(2). n

THE NORTH CAROLINA STATE BAR JOURNAL 35 RULE AMENDMENTS

Amendments Pending Supreme Court Approval

At its meeting on January 18, 2019, the the Estate Planning and Probate Law council of the North Carolina State Bar had Specialty; Section .2400, Certification no rule amendments before it for adoption. Standards for the Family Law Specialty; However, at its meeting on October 26, Section .2500, Certification Standards for Highlights 2018, the council voted to adopt the follow- the Criminal Law Specialty; Section .2600, • Upon the recommendation of a ing rule amendments for transmission to the Certification Standards for the Immigration special committee appointed to North Carolina Supreme Court for approval. Law Specialty; Section .2700, Certification study the Attorney Client Assistance (For the complete text of the proposed rule Standards for the Workers’ Compensation Program, the council publishes pro- amendments, see the Fall 2018 edition of the Law Specialty; Section .2800, Certification posed rule amendments that will, Journal or visit the State Bar website.) Standards for the Social Security Disability among other things, improve the op- Law Specialty; Section .2900, Certification eration of the State Bar’s fee dispute Proposed Amendments to the Rules Standards for the Elder Law Specialty; program and eliminate district bar on Discipline and Disability of Section .3000, Certification Standards for fee dispute programs. Attorneys the Appellate Practice Specialty; Section • At the request of the Board of Con- 27 N.C.A.C. 1B, Section .0100, .3100, Certification Standards for the tinuing Education, amendments Discipline and Disability of Attorneys Trademark Law Specialty; Section .3200, eliminating the cap on online CLE Proposed amendments to Rule .0113 Certification Standards for the Utilities Law are proposed and published below establish a procedure for imposition of cen- Specialty; and Section .3300, Certification for comment. sures that is consistent with the procedures Standards for the Privacy and Information for imposition of reprimands and admoni- Security Law Specialty tions. Proposed new Rule .0135 establishes a The proposed amendments reduce the procedure to suspend the license of a licensee number of peer references required for recer- typographical error included in an amend- who is not in compliance with demands of tification as a specialist from ten to six for all ment to the Rules of Professional Conduct the Grievance Committee for information or specialties. approved by the North Carolina Supreme evidence relating to a grievance investigation. Court on April 5, 2018. They also revise the Proposed Amendments to the Rules official comment to specify that gifts or loans Proposed Amendments to the of Professional Conduct to judges are only prohibited if made under Minimum Standards for Continued 27 NCAC 2, Rule 1.15, Safekeeping circumstances that might give the appearance Certification of Specialists and to the Property; Rule 3.5, Impartiality and that the gift or loan was made to influence Recertification Standards for All Decorum of the Tribunal; and Rule 5.4, official action. The proposed amendments to Specialties Professional Independence of Lawyer Rule 5.4 add an exception to the prohibition 27 N.C.A.C. 1D, Section .1700, The The proposed amendments to the official on fee sharing with a nonlawyer that allows a Plan for Legal Specialization; Section .2100, comment to Rule 1.15 explain the due dili- lawyer to pay a portion of a legal fee to certain Certification Standards for the Real Property gence required if a lawyer uses an intermedi- third parties if the amount paid is for admin- Law Specialty; Section .2200, Certification ary (such as a bank, credit card processor, or istrative or marketing services and there is no Standards for the Bankruptcy Law Specialty; litigation funding entity) to collect a fee. The interference with the lawyer’s independent Section .2300, Certification Standards for proposed amendments to Rule 3.5 correct a professional judgment.

Proposed Amendments

At its meeting on January 18, 2019, in Review Committee, the council voted to Proposed Amendment to the Rule on response to the Final Report and publish the following proposed rule amend- Standing Committees and Boards of Recommendations of the Attorney Client ments for comment from the members of the the State Bar Assistance Program/Fee Dispute Program Bar: 27 N.C.A.C. 1A, Section .0700, Standing

36 SPRING 2019 Committees and Boards of the State Bar Committee, and Professionalism Committee Proposed Amendments to the Rules The proposed amendment eliminates the provided that, with respect to the Fee on Discipline and Disability of requirement that the Grievance Committee Dispute Resolution Committee and the Attorneys establish and implement a disaster response Grievance Committee, the district meets the 27 N.C.A.C. 1B, Section .0100, plan to assist victims of disasters in obtaining State Bar guidelines relating thereto. Discipline and Disability of Attorneys legal representation and to prevent the (b) Fee Dispute Resolution Committee: The proposed amendments reflect the improper solicitation of victims by lawyers. (1) The Fee Dispute Resolution Grievance Committee’s authority to operate Committee shall consist of at least six the Attorney Client Assistance Program and .0701 Standing Committees and Boards but not more than eighteen persons the Fee Dispute Resolution Program. (a) Standing Committees… appointed by the president to stag- (1) Executive Committee… gered three-year terms as provided in .0106 Grievance Committee: Powers and (2)… the district bar’s Fee Dispute Duties (3) Grievance Committee. It shall be the Resolution Plan. The Grievance Committee will have the duty of the Grievance Committee to (2) The Fee Dispute Resolution power and duty exercise the disciplinary and disability Committee shall be responsible for (1) to direct the counsel to investigate any functions and responsibilities set forth in implementing a Fee Dispute Resolution alleged misconduct or disability of a member Section .0100 of Subchapter 1B of these Plan approved by the Council of the of the North Carolina State Bar coming to its rules and to make recommendations to North Carolina State Bar to resolve fee attention; the council for such amendments to that disputes efficiently, economically, and (2) … section as the committee deems neces- expeditiously without litigation. (14) to operate the Attorney Client sary or appropriate. The Grievance (c) (b) Grievance Committee: … Assistance Program (ACAP). Functions of Committee shall sit in subcommittees as assigned by the president….One sub- committee shall oversee the Attorney Client Assistance Program. It shall be the In Memoriam Addison Vann Irvin duty of the Attorney Client Assistance Elizabeth City, NC subcommittee to develop and oversee Stavros Agapion Kathryn Elizabeth Kasper policies and programs to help clients and Cary, NC Henrico, VA lawyers resolve difficulties or disputes, Carlos Mark Baldwin Kyra Lowry including fee disputes, using means Jacksonville, NC Pembroke, NC other than the formal grievance or civil litigation processes; to establish and Charles Lloyd Bateman Jr. William Blair Lucas implement a disaster response plan, in Chapel Hill, NC Raleigh, NC accordance with the provisions of Lacy Wilson Blue William A. Marsh Jr. Section .0300 of Subchapter 1D of Charlotte, NC Durham, NC these rules, to assist victims of disasters in obtaining legal representation and to Adelaide Austell Craver Frederick C. Meekins prevent the improper solicitation of vic- Shelby, NC Charlotte, NC tims by lawyers; and to perform such David G. Crockett William Gane Robinson other duties and consider such other Southern Pines, NC Charlotte, NC matters as the council or the president may designate… Susan R. Franklin Thomas Haywood Stark Chapel Hill, NC Chapel Hill, NC Proposed Amendments to Rules John S. Freeman Hamlin Landis Wade Governing Organization of the North Charlotte, NC Charlotte, NC Carolina State Bar Charles L. Fulton 27 N.C.A.C. 1A, Section .1000, Model David Tutherly Watters Raleigh, NC Bylaws for Use by Judicial District Bars Raleigh, NC The proposed amendment reflects the George Franklin Givens Staten Langbourne Wilcox Jr. elimination of judicial district bar fee dispute Raleigh, NC Charlotte, NC programs. Ralph C. Harris Jr. James Lynwood Wilson Charlotte, NC .1010 Committees Liberty, NC (a) Standing committee(s): The standing Bernard Benjmain Hollowell Wiley Porter Wooten committees shall be the Nominating Bayboro, NC Burlington, NC Committee, Pro Bono Committee, Fee Dispute Resolution Committee, Grievance

THE NORTH CAROLINA STATE BAR JOURNAL 37 ACAP can include without limitation: Committees … (2) a dispute involving services that are (a) assisting clients and attorneys in the subject of a pending grievance com- resolving issues arising in the Proposed Amendments to the Rules plaint alleging violation of the Rules of client/attorney relationship that might on Standing Committees and Boards Professional Conduct; be resolved without the need to open of the State Bar (3)(2) a dispute over fees or expenses that grievance files; and 27 N.C.A.C. 1D, Section .0700, are or were the subject of litigation or (b) operating the Fee Dispute Resolution Procedures for Fee Dispute Resolution arbitration unless Program. The proposed amendments eliminate (i) a court, arbitrator, or arbitration judicial district bar fee dispute programs; panel directs the matter to the State Bar Proposed Amendments to the Rules eliminate language that would allow a third- for resolution, or on Discipline and Disability of party payor of legal fees or expenses to file a (ii) both parties to the dispute agree to Attorneys fee dispute petition; state that the fee dispute dismiss the litigation or arbitration 27 N.C.A.C. 1B, Section .0200, Rules program does not have jurisdiction over dis- without prejudice and pursue resolution Governing Judicial District Grievance putes regarding fees or expenses that are the through the State Bar’s Fee Dispute Committees subject of a pending Client Security Fund Resolution program;, or The proposed amendment reflects the (CSF) claim or CSF claim that has been paid (iii) litigation was commenced pur- elimination of judicial district fee dispute in full; provide that, ordinarily, a fee dispute suant to 27 N.C. Admin. Code 1D § programs. will be processed before a companion griev- .0707(a); ance; and modernize existing language of this (4)(3) a dispute between a lawyer and a .0202 Jurisdiction and Authority of section. service provider, such as a court reporter District Grievance Committees or an expert witness; (a) District Grievance Committees are .0701 Purpose and Implementation (4) a dispute over fees or expenses that Subject to the Rules of the North Carolina The purpose of the Fee Dispute are the subject of a pending Client State Bar … Resolution Program is to help clients and Security Fund claim, or a Client Security (b) … lawyers settle disputes over fees. In doing so, Fund claim that has been fully paid. (d) Grievances Involving Fee Disputes the The Fee Dispute Resolution Program (5) a dispute between a lawyer and a per- (1) Notice to Complainant of Fee shall will attempt to assist the lawyers and son or entity with whom the lawyer had Dispute Resolution Program … clients in resolving disputes concerning no client-lawyer relationship, except that (2) Handling Claims Not Involving Fee determining the appropriate fee for legal the committee has jurisdiction over a Dispute … fees and expenses. services rendered. The dispute between a lawyer and a third- (3) Handling Claims Not Submitted to State Bar shall will implement the Fee party payor of legal fees or expenses; and Fee Dispute Resolution by Complainant Dispute Resolution Program under the aus- (6) a dispute concerning a fee charged for … pices of the Grievance Committee (the com- services provided by the lawyer that do (4) Referral to Fee Dispute Resolution mittee) as part of the Attorney Client not constitute the practice of law. Program - Where a complainant timely Assistance Program (ACAP). It will be (c) The committee will encourage settle- elects to participate in fee dispute offered to clients and their lawyers at no ment of fee disputes falling within its juris- resolution, and the judicial district in cost. A person other than the client who diction pursuant to Rule .0708 of this sub- which the respondent attorney maintains pays the lawyer’s legal fee or expenses may chapter. his or her principal office has a fee dispute file a fee dispute. The person who paid the resolution committee, the chairperson of fees or expenses will not be permitted to .0704 Confidentiality the district grievance committee shall refer participate in the fee dispute resolution The Fee Dispute Resolution Program is the portion of the grievance involving a process. a subcommittee of the Grievance fee dispute to the judicial district fee Committee, which maintains all informa- dispute resolution committee. If the .0702 Jurisdiction tion in the possession of the Fee Dispute judicial district in which the respondent (a) The committee has jurisdiction over a Resolution Program. Pursuant to N.C. attorney maintains his or her principal disagreement arising out of a client-lawyer Gen. Stat. § 84-32.1, documents in the office does not have a fee arbitration relationship concerning the fees and expenses possession of the Fee Dispute Resolution committee, the chairperson of the district charged or incurred for legal services provid- Program are confidential and are not pub- grievance committee shall refer the ed by a lawyer licensed to practice law in lic records. The existence of and content of portion of the grievance involving a fee North Carolina. any petition for resolution of a disputed fee dispute to the State Bar Fee Dispute (b) The committee does not have jurisdic- and of any lawyer’s response to a petition Resolution Program for resolution. If the tion over the following: for resolution of a disputed fee are confi- grievance consists entirely of a fee dispute, (1) a dispute concerning fees or expenses dential. and the complainant timely elects to established by a court, federal or state participate in fee dispute resolution, no administrative agency, or federal or state .0706 Powers and Duties of the Vice- grievance file will be established. official, or private arbitrator or arbitrator Chairperson (e) Authority of District Grievance panel; The vice-chairperson of the Grievance

38 SPRING 2019 Subcommittee overseeing ACAP, or his / or for resolution of disputed fee involving closing a file include, but are not limited to, her designee, who must be a councilor, will: the same attorney-client relationship, the following: (a) approve or disapprove any recommen- the request for resolution of disputed fee (1) the petition is frivolous or moot; or dation that an impasse be declared in any will be processed first and the grievance (2) the committee lacks jurisdiction over fee dispute petition for resolution of a dis- will not be processed until the fee dis- one or more of the parties or over the sub- puted fee be dismissed; and pute resolution process is concluded. ject matter of the dispute;. (b) call and preside over meetings of the (2) If a client submits a grievance to the (3) the fee has been earned; or committee; and State Bar and the State Bar determines it (4) the expenses were properly incurred. (c)(b) refer to the Grievance Committee would be appropriate for the Fee (d)(e) If the vice-chairperson disagrees all cases in which it appears to the vice chair- Dispute Resolution Program to attempt with the recommendation for dismissal to man that to assist the client and the lawyer in set- close the file, the coordinator will schedule a (i) a lawyer might have demanded, tling a dispute over a legal fee, the settlement conference. charged, contracted to receive or received attempt to resolve the fee dispute will an illegal or clearly excessive fee or a clear- occur first. If a grievance file has been .0708 Settlement Conference ly excessive amount for expenses in viola- opened, it will be stayed until the Fee Proceedings Procedure tion of Rule 1.5 of the Rules of Dispute Resolution Program has con- (a) The coordinator will assign the case to Professional Conduct; or cluded its attempt to facilitate resolution a facilitator. (ii) a lawyer might have failed to refund of the disputed fee. (b) The facilitator State Bar will send a an unearned portion of a fee in violation (3) If a client submits a request for reso- Letter of Notice letter of notice to the of Rule 1.5 the Rules of Professional lution of a disputed fee to the State Bar respondent lawyer by certified mail notify- Conduct; or while a grievance submitted by the same ing the respondent that the petition was (iii) a lawyer might have violated one or client and relating to the same attorney- filed and notifying the respondent of the more Rules of Professional Conduct client relationship is pending, the griev- obligation to provide a written response to other than or in addition to Rule 1.5. ance will be stayed while the Fee Dispute the letter of notice, signed by the respon- Resolution Program attempts to facili- dent, within 15 days of service of the letter .0707 Processing Requests for Fee tate resolution of the disputed fee. of notice upon the respondent, and enclos- Dispute Resolution (4) Notwithstanding the provisions of ing copies of the petition and of any rele- (a) Requests A request for resolution of a subsections (c)(1),(2), and (3) of this sec- vant materials provided by the petitioner. disputed fee must be submitted in writing to tion, the State Bar will process a griev- (c) Within 15 days after the Letter of the coordinator of the Fee Dispute ance before it processes a fee dispute or Notice letter of notice is served upon the Resolution Program addressed to the North at the same time it processes a fee dis- lawyer respondent, the lawyer respondent Carolina State Bar, PO Box 25908, Raleigh, pute whenever it determines that doing must provide a written response to the peti- NC 27611. A lawyer is required by Rule 1.5 so is in the public interest. tion signed by the respondent. The facilita- of the Rules of Professional Conduct 1.5 to (e)(d) The coordinator of the Fee Dispute tor may is authorized to grant requests for notify in writing a client with whom the Resolution Program or a facilitator will extensions of time to respond. The lawyer’s lawyer has a dispute over a fee (i) of the exis- review investigate the petition to determine response must be a full and fair disclosure of tence of the Fee Dispute Resolution Program its suitability for fee dispute resolution. If it is all the facts and circumstances pertaining to and to wait at least 30 days after the client determined that the dispute is not suitable the dispute. The response shall include all receives such notification before filing a for fee dispute resolution, the coordinator documents necessary to a full and fair lawsuit to collect a disputed fee (ii) that if and/or the facilitator will prepare a dismissal understanding of the dispute. The response the client does not file a petition for fee dis- letter setting forth the reasons the petition shall not include documents that are not pute resolution within 30 days after the is not suitable for fee dispute resolution necessary to a full and fair understanding of client receives such notification, the lawyer facts and a recommendation for its dis- the dispute. The facilitator will provide a will be permitted by Rule of Professional missal letter setting forth the reasons the copy of the lawyer’s response to the client Conduct 1.5 to file a lawsuit to collect the petition is not suitable for fee dispute reso- petitioner unless the lawyer respondent disputed fee. … lution and recommending that the petition objects in writing. (b) All A petitions for resolution of a dis- be discontinued and that the file be closed. (d) The facilitator will conduct an inves- puted fee must be filed (i) before the expira- The coordinator and/or the facilitator will tigation. tion of the statute of limitation applicable in forward the dismissal letter to the vice-chair- (e) The facilitator will conduct a tele- the General Court of Justice for collection of person. If the vice chairperson agrees with phone settlement conference. between the the funds in issue or (ii) within three years of the recommendation, the petition will be parties. The facilitator is authorized to carry the termination of the client-lawyer relation- dismissed discontinued and the file will be out may conduct the settlement conference ship, whichever is later. closed. The coordinator and/or facilitator by separate telephone calls with each of the (c) The State Bar will process fee dis- will notify the party parties in writing of the parties or by conference calls conference call putes and grievances in the following order: dismissal that the file was closed. Grounds or by telephone calls between the facilitator (1) If a client submits to the State Bar for dismissal concluding that a petition is and one party at a time, depending upon simultaneously a grievance and a request not suitable for fee dispute resolution or for which method the facilitator believes has the

THE NORTH CAROLINA STATE BAR JOURNAL 39 greater likelihood of success. pute resolution program shall have jurisdic- (7) whether and under what conditions (f) The facilitator will define and tion over disputes that would otherwise be communications with the facilitator will describe explain the following to the parties: addressed by the State Bar’s ACAP depart- be held in confidence during the settle- … ment. Such programs may be tailored to ment conference; (6) the circumstances under which the accommodate local conditions but they (8) that any agreement reached will be facilitator may communicate privately must be offered without cost and must reached by mutual consent; and with any of the parties party or with any comply with the jurisdictional restrictions (9) that, if the parties reach an agree- other person; set forth in Rule .0702 of this subchapter. ment, that agreement will be reduced to … writing and signed by the parties and (g) The facilitator has a duty It is the .0711 District Bar Settlement their counsel, if any, before the parties duty of the facilitator to be impartial and to Conference Proceedings leave the settlement conference. advise all participants the parties of any cir- (a) The chairperson of the judicial dis- (d) The facilitator has a duty to be cumstance that might cause either party to trict bar fee dispute committee will assign impartial and to advise all participants of conclude that the facilitator has a possible the case to a facilitator who will conduct a any circumstance that might cause either bias, prejudice, or partiality. settlement conference. The facilitator is party to conclude that the facilitator has a (h) It is the duty of the facilitator to time- responsible for arranging the settlement possible bias, prejudice, or partiality. ly determine when the dispute cannot be conference at a time and place convenient (e) It is the duty of the facilitator to resolved by settlement and to declare that an to all parties. timely determine when the dispute cannot impasse exists and that the settlement confer- (b) The lawyer who is named in the peti- be resolved by settlement and to declare ence should end. tion must attend the settlement conference that an impasse exists and that the settle- (i) Upon completion of the settlement in person and may not send a representative ment conference should end. conference, the facilitator will prepare a dis- in his or her place. If a party fails to attend position letter to be sent to the parties detail- a settlement conference without good Proposed Amendments to the Rules ing explaining: cause, the facilitator may either reschedule on Professional Conduct (1) that the settlement conference result- the settlement conference or recommend 27 N.C.A.C. 2, Rule 1.5, Fees ed in a settlement and the terms of settle- dismissal of the petition. The proposed amendment expands the ment; or (c) The facilitator must at all times be in information a lawyer must communicate to a (2) that the settlement conference result- control of the settlement conference and the client before the lawyer may initiate legal ed in an impasse. procedures to be followed. The facilitator proceedings to collect a disputed fee may communicate privately with any par- .0709 Record Keeping ticipant prior to and during the settlement Rule 1.5 Fees The coordinator of fee dispute resolution conference. Any private communication (a) A lawyer shall not make an agreement will keep a record of each request for fee dis- with a participant will be disclosed to all for, charge, or collect an illegal or clearly pute resolution. The record must contain the other participants at the beginning of the excessive fee or charge or collect a clearly following information: settlement conference or, if the private com- excessive amount for expenses. The factors to (1) the client’s petitioner’s name; munication occurs during the settlement be considered in determining whether a fee is (2) the date the petition was received; conference, immediately after the private clearly excessive include the following:… (3) the lawyer’s respondent’s name; communication occurs. The facilitator will (b) … (4) the district in which the lawyer explain the following at the beginning of (f) Any lawyer having a dispute with a respondent resides or maintains a place of the settlement conference: client regarding a fee for legal services must: business; (1) the procedure that will be followed; (1) at least 30 days prior to initiating (5) what action was taken on the petition (2) the differences between a facilitated legal proceedings to collect a disputed and, if applicable, how the dispute was settlement conference and other forms fee, notify his or her client in writing of resolved; and of conflict resolution; the existence of the North Carolina (6) the date the file was closed. (3) that the settlement conference is not State Bar’s program of fee dispute reso- a trial; lution; the notice shall state that if the .0710 District Bar Fee Dispute (4) that the facilitator is not a judge; client does not file a petition for resolu- Resolution (5) that participation in the settlement tion of the disputed fee with the State Subject to the approval of the council, conference does not deprive the parties Bar within 30 days of the lawyer’s noti- any judicial district bar may adopt a fee dis- of any right they would otherwise have fication, the lawyer may initiate legal pute resolution program for the purpose of to pursue resolution of the dispute proceedings to collect the disputed fee resolving disputes involving lawyers resid- through the court system if they do not client of the existence of the North ing or doing business in the district. The reach a settlement; Carolina State Bar’s program of fee dis- State Bar does not offer arbitration as a (6) the circumstances under which the pute resolution at least 30 days prior to form of dispute resolution. The judicial dis- facilitator may meet and communicate initiating legal proceedings to collect trict bar may offer arbitration to resolve a privately with any of the parties or with the disputed fee; and disputed fee. A judicial district bar fee dis- any other person; (2) participate in good faith in the fee

40 SPRING 2019 dispute resolution process if the client tion to respond timely to all requests for not disputed and notification of the client is submits a proper request. Good faith information from the fee dispute resolution not required. In making reasonable efforts participation requires the lawyer to facilitator continues even if the lawyer and to advise the client of the existence of the respond timely to all requests for infor- the client reach a resolution of the dispute fee dispute resolution program, it is prefer- mation from the fee dispute resolution while the fee dispute petition is pending. able to address a written communication to facilitator. Before filing an action to collect a disputed the client at the client’s last known address. Comment fee, the client must be advised of the fee dis- If the address of the client is unknown, the Appropriate Fees and Expenses pute resolution program. Notification must lawyer should must use reasonable efforts to [1] … occur not only when there is a specific issue acquire the current address of the client. Disputes over Fees in dispute, but also when the client simply Notification is not required in those [10] Participation in the fee dispute reso- fails to pay. However, when the client instances where the State Bar does not have lution program of the North Carolina State expressly acknowledges liability for the spe- jurisdiction over the fee dispute as set forth Bar is mandatory when a client requests res- cific amount of the bill and states that he or in 27 N.C.A.C. 1D, .0702. olution of a disputed fee. A lawyer’s obliga- she cannot presently pay the bill, the fee is [11] …

Additional Proposed Amendments

Also at its January 18, 2019 meeting, the cable or reasonable to assemble a quorum of (5) “Continuing legal education” or council voted to publish the following pro- the council, the president, in consultation “CLE” is any legal, judicial or other edu- posed amendments to the governing rules of with the officers and counsel, is authorized cational activity program accredited by the State Bar for comment from the members to act in the name of the State Bar to the the board. Generally, CLE will include of the Bar: extent necessary to carry out the functions educational activities programs of the State Bar until the next meeting of the designed... Proposed Amendments to the Rules council. Action taken pursuant to this rule (6) … on Election, Succession, and Duties shall be presented to the council for ratifica- (11) “On demand” program shall mean of Officers tion at the next council meeting. an accredited educational program 27 N.C.A.C. 1A, Section .0400, Election accessed via the internet that is available Succession, and Duties of Officers Proposed Amendments to the Rules at any time on a provider’s website and The proposed amendments expressly and Regulations Governing the does not include live programming. authorize the president to act in the name of Administration of the Continuing (12) “Online” program shall mean an the State Bar under emergent circumstances Legal Education Program accredited educational program accessed when it is not practicable or reasonable to 27 N.C.A.C. 1D, Section .1500, Rules through a computer or telecommunica- convene a meeting of the council. Actions Governing the Administration of the tions system such as the internet and can taken pursuant to this authority are subject to Continuing Legal Education Program; include simultaneously broadcast and on ratification at the next meeting of the council. Section .1600, Regulations Governing the demand programming. Administration of the Continuing Legal (13)(11) “Participatory CLE” shall mean .0409 President Education Program courses programs or segments of courses The president shall preside over meetings The proposed amendments to the two programs that encourage… of the North Carolina State Bar and the sections of the rules that govern the adminis- (14)(12) “Professional responsibility” shall council. The president shall sign all resolu- tration of the CLE program eliminate the mean those courses programs or segments tions and orders of the council in the capacity annual 6.0 cap on online CLE credit hours. of courses programs devoted to… of president. The president shall execute, In addition, there are numerous non-substan- (15)(13) “Professionalism” courses pro- along with the secretary, all contracts ordered tive proposed amendments that improve the grams are courses programs or segments by the council. Pursuant to Rule .0412, the clarity and consistency of the rules substitut- of courses programs devoted to the iden- president is authorized to act in the name of ing the word “program” for the following tification and examination of, and the the State Bar under emergent circumstances. words: “class,” “session,” “presentation,” and encouragement of adherence to, non- The president will perform all other duties “activity.” mandatory aspirational standards of pro- prescribed for the office by the council. fessional conduct which transcend the .1501 Scope, Purpose, and Definitions requirements of the Rules of Professional .0412 Emergency Authority (a) Scope … Conduct. Such courses programs When prompt action is required due to (c) Definitions address… emergent circumstances and it is not practi- (1) … (16)(14) “Registered sponsor” …

THE NORTH CAROLINA STATE BAR JOURNAL 41 (17)(15) “Rules” … program attended during the calendar year lawyer’s disbarment. (18)(16) “Sponsor” … immediately preceding the year of the termi- (e) Live Ccontinuing legal education (19)(17) “Technology training” shall nation of the exemption. Appropriate docu- activities programs shall be conducted in a mean a program, or a segment of a pro- mentation of attendance at such activities setting physically suitable to the educational gram, devoted to education on informa- programs will be required by the board. activity nature of the program and, when tion technology (IT) or cybersecurity (see (j) … appropriate, equipped with suitable writing N.C. Gen. Stat. §143B1320(a)(11), or surfaces or sufficient space for taking notes. successor statutory provision, for a defini- .1518 Continuing Legal Education (f) Thorough, high quality, and carefully tion of “information technology”), includ- Requirements Program prepared written materials should be distrib- ing education on an information technol- (a) Annual Requirement. … uted to all attendees at or before the time the ogy product, device, platform, applica- (c) Professionalism Requirement for New course program is presented. These may tion, or other tool, process, or methodol- Members. … include written materials printed from a web- ogy. To be eligible for CLE accreditation (1) Content and Accreditation. The State site or computer presentation, computer as a technology training program, the pro- Bar … To be approved as a PNA Program, website, or CD-ROM. A written agenda or gram must satisfy the accreditation stan- the program must be provided by a spon- outline for a presentation program satisfies dards in Rule .1519 and the course con- sor registered under Rule .1603 of this this requirement when written materials are tent requirements in Rule .1602(e) of this subchapter and the a sponsor must satisfy not suitable or readily available for a particu- subchapter.: specifically, the primary the annual content requirements, and lar subject. The absence of written materials objective of the program must be to submit a detailed description of the pro- for distribution should, however, be the increase the participant’s professional gram to the board for approval at least 45 exception and not the rule. competence and proficiency as a lawyer. days prior to the presentation program… (g) A sponsor of an approved program Such programs include, but are not limit- (2) … must remit fees as required and keep and ed to, education on the following: a) an IT (d) Exemptions from Professionalism maintain attendance records of each continu- tool, process; or methodology designed to Requirement for New Members... ing legal education program sponsored by it, perform tasks that are specific or uniquely which shall be furnished to the board in suited to the practice of law; b) using a .1519 Accreditation Standards accordance with regulations. Participation in generic IT tool process or methodology to The board shall approve continuing legal an online program must be verified as pro- increase the efficiency of performing tasks education programs that meet the following vided in Rule .1601(d). necessary to the practice of law; c) the standards and provisions. (h) Except as provided in Rules .1501 investigation, collection, and introduction (a) … and.1604 .1602(h) of this subchapter, in- of social media evidence; d) e-discovery; e) (c) Credit may be given for continuing house continuing legal education and self- electronic filing of legal documents; f) legal education activities programs where live study shall not be approved or accredited for digital forensics for legal investigation or instruction is used or mechanically or elec- the purpose of complying with Rule .1518 of litigation; and g) practice management tronically recorded or reproduced material is this subchapter. software. See Rule .1602 of this subchap- used, including videotape, or satellite trans- (i) Programs that…content of the activity ter for additional information on accredi- mitted, and online programs. Subject to the program would enhance legal skills or the tation of technology training programs. limitations set forth in Rule .1604(e) of this ability to practice law. (20)(18) “Year” … subchapter, credit may also be given for con- tinuing legal education activities on CD- .1520 Registration of Sponsors and .1512 Source of Funds ROM and on a computer website accessed Program Approval (a) … via the Internet. (a) Registration of Sponsors. An organiza- (1) … (d) Continuing legal education materials tion desiring to be designated as a registered (2) The board shall fix a reasonably com- are to be prepared, and activities programs sponsor of programs, or other continuing parable fee to be paid by individual attor- conducted, by an individual or group quali- legal education activities may apply… neys who attend for CLE credit approved fied by practical or academic experience. (1) continuing legal education activities pro- Credit shall not be given for any continuing (b) … grams for which… legal education activity program taught or presented by a disbarred lawyer except a .1521 Credit Hours .1517 Exemptions course program on professional responsibility The board may designate by regulation (a) … (including a course or program on the effects the number of credit hours to be earned by (i) CLE Record During Exemption of substance abuse and chemical dependency, participation, including, but not limited to, Period. During…at accredited continuing or debilitating mental conditions on a teaching, in continuing legal education activ- legal education activities programs. Upon the lawyer’s professional responsibilities) taught ities programs approved by the board. termination of the member’s exemption, the by a disbarred lawyer whose disbarment date member may request carry over credit up to a is at least five years (60 months) prior to the .1524 Reinstatement maximum of twelve (12) credits for any date of the activity program. The advertising (a) Reinstatement Within 30 Days of accredited continuing legal education activity for the activity program shall disclose the Service of Suspension Order …

42 SPRING 2019 (c) Reinstatement Petition materials to be distributed at the course or for that program only by application to the At any time more than 30 days after program, shall be submitted at least 50 board at least 50 days in advance of the service of an order of suspension on a days prior to the date on which the course presentation program showing why written member, a member who has been suspended or program is scheduled… materials are not suitable or readily available for noncompliance with the rules governing (2) In all other cases, the application and for such a program. the continuing legal education program may supporting documentation shall be (c) Facilities … seek reinstatement by filing a reinstatement submitted by the sponsor not later than (d) Computer-Based CLE: Verification of petition with the secretary….. If not 50 days after the date the course or Attendance Online CLE. The sponsor of an otherwise set forth in the petition, the program was presented or prior to the on-line course program must have a reliable member shall attach a statement to the end of the calendar year in which the method for recording and verifying petition in which the member shall state course or program was presented, attendance. The sponsor of a CD-ROM with particularity the accredited legal whichever is earlier. Active members course must demonstrate that there is a education courses programs that which the requesting credit must submit the reliable method for the user or the sponsor to member has… application and supporting record and verify participation in the course. (d) … documentation within 50 days after the A participant may periodically log on and off date the course or program was presented of a computer-based CLE course an online .1601 General Requirements for Course or, if the 50 days have elapsed, as soon as program provided the total time spent Program Approval practicable after receiving notice from the participating in the course program is equal (a) Approval.CLE programs may be board that the course program to or exceeds the credit hours assigned to the approved upon the written application of a accreditation request was not submitted program. A copy of the record of attendance sponsor, including a registered sponsor, or of by the sponsor. must be forwarded to the board within 30 an active member on an individual program (3) … days after a member completes his or her basis. An application for such CLE program (5) The application shall be accompanied participation in the course program. approval shall meet the following by a course program outline … (e) Records. Sponsors, including requirements: (b) Program Quality and Materials…Any registered sponsors, shall within 30 days after (1) If advance approval is requested by a sponsor, including a registered sponsor, that the program is concluded sponsor, the application and supporting expects to conduct a CLE program for which (1) …; documentation, including one suitable written materials will not be made (2) remit to the board the appropriate substantially complete set of the written available to all attendees may obtain approval sponsor fee; and, if payment is not

THE NORTH CAROLINA STATE BAR JOURNAL 43 received by the board within 30 days after (e) Technology Training Programs – A tool, process, or methodology. the course program is concluded, interest technology training program must have the (f) Activities That Shall Not Be Accredited at the legal rate shall be incurred…; and primary objective of A program on the selec- – CLE credit will not be given for general and (3) furnish to the board a complete set of tion of an information technology (IT) prod- personal educational activities. The following all written materials distributed to uct, device; platform, application, web-based are illustrative, non-exclusive examples of attendees at the course or program. technology, or other technology tool, process, subject matter that will NOT receive CLE (f) Announcement. Sponsors that have or methodology; or the use of an IT tool, credit: advanced approval for programs may include process, or methodology to enhance enhanc- (1) …; in their brochures or other program ing a lawyer’s proficiency as a lawyer or to (2) …; descriptions the information contained in improve improving law office management (3) courses designed primarily to sell serv- the following illustration: and must satisfy may be accredited as tech- ices or products or to generate greater rev- This [course, seminar,or program] has been nology training if the requirements of para- enue, such as marketing or advertising (as approved by the Board of Continuing Legal graphs (c) and (d) of this rule are satisfied as distinguished from courses programs Education of the North Carolina State Bar applicable. Such programs include, but are dealing with development of law office for continuing legal education credit in the not limited to, education on the following: procedures and management designed to amount of ____ hours, of which ____ a) an IT tool, process, or methodology raise the level of service provided to hours will also apply in the area of designed to perform tasks that are specific clients). professional responsibility. or uniquely suited to the practice of law; b) (g) Service to the Profession Training - A (g) Notice. Sponsors not having advanced using a generic IT tool process or method- course program or segment of a course pro- approval shall make no representation ology to increase the efficiency of perform- gram presented by a bar organization may be concerning the approval of the course ing tasks necessary to the practice of law; c) granted up to three hours of credit if the bar program for CLE credit by the board. The the investigation, collection, and introduc- organization’s course program trains volun- board will mail a notice of its decision on tion of social media evidence; d) e-discov- teer attorneys in service to the profession, and CLE activity program approval requests ery; e) electronic filing of legal documents; if such course program or course segment within (45) 45 days of their receipt when the f) digital forensics for legal investigation or meets the requirements of Rule .1519(2)-(7) request for approval is submitted before the litigation; g) practice management software; and Rule .1601(b), (c), and (g) of this sub- program and within (45) 45 days when the and h) a cybersecurity tool, process, or chapter; if appropriate, up to three hours of request is submitted after the program. … methodology specifically applied to the professional responsibility credit may be needs of the practice of law or law practice granted for such course program or course .1602 Course Content Requirements management. A program that provides gen- program segment. (a) Professional Responsibility Courses eral instruction on an IT tool, process, or (h) In-House CLE and Self-Study. No Programs on Stress, Substance Abuse, methodology but does not include instruc- approval will be provided for in-house CLE Chemical Dependency, and Debilitating tion on the practical application of the IT or self-study by attorneys, except as follows: Mental Conditions - Accredited professional tool, process, or methodology to the practice (1) programs exempted by the board responsibility courses programs on stress, of law shall not be accredited. The following under Rule .1501(c)(10) of this subchap- substance abuse, chemical dependency, and are illustrative, non-exclusive examples of ter; and debilitating mental conditions shall concen- subject matter that will NOT receive CLE (2) as provided in Rule .1604(e) of this trate on the relationship between stress, sub- credit: generic education on how to use a subchapter; and stance abuse, chemical dependency, debilitat- tablet computer, laptop computer, or smart (2)(3) live programs on professional ing mental conditions, and a lawyer’s profes- phone; training courses programs on responsibility, professionalism, or profes- sional responsibilities. Such courses programs Microsoft Office, Excel, Access, Word, sional negligence/malpractice presented may also include (1) education on the preven- Adobe, etc., programs; and instruction in the by a person or organization that is not tion, detection, treatment and etiology of use of a particular desktop or mobile operat- affiliated with the lawyers attending the stress, substance abuse, chemical dependency, ing system. No credit will be given to a pro- program or their law firms and that has and debilitating mental conditions, and (2) gram that is sponsored by a manufacturer, demonstrated qualification to present information about assistance for chemically distributor, broker, or merchandiser of an IT such programs through experience and dependent or mentally impaired lawyers tool, process, or methodology unless the knowledge. available through lawyers’ professional organ- course program is solely about using the IT (i) Bar Review/Refresher Course. Courses izations. No more than three hours of contin- tool, process, or methodology to perform Programs designed to review or refresh recent uing education credit will be granted to any tasks necessary or uniquely suited to the prac- law school graduates or attorneys in prepara- one such course program or segment of a tice of law and information about purchase tion for any bar exam shall not be approved course program. arrangements is not included in the accredit- for CLE credit. (b) Law School Courses - Courses offered ed segment of the program. A sponsor may by an ABA accredited law school with not accept compensation from a manufactur- .1603 Registered Sponsors respect to which academic credit may be er, distributor, broker, or merchandiser of an (a) Application for Registered Sponsor earned may be approved activities programs. IT tool, process, or methodology in return Status. To be designated as a registered spon- … for presenting a CLE program about the IT sor of programs or other continuing legal

44 SPRING 2019 education activities under Rule .1520(a) of seminar available on a provider’s website .1606 Fees this subchapter, a sponsor must satisfy the fol- reached via the Internet. (a) Sponsor Fee - …The fee is computed lowing requirements: … (1) A member may apply up to six credit as shown in the following formula and (b) … hours of computer-based CLE to a CLE example which assumes a 6-hour course deficit from a preceding calendar year. Any program attended by 100 North Carolina .1604 [Reserved] Accreditation of computer-based CLE credit hours applied lawyers seeking CLE credit: Prerecorded, Simultaneous Broadcast, and to a deficit from a preceding year will be Fee: $3.50 x Total Approved CLE Hours ComputerBased Programs included in calculating the maximum of (6) x Number of NC Attendees (100) = (a) Presentation Including Prerecorded six hours of computer-based CLE allowed Total Sponsor Fee ($2100) Material. An active member may receive cred- in the preceding calendar year. A member (b) Attendee Fee - …It is computed as it for attendance at, or participation in, a pres- may carry over to the next calendar year no shown in the following formula and example entation where prerecorded material is used. more than six credit hours of computer- which assumes that the attorney attended an Prerecorded material may be either in a video based CLE pursuant to Rule .1518(b) of activity a program approved for 3 hours of or an audio format. this subchapter. Any credit hours carried- CLE credit: (b) Simultaneous Broadcast. An active over pursuant to Rule .1518(b) of this sub- Fee: $3.50 x Total Approved CLE hours member may receive credit for participation chapter will be included in calculating the (3.0) = Total Attendee Fee ($10.50) in a live presentation which is simultaneously six hours of computer-based CLE allowed (c) … n broadcast by telephone, satellite, live web in any one calendar year. streaming (webcasting), or video conferencing (2) To be accredited, a computer-based equipment. The member may participate in CLE course must meet all of the condi- the presentation by listening to or viewing the tions imposed by the rules in Section broadcast from a location that is remote from .1600 of this subchapter, or by the board The Disciplinary Department the origin of the broadcast. The broadcast in advance, except where otherwise may include prerecorded material provided it noted, and be interactive, permitting the (cont.) also includes a live question and answer ses- participant to communicate, via tele- sion with the presenter. phone, electronic mail or a website bul- Gen. Stat. § 5A-12 for twice violating the (c) Accreditation Requirements. A mem- letin board, with the presenter and/or court’s injunction that prohibited him from ber attending a prerecorded presentation is other participants. handling entrusted funds and that required entitled to credit hours if him to produce financial records to the State (1) the live presentation or the presenta- .1605 Computation of Credit Bar. tion from which the program is recorded (a) … The Wake County Superior Court would, if attended by an active member, (c) Teaching - As a contribution to profes- entered a consent order censuring be an accredited course; and sionalism, credit may be earned for teaching Hendersonville lawyer Scott Shelton pur- (2) all other conditions imposed by the in an approved continuing legal education suant N.C. Gen. Stat. § 5A-12 for violating rules in Section .1600 of this subchapter, activity program or a continuing paralegal the court’s injunction that prohibited him or by the board in advance, are met. education activity program held in North from handling entrusted funds and that (d) Minimum Registration and Carolina and approved pursuant to Section required him to produce financial records to Verification of Attendance. A minimum of .0200 of Subchapter G of these rules. the State Bar. three active members must register for the Presentations Programs accompanied by presentation of a prerecorded program. This thorough, high quality, readable, and careful- Notice of Intent to Seek Reinstatement requirement does not apply to the presenta- ly prepared written materials will qualify for tion of a live broadcast by telephone, satellite, CLE credit on the basis of three hours of In the Matter of James Walter Smith or video conferencing equipment. credit for each thirty minutes of presentation. Notice is hereby given that James Walter Attendance at a prerecorded or simultaneous- Repeat presentations programs qualify for Smith of Durham, NC, intends to file a peti- ly broadcast (by telephone, satellite, or video one-half of the credits available for the initial tion for reinstatement before the Disciplinary conferencing) program must be verified by presentation program. For example, an initial Hearing Commission of the North Carolina (1) the sponsor’s report of attendance or (2) presentation of 45 minutes would qualify for State Bar. James Walter Smith was disbarred the execution of an affidavit of attendance by 4.5 hours of credit. in 1982 pursuant to voluntary surrender of the participant. (d) Teaching Law Courses his license in which he admitted to the crime (e) Computer-Based CLE. Effective (1) … of Armed Bank Robbery on July 21, 1981. January 1, 2014, a member may receive up to (4) Credit Hours. Credit for teaching Individuals who wish to note their con- six hours of credit annually for participation activities programs described in Rule currence with or opposition to the petition in a course on CD-ROM or on-line. A CD- .1605(d)(1) – (3) above may be earned for reinstatement should file written notice ROM course is an educational seminar on a without regard to whether the course is with the Secretary of the North Carolina compact disk that is accessed through the taught online or in a classroom. Credit State Bar, PO Box 25908, Raleigh, NC, CD-ROM drive of the user’s personal com- will be calculated according to the follow- 27611, before May 1, 2018 (60 days after puter. An on-line course is an educational ing formula: … publication). n

THE NORTH CAROLINA STATE BAR JOURNAL 45 BAR UPDATES

Client Security Fund Reimburses Victims

At its January 16, 2019, meeting, the board previously reimbursed nine other mined that Greene was retained to help a North Carolina State Bar Client Security Crumwell clients a total of $33,045. client with his temporary protected immi- Fund Board of Trustees approved payments 6. An award of $500 to a former client gration status. Greene failed to provide the of $33,130.46 to 15 applicants who suffered of Jeffrey W. Ellingworth, formerly of Char- client with any meaningful legal services for financial losses due to the misconduct of lotte. Ellingworth was retained by a client the fee paid. North Carolina lawyers. to send a demand letter and file suit in a 11. An award of $4,500 to an applicant The payments authorized were: civil matter against Wells Fargo. Ellingworth who suffered a loss because of Christopher 1. An award of $150 to a former client stopped communicating and moved from Greene. The board determined that Greene of Garey M. Ballance of Warrenton. The his office without notifying the client. Elling- was retained to handle the applicant’s board determined that Balance was retained worth told the client that he had written the brother’s deportation matter. There was no to handle a client’s traffic ticket. The client demand letter to Wells Fargo, but never pro- evidence that Greene provided any mean- paid Balance’s fee, but he failed to handle vided the client with any proof of such letter. ingful legal services for the fee paid prior to the ticket and provided no meaningful legal The board determined that Ellingworth the applicant’s brother being deported. services for the fee paid. Ballance was dis- failed to provide any meaningful legal serv- 12. An award of $1,500 to a former client barred on November 13, 2015. The board ices to the client for the fee paid. Ellingworth of Charles R. Gurley of Goldsboro. The previously reimbursed 15 other Ballance was administratively suspended on February board determined that Gurley was retained clients a total of $21,751. 26, 2016. to represent a client on DWI and failure to 2. An award of $5,500 to a former client 7. An award of $338 to a former client reduce speeding charges after an auto acci- of Dee W. Bray Jr. of Fayetteville. The board of Powell W. Glidewell of Newland. The dent. Gurley failed to provide meaningful determined that Bray was retained to handle board determined that Glidewell was re- legal services in the client’s case prior to being a client’s criminal charges. The client paid tained to handle a client’s traffic matter. The suspended by the court. Gurley was enjoined $5,500 towards Bray’s quoted $7,500 fee. client paid Glidewell’s fee, plus costs and from practicing law on November 22, 2017. On February 2, 2017, Bray was placed on fines. Glidewell failed to appear on the The board previously reimbursed 69 other disability inactive status before he provided client’s behalf and provided no legal services Gurley clients a total of $63,859. any meaningful legal services to the client for the fee paid. Glidewell was placed on 13. An award of $1,000 to a former client for the fee paid. The board previously reim- disability inactive status on February 21, of Charles R. Gurley. The board determined bursed 21 other Bray clients a total of 2018. that Gurley was retained to handle a client’s $160,250. 8. An award of $338 to a former client DWI charge. Gurley failed to provide mean- 3. An award of $9,400 to a former client of Powell W. Glidewell. The board deter- ingful legal services in the client’s case prior of Dee W. Bray Jr. The board determined mined that Glidewell was retained to handle to being enjoined from practicing law by the that Bray was retained to handle a client’s a client’s traffic matter. The client paid court. felony drug charges. Bray failed to provide Glidewell’s fee, plus costs and fines. Glidewell 14. An award of $2,500 to a former client the client with any meaningful legal services failed to appear on the client’s behalf and of Van Johnson of Elizabeth City. The board for the fee paid. provided no legal services for the fee paid. determined that Johnson was retained to file 4. An award of $1,500 to a former client 9. An award of $1,120 to a former client a Chapter 7 Bankruptcy for a client. Johnson of Dee W. Bray Jr. The board determined of Christopher Greene of Charlotte. Greene failed to provide the client with any mean- that Bray was retained to represent a client was retained to represent a client in three ingful legal services for the fee paid prior to charged with death by motor vehicle. Bray immigration matters. Greene told the client becoming disabled by illness. failed to provide the client with any mean- that the case was before the judge, but there 15. An award of $2,534.46 to a former ingful legal services for the fee paid. was no evidence that Greene filed anything client of Gary S. Leigh of Shelby. The board 5. An award of $1,250 to a former client in the client’s matter. The board determined determined that Leigh was retained to rep- of Wayne E. Crumwell of Reidsville. The that Greene provided no legal services to the resent a client in a personal injury claim. board determined that Crumwell was re- client for the fee paid. Greene was disbarred Leigh settled the matter and received $9,790 tained to petition for a client’s name to be on February 11, 2017. The board previously in settlement proceeds from the liability in- removed from the sex offender’s registry. reimbursed 12 other Greene clients a total surance carrier. Leigh disbursed his 1/3 con- Crumwell failed to provide any meaningful of $32,625. tingency fee to himself and a portion of the legal services to the client prior to his death. 10. An award of $1,000 to a former client Crumwell died on November 6, 2016. The of Christopher Greene. The board deter- CONTINUED ON PAGE 50

46 SPRING 2019 BAR UPDATES

Law School Briefs

rily on the portions of the restatement relat- Campbell University School of Law Duke Law School ing to treaties. Campbell Law offers “design thinking” Duke Law School is expanding its nation- course in conjunction with NC State— ally recognized clinical program with the Elon University School of Law Campbell Law School and NC State launch of a new clinic focused on immigra- NC Attorney General Josh Stein delivers University are again partnering to offer a tion law. When it opens next fall, the Duke Elon Law commencement address—Elon Law unique course aimed at training 21st century Law Immigration Clinic will offer students conferred 102 degrees in a commencement lawyers to be more innovative and empathet- the opportunity to develop critical profes- ceremony that featured an address by North ic, and ultimately more successful. The inten- sional skills while providing free legal services Carolina Attorney General Josh Stein, who tion and philosophy of the course, “Design to immigrants who could not otherwise reminded graduates of their duty to seek jus- Thinking in Law,” are described in the syllabi afford a lawyer. Supervised by clinic faculty, tice and to protect the rule of law in troubling as: “People with design thinking skills are student-attorneys in the clinic will primarily times. “You will have a special duty to stand more innovative, productive, and human-cen- represent individuals seeking asylum or fac- up when the Constitution—and the demo- tered, thanks to the design process of ing deportation. cratic norms and institutions that give it empathizing, visualizing, prototyping, and Duke plans to locate the new clinic near meaning—are undermined or threatened,” he iterating. Lawyers who are more client-cen- downtown Durham to enable direct access to told Elon Law’s Class of 2018. “Fortunately, tered and more empathetic could be more clients and opportunities to collaborate with Elon Law has prepared you to be a lawyer- successful in their professional career. This other direct services agencies that support the leader since your first day.” course will introduce the concept and process region’s immigrant population. A $1.5 mil- “Helpful mentor and friend” honored with of design thinking. Students will have the lion gift from the Ting Tsung and Wei Fong top Elon Law award—Timaura Barfield was opportunity to practice and develop the Chao Foundation will support the clinic’s honored at Elon Law’s 11th commencement design thinking skills through hands-on exer- first three years of operations. ceremony in December with the David cises and projects.” The course will be taught Carolyn McAllaster, the Colin W. Brown Gergen Award for Leadership & jointly by Campbell Law Professor Kevin P. clinical professor of law and director of the Professionalism. Elon Law students are nomi- Lee, who couples his long-standing interest in HIV/AIDS Policy Clinic, received the NC nated for the award by their peers, professors, the phenomenon of human religiousness with AIDS Action Network’s 2018 Advocate of or staff and are selected based on law school his interest in the emerging networked, glob- the Year Award in November for her long- activities that represent the twin principles of alized society, and Professor Tsai Lu Liu, head time advocacy on behalf of people living leadership and professionalism. Barfield, a of the Department of Graphic Design and with HIV in North Carolina. McAllaster, graduate of High Point University and Industrial Design, to law students at who in 1996 founded Duke Law’s Health Georgetown University’s Paralegal Studies Campbell University’s Downtown Raleigh Justice Clinic (then known as the AIDS Program, co-chaired Elon Law’s national campus. Legal Project), also serves as project director moot court competition, served as an Honor Campbell Law to offer summer study for the Southern HIV/AIDS Strategy Council defender, aided classmates as an aca- abroad opportunity in Ghana—Campbell Initiative, advocating for increased federal demic teaching fellow, and served as vice pres- Law has announced plans to expand its study resources to stop the spread of HIV in the ident of the Black Law Students Association. abroad opportunities to sub-Saharan Africa in South, which has the highest rates of new Elon Law scholar reelected to summer 2019. The three week residential pro- infection and HIV-related deaths in the UNIDROIT—Professor Henry Gabriel has gram will begin mid-May with the first week United States. been reelected to a five-year term on the spent in Accra, the capital of Ghana. The last Curtis Bradley, the William Van Alstyne Governing Council of the International two weeks will include an intensive classroom professor of law and professor of public pol- Institute for the Unification of Private Law. component at the University of Cape Coast icy studies, served as reporter on the Founded in 1926, UNIDROIT is an inter- Law School and two weekend excursions. American Law Institute’s Restatement of the governmental organization based in Rome Students will study a mix of international Law Fourth, The Foreign Relations Law of with 63 member countries, including the commercial law, international intellectual the United States, which was published in United States. UNIDROIT studies needs and property law, and international human rights early November. Bradley, a co-director of the methods for modernizing, harmonizing, and law. Campbell Law professors will teach along Center for International and Comparative coordinating private and, in particular, com- with their Ghanaian counterparts with expert- Law and co-editor-in-chief of the American mercial law between states and groups of ise in the same areas. Journal of International Law, worked prima- states, and to formulate uniform law instru-

THE NORTH CAROLINA STATE BAR JOURNAL 47 ments, principles, and rules to achieve those (NBTA) Tournament of Champions (TOC). objectives. Nominated by the United States University of North Carolina School The winning team of third-year students, government, this is Gabriel’s fourth term on of Law which was coached by Wake Forest alumnus the council. CLE credit—Earn CLE credit at The Mark Boynton, included Ashley DiMuzio, ABCs of Banking Law, March 20, Charlotte; Mark Parent, Tracea Rice, and Virginia North Carolina Central School of Law The Banking Institute, March 20-21, Stanton. This marks Wake Forest Law’s fourth On October 27, North Carolina Central Charlotte; and The J. Nelson Young Tax national championship in just two consecu- University School of Law’s Trial Advocacy Institute, April 25-26, Chapel Hill. tive academic years, an achievement that is Board hosted its annual intra-school compe- Moot court success—The Negotiation distinct to the Demon Deacons. titions. Students showcased their oral advo- team of 3Ls Rana Odeh and Jasmine Plott Professor Ron Wright authors op-ed in cacy skills in the 1L Opening Statement tied for first place in their regional ABA Law New York Times, multiple scholarly publica- Competition, 2L Mike Easley Opening Student Division Negotiation Competition tions—Professor Ron Wright, a renowned Statement Competition, and 3L Willie Gary at Elon Law School in November. The pair expert on prosecutors and criminal proce- Closing Argument Competition. The partic- will compete in February at nationals in dure, published the New York Times op-ed, ipants were judged by, and received feedback Chicago. “Yes, Jury Selection Is as Racist as You Think. from, Willie E. Gary, one of the law school’s Four recognized with UNC Law Alumni Now We Have Proof.” which discusses the most distinguished alumni. Association Awards—The awards will be pre- findings of the Jury Sunshine Project, a col- Attorney Gary ’74 earned a reputation as sented as part of Law Reunion Weekend May laborative project with Wake Forest a “giant killer” by taking down some of 3. John L. Sanders ’54 of Chapel Hill, a UNC Professors Gregory Parks and Kami Chavis. America’s leading corporations. He has won School of Government faculty member from He also recently co-authored the paper, some of the largest jury awards and settle- 1956-1994, will be presented with the “Prosecution that earns community trust,” for ments in US history, including cases valued Lifetime Achievement Award. The Honorable the Institute for Innovation in Prosecution at in excess of $30 billion. His success has D.C. “Mike” McIntyre ’81 of Hillsborough, a the John Jay College of Criminal Justice. His earned him recognition as one the nation’s partner at Poyner Spruill LLP and former con- latest article, “Career Motivations of State leading trial attorneys. gressman, will be presented with the Prosecutors,” which was co-written by Kay On October 30, the Honorable Anita Distinguished Alumni Award. Jessica N. Levine and published by the George Josey-Herring was guest speaker for the Holmes ’09 of Cary, an adjunct professor at Washington Law Review, describes the reasons Charles Hamilton Houston Seminar held in NC State University and chair of the Wake prosecutors enter and stay in the profession. the law school’s moot courtroom. Judge County Board of Commissioners, will receive WFU Law to host multiple NC Josey-Herring is the current Charles the Outstanding Recent Graduate Award. Continuing Legal Education (CLE) courses in Hamilton Houston chair and distinguished Lissa L. Broome of Chapel Hill, Burton 2019—Wake Forest School of Law will host visiting professor for the 2018-19 academic Craige distinguished professor and director of multiple CLE opportunities throughout the year. the UNC Center for Banking and Finance, state during the spring of 2019. Attendance Josey-Herring is an associate judge in the will receive the Professor S. Elizabeth Gibson permits attorneys to fulfill mandatory CLE Superior Court of the District of Columbia. Award for Faculty Excellence. requirements, including technology, ethics, She was appointed to the bench in Faculty awards—Professor Barbara A. and general CLE credit hours. November 1997 by President Bill Clinton, Fedders received the Steven S. Goldberg Dean Suzanne Reynolds will tour the state and is a 1987 graduate of Georgetown Award for Distinguished Scholarship in to present several CLE ethics courses, includ- University Law Center. Education Law at the Education Law ing a number of courses on cybersecurity and On November 13, the School of Law’s Association’s annual conference. Fedders was the future of the law. Raina Haque, a profes- OutLaw Alliance hosted a panel discussion recognized with the award for her Iowa Law sor of practice of technology, will also offer a titled Defining Sex: Who is Protected from Review article, “Schooling at Risk.” Clinical comprehensive executive education program Gender Discrimination? The discussion Associate Professor Peter Nemerovski was rec- entitled, “Blockchain, Crypto, & the Law: focused on a leaked memo from the ognized by the Association of Legal Writing Decoded & in Practice,” in Charlotte. Details Department of Health and Human Services Directors (ALWD) for his five years of service and registration for these events can be found proposing that the term “sex” be redefined on the ALWD Annual Survey Committee. at wfu.law/2019cle. to exclude transgender and gender expansive Eric L. Muller received the Professor Keith WFU Law receives accolades for value, people. Panelists included: Madeline Goss, a Aoki Asian Pacific American Jurisprudence business law—Wake Forest School of Law is plaintiff challenging HB2 (the “bathroom Award from the Conference of Asian Pacific among the Top 25 Best Value Law Schools in bill”) and its replacement HB142; Bennett American Law Faculty. the country as well as the No. 2 Best Law McAuley, NCCU senior and lavender liai- School among private US law schools, son for the campus LGBTA Resource Wake Forest School of Law according to the National Jurist’s preLaw Center; Attorney Anna Semmes; Ames WFU Law wins 2018 National Board of Magazine. The publication also named Wake Simmons, director of Transgender Policy at Trial Advocacy (NBTA) Tournament of Forest as a top school for business law, mark- Equality NC; and Alaye Nirel Washington, Champions (TOC)—For the first time in his- ing the third year in a row that the school has NCCU junior and lavender liaison for the tory, Wake Forest School of Law won the been distinguished as a leader in business law LGBTA center. 2018 National Board of Trial Advocacy by the magazine. n

48 SPRING 2019 BAR UPDATES

John B. McMillan Distinguished Service Award

Judge B. Craig Ellis cant impact and strengthened North attorney for the Orange County Rape Crisis Judge B. Craig Ellis received the John B. Carolina. Center for over four decades and was instru- McMillan Distinguished Service Award on Judge Ellis’ life has been one of service— mental in forming the Chapel Hill domestic November 16, 2018, at a ceremony held at to his country, his state and local communi- violence prevention agency. He was also one the Scotland County Courthouse in ty, and to the judicial system. He is a most of the founders of the Orange County Laurinburg, NC. NC State Bar President- deserving recipient of the John B. McMillan Family Violence Prevention Center. Elect C. Colon Willoughby Jr. presented the Distinguished Service Award. Additionally, he has served as board counsel award. to the Inter-Faith Council for Social Judge Ellis grew up and attended high Robert L. Epting Services, Inc. school in Wilmington, NC, and earned his Attorney Robert L. Epting (Bob) Mr. Epting is an avid pilot and received undergraduate degree from the University of received the John B. McMillan the National Humanitarian of the Year Virginia. For four years he served as an offi- Distinguished Service Award on December award for his leadership in the Young Eagles cer in the United State Navy. He then 7th at District 15B’s Holiday Party at the Program. earned his law degree from UNC in 1970. Carolina Inn. The award was presented by Judge Ellis practiced law in Laurinburg for North Carolina State Bar Executive Jonathan R. Harkavy the next six years. During that time, he also Director Alice Mine. Attorney Jonathan R. Harkavy received served as a part-time magistrate. Mr. Epting graduated from the the John B. McMillan Distinguished Service In 1976 Judge Ellis began his judicial University of North Carolina in 1963, and Award on November 15, 2018, at the career as a district court judge. He served in from its law school in 1970. After teaching Greensboro Bar Association meeting in that role until 1984, at which time he was for three years at UNC’s Institute of Greensboro, NC. State Bar President G. elected to the superior court bench, where Government, Mr. Epting opened his private Gray Wilson presented the award. he remained until his retirement in 2005. practice. In 1974 Mr. Epting and Joe Mr. Harkavy graduated from Columbia From 2004 to 2005 he served as president of Hackney formed the firm Epting & Law School in 1968. He served as a law the North Carolina Conference of Superior Hackney. clerk for Judge Rives of the US Court of Court Judges. Mr. Epting has almost 40 years of expe- Appeals for the Fifth Circuit and then began Judge Ellis’ record of service extends rience serving clients in and around Orange his practice of law in New York City. He beyond his roles as district court and superi- County. He is best known for his service to ultimately moved to Greensboro, NC, or court judge. He has a longstanding com- the Orange Water and Sewer Authority where he joined the law firm now known as mitment to the Boy Scouts of America (OWASA). Mr. Epting served four years on Patterson Harkavy. Mr. Harkavy is consid- beginning in 1955 when he received his the OWASA Board before he became its ered one of the most knowledgeable labor Eagle Scout award. He has received virtually general counsel in 1984. He is an acknowl- and employment lawyers in the state. The every honor that the Boy Scouts award. He edged expert in matters of administrative Labor and Employment Section’s highest has served on the Board of Trustees and the and environmental law, including water, honor is the Jonathan R. Harkavy Award, of Executive Operating Committee of environmental regulation, zoning, and per- which Mr. Harkavy was the first recipient. Scotland Memorial Hospital. He has sonnel. In 2002 Mr. Epting was inducted He is particularly well known for his annual received the Rotary Club Paul Harris into the General Practice Hall of Fame by presentation of updates of the US Supreme Award, the Edwin Guest Pioneer Service the North Carolina Bar Association. Court’s labor and employment decisions. Award, and the Jaycee Distinguished Service Mr. Epting has served on the North Mr. Harkavy has taught securities law Award. Carolina Environmental Management and corporate finance at Duke and Carolina In 2007 Judge Ellis was awarded the NC Commission and on the Chapel Hill Town Law Schools. He also taught employment Order of Longleaf Pine. This award is Board and the North Carolina Parks and courses at Wake Forest Law School. Mr. among the most prestigious awards con- Recreation Board. He has handled a wide Harkavy has also taught labor and employ- ferred by the governor of North Carolina. It range of matters involving the administra- ment law to nonlawyers and has assisted in is awarded to persons for exemplary service tive processes at UNC-Chapel Hill and the training of mediators. He is a research to the State of North Carolina and their UNC Hospitals. He also volunteers his time associate at Harvard Law School and is co- communities that is above and beyond the to the UNC School of Law. author of the practice volume of Larsen’s call of duty, and which has made a signifi- Mr. Epting has served as a volunteer Employment Discrimination.

THE NORTH CAROLINA STATE BAR JOURNAL 49 Mr. Harkavy is a past president of the Coif. He served as an officer in the United Mr. Talley is a sustaining life member of 18th Judicial District Bar. He has served as States Naval Reserve and retired as a captain The Fellows of the American Bar chair of the NCBA’s Committee on Dispute in the Naval Security Group. In 1964 Mr. Foundation, an honorary organization of Resolution, chair of the Labor and Talley joined the law firm that eventually attorneys, judges, and law professors whose Employment Law Section, and chair of the became Horack, Talley, Pharr & Lowndes. professional, public, and private careers have Appellate Rules Committee. He has also His practice concentrates on commercial demonstrated outstanding dedication to the served as co-chair of the ABA’s Committee real estate development, business formation welfare of their communities and to the on Employment at Will. He has served on and operation, and financing for real estate highest principles of the legal profession. the Civil Rights Advisory Committee for and business ventures. the Middle District, the Civil Rules Mr. Talley served on the study commit- Nominations Sought Subcommittee for the Eastern District, and tee to determine the best way to provide Members of the Bar are encouraged to the Judges Faculty for the Fourth Circuit legal aid to the poor. He served as president nominate colleagues who have demonstrat- Judicial Conference. and member of the Board of Directors of ed outstanding service to the profession. The Mr. Harkavy is a member of the Joseph Legal Services of North Carolina, president nomination form is available on the State Branch Inn of Court and a recipient of the and member of the Board of Directors of Bar’s website, ncbar.gov. Please direct ques- NCBA’s H. Brent McKnight Renaissance Legal Services of the Southern Piedmont, tions to Suzanne Lever, [email protected]. n Lawyer Award chair of the Task Force on Delivery of Legal Jonathan Harkavy has spent a lifetime Services, member of the North Carolina cultivating knowledge of the law and work- Commission on Delivery of Legal Services, ing to strengthen legal education, providing and member of the Access to Justice civic leadership, aiding the legal profession, Commission and treating others with courtesy and Mr. Talley also served on the North Client Security Fund (cont.) respect. Carolina Bar Association’s Board of Governors from 1983 to 1986. He served as funds to the client. Leigh retained the re- James M. Talley Jr. president of the Bar Association from 1994 maining funds purportedly for costs and Attorney James M. Talley Jr. received the to 1995 and co-president of the Southern medical liens. Prior to paying any remaining John B. McMillan Distinguished Service Conference of Bar Presidents from 1995- funds to Medicaid or other medical Award on November 14, 2018, at the 1996. He served as the Mecklenburg providers, the IRS seized Leigh’s trust account Mecklenburg County Bar Law and Society County co-chair of the Centennial to recover funds Leigh owed for unpaid in- Luncheon in Charlotte, NC. State Bar Campaign for the North Carolina Bar come and withholding taxes for several years. President G. Gray Wilson presented the Foundation and he currently serves on the Leigh failed to pay his taxes and failed to award. Board of Directors of the 4ALL Task Force. protect his clients’ separate property from Mr. Talley received his law degree from In addition, Mr. Talley served on the Board seizure by the IRS. The board previously re- UNC. He was a member of the Law Review of Trustees of the North Carolina State Bar imbursed two other Leigh clients a total of and was inducted into the Order of the Plan for IOLTA from 2002-2008. $5,699.37. n

Thank You to Our Sponsors

On January 15, 2019, a dinner was held Silver Sponsors Nelson Mullins Riley & Scarborough in celebration of the retirement of L. Thomas Bell, Davis & Pitt, P.A. Parker Poe Adams & Bernstein LLP Lunsford II after 27 years of outstanding Charles & Martha Davis Poyner Spruill LLP leadership and dedicated service to the North di Santi Watson Capua Wilson & Robinson Bradshaw Carolina State Bar, North Carolina lawyers, Garrett, PLLC Satisky & Silverstein, LLP and the people of the State of North Hunton Andrews Kurth LLP Schell Bray PLLC Carolina as executive director of the Bar. The John Vernon, Attorney at Law Smith Anderson following individuals and organizations gen- Kilpatrick Townsend & Stockton, LLP Womble Bond Dickinson (US) LLP erously sponsored this event. Law Offices of Fred H. Moody, Jr. Yates, McLamb & Weyher LLP Manning Fulton & Skinner, P.A. Gold Sponsor McGuireWoods LLP Bronze Sponsor Lawyers Mutual Moore & Van Allen PLLC Cranfill Sumner & Hartzog LLP Mullins Duncan Harrell & Russell PLLC

50 SPRING 2019

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

Spring 2019