THE NORTH CAROLINA STATE BAR

FALL JOURNAL2020

IN THIS ISSUE “Justice Isn’t Always Blind” page 6 Surviving and Thriving Following a Pandemic page 9 Uniform Collaborative Law Act page 15 IMPORTANT NOTICE REGARDING STATE BAR EMAILS

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THE NORTH CAROLINA STATE BAR JOURNAL FEATURES Fall 2020

Volume 25, Number 3 6 “Justice Isn’t Always Blind” Editor By Judge Ashleigh Parker Dunston Jennifer R. Duncan 9 Surviving and Thriving Following a Pandemic

By Camille Stell © Copyright 2020 by the North Carolina State Bar. All rights reserved. Periodicals 13 Selecting the Best Medical Expert postage paid at Raleigh, NC, and additional Witness offices. Opinions expressed by contributors By Joe D. Haines are not necessarily those of the North Carolina State Bar. POSTMASTER: Send 15 Uniform Collaborative Law Act address changes to the North Carolina State Enacted—Now More than Ever, Bar, PO Box 25908, Raleigh, NC 27611. Collaborative Law is Open for The North Carolina Bar Journal invites the Business submission of unsolicited, original articles, essays, and book reviews. Submissions may By Aida Doss Havel and John Sarratt

be made by mail or email (jduncan@ 18 Remarks on the 200th Anniversary of ncbar.gov) to the editor. Publishing and edi- torial decisions are based on the Publications the North Carolina Supreme Court Committee’s and the editor’s judgment of By Cheslie Kryst the quality of the writing, the timeliness of the article, and the potential interest to the 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 29 Pathways to Well-being BAR UPDATES 5 President’s Message 31 Legal Ethics 42 In Memoriam 20 The Disciplinary Department 33 Proposed Ethics Opinions 50 Resolution of Appreciation 22 IOLTA Update 37 Rule Amendments 52 Client Security Fund 23 Legal Specialization 43 Proposed Amendments to Rules 54 Law School Briefs 25 Lawyer Assistance Program on Lawyer Advertising 28 Upcoming Appointments

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

4 FALL 2020 THE PRESIDENT’S MESSAGE

The Impacts of the Pandemic on the Practice of Law

B Y C. COLON WILLOUGHBY JR .

Four score and seven years ago...I have migrations within our country. North Carolina Bar Associations and been waiting for a chance to begin with that Despite that grim reality, North Carolina required examination of all law students. opening and have finally gotten the oppor- lawyers were focused on raising ethical stan- Even now, as we experience a pandemic tunity. Our North Carolina State Bar was dards and improving our profession. Many and economic uncertainty, the leadership of brought forth into existence 87 years ago in in the leadership of the NCBA favored cre- our bar organizations and courts are focused 1933. Its creation was at a ating a new bar organization on improving the profession and access to difficult time for our nation, and worked tirelessly to justice for many who legitimately believe our state, and our profes- make it happen. I. M. Bailey, they are not heard or protected in civil or sion. The North Carolina a lawyer representative from criminal courts. Increased attention and Bar Association had been in Onslow County, was one of efforts to ensure that lawyers recognize the existence since 1899 and was the key driving forces for unmet needs and respond in appropriate flourishing. The call for the forming a mandatory regula- fashion are being well received across the creation of a mandatory bar tory bar, and he went on to state. Thousands of lawyers have responded to regulate legal education be the first president of the to the call for pro bono and “low bono” serv- and control the licensing North Carolina State Bar. ices to assist clients. Last year, more than and disbarment of attorneys His son, Ruffin, and grand- 1,200 lawyers publicly reported that they came in 1921 from then son, Jim, followed in his heeded the call and donated tens of thou- NCBA President Thomas footsteps as lawyers. Lawyers sands of hours to those in need of represen- W. Davis. The NCBA lead- like Bailey felt raising stan- tation. Even more met the call and provided ership believed that the creation of a manda- dards and making legal services more widely pro bono services without recognition. tory regulatory bar would raise the status, available were for the good of the public and Hundreds more provided “low bono” servic- dignity, and ethical standards of the bar. It the profession, and they took bold steps to es through their work representing indi- took 12 years and steady persistence from make it happen. gents, charities, and small businesses. the original call for creation of the North Creation of the State Bar was not with- As many of us are learning to work with Carolina State Bar to bring the organization out its challenges or detractors. Some of the new environments and technology, we are into existence by our General Assembly. same issues that confront us today were hot also encountering new clients and new While we think that our health and eco- buttons at that time. Originally, Bar dues problems. Employment, housing, health, nomic situations now are the most dire and were proposed to be $4, but that caused and insolvency issues have exploded and most unique that have ever existed, we such a ruckus they were scaled back to $3. increased in complexity. Furloughed and should remember that those days were also One of the legislative representatives stated displaced employees face mounting bills, as challenging. The Spanish flu pandemic of that he did not want to pay for anything do their employers and landlords. Loss of 1918-20 infected about one third of the that cost more than $1 unless he could eat it health insurance and childcare services, evic- world’s population, and the death toll is esti- or wear it. The proper methodology for tions, end of life decisions, and inability to mated to be somewhere between 17-50 mil- licensing of new lawyers was another contro- communicate with loved ones housed in lion people. By 1933 we had come out of versial subject. The question of whether hospitals and care facilities have created the pandemic and were in the midst of the admission to the bar should be by examina- unanticipated legal obstacles for clients. Great Depression. The stock market had lost tion or whether graduates of law schools Longtime corporate giants, once believed to about 90% of its market value from 1929 to within North Carolina that were approved be invincible, are also not immune from the 1933, and 25% of our workforce was unem- by the American Association of Law Schools devastating impact of COVID 19. Some ployed. Long lines were common in places should be admitted by diploma privilege familiar corporate names may cease to exist where the homeless and hungry waited for a upon graduation was vigorously debated. as we know them. meal. Our economic woes sparked social Ultimately, the General Assembly followed and political upheaval and prompted mass the recommendation of the American and CONTINUED ON PAGE 12

THE NORTH CAROLINA STATE BAR JOURNAL 5

“Justice Isn’t Always Blind”

B Y JUDGE ASHLEIGH PARKER DUNSTON

s we navigate this new world of masks, social distancing, and

quarantines, we are constantly reminded that there is a silent

virus lurking that could infect each of us differently. Some

people are asymptomatic, others are hospitalized, and at the timeA of authoring this article, over 126,000 people have lost their lives in the US alone.1 ©iStockphoto.com/Denise Hasse

Similar to COVID-19, there’s another virus that has existed for over 400 years and has been exposed more prevalently in recent months and years, and it can no longer be ignored or swept under the rug. This virus is called systemic racism.

This virus not only affects Black people as these:3 • I had only been at the District involved as parties in the criminal justice sys- • As a rookie prosecutor in the late 1970s, Attorney’s Office for a month when a tem from obtaining housing, education, I quickly learned how to deal with one of the defense attorney came into the courtroom healthcare, and employment opportunities, most racist judges I would ever encounter. telling me that another ADA had made a but it is also pervasive within our legal pro- Not only would this judge slap his .45 caliber deal on a previous court date. I informed fession as a whole. So many times, we as handgun down on the bench, but once he him that I didn’t feel comfortable dismissing attorneys pretend that we’re immune to even hung a hangman’s noose in front of the the case because I was new, but that he could instances of racism because of our education, bench during a murder trial. It didn’t take take the file to another courtroom and ask background, or experiences. Some of us even long for me to notice a pattern when I had to that ADA to dismiss it. As he was leaving go so far as to say that we don’t “see color;” appear before him. If I was prosecuting a out of the side door, he called me a “f*cking however, to not “see color” is as much of a white person, he would either find a way to n*gger.” I confronted him and told him that farce as it is to say that racism isn’t a thing dismiss the charge, continue the case, or find I heard what he said. I knew that I couldn’t that we should be concerned about because it an excuse to not impanel a jury for trial. do anything because I would be fired for hasn’t affected us directly.2 This form of Most of the time, he wouldn’t even look in reacting, so I had to swallow my pride and microinvalidation is hurtful and suppresses my direction unless he just absolutely continue to handle my docket. I’ve contin- the experiences of our Black colleagues, such couldn’t help it. ued to have to work with this individual

6 FALL 2020 who has yet to apologize. nothing had happened. Mind you, I was in a similar position, with no experience, and • A white female judge would routinely suit and had my files with me. This is only given more pay than I was offered. When I ask my white male colleagues in open court one of many times that I have been told that asked for a higher salary, he stated in an during a hearing whether I was right on the I could not be somewhere or sit somewhere indignant tone that, “the offer was reason- law regarding legal arguments I made. She because I was not an attorney. In 2020, the able based upon my experience.” I declined never asked me whether my white male col- assumption remains that if you are a person the offer. leagues were correct on the law—it was just of color that is dressed up in a courtroom, • As an attorney, I’ve been stopped at the presumed they were correct. In my worst you are the defendant or a litigant. “bar” and been told by bailiffs that only hearing with this judge, my white colleague • When I was a young lawyer, I was work- lawyers and court personnel can come any agreed that I was right on the law and she still ing with a team of well-respected criminal further. Although I’ve complained, nothing refused to believe me. When she refused to defense attorneys. While out for an evidence has been done about my treatment or likely allow my clients to speak, which was their viewing at the Sheriff’s Department, we were the treatment of other lawyers who “look” constitutional right, I withdrew. She joined by law enforcement and the district like me. appointed the white attorney, and he repre- attorney prosecuting the case. I was the only • I’m a civil litigator and handle cases sented the clients at the hearing the next Black person in our group. After the evi- across the state. After being accosted by the week when I had secured leave. dence viewing, at which I had remained bailiff when trying to enter the bar, the judge • As a private defense attorney, I repre- silent, we were all walking out of the Sheriff’s questioned me heavily about my case, sented an African American female with a Office and there was a large chicken plant although it was a motion for final judgment DWI and reckless driving charge. After she directly across the street. The district attor- and no one answered the complaint or was found not guilty of the DWI by an ney, addressed me for the first time, pointed appeared from the other side. The judge did African American judge, we decided to at the plant, and remarked, “Hey, if this law not question any other attorneys as much as appeal the reckless driving charge due to thing doesn’t work out for you, you can I was questioned, nor did the judge spend as ramifications with her employer. The origi- always go get a job over there.” The only much time reviewing any other court files as nal assistant district attorney told me that my response I could muster was a depressed and he did mine. The judge eventually signed my client could do community service to have broken chuckle while everyone else joined in order and I headed back home, but I still the case dismissed; however, a different assis- a laugh. remember how disheartened I felt as I left tant district attorney stated that I was “hand- • At my first District Court Judge’s that courthouse. Other non-Black attorneys ed a gift” with the not-guilty of the DWI and Conference following my 2008 election to were treated courteously and taken at their that the offer was no longer on the table. The the bench, a white female colleague from word; meanwhile, I was treated like an reckless driving charge was set in superior another county said, “Honey, can ya get us incompetent outsider. It’s been years and the court and continued multiple times, causing some more napkins?” I replied, “No.” memory of this incident still stings. my client to continuously have to take off • I was applying for a job as an assistant • I worked for an office where the intake work. My client ended up having to plea to public defender. During the interview, the staff was hesitant to ask clients how they a reduced charge and pay court costs, where- attorney in charge of hiring was making typ- identify racially, so they thought the better as other cases involving white defendants ical small talk. He asked what I did over the option was to assign race based on how would have been dismissed. weekend. I told him that I had gone to visit clients sound on the phone. They freely • In the late 1990s I worked briefly as the my brother in Raleigh. His immediate shared this and couldn’t understand why this only Black assistant district attorney in a response was, “So how is Central Prison?” I was a big deal to me. small rural county. I dismissed a case for lack just sat shocked and uncomfortably • An assistant clerk of court said to me of evidence, due to an officer improperly laughed. I’ve never been more thankful for “So, who’s girl are you?” (thinking I worked charging a young, Black youth without prob- not getting a job. for an attorney). able cause. The officer went to my supervis- • When I was a new attorney, I practiced • As a new judge, I was assigned court in ing attorney who stormed into the court- in an area where I was the only minority per- a smaller county in NC. I arrived at work room, demanded to know what happened, son in the entire district. Every week I was with my robe draped over my arm and greet- and attempted to shame me publicly by say- constantly referred to as the “social worker.” ed the deputies. After holding court for the ing that he could have prosecuted that case A white client told the judge that she didn’t morning session, we took our customary blindfolded with his hands behind his back. know how she ended up with me as her lunch break. I left for lunch and returned to I believe he felt comfortable doing this attorney, but that she couldn’t afford the the courthouse and decided to make some because of my race. This supervising attorney white male attorney she wanted. phone calls. I was parked in the assigned went on to become an appellate judge. • I am an attorney who has done indigent spaces for judges. At that time one of the • When I first started practicing, I walked defense for years. I have 15 years of experi- deputies came outside and tapped on my behind the courtroom to go in a side door ence, which includes working for the Public window and told me that, “I could not park and check the docket. A deputy chased me Defender’s Office with extensive trial experi- here because these spaces were reserved for down the hallway and told me that this area ence. I applied for another position doing judges only.” I replied that, “The last time I was for attorneys only. When I told him I the same thing and was offered a very low checked I was a judge, but moreover you saw was an attorney, he did not apologize, but amount for the position. I had knowledge me this morning.” She looked and I looked, instead just walked into the courtroom as if that a white female was recently hired for a then she replied, “Oh,” and walked away. She

THE NORTH CAROLINA STATE BAR JOURNAL 7 never apologized, but I realized that she tions in a constitutional democracy depend couldn’t conceive that I could even be a judge. on popular participation and support to A Message from President Colon maintain their authority.”6 How can the Willoughby * * * * * public feel confident in the justice system if the primary participants in that system are June 4, 2020 Chief Justice Cheri Beasley of the North often treated unequally based upon the color The death of George Floyd, com- Carolina Supreme Court said it best, of their skin? bined with the nationwide call to Too many people believe that there are However, there is hope! Much like the pre- action inspired by that death and the two kinds of justice. They believe it ventative actions that we take daily to curb senseless deaths of too many other peo- because that is their lived experience— the spread of COVID-19, we must do the ple of color, has brought to the fore- they have seen and felt the difference in same to eradicate racial disparities. It’s ex- front of our lives the historical their own lives. The data also overwhelm- tremely important that we begin to under- inequities of our justice system and of ingly bears out the truth of those lived stand that the legal profession is not immune our society. Much has been said about experiences. In our courts, African- to instances of racism—neither explicit nor the issues surrounding racial inequality Americans are more harshly treated, more implicit—and it’s time to educate ourselves in America, and yet much more needs severely punished, and more likely to be so that we can all exemplify the highest level to be said. And, most importantly, the presumed guilty…We must come togeth- of professionalism and competency. We must anguish that underlies the protests er to firmly and loudly commit to the take an inner look at ourselves and our beliefs, needs to be heard and acted upon. declaration that all people are created and then outwardly work to facilitate those The Preamble to the North equal, and we must do more than just changes. We must educate ourselves on the Carolina Rules of Professional speak that truth. We must live it every day plight of others, correct colleagues who say Conduct calls upon lawyers to “seek in our courtrooms.4 improper things and act inappropriately, check improvement of the law, access to the Across the nation, your Black colleagues our implicit biases, and be willing to have dif- legal system, the administration of jus- and colleagues of color are being affected, ficult and uncomfortable conversations.7 tice, and the quality of service rendered and to do nothing is no longer an option. Additionally, we can work on tangible by the legal profession.” Further, the Despite obtaining the same degree and pass- things to prevent further instances of this Preamble demands that lawyers “be ing the same bar exam, due to our skin color behavior in our Bar. One way is to advocate mindful of deficiencies in the adminis- we are held to different standards, scrutinized for a mandatory bias/diversity/inclusion tration of justice” and devote our time at higher levels, seen as illegitimate, and CLE requirement to be conducted on a and toil to ensure “equal access to our “given” our titles due to affirmative action. semi-annual basis. Another way is to advo- system of justice for all.” Our judgment and competency is always cate for our State Bar to adopt ABA Model Tuesday, our Chief Justice pledged questioned. Rule 8.4(g) that renders it misconduct for an that our courtrooms will become an And why does that matter? There are per- attorney to: example of our shared commitment to sonal and professional ramifications to con- engage in conduct that the lawyer knows the declaration that all people are creat- sider. On a personal level, this discriminatory or reasonably should know is harassment ed equal. North Carolina lawyers must behavior is demeaning, insulting, dangerous, or discrimination on the basis of race, sex, heed and aid in the fulfillment of that and normalizes inequality among equal indi- religion, national origin, ethnicity, dis- pledge. We must dedicate ourselves to viduals. Furthermore, this disparate attitude ability, age, sexual orientation, gender the ideals of our Preamble against the and treatment towards our colleagues of identity, marital status, or socioeconomic insidious injustice of racism, both color impacts not just our development as a status in conduct related to the practice of implicit and institutional. If we truly lawyer and confidence to seek higher posi- law. This paragraph does not limit the believe in freedom and justice in this tions, but also affects the potential outcomes ability of a lawyer to accept, decline, or nation, then we need to embrace racial that can be achieved for the clients served.5 withdraw from a representation in accor- equality for all. This last point raises professional concerns dance with Rule 1.16. This paragraph To the lawyers and citizens of North for this behavior. In addition to our col- does not preclude legitimate advice or Carolina: The call to action has been leagues suffering from this unacceptable advocacy consistent with these Rules.8 heard; we stand with those who seek behavior, our clients suffer also due to the I know that we will all rise to the call of equal justice for all; and we promise to unequal, detrimental treatment of their action to make the necessary changes to our do our part to encourage, assist, and lawyers. The very trust that we ask the public lives and profession. Our colleagues, clients, support lawyers in fulfilling their pro- to place in the justice system is threatened future generations of lawyers, and the general fessional responsibility to do the same. and made weaker with each instance of dis- public are depending on us to do everything crimination experienced, witnessed, or we can to prevent the spread of racism. n learned of by the public. The Preamble to the Rules of Professional Conduct charges Judge Ashleigh Dunston is a district court to present a CLE on this topic, please visit her lawyers to “(6) further the public’s under- judge in the 10th Judicial District, which website at JudgeAshleigh.com. standing of and confidence in the rule of law encompasses Wake County. For more informa- and the justice system because legal institu- tion about Judge Dunston or to request for her CONTINUED ON PAGE 17

8 FALL 2020

Surviving and Thriving Following a Pandemic

B Y CAMILLE STELL

Unprecedented times. Navigating the crisis. Stay-at-home orders issued. These are the headlines of the day. And every lawyer—regardless of age, experience, or circumstances—has been affected.

Maybe you had high hopes for launch- ing your legal career but didn’t plan for a pandemic. Or perhaps your career is well underway, yet the pandemic has created challenges never before encountered and not yet fully defined. For insight, I talked with a few people who started practicing law during or imme- ©iStockphoto.com/HAKINMHAN diately after another crisis, the Great Recession. And though the situations aren’t identical—what worked in 2008 might not work now—their stories of evolving and thriving give us hope and a blueprint for moving forward.

Persistence and Creativity: Heather Hazelwood Heather Hazelwood practices estate planning and estate administration as the solo owner of Ampersand Law, established she began to think about ways to do law dif- from potential clients. And second, clients in Durham in 2016. Heather is a second ferently. “I was especially interested in find- are eager to finish their documents much career lawyer having worked in the non- ing new ways of doing business to update the faster than before. People seem more eager, profit sector for eight years prior to law (slow-to-change) long-established traditional now than ever, to get estate plans in place. school. She graduated from the University models for law firms. That’s when the idea of However, as the financial impacts of the of Wisconsin Law School in May 2011. going out on my own began to form.” pandemic stretch out for months and Heather was able to find work as an Two years later, UNC-Chapel Hill months, I expect many potential clients associate in a Wisconsin firm, where she recruited Heather’s wife, they moved to won’t be able to afford to work with an focused on family law and estate planning. North Carolina, she sat for the NC bar attorney.” She says she did not receive a set salary, but exam, and opened her own firm, Advice for lawyers and recent graduates? was paid based on her billings. “I found Ampersand Law. “Be realistic, especially about your own clients by hustle, creativity, networking, How has the pandemic changed her expectations. Ask for and give help when flexibility, adjusting my expectations, and a practice? needed. Develop and practice healthy cop- lot of trial and error.” “This has impacted my practice in two ing skills. Remember why you started. If After two years of practice, Heather says ways. First, I’ve had an increase in inquiries you have the resources, throw money at the

THE NORTH CAROLINA STATE BAR JOURNAL 9 problem. There are many ways to make this Kathy is trying to forecast the future and The Great Recession, many more individu- more manageable if you can afford them. If determine whether her practice is recession- als became financially eligible for services you don’t have the resources, try to identify proof. “That’s a hard thing to assess. My and found themselves needing assistance people who have figured it out and ask practice does a lot of medical malpractice from LANC. At the same time, LANC was them for advice. My two greatest strengths cases. I fear that people will not want to sue facing their own reverberations of the reces- are interlaced: persistence and not being their doctor or their hospital in this time sion, and the Morganton office went from afraid of being told no.” that doctors are the warriors on the front- serving five counties to serving nine coun- Heather says that at some point in her line of this pandemic. I am watching what ties in western NC. career, she realized that success is not linear, is changing, trying to educate myself, and “Starting my career during a recession and that the only real failure is never trying. be nimble enough to change as needed.” required me to look for inner strength. My “Running your own business is much more Advice to lawyers starting their prac- family, particularly my grandfather, instilled trial-and-error than you’d expect. And most tices? “Figure out a niche, be alert to how in me a great work ethic. When you have a of us don’t spend much time advertising the the business is changing and what services job to do, it is expected that you do it. errors. Nothing is as good or easy as it looks people are looking for now, network with Additionally, you figure out how to make on Instagram.” others who are doing what you want to do, do with what you have. Find an alternative, Heather has an active social media pres- join organizations, participate in webinars. if necessary, to get the job done.” ence. Follow her Instagram account at Don’t be afraid to ask for help.” After ten years, Niya decided to make a @ampersandlawnc and check out her blog, This advice also applies to established career change and she joined Campbell Law &LawBlog at her website, ampersand- lawyers: “Reach out to others. Find out how School as the associate director for career & law.com/blog. others who do what you do handled the cri- professional development. She coaches the sis. You may need to downsize or do work next generation of lawyers through pro- There are Always Opportunities: Kathy yourself. Since starting my own firm, I have gramming, exploration of career options, Brown never had a paralegal or support staff. If I and instruction in the summer Externship Kathy Brown practices in West Virginia needed help, I hired it on a contract basis. Program. as well as North Carolina. She entered law Otherwise, if I had a big case, I would ask a Advice for managing work during a crisis? school following a 20-year career as a televi- larger firm to help me and we shared fees. I “Exhibit resiliency, grace (to yourself and sion journalist. am a hard worker, I want to help others, I others), and a willingness and eagerness to In September 2008, Kathy was down- wasn’t afraid to ask for help and wasn’t learn. Be creative and innovative in your sized from a national mass tort firm on a afraid to give up half the fee to someone approach. Welcome challenges. Seek a men- Friday; Lehman Brothers collapsed the fol- who helped me.” tor or guidance from supervisors and col- lowing Monday. What traits helped you succeed? “My leagues. But no matter what, DON’T “It was a terrifying time. I suffered with brother told me during the Great Recession, GIVE UP. This is an honorable profession, anxiety and depression. I had never been ‘There are always opportunities.’ I let that and your presence, lived experiences, without a job since I was 15. I had three be my guiding light. Because of the won- integrity, and existence makes it better.” medical malpractice cases that stayed with derful success I have had since 2009, I can When thinking about a post-COVID me when I was downsized. One of the cases see opportunities better during this crisis world, Niya says, “I hope that we continue settled in a few months, which gave me than I could then. I have helped others start to extend grace and compassion to ourselves some money to live on. I also took a con- businesses in part by just encouraging them and to each other. To remember that we are tract position doing computerized docu- to be positive. You have value to add and all dealing with issues outside of the legal ment review work for $21 per hour. I was there are always people who will want your matter that brings us together, but, never- local, but I was working with lawyers who help if you offer it for the right reasons.” theless, most of us are trying to do the best were driving in from Pittsburgh, Cleveland, that we can.” and other surrounding cities to Wheeling, Look for Inner Strength: Niya Fonville West Virginia, just to have work.” Niya Fonville graduated from Campbell Be Willing to Wear Different Hats: Neil Kathy was able to start working with a Law School in 2008. Following graduation, Magnuson small firm, and she eventually left the con- Niya began a one-year fellowship with Legal Neil Magnuson graduated from UNC tract position. In March 2009 she opened Aid of North Carolina, Inc. (LANC) in Law School in 2009. “I clerked for her own practice. Through networking, Morganton. Niya had her job secured Williams Mullen during the summer prior Kathy was able to build a profitable prac- before graduation. While many of her class- to my 3L year and received an offer at the tice, and by 2012 she joined forces with mates were experiencing a tough job market end of that summer. Many firms at the time another firm on a mass tort case that result- with very few jobs available and employers had to push back start dates for incoming ed in a multi-million-dollar settlement for rescinding offers, Niya’s position was fund- associates, and Williams Mullen did so in 3,500 cases. ed by a grant and guaranteed for one year. my case but, fortunately, they were able to Her greatest strengths during the Great As her grant was expiring, another lawyer bring me in after a few months’ delay (dur- Recession? “My connections, not being left and Niya moved into her role and ing which they also graciously provided me afraid to ask for work, and not being afraid stayed with LANC for ten years. a stipend). I understand that some other to share the fee.” As a result of the economic impact of firms at the time were forced to postpone

10 FALL 2020 start dates for even longer or, in some cases, hygiene practices to kids, what I really perspective, I do not believe that there will retract offers, so I felt very fortunate to have wanted the book to focus on was the emo- be a ‘return to normal’ for our society, and been able to begin when I did.” tional side of social distancing. I also want- for the practice of law especially. There will What strengths did you develop by start- ed the book to have a hopeful ending. I certainly be another adjustment once social ing work during a recession? wrote the whole thing in one sitting, but a distancing and other measures are lifted, “In hindsight, I suppose it would have significant number of late-night edits fol- but I do not think this adjustment will be to been the efforts during my first year or two lowed. It was such a time-sensitive subject regress to pre-pandemic practices. Law is a out of law school to try to learn as much as matter that I had to act quickly.” progressive practice. These unprecedented I could, as quickly as I could, while trying to When asked whether her girls are old times are setting precedent. The changes do good work when I had work to do. I also enough to appreciate that their mommy being made in response to this pandemic endeavored to never turn down work, so wrote a children’s book, Venus says, “My are not fugacious. The decisions made dur- long as I felt confident I had the time to get older daughter gets it and was very interest- ing this pandemic will have lasting impacts it done and done well. Eventually, I was able ed in the writing process. They both have a on how our society functions. I am most to gain experience handling a variety of mat- paperback copy in their rooms and refer to nervous about whether those decisions ters, which luckily led to my being able to it as ‘mommy’s book,’ which is sweet.” being made are the correct ones.” stay busy. The breadth of experience has also Venus devotes a portion of the book pro- December 2019 Elon Law graduate been helpful in-house, where one may need ceeds—as well as a portion of revenue from Lauren Zickert is working as an associate at to wear different hats from time to time.” her law firm—to charity. The Elderlaw Firm in the areas of estate Today, Neil works as media counsel for “I just really love the idea of giving back planning and elder law. Lauren interned NASCAR Media Ventures. “I work on the in different ways. With the book, I’m able with the firm during law school. In response media side of the NASCAR business, pri- to help families have honest conversations to the pandemic, her firm offered free statu- marily doing transactional work for the dig- with their children about what’s going on in tory form health care powers of attorney, ital and broadcasting teams. I draft and the world and donate funds to the World and they offer a Fast Track Program to get review contracts, advise on media and IP Health Organization’s COVID-19 essential estate planning documents in place matters, and help maintain our IP portfo- Response Fund. With my company, I’m in a short period of time. lio, among other things.” able to help startups and small businesses Lauren describes herself as resilient, NASCAR sounds like a dream job that with affordable legal services and give back entrepreneurial, and stubborn. “When the perfectly suits Neil’s skill set. to local nonprofits. All of that makes the odds are against me, usually my first “Prior to law school, I was a software hard work completely worth it.” thought is, ‘we will see about that.’ I am engineer in the sports television industry— always up for a new challenge and love find- more on the productions/graphics and sta- Recent Law Graduates ing creative solutions to meet my clients’ tistics side of sports television. Certainly I I also had the chance to speak to a few needs.” had great interest in someday returning to recent graduates from Elon Law School. When asked to peer into the future, the sports (and television) world on the Richard Glenn is a December 2019 Lauren says, “I am most nervous that we legal side, but expected that opportunities graduate who took the February 2020 bar won’t ‘return to normal,’ and that this type to do so would not present often. exam. Richard is working as an associate of sickness will reoccur. If the new normal Fortunately, a position opened up at with the Deuterman Law Group, where he involves this virus, I think the legislature is NASCAR five years ago that seemed to be a interned during law school. He is practicing going to need to reconsider how docu- good fit, and luckily, I was hired. And it has personal injury work. Richard notes that he ments can be notarized. It cannot be been a good fit, and a wonderful place to moved to remote work soon after starting ignored that we have the technology to do work. I grew up on stick-and-ball sports, his job because of COVID-19. He and his virtual signings and that we are putting but I now love a NASCAR race.” wife share workspace at home, which can at clients at risk every time we require them to times be tricky. come into contact with others. Our firm She Wrote a Book: Venus Liles Richard says when he was in the office, does a fantastic job of sanitizing surfaces, Venus Liles has a great pandemic story to he could walk into his supervising attorney’s utilizing our resources and our space effec- share. An in-house attorney at SAS Institute office to ask questions. Now, he uses the tively to minimize client contact, and tak- in Cary, she also moonlights on the side, firm’s communication tools such as email, ing normal precautions such as frequent helping startups and small to mid-sized Slack, and their case management messag- hand washing, sanitizing, and/or wearing businesses with their corporate legal needs. ing tool to communicate with attorneys, gloves. It is still a risk, though minimal, for Venus has two small kids, Violet (age staff, and clients. our clients, especially for the elderly to five) and Ivy (age three). As Venus says, “I Tips for working through a pandemic come into our office.” searched for a children’s book to help include patience and preparation. Je’vonne Knox, Elon Law class of 2019, explain the coronavirus and social distanc- “Being patient often helps me gain bet- is working as a paralegal at Gate City Legal ing to my kids. When I couldn’t find one, I ter perception. Preparation helps me to Services, a general practice firm including decided to write it myself. I knew from the control what I can and acknowledge what I family, criminal, and immigration law. beginning that although I wanted the book cannot.” Because of the pandemic, Je’vonne has not to explain the coronavirus and good Richard goes on to say, “From a personal yet been able to step into the role of an asso-

THE NORTH CAROLINA STATE BAR JOURNAL 11 ciate at the firm. However, she is handling found myself having to start back at square ence, even for my supervising attorney.” all client intake and consultations. one during the most crucial part of my 1L “With the costs of travel and efforts to “Although it took some adaptation, the year. Within a matter of months, all law stu- maintain social distancing, it is foreseeable transition to working from home was fairly dents across the country were forced to that mediations, depositions, arbitrations, smooth. Programs such as Google Voice quickly adapt to remote learning. With and other out-of-court proceedings will be have been a great help in transitioning to tenacity and perseverance, I was able to fin- conducted online more often. The use of remote work. Although many of us would ish my 1L year strong and in great standing, technology and online software are likely to like to stay in the comfort of our own but that was only half the battle.” become the new normal in the practice of homes until there is a remedy to COVID- “At the conclusion of my 1L year, the law. Stepping into summer employment 19, much of my job requires client interac- pandemic cases gradually increased. As a during a pandemic has been challenging, tion, so I will be returning to the office.” result, many of my classmates and colleagues but this experience will prepare me to How has COVID-19 impacted the prac- had their summer opportunities canceled. adapt, as well as develop resiliency for what- tice? “Like many other Americans, the Fortunately, I was able to continue my sum- ever lies ahead.” inability to work put a strain on our clients’ mer internship remotely with Lawyers ability to pay. Our law firm currently offers Mutual. Although my internship became We are in Uncharted Territory pro bono consultations for those financially completely remote, I am grateful to have the You have probably never experienced a affected by the pandemic.” opportunity to move forward as well as gain pandemic or had to develop a plan for sur- experience in the practice of law.” viving one. Both are scary. But with a plan, Perspective of a Law Student “After reflecting on the events during and the advice and counsel of our col- Lawyers Mutual participates in the NC these past few weeks, I realized that there is leagues, we can not only survive this chal- Bar Association, Minorities in the a silver lining to my experience. I can truly lenge, but emerge even stronger. n Profession, 1L Summer Associate Program. say that I am watching the practice of law This summer we were fortunate to have drastically change and evolve right in front Camille Stell is the president of Lawyers Quay Wembley intern with us. of me. Within the legal profession, people Mutual Consulting & Services and a specialist “As a law student during the time of a of all ages are beginning to utilize technolo- in working with lawyers and firms on strategic world-wide pandemic, it has been difficult gy more than it has ever been used before. planning and succession planning. Continue to stay positive,” he says. “After a semester- During my summer internship, I was able this conversation by contacting Camille at and-a-half of becoming accustomed to the to take part in an online mediation via [email protected] or 800- rigor and fast-paced learning in law school, I Zoom video call, which was a new experi- 662-8843.

President’s Message (cont.) Many are able to recognize the signs and own in need. take steps to manage their current state of During these times it is important to The normal stresses of running law mental health, but for others, it is not a self- reflect on how our predecessors at the Bar offices while helping clients who may be manageable condition. The old adage of managed to keep their focus on improving facing life changing situations have been “the cobbler’s children have no shoes” may the profession and standards under which magnified. Meeting our own operating be applicable to our profession as well. The they practiced, even in difficult times. They expenses of salaries, rent, and equipment mental health of our fellow lawyers must be also maintained a sense of comaraderie and while serving clients who are struggling to a matter of our concern. As Chief Justice concern for their fellow practitioners before keep their businesses afloat has been diffi- Beasley addressed in her message to the State we created formalized programs of support. cult for many. Some of our faithful clients Bar Council at the July meeting, there is This has been a defining part of the practice now in need are least able to make timely cause for concern and vigilance. We are our of law, and we don’t have to look far for great payments for legal services. We practice in a brothers’ and sisters’ keepers. Historically, role models as examples. We are fortunate profession that is called on to assist people lawyers have turned to each other in times of that we now stand on the shoulders of those when they have legal, business, physical, stress and need, and found comfort and giants, and we can provide shoulders of sup- personal, and emotional problems. The assistance readily available. But we have a port for another generation of lawyers. As nature of that work is physically and men- responsibility to the public and our fellow we go forward, let us remember why we tally demanding under the best of circum- lawyers to be vigilant for indications of were drawn to this profession. We have the stances, and, under the current environ- lawyers needing assistance and not wait for a responsibility to preserve the best of it for ment, can seem daunting. call. The Lawyer Assistance Program (LAP) the future, and an obligation to improve it We must recognize the toll our profes- and BarCARES both provide wonderful and for those to come. Let’s make the most of sional work takes on all lawyers and be espe- necessary help to lawyers, and they need our our opportunity. n cially sensitive to those who may be over- help and support. Even more, a phone call, whelmed. Stress and isolation coupled a note, or a socially distanced cup of coffee C. Colon Willoughby Jr. is a partner with the together can trigger feelings of depression. could be the timely antidote for one of our Raleigh firm McGuire Woods.

12 FALL 2020

Selecting the Best Medical Expert Witness

B Y JOE D. HAINES

ne of the crucial elements in any medical negli- gence case is the selection of a medical expert witness. Proper attention to getting the “right” expert can makeO or break a case in many situations. If a ©iStockphoto.com/PeopleImages firm is fortunate enough to have a stable of tried and proven experts, that is certainly an advantage. However, utilizing the same experts too frequently can also present a problem. In addition, experts retire or simply stop taking cases, so having a screening process for new experts is a valuable tool. Selecting a great medical expert witness can be reduced to physicians who possess the “six Cs.” These include 1) credibility, 2) competency, 3) congeniality, 4) command- lar type of brain surgery. An expert who tes- The second quality important for an ing presence, 5) communicating skills, and tifies outside his area of expertise may have expert witness to possess is competency. In 6) coachability. The ideal expert who possess- his credibility impeached, which can be a my opinion, fewer than five years clinical es all of these qualities will reward the attor- disaster for the case. An expert who “is kept experience is too little to prove competency ney for his diligence. in his/her lane” is a credible expert. in the expert’s field. Generally ten years or The selection process necessarily begins Before proceeding with a potential more is acceptable. A competent expert is with credibility, which involves proper cre- expert, it is also important to screen him for also one who knows how to deal with attor- dentials. Appropriate education, training, disciplinary action, arrests, lawsuits, or other neys—they should be prompt and extremely certifications, and licenses must first be negative information in the expert’s back- thorough in case analysis. established, along with the expert’s area of ground. Failure to establish these sorts of The third “C” is congeniality. When professional focus. It is crucial to obtain the details can waste time when the expert must retaining an expert, thought must be given as right specialist (or generalist) for the case. For be withdrawn, or even damage the case if to the impression the expert will make to a example, if the allegations are against a fam- overlooked. jury. This does not mean the expert should be ily practitioner working in an urgent care set- In addition to being credible, it is desir- “grinning like an idiot,” but have a pleasant ting, then an expert of the same background able for experts to be independent. Ideally, demeanor that makes him or her relatable to and practice is necessary. the expert witness should spend no more a jury. Most jurors’ contact with physicians is In choosing a good expert witness, an than 10% of his professional time on med- limited to their interactions as a patient. So attorney should adhere to the old Dirty ical-legal matters. Otherwise they may be ultimately, the jury is asking itself if they Harry maxim of, “A man’s gotta know his portrayed as a “hired gun” who spends more would want this expert as their doctor. An limitations.” A family doctor should not be time in court than in the clinic, resulting in expert who is aloof, condescending, or argu- testifying about the alternatives of a particu- diminished credibility. mentative does not play well with most juries.

THE NORTH CAROLINA STATE BAR JOURNAL 13 your case?” Talk to us about LEGAL MALPRACTICE A. “It’s not my case, it’s the attorney’s And learn why lawyers refer their Legal Malpractice cases to case.” William F. McMurry and Associates Q. “Doctor, have you ever made a mis- take?” Building referral relationships based on A. “Yes, but I haven’t made any errors in opinion concerning this case.” confidence and trust. Q. “Doctor would you consider this text- book as an authoritative source?” William F. McMurry is Board Certified as a Legal A. “That depends upon which chapter, Malpractice Trial Specialist By the American Board section, page, or passage to which you are of Professional Liability Attorneys (ABPLA.org) referring.” Q. “Doctor, would you agree that reason- The ABPLA is accredited by the ABA to certify specialists in the field of able doctors can disagree?” Legal Malpractice – RPC 7.4 A. “Yes.” (It is important to concede this point, otherwise the expert may appear Visit our website at CourtroomlawNC.com unreasonable.) Q. “Doctor, would you agree that the 828-488-0190 treating doctor would have greater knowl- edge of the patient and her problem that William F. McMurry will personally handle each case while some services may be provided by others. would allow him to make better decisions regarding this particular patient?” A. “Not necessarily. A certain distance Fourth, the expert must be commanding. 1. assumes unestablished facts from the case allows for greater objectivity He or she must be proficient in the facts of the 2. assumes a false premise when analyzing the facts.” (By answering yes, case and of the salient points of his or her 3. demands an answer that cannot be the expert subordinates all of his or her opin- opinion. The expert should also understand given ions to the treating physician, even if the the opposing counsel’s argument inside and 4. imposes unreasonable limitations treating physician was negligent.) out. There can be no surprise questions that 5. draws the expert out of his field of Q. “Doctor, when you reviewed this case, the expert has not anticipated. Opinions must expertise. how did you proceed?” be expressed confidently and completely. Recognizing the trick question is just half A. “I assumed that the patient had The fifth “C” is communicator. An the battle; it is the appropriate response that received reasonable care and then analyzed expert must be able to communicate effec- is crucial. Here are a few of the many vari- the facts of the case to either prove or dis- tively to the jury. This is second nature for eties of trick questions. prove my assumption.” most primary care physicians, as they spend Q. “Doctor, are you being paid for your There are several important principles to their days communicating often complex testimony today?” keep in mind when answering trick ques- medical data to their patients. This does not A. “No, I’m being paid for my opinion tions. The expert must not allow the oppos- mean giving a lecture in response to a ques- and my time away from the office.” (The ing counsel to put words in his or her tion, but providing clear, concise answers. expert is never paid for testimony, but for his mouth. Some key phrases for the expert to The final “C” refers to the ability to coach time and professional opinion.) remember are: the witness, or coachability. One of the key Q. “Doctor, isn’t it true that you mainly 1. “Doctor, would you say…?” “No, but areas to focus on is helping the expert cope testify for plaintiffs (defendants)?” I would say…” with trick questions, which should be expect- A. “My job is to review the case I am 2. “That depends.” ed. The expert must be able to recognize and asked to analyze and call it as I see it.” (The 3. “Not in this case because of…” defeat them. Avoiding the pitfalls of these attorney is attempting to impeach the 4. “Doctor is it fair to say…?” “That can be the difference between being an effec- expert’s credibility by making him appear depends on what you mean by ‘fair.’” tive witness and a discredited one. Since biased towards plaintiff or defense.) 5. “Isn’t it true that…?” (Watch for the most physicians are unfamiliar with trick Q. “Doctor, will you agree to give me a inaccurate statement to follow.) questions, some examples follow. simple ‘yes’ or ‘no’ answer to my questions?” The expert needs to understand that it’s The purpose of the trick question is to A. “For those questions that can be important to be responsive to the opposing confuse the expert witness, distort the testi- answered with a simple ‘yes’ or ‘no’ I will counsel, while at the same time avoiding vol- mony, and mislead the jury. There is often an agree. However some questions may require unteering information. A deposition or trial attempt by the opposing attorney to skirt the an explanation when a simple ‘yes’ or ‘no’ testimony is no time to deliver a lecture. substance or reasoning behind the expert’s may not be entirely truthful.” (Don’t take the Experts need to understand that their role is testimony. According to former trial attorney “deal” the attorney is offering you in order to not to educate the opposing counsel, who Judge David M. Lawson, a trick question can restrict your answers and mislead the jury.) take one of the five following forms: Q. “Doctor, what is the weakest part of CONTINUED ON PAGE 21

14 FALL 2020

Uniform Collaborative Law Act Enacted—Now More than Ever, Collaborative Law is Open for Business

B Y AIDA DOSS HAVEL AND JOHN SARRATT

he Uniform

Collaborative

Law Act was ©iStockphoto.com/scyther5

signed into

Tlaw by Governor Cooper on July 1, after having passed both the House and the

Senate by substantial bi-partisan majorities (91-25 and 47-1). Collaborative Law Practice is a client-centered out-of-court method for resolving disputes that first arose 30 years ago in the family law setting as part of a general shift towards what became known as alternate dispute resolution (“ADR” and now, more commonly, just dispute resolution, perhaps signaling the general acceptance of mediation and arbitration as options to litigation).

Today we are finding that collaborative may prove to be permanent. That, of course, about the limitations of a system based on practice is especially well-suited to a new is change brought about by the COVID cri- appearance at a public courthouse, and the legal and cultural shift which in many ways sis, along with the lessons we are learning advantages we are discovering of conducting

THE NORTH CAROLINA STATE BAR JOURNAL 15 all sorts of activities online. been postponed. At the same time, we are to resolve their dispute. Collaborative prac- Collaborative practice was created by a discovering added benefits of dispute resolu- tice allows all parties greater flexibility to divorce lawyer in Minnesota in 1990 because tion not dependent on the court system and manage their schedules and meet online to he felt his clients, who were couples going learning how much we can accomplish continue moving towards a resolution even through a wrenching personal experience, online. Even as the crisis subsides, these chal- when face-to-face meetings are impractica- were not being well served by the highly lenges and benefits will remain. While recov- ble for any reason. adversarial and often destructive litigation ery from much of the suffering and disloca- The collaborative approach to dispute model of resolving disputes. Coincidentally, tion caused by COVID will be difficult, in resolution makes the most sense when the others had reached the same conclusion the area of dispute resolution, steps can be parties have an ongoing relationship they about civil litigation in general. In 1983 the taken to address pressing problems without wish to maintain. Not only is there an incen- North Carolina Bar Foundation’s Task Force delay by using the collaborative process. tive to avoid destructive litigation techniques on Dispute Resolution was created to look at The collaborative process occurs entirely that might drive the parties further apart, but possible alternatives to trial as a way of resolv- outside the court system. There is no reliance there is also likely to be greater comfort in ing disputes. That task force became the on courthouses, judges, juries, or public fil- voluntarily sharing information and cooper- NCBA’s Committee on Dispute Resolution ing of documents. There is no need for dep- ating in procedural steps such as agreeing on and later the Dispute Resolution Section, ositions, mediations, or other in-person pro- a neutral expert. Such situations might and the extensive development of mediation ceedings. Instead, the parties and their coun- include a probate dispute among siblings, the in North Carolina had begun. In the mean- sel agree to use the collaborative process, breakup of a family business, or a dispute time, the use of arbitration as an alternative which puts them in complete control of all among businesses that wish to continue their to trial was also growing. proceedings. Everything takes place at a time profitable relationship with one another. In Over time, however—even before the and place agreed to by the parties, along with many such disputes, there are implications to COVID crisis—many lawyers, judges, and their lawyers trained in the collaborative the negotiations and outcome beyond con- clients had begun to feel that the entire sys- process, who sit at a table together and work siderations of money or property. These can tem of litigation, including alternatives such towards a mutually agreed upon solution to include underlying needs and interests, val- as mediation and arbitration, was becoming the shared problem that divides them. ues, and emotions that a purely legalistic bogged down in expensive and time-con- Together they agree on an exchange of approach may fail to consider. Just having suming discovery, motion practice, rules of needed information. They may determine their “day in court” may leave the parties evidence and of procedure, and the games- that an expert opinion is needed—say from frustrated and dissatisfied if these concerns manship that is part of any winner-take-all an accountant or engineer—and agree on are not addressed by a strict application of system. Many would say that while clients who they think would be able to provide the the law. are the primary losers in a system that has most reliable information. The cost of this While the collaborative process is more become increasingly time-consuming and neutral expert is shared by the parties. flexible than a court proceeding, it does not expensive, lawyers themselves are also suffer- Rather than taking hard positions and mak- abandon basic legal protections and attorney ing in the stressful win-lose environment in ing demands, they discuss their real needs responsibilities. Each party has a lawyer which they find themselves. and interests and brainstorm ways to resolve whose job includes keeping things on the For the client, the collaborative approach their dispute. collaborative track, but also advising each offers a highly efficient, expedient, and less The end result is a settlement agreement client as to their legal rights and options. The costly solution to all kinds of civil disputes, that is truly “owned” by all parties because attorney-client privilege remains completely not just in the divorce setting. It also puts the they have been instrumental in reaching that intact. When agreement is reached, it is client in charge and works to improve rather agreement. The lawyers are completely dedi- memorialized in an enforceable settlement than harm existing business and personal cated to reaching a resolution out of court agreement, just as binding as that reached in relationships. Every negotiating session in and agree that they will not serve as litigation other dispute resolution venues. The collab- the collaborative process includes all of the counsel if the matter ultimately goes to orative attorney is zealously pursuing the parties sitting down face-to-face accompa- court. Typically, the entire process takes a remedy the client has chosen: to resolve the nied by, but not shielded by, their counsel. mere fraction of the time or expense of a existing dispute quickly and inexpensively For lawyers, especially those burned out by court proceeding. while attempting to preserve or even improve Rambo-style litigation, it offers an opportu- Ordinarily, meetings that are part of the the relationship between the parties. nity to serve clients by solving their problems collaborative process take place in person. The collaborative process is entirely vol- without the destructive features of win-at-all- However, there is no reason they cannot untary. It would be inconsistent with the costs litigation. For the courts, it removes occur online, either because of a major dis- nature of the process to make it mandatory. cases entirely from the court system, provid- location like the COVID crisis, or because a Likewise, any party can withdraw from the ing more resources for those cases that are party or counsel is ill or cannot conveniently process at any time, and any attorney can not appropriate for a collaborative solution. come to the location where the meetings impasse the process if their client is unwilling The COVID crisis has exposed addition- occur. Using Zoom or a similar online meet- to follow the collaborative protocols such as al challenges inherent in the trial system. ing platform, any party or attorney could be voluntary disclosure of relevant information Most in-person court proceedings, as well as in a separate space if necessary, while still and foregoing the “take it or leave it” discovery proceedings and mediations, have maintaining the concept of being together approach of much positional negotiation

16 FALL 2020 techniques. The perspective of the collabora- public and professional education programs. before, and it has been disruptive for us and tive process is forward looking—towards an While its resources are applicable to any col- our clients. We certainly hope never to have agreed-upon solution to a common prob- laborative matter, IACP has focused its atten- to live through such a “waiting period” lem—and not backward looking to try only tion on collaborative family law. again, but if we do, we can offer our clients to assess fault or blame. In North Carolina, the collaborative a method of resolving disputes that does not All of these protocols—the voluntary method first took hold in the early 2000s, rely on external structures being open for exchange of information, selection of mutu- and there are a substantial number of collab- business. ally agreed upon neutral experts if needed, orative lawyers practicing in the family law Now—more than ever—collaborative withdrawal of counsel if the case impasses area. In the spring of 2014, the Dispute Res- practice is open for business! and goes to litigation, the ability to withdraw olution Section of the North Carolina Bar To learn more about collaborative law at any time, and the obligation of counsel to Association formed a Collaborative Law practice, visit nccivilcollaborativelaw.org. n impasse the proceeding if their client is Committee to explore expanding Collabora- unable or unwilling to comply with these tive to non-family matters. Among other Aida Doss Havel is a recovering litigator protocols—are put in a written things, the committee has sponsored eight and experienced collaborative practice trainer “Participation Agreement” signed by the par- 14-hour basic training sessions attended by and family law practitioner living on Hatteras ties and by counsel at the outset of the col- over 250 attorneys across the state. A number Island, North Carolina, is co-chair of the Civil laborative proceeding and makes the ground of the lawyers who received that training Collaborative Committee of the Dispute rules explicit. came together towards the end of 2017 to Resolution Section of the North Carolina Bar A note here about collaborative practice form a non-profit, the North Carolina Civil Association, and is a member of the Board of as it relates to mediation: Collaborative dif- Collaborative Law Association (NCCCLA), the Global Collaborative Law Council. fers significantly from mediation in its which works in cooperation with the North John Sarratt is an attorney with Harris process, tone, and scope. It seeks not mere- Carolina Bar Association to raise awareness Sarratt & Hodges in Raleigh, is co-chair of the ly settlement, but also a measure of healing about collaborative law practice among Civil Collaborative Committee of the DR and mutual understanding. As someone lawyers and clients, and to offer resources Section of the NCBA, and is the president of else has said, “If you don’t understand the and develop standards of excellence for its both the North Carolina Civil Collaborative other side of the problem, you don’t under- members. Law Association as well as the Global stand the problem.” A paradigm shift often In 2009, the Uniform Law Commission Collaborative Law Counsel. occurs during the collaborative process that promulgated a Uniform Collaborative Law enhances creativity and empowers the par- Act to create uniformity in the advancement ties to voice their underlying concerns and of collaborative law practice among the states interests. It is a process that can transform that adopted it. Prior to the recent adoption the clients over a period of weeks, rather by North Carolina, it had been adopted in Justice Isn’t Always Blind than further polarizing them as often 18 states and the District of Columbia, and results from a one-day mediation or pro- there are eight more states where efforts are (cont.) longed litigation process, with or without a underway to consider adoption. The exact trial and appeal. application of the act is in fact not uniform, Endnotes There are several international, national, with some states limiting its application to 1. Centers for Disease Control and Prevention, 2020, and statewide organizations devoted to fur- family law or with other variations; however, Coronavirus Disease 2019 (COVID-19) in the US. ther spreading and developing collaborative there is a trend developing for a uniform law Available at: bit.ly/Fall2020Journal1. practice. One international organization governing collaborative practice. North Car- 2. Vincenty, S., 2020. Being Color Blind Doesn’t Make You Not Racist—In Fact, It Can Mean The Opposite, whose focus is on non-family civil collabora- olina has a collaborative law statute limited Oprah Magazine. Available at: bit.ly/Fall2020Journal2. tive is the Global Collaborative Law Council to family law that actually pre-dates the Uni- 3. These stories have been edited for brevity and clarity. (GCLC), globalcollaborativelaw.com. It was form Act: N.C.G.S. 50-70 et seq. The North 4. Nccourts.gov, 2020, Chief Justice Beasley Addresses established in 2004 and has members Carolina General Statutes Commission in- the Intersection of Justice and Protests around the throughout the United States and abroad troduced the Uniform Act into the North State, North Carolina Judicial Branch. Available at: with a mission to advance the use of the col- Carolina legislature in 2018. It passed the bit.ly/Fall2020Journal3. 5. Weiss, D., Majority of Minority Female Lawyers laborative process in resolving all types of House in both the 2018 and 2019 Sessions Consider Leaving Law; ABA Study Explains Why, civil disputes. and passed the Senate on June 22, 2020. It ABA Journal. Available at: bit.ly/Fall2020Journal4. The first national organization to be was signed by the governor on July 1 and has 6. Preamble: A Lawyer’s Responsibilities, North Carolina established—and the largest—is the an effective date of October 31, 2020. State Bar. Available at: bit.ly/Fall2020Journal5. International Academy of Collaborative Whether in the midst of COVID or on 7. Ruiz, R., 6 Ways to be Antiracist, Because Being ‘Not Professionals (IACP), collaborativepractice. the other side of this crisis, the collaborative Racist’ Isn’t Enough, Mashable. Available at: https://bit.ly/Fall2020Journal6. com, an international, interdisciplinary approach to dispute resolution allows the 8. Kubes, K., Davis, C. and Schwind, M., 2019, The organization that has promulgated a uniform parties to proceed as though the crisis had Evolution of Model Rule 8.4 (G): Working to definition of collaborative practice, standards never occurred. Having our courts close Eliminate Bias, Discrimination, and Harassment in the for collaborative practitioners and trainers, a their doors for over two months is an occur- Practice of Law, Americanbar.org. Available at: model interdisciplinary code of ethics, and rence that none of us have ever experienced https://bit.ly/Fall2020Journal7.

THE NORTH CAROLINA STATE BAR JOURNAL 17

Remarks on 200th Anniversary of the North Carolina Supreme Court

B Y CHESLIE KRYST

The following remarks were made at a celebration of the North Carolina Supreme Court’s 200th Anniversary, which took place on October 10, 2019.

Thanks so much! I won the title of Miss North Carolina USA last year and was actually a little wor- ried about how the legal industry was going to handle things...and y’all slapped me on the front of North Carolina Lawyer maga- zine, so thank you so much for that. I was very relieved and excited to see that cover, and I think more than anything I was really excited about the photo that the edi- tors chose. It was me in a red pantsuit, and if you watched the Miss USA competition this year you probably remember that I have a colorful history with pantsuits. A history that gave me a glimpse of what the North Carolina legal industry used to look like and what I wanted it to look like. When I competed on the moot court team at Wake Forest we traveled to a lot of different places. One of the competitions I went to was a sports and entertainment law competition held in New Orleans, Louisiana, during Mardi Gras. Of course, I had a genuine interest in sports and enter- tainment law and it had nothing to do with going to New Orleans during Mardi Gras. ular round we had a really cold bench. There Not a, “You did really good, keep going.” Which is exactly why I don’t practice sports were three judges, and out of our 30 min- Or, “You sucked please stop.” Instead, I just and entertainment law now. utes I think we collectively received five or received comments about what I wore. And But when I was there, my teammates and six questions. After the round was over, one I listened quietly in the courtroom while the I, we competed in a few courtrooms that of the judges came up to me and said, “You same judge whispered advice to our male were really cold. I chose one day to wear a know, next time consider wearing a skirt suit opponents. pantsuit to one of our rounds. These rounds because,” and I quote, “the male judges pre- I was taken aback by this particular were 30 minutes and my co-counsel and I fer to see women in skirts.” I didn’t receive instance, so I shared it in a Facebook group shared those 30 minute rounds. This partic- any substantive feedback from this judge. with a little over a million members. And I

18 FALL 2020 was shocked and horrified when women you want this legal community to look like, and it is your job to set the bar higher and to across the country—women who were attor- and know that each one of us has a responsi- continue to lift this state higher. This journey neys in Louisiana, in North Carolina, in bility to build that vision. Obviously, the to continued progress in this industry will be northern states, in midwestern states— vision that you have shouldn’t only be about straighter and more quickly traveled if we shared very similar stories. Women who were race and gender. refuse to leave the duty of solving problems practicing attorneys who were told by judges When you’re thinking about using more to those who are most acutely affected by to leave the courtroom for not wearing innovative technology and different strate- them. Take up the mantle. And we will lead pantyhose. Or women who were asked not gies in your workplaces, don’t leave it up to this state forward together. to come back wearing red lipstick or red nail the young people to figure it out. In fact, polish. Women who were criticized about some of the most innovative companies in Cheslie Kryst is a complex civil litigation the heels that they wore or didn’t wear. our nation are led by seasoned professionals. attorney licensed to practice law in North and It was something that was profoundly Like Apple’s Tim Cook at 58. Amazon’s Jeff South Carolina. Cheslie was crowned Miss interesting and challenging for me to under- Bezos at 55. Or Microsoft’s Bill Gates at 63. USA in May 2019, and worked full time at stand that something like that could still Rather than rolling your eyes when millenni- Poyner Spruill, LLP before winning the title. happen in this day and age. After I shared als like me ask for flex work policies, try to Passionate about criminal justice reform, she this information and read those stories I understand that we sat at dinner tables with has worked pro bono for clients serving exces- thought to myself, it’s no wonder that there our parents during the Great Recession of sive time for low-level drug offenses. In October are so few women compared to men who 2008, watching as they were fired from com- 2019, Cheslie was named a correspondent for serve as advocates in courtrooms or [are] panies they were loyal to for decades. the nationally broadcast entertainment news partners in law firms when you can walk in Understand that because of that, we don’t show, Extra. Cheslie is a Dress for Success to argue about substantive issues and be rele- want work to define us, but rather want a life Impact Ambassador and supports chapters gated to talking about clothes and shoes and outside of it. across the country, traveling to local communi- nail polish, which is interesting coming from Many at my firm, Poyner Spruill, under- ties to give back. She also serves on the National me, a woman who runs a fashion blog about stood the concept of going to bat as a team. Board of Directors for Big Brothers Big Sisters of women’s professional clothing. But there’s a When it came to diversifying our ranks, it America. Cheslie earned both her law degree time and a place. wasn’t up to the Black attorney to fix it. It and MBA from Wake Forest University and It’s easy to judge women who leave the wasn’t up to the females to figure things out. graduated cum laude with a bachelor’s degree legal industry after being worn out by the Instead, the firm itself understood that this from the Honors College at the University of inequities that we face both large and small, was an issue we needed to handle together. South Carolina. but it’s also easy to understand why we want So, when we organized a panel and a recep- a level playing field. I’m not just talking tion to honor and celebrate Black History about men perpetuating this behavior. In Month, in the two years that I’ve been at the fact, the judge who made the comment to panel and reception I looked into the audi- me during my moot court competition was ence and saw the faces of white people and actually a woman. She was a Black woman. people of color learning and listening She was a double minority like me, who may together. have faced racist and sexist comments her And when you’re thinking about the entire life. Like when a schoolmate of mine Supreme Court here in North Carolina, at Wake Forest [suggested] that I only won know that having one of the most diverse the 1L Trial Bar Competition at Wake courts in the nation led by a Black woman because the judge was Black and she wanted for the first time ever isn’t a celebration just a Black girl to win. Or when I was in high for Black people or for women. It can be cel- school and [was] told that I was really pretty ebrated by people of any race in the state for a Black girl. knowing that we don’t make empty promises At times North Carolina is marred by about glass ceilings being broken, but instead misogyny and racism. Other times, progress we put our money where our [mouths are]. and change and innovation like we’ve heard And we demonstrate that race and gender about today feel like they’re rinsing us clean. alone will not bar you from reaching our We have a rich and beautiful history here in state’s highest court. Like we just heard, the state that I call home. And it isn’t a per- “This has been done before by someone who fect history, but no state has that title. looks like me.” For 200 years we’ve had a court that has In the coming years we need to continue been reflective of or a change agent for the proving that. That it’s not just possible for people in the state. This happy anniversary is you to reach your goals despite race or gen- an excellent time to challenge ourselves to der, but that it’s probable. That we can’t guar- think what next year will look like. And the antee success, but we can ensure equal foot- next five years. Or the next 50. Imagine what ing. There are still more milestones to reach,

THE NORTH CAROLINA STATE BAR JOURNAL 19 THE DISCIPLINARY DEPARTMENT

Grievance Committee and DHC Actions

NOTE: More than 29,000 people are licensed County Superior Court. Coleman admitted audit by the State Bar. Mattox was suspend- to practice law in North Carolina. Some share that he misappropriated entrusted funds in ed for two years. The suspension is stayed the same or similar names. All discipline an amount in excess of $60,000. Coleman for two years upon his compliance with reports may be checked on the State Bar’s web- also pled guilty in Wake County District numerous conditions. site at ncbar.gov/dhcorders. Court to one count each of felony common John C. Snyder of Matthews neglected law forgery and felony notary violation. and did not communicate with his client, Disbarments John Vincent Ivsan of White Deer, made false statements to his client and to Peter S. Coleman of Raleigh surrendered Pennsylvania, surrendered his license and opposing counsel, did not return his client’s his license and was disbarred by the Wake was disbarred by the State Bar Council. file, filed frivolous motions and pleadings in Ivsan pled guilty in the US District Court a civil case, made a false representation to a for the Eastern District of Pennsylvania to tribunal, knowingly made a misrepresenta- one count of conspiracy to defraud a tion or omission to the Grievance Escrow Consulting United States agency, the Internal Revenue Committee, and did not respond to the Service, in violation of 18 U.S.C. § 371, Grievance Committee. The DHC suspend- & Accounting, LLC and one count of tax evasion in violation of ed him for three years. After serving two Protecting Yoour Trust Accounts 26 U.S.C § 7201. years of the suspension, Snyder may apply Daniel Matthias Kincheloe of for a stay of the balance upon proving his Richmond, Virginia, surrendered his license compliance with numerous conditions. Are Your Trust Accounts in and was disbarred by the State Bar Council. Accordance with Rule 1.15? Kincheloe pled guilty in the US District Interim Suspensions Protectinggy your business byy.y... Court for the Western District of Virginia The chair of the DHC entered an order to one count of transmission of interstate of interim suspension of the law license of ࠮*VUMPYTPUN 4VU[OS` HUK 8\HY[LYS` communications with intent to extort in Charlotte lawyer Nikita V. Mackey. 9LJVUJPSPH[PVUZ4LL[ 5* )HY 9\SLZ violation of 18 U.S.C. § 875(d). ࠮=HSPKH[PUN *SPLU[ ;Y\Z[ 3LKNLYZ (YL Kristin Harmon Lang of Charlotte sur- Censures -\SS`-\UKLK rendered her license and was disbarred by Eva F. Lee of Raleigh was censured by the Wake County Superior Court. Lang the Grievance Committee. She sent an ࠮,UZ\YPUN ;Y\Z[ (JJV\U[Z (YL PU admitted that she misappropriated entrust- email to an attorney serving as guardian of *VTWSPHUJLHUK 4HRPUN 5LJLZZHY`  ed funds totaling $10,860. an estate, to outside entities, and to the 3LKNLY*VYYLJ[PVUZ media containing baseless allegations of ࠮:LY]PJLZ ]HY` MYVT H VUL[PTL YL]PL^ Suspensions & Stayed Suspensions malfeasance by the guardian and containing VMJSPLU[ WYLWHYLK YLWVY[Z [V ,*( Steven J. Allen of Hendersonville had a other assertions that were false or without YLJVUJPSPUN[OL [Y\Z[ HJJV\U[Z VU H sexual relationship with and cohabitated legal and/or factual basis. The New TVU[OS`IHZPZ with a client while her child custody case Hanover Superior Court convicted Lee of was ongoing, thereby making himself a nec- indirect contempt of court after it deter- essary witness in the case and causing prej- mined that Lee’s conduct was designed to udice to the administration of justice. He deter the guardian from complying with a was suspended by the DHC for one year. court order to sell the ward’s property. James Pressley Mattox of Statesville did Charlotte lawyer Bradley Pearce was not conduct required monthly and quarter- censured by the Grievance Committee. A ly reconciliations and reviews of his trust bankruptcy court determined that Pearce accounts, disbursed more funds from his filed a motion to disqualify opposing coun- DDawn Cash Sala trust account to clients than he held in the sel which was not legally and factually war- 252.531.42411 trust account for those clients, did not ranted and was filed for an improper pur- TrustComplianceNC. always promptly disburse entrusted funds, pose. did not supervise an assistant to whom he Over 20 years of pr fi l i i delegated trust accounting tasks, and back- Reprimands dated reports in preparation for a random Isabel Guzman-Uresty of Durham was

20 FALL 2020 reprimanded by the Grievance Committee. North Carolina State Bar by Order dated currence with or opposition to this petition Guzman-Uretsky was employed by October 3, 2005. King’s disbarment was the for reinstatement should file written notice Alexander Lapinski. After Lapinski was dis- result of being found to have engaged in with the secretary of the North Carolina barred, Guzman-Uretsky employed him as conduct involving dishonesty, fraud, mis- State Bar, PO Box 25908, Raleigh, NC, her office manager. She permitted Lapinski representation, or deceit. 27611, before November 1, 2020 (60 days to provide substantive legal assistance to her Individuals who wish to note their con- after publication). n clients. She also employed Lapinski’s wife as a legal assistant and provided excessive com- pensation to both, violating the prohibition against sharing legal fees with nonlawyers. Selecting the Best Medical must understand that it is never appropriate Transfers to Disability Inactive to lose one’s temper or behave in a less than Status Expert Witness (cont.) gentlemanly or ladylike fashion, even when Gregory A. Buscemi of Wrightsville being personally insulted. The jury won’t Beach was transferred to disability inactive probably knows the case very well. In addi- like the rude treatment of an expert, unless status by the chair of the Grievance tion, the more one talks, the greater the the expert returns the rudeness. Committee. opportunity for a misstatement which can Ultimately, the jury looks at the medical be used against the expert. expert and asks themselves if this is the sort Notice of Intent to Seek Finally, certain words or phrases should of person they would want for their doctor. Reinstatement always be avoided, such as, “to be entirely The expert who comes across as caring, honest,” “to tell the truth,” and “to be can- patient, friendly, and not condescending or In the Matter of Michael King did about this.” These comments may give adversarial, has the credibility battle won. n Notice is hereby given that Michael the impression that prior remarks were less King of Salisbury intends to file a petition than honest or accurate. The expert also Joe D. Haines Jr., MD, MPH, FAAFP is a for reinstatement before the Disciplinary needs to understand that “I don’t know” board certified family physician with over 25 Hearing Commission of the North may be a perfectly reasonable response. years of experience as a medical expert witness. Carolina State Bar. King surrendered his Experts should be coached to treat both He is a US Navy veteran, having served as wing license and was disbarred by the attorneys the same, even though one is try- surgeon with the Marines in Afghanistan in Disciplinary Hearing Commission of the ing to trip up the expert. In addition, experts 2011. He currently practices in Pittsboro, NC.

THE NORTH CAROLINA STATE BAR JOURNAL 21 IOLTA UPDATE

Where You Bank Matters

In the Summer edition of the Journal, the pare for new realities. Currently, NC IOLTA IOLTA Update considered the impact of the is looking ahead to the coming grantmaking pandemic on the low-income individuals cycle, which will kick off with applications IOLTA Update and communities ultimately served by the available in early August. As we forecast rev- • While income in the first quarter funding IOLTA provides, as well as the enue decreases and consider opportunities to of 2020 was consistent with 2019, impact on grantee nonprofit organizations. increase available funds to pass on to grantee income in the first two months of the We now know the context of the last partners, IOLTA reminds all North Carolina second quarter has decreased by 23% Update, some six weeks into the establish- attorneys: where you bank matters. compared to 2019. IOLTA staff and ment of stay at home orders in North board will continue to monitor Carolina, was really just the beginning of Impact of Pandemic on Revenue income and interest rates over the our collective time at home and the onset of NC IOLTA’s primary source of revenue coming months and communicate challenges facing us all, including our fellow is interest income from participating finan- potential impacts with stakeholders. North Carolinians who are least able to cial institutions that hold IOLTA accounts. • NC IOLTA is continuing to access basic human necessities. After the Federal Funds Target Rate was cut communicate with all eligible finan- The question is not if an organization, on March 16, 2020, financial institutions cial institutions that are seeking to its staff, and the population it serves have began reaching out to propose changes in adjust the rate and policies on their been impacted by the pandemic, but how. their rate structure. Similarly, in recent IOLTA product as a result of econom- No doubt, the readers of this Update are months, lower principal balances have been ic conditions. IOLTA encourages drawing on their own resilience and past noted. Income for IOLTA in the first quar- banks to communicate with our office experiences to face challenges in the work- ter of 2020 was consistent with 2019 regarding proposed changes to ensure place, as well as personal ones within fami- income; however, income in April and May continued compliance with the State lies and local communities as a result of the decreased by 23% compared to 2019. Bar rules regarding IOLTA. pandemic. Across the program’s history, NC IOLTA Information about the rules and eligi- The NC Center for Nonprofits, North has continuously considered the diversifica- ble financial institutions can be found Carolina’s statewide membership associa- tion of revenue, periodically identifying and at nciolta.org. tion of nonprofit organizations, conducted seizing opportunities to add new revenue • NC IOLTA continues to admin- a survey in the spring to capture the impact streams and make the most of current ister state funding on behalf of the of the coronavirus on nonprofits in our sources. We commit to continuing these NC State Bar under the Domestic state. In addition to the cancellation of efforts to maximize funds available for Violence Victim Assistance Act. events and programming and the challenges grantmaking to critical civil legal aid and 2019-2020 funding totaled related to working remotely, survey respon- administration of justice efforts. The limita- $903,002, a decrease over 2018-2019 dents illuminated other organizational chal- tions of the model remain, however, and due to diminished filing activity in lenges they are experiencing: disruption of IOLTA is facing decreases in revenue as a April, May, and June. services (76%), budgetary implications result. • Applications for 2021 funding (75%), and increased and sustained staff In a press release dated May 29, 2020, from NC IOLTA will be available in and volunteer absences (48%), to name a the National Association of IOLTA early August and are due on October few. Nonprofits providing critical social Programs, of which NC IOLTA is a mem- 1, 2020. services, like legal aid programs across the ber, reported on the projected impact on • NC IOLTA published the pro- state, are seeing increased demand in certain funding administered by IOLTA programs gram’s 2019 Annual Report, areas as individuals navigate unemploy- in 2020. A survey conducted by the Celebrating Justice. Please join us in ment, health, and family crises. This National Association of IOLTA Programs celebrating the work of IOLTA and its increased demand strains financial resources (NAIP) documented early projections of “a partners in 2019 to pursue justice for and organizational capacity at a time when steep drop” in revenue of at least $157.4 all. staff are working in new environments and million to state-based programs that admin- facing their own personal constraints. ister IOLTA compared to 2019. The largest NC IOLTA is also strategizing amidst the source of revenue to programs—interest on grams anticipating losses in IOLTA revenue pandemic to respond to present circum- lawyers’ trust accounts—was projected to stances, support grantee partners, and pre- decrease by 46% on average, with some pro- CONTINUED ON PAGE 24

22 FALL 2020 LEGAL SPECIALIZATION

Ben and Christine Burnside, Board Certified

Specialists in Social Security Disability Law

B Y DENISE E. MULLEN, ASSISTANT DIRECTOR, BOARD OF LEGAL SPECIALIZATION

recently had an opportunity to talk to senior associate at Deuterman Law Christine: For me, it’s more what my with Ben and Christine Burnside, Group. clients don’t say now that I am board certi- board certified specialists in Social Q: Why did you pursue board certification? fied. I used to get comments regularly from Security Ben: Pursuing older clients about my young age, and I had disability board certification to reassure them that I was experienced and law, prac- challenges one to competent. Since becoming board certified, ticing in Greensboro. learn more about these comments have lessened dramatically, BenI graduated from their practice area and if I am questioned, the fact that I am UNC Wilmington in than might ordinar- board certified is always enough to end the 2003 and went ily be needed in conversation. straight through to daily practice, to Q: How do you stay current in your field? UNC Law. Knowing have a deeper Ben: The two best resources in our prac- that he wanted to understanding of tice are the National Organization for Social pursue a career as a Burnside Burnside the regulations and Security Claimants’ Representatives plaintiff’s attorney, rulings and how (NOSSCR) and the NCAJ Disability Ben sought out an internship at Deuterman they have changed and continue to change Advocacy Section listserve. The listserve Law Group the summer after his 1L year. over the years. Board certification is also a helps us keep our finger on the pulse of local When starting out at Deuterman, Ben prac- clear signal to clients that attorneys have this issues, while NOSSCR keeps us informed ticed workers’ compensation and personal depth of knowledge and experience in their about national trends, proposed regulations, injury law, but soon found his home in the practice area. Dan Deuterman has always and how we can advocate for needed change Social Security disability department. Ben encouraged attorneys at Deuterman Law in Congress. Our local NOSSCR represen- is now a senior associate at Deuterman Law Group to seek board certification, where five tatives, George Piemonte (also 2020-2021 Group. of the seven attorneys eligible for board cer- NOSSCR president) and Rick Fleming, do Christine is a double Tar Heel, having tification have achieved this distinction. a wonderful job of keeping communication attended UNC for undergrad before return- Q: How did you prepare for the examina- flowing between our local bar and the ing two years later to study at Carolina Law. tion? national organization. When graduating law school in 2012, Ben: I found it useful to take several days Q: What is most challenging about your Christine planned to return to her home- out of the office immediately before the work? town of Wilmington to look for work, but exam to study. I primarily used the posted Christine: We typically meet our clients came across an ad for a position in study guide as a reference. when they are going through extremely Greensboro. Taking a chance, she accepted Christine: I humbly admit that I only set stressful periods in their life, dealing with an interview for a workers’ compensation aside a few hours to study in 2018 due to a difficult medical challenges on top of finan- attorney at Deuterman Law Group. busy hearing schedule and then one-year- cial upheaval. Getting denied for disability However, within ten minutes of the inter- old twins. I missed a passing grade by rough- benefits after losing their health and liveli- view, the firm director sparked an interest in ly 20 points. In 2019 I ensured that I had no hood can understandably cause great angst Christine for Social Security disability law, meetings or hearings for several days prior to and, although we are their advocates in the and the passion for this practice that allows the test and spent the workdays studying the Social Security disability system, we can one to make a direct and tangible impact on Social Security Regulations, rulings, and often become the face of this problem for clients has yet to dwindle. Ben and Christine posted study guide materials. I encourage our clients. also met in this first interview and have been anyone who may not have been successful Ben: It can be challenging to bear the married since 2014. Their three-year old on their first attempt to apply again and not brunt of our clients’ frustrations with their twins keep them busy but entertained, espe- give up. life circumstances and with the often years- cially since working from home during the Q: What do your clients say about your long process of applying for Social Security pandemic. Christine was recently promoted certification? disability benefits. However, we are lucky to

THE NORTH CAROLINA STATE BAR JOURNAL 23 work with a dedicated group of paralegals, legal assistants, and staff who always strive to remember that the harsh words come from a IOLTA Update (cont.) place of pain and grief, not malice. Q: What is most fun about your work? of up to 75%. The press release further Christine: Our work allows us to bring reports that some programs have already direct change to the lives of some of the reduced grants as a result of most vulnerable members of our society, and current and anticipated changes in income, securing a win for them never stops being and many more anticipate making grant thrilling. The knowledge that our efforts can reductions in the coming year. mean the difference between a client living Income drops are hitting IOLTA programs in a shelter or in stable housing has yet to across the country and will ultimately reduce stop being a daily reward. We also read funds available to support civil legal aid. thousands of medical records a week, and the things that some people say to their doc- Prime Partners tors can be crazy. As you consider where to hold your Q: What activities/volunteer groups are IOLTA account, know that where you bank you involved in? matters. In 2019, banks paid rates on Ben: I am an avid hiker and I was train- IOLTA accounts in North Carolina ranging ing to hike Mount Kilimanjaro in July 2020 from 0.009% to 1.73%. While many banks before the pandemic canceled all travel waive fees that may be charged against the plans. I participated in the 2018 Make-a- IOLTA interest, some do not. Banking with Wish Trailblaze Challenge, hiking over 28 one of NC IOLTA’s Prime Partners that pays miles to raise money for the charity. a superior interest rate and waives fees could Christine: I support Ben’s efforts, but I provide 75 times more in revenue for access am an avid non-hiker. I enjoy voice and the- to justice. Choosing a Prime Partner Bank ater and made my acting debut at the for your IOLTA account is an easy way to Winston-Salem Theatre Alliance in 2016 support NC IOLTA. before putting life on the stage on hold due Prime Partners are banks that exceed min- to the arrival of the twins. I take voice les- imal compliance with the eligibility require- sons at the Cultural Arts Center and plan on ments of NC State Bar Rule .1317 to support moonlighting on Broadway if I can ever find the NC IOLTA program by paying the high- the time. er of 0.75% or 75% of the Federal Funds Q: Has your practice area been impacted Target Rate and waiving service charges. substantially by the current pandemic situ- NC IOLTA celebrates those financial ation? institutions that go above and beyond the Christine: There were a worrying few IOLTA eligibility requirements in their weeks when all Social Security disability commitment to improving access to justice hearings were postponed indefinitely, but in their communities. Contact one of the the Social Security Administration rather Prime Partners to ensure your IOLTA quickly pivoted from in-person hearings to account works harder to provide low- telephonic hearings. It has been an adjust- income North Carolinians with access to ment, as we were used to meeting face-to- critically needed civil legal aid. face with our clients to prepare for the hear- The following banks maintain Prime ings and again for the hearing itself, and we Partner status: value the in-person interaction between our- • Bank of Oak Ridge selves and the judges at the hearing. • Carolina State Bank Ben: While it has been a different experi- • Premier Federal Credit Union ence, it hasn’t necessarily been a negative • Providence Bank & Trust experience, as the administrative law judges • Roxboro Savings Bank are also doing all that they can to continue • Union Bank “business as usual” and make these phone • US Bank hearings as useful as possible. n • Wells Fargo • Congressional Bank (settlement agent For more information on board certifica- accounts only) tion for lawyers, visit us online at nclawspecial- For a full list of eligible banks, please visit ists.gov. nciolta.org. n

24 FALL 2020 LAWYER ASSISTANCE PROGRAM

Imagine

B Y ROBYNN MORAITES

Imagine for a moment that you and your highly profitable potential market sector: firm have an appeal going up to the Fourth commercial buildings. Most were built before Circuit and you are handling oral argument. the rise of the technological tools we use Imagine the amount of prep work. The today. Commercial building owners and research. Writing and rewriting the brief. Fine property managers are realizing that to remain tuning your arguments. Anticipating every competitive, they need to retrofit wiring curveball, every factual question, every solutions into their buildings. He approaches procedural nuance. Rehearsing practice you about how to structure this new offering. arguments with colleagues. Fielding tough You meet with him several times to discuss questions. There is a lot at stake and your different contract and work order structures, client is depending on you. Can you see it? payment models, potential risk exposure and Have you actually been there? How would how to mitigate it. He is excited and asks you you feel? Like a warrior? Excited? Honored? to structure the very first deal he has with a Up to the task? Nonchalant because it’s just well-known commercial real estate property part and parcel of the job? Tough? A teeny bit owner/manager. He has set a meeting with nervous? Assured? Some of all of the above? them to sit down and have an initial talk awkward as he and his entourage stand up You have a real opportunity here. You’re so about the project and if everyone is amenable, and leave the room: “This isn’t what we were prepared you start to dream about the case. he’d like you to draft the contract. He’s asked expecting.” When the day comes, you’re ready to go. that the meeting take place in your law office. The lone female quickly looks over at you Up early. Best suit. Great shoes. If you are a On the day of the meeting, your assistant and kind of shrugs an embarrassed, I’m sorry woman, you’ve done your hair and makeup buzzes you to let you know your client arrived look as they depart. just right. You are polished. Professional. a few minutes early as did the commercial real This all takes place very quickly in a matter Confident. Prepared. A little mindfulness estate team and their lawyer (five people). You of about 30 seconds. You know what is practice, a couple of (quick!) slow deep ask her to go ahead and show them all to the happening, but your client is dumbfounded. breaths, and in you go. You have given it your conference room, that you are on your way. He looks at you, “What just happened?” all, and all that remains is to give the actual You head to the conference room and through You explain, “Your deal will happen. It’s oral argument. The appellant attorney argues the glass wall you see everyone is animated, just not going to happen with me. I can refer his case. The justices asked tough but fair laughing and talking to each other. As you you to a couple of other attorneys I know who questions. You are then called to the podium. come into the room a hush falls over the will do a good job.” You put your legal pad on the podium. As room. You assume it is just because everyone Now I ask you to imagine one last you look up and say, “May it please the is going to get down to business. But as you scenario. You used to work at the public court,” one of the justices swivels his chair 180 take your seat next to your client, the folks on defender’s office. You are now working on the degrees so that his back is to you. He remains the other side of the table start looking around prosecution side. You have been with the DA’s that way for your entire oral argument. It is at each other nervously. The following office just two weeks. You’ve called the only when you thank the court for its time conversation takes place: calendar. An attorney approaches you. He and sit down that he swivels his chair back Client: “Okay. Let’s get started.” reports that he worked out a deal with around to face you. Head of real estate team, hesitant, another prosecutor for his client, who is on What would be going through your mind awkward: “This is not what we expected.” the calendar today. He tells you the details of if that happened to you? What in the world Client: “What do you mean? We arranged the deal. It all sounds good and makes sense. would you tell your client? to have an initial talk.” He asks you to dismiss the case against his Now I ask you to imagine a different Head of real estate team, again looking at client. Because you don’t know this attorney, scenario. Imagine it is a few years ago. You his team awkwardly: “This is not the kind of weren’t involved in negotiating the plea, the have a business client who specializes in lawyer we expected.” other prosecutor didn’t mention it, and you fiberoptic cable and digital wiring solutions. Client: “Huh? What do you mean? He’s are so new on the job you don’t even yet have With the new building codes that have been fully up to speed on the deal and he knows a relationship established with the other promulgated and the emergence of digital my line of business.” prosecutor, you ask him to go ahead and pull day-to-day office needs, he has a large, new, Head of real estate team, still looking his case off the calendar and take it to the

THE NORTH CAROLINA STATE BAR JOURNAL 25 courtroom two doors down where the other allies. I’ve heard a lot of, “Really? …Really?” perceptions and experiences are minimized or prosecutor is appearing in court today to have It is almost as if we live in two different denied by whites are a form of gaslighting. him dismiss it directly. worlds…. In one of his Netflix specials, Dave Does this straightforward, professional, We do. Chappelle observes, “[It’s all] hilarious, until reasonable and responsible request warrant How do we bridge this compassion and it happens to you.” Having been criticized for anything other than a response of, “Sure. No understanding gap? I think the answer lies in his statement, he had to painstakingly explain problem.”? friendship and love, recognizing we are all part that he was commenting on our modern day Instead, the attorney looks irritated, turns of a system that none of us chose. lack of empathy: the ability to understand and and walks away from you. As he walks out the As much as I have been talking with Black share the feelings of another. One of the side door of the courtroom a few feet away lawyers, I am having even more conversations hallmarks of narcissism is the inability to see from you, you hear him say, not quietly, with white lawyers, who truly want to another’s point of view or to empathize with “F*cking n****r.” understand more and who are trying to see others. There has been much press on the These are true stories. If you haven’t yet what has been largely invisible to them skyrocketing rise of individual and collective guessed, the common thread of each of these (myself included) because they (we) have not narcissism in modern American society. stories is they happened to Black lawyers. For encountered it directly. I just read an article Gaslighting is a process in the narcissism those of us who are white, we can picture in People magazine penned by 12-year old paradigm where an individual (or society as ourselves in each of those scenarios right up actor Lonnie Chavis from NBC’s This Is Us.4 a whole) denies and denigrates another’s until the surprise twist at the very end. These In it, the well known Black actor talks about perception and experience through circumstances are unimaginable—unfath- how even he and his family have had minimization, dishonesty, and dissemblance. omable—to most white lawyers. So much terrifying interactions with the police. I sent To dissemble is telling only part of the truth so, we are incredulous. It is hard for us to it around to some (white) friends. One of (whether it is 10% or 75% of the whole believe that these things are still going on them replied, “[Expletive], and I’ve got to stop story), which serves you in some way, and today. saying, ‘Hard to believe these stories.’” omitting or denying the rest; it means to These events did not happen in 1964. This article is not addressing this issue hide under or put on a false appearance by They all happened within the past few years through a political lens. I hope to provide a concealing facts, intentions, or true feelings to lawyers who are currently practicing law. I personal and psychological perspective. But under a pretense. It is essentially the wrote the stories the way I did so that we from speaking with our Black and LGBTQ manipulation of another by psychological might spend a few minutes in someone else’s LAP volunteers, I have come to understand means. shoes. that for marginalized people, the political To the one on the receiving end, research I have heard these stories, and many (so cannot be separated from the personal and shows that it creates a trauma-based PTSD many) more like them, over the past eight vice versa. They do not have the privilege of response. It is exhausting. All of the PTSD- years at our annual LAP Minority Outreach “leaving politics at the door” like I do. One trauma-based research I found about African Conference.1 consequence is that we in the majority Americans centered around poor, crime- Storytelling is one of the most powerful interpret their personal statements or reports ridden communities, with a fair amount of forms of expression and ways to communicate. of their perspective as inherently political research focusing on gang members. Having People can disagree with our politics and instead of personal. For that reason, Black listened in on our Minority Outreach policies. People can disagree with our lawyers often cannot share their stories safely Conferences, I can attest to the fact that this opinions. People can disagree with our beliefs. with whites because of the established power trauma-based PTSD is not limited to those No one can disagree with our stories. No one dynamic and structure. They best not report populations. can take our experiences away from us. a justice’s or judge’s gross judicial bias or A large part of the healing process in I have learned so much at the Minority racism, which totally affects the formal trauma treatment and therapy, Outreach Conferences by hearing story after administration of justice for their clients, particularly when treating a narcissistic abuse story of things that I have never encountered because it would be professional suicide. victim, is to actually listen to someone’s or had to deal with in my life. Situations, (While that would likely be true for any of us, experience. To let them speak. To let them events, circumstances, and obstacles that, white lawyers might not ever be in a position begin to claim the reality of what happened because they have never happened to me and to see it or be on the receiving end.) Similarly, to them. To really see them and to have not happened in my presence, are they risk losing their jobs at majority white acknowledge and honor what they have been essentially invisible to me.2 3 firms if they speak up.5 Regardless of the through. To acknowledge the reality of it in I have been having very open, transparent setting, when they do speak up, they are often an undefended way. conversations with Black lawyers I know, love, seen as over reacting. Or they are not believed. Our neurological structure involving and trust. I call these “translation They are told what happened did not happen mirror neurons must have this experience of conversations” because we each are translating the way they reported it, or that they are being being seen and validated to stay mentally our experience to the other and asking the too sensitive, or that they imagined what they healthy. Newborns and infants who do not other about his or her experience. As experienced—that they took it the wrong way receive our loving gaze and our goo-goo-gaa- unfathomable as it is to me to hear some of and the underlying motivation of the other gaa playfulness with them become these stories, it is unfathomable to them how person was not based on race. These developmentally disabled. Their brains do not much of this is invisible to whites, even white invalidating responses whereby Black lawyers’ develop properly without positive mirroring.

26 FALL 2020 What is now understood in neuroscience is the only Black first-year associate. The others comes into the fold, they are welcomed with that we need positive mirroring throughout were white, all male. It was immediately open arms. They are told by our active our lives in order to remain mentally, apparent that to survive in this environment, participants, “Welcome. You are not alone. emotionally, and psychologically healthy. I and in order to make it to partner, you had to You belong.” And this incredible community talk about this all of the time in LAP’s have a champion to guide you, provide and kinship forms. Compassion Fatigue and “Getting Lost in meaningful work assignments, and advocate If you are not Black and you are Our Own Lives” CLE presentations. for you when the time came to make partner. wondering, “What can I do to help?” start by Our professional reputation as lawyers Very quickly, white male partners were listening to your Black colleagues. Make means everything. It is easy to see why Black selecting first-year associates to mentor. They some Black friends, real friends. Educate lawyers stay silent. didn’t call it mentoring. It was not a formal yourself.9 Check out the Black Lives Matter I wanted to give them a voice and share program or anything. It’s this automatic collection on Netflix for a different their stories with those who are willing to hear association that happens in the power perspective. I was particularly taken with the them, because they are so powerful. Also structure. The white associates were being documentary 13th. If you are in a large serving that purpose, a companion article taken to lunch with the big clients, getting predominantly white firm, champion a Black appears in this edition of the Journal with introduced around, and getting really good associate.10 Challenge your white colleagues Black lawyers sharing their experiences assignments from their champion partners. I or friends when they make snide or racist directly. Here’s what I have learned from their knew that if I wanted to succeed, I needed to remarks, either overtly or covertly. If you are stories over the years: find a champion. There were four partners in in an organizational leadership position, Black lawyers have had to overcome more my practice area, but I didn’t have much in engage substantive long-term racial training obstacles than white lawyers can imagine. The common with any of them. All of them were for your organization and deeply examine the sense of isolation is tremendous. Most Black white men and I didn’t think any of them structure of your policies through a lens that lawyers today are the first in their family to go would naturally become my champion. I has been informed by racial bias training.11 to college, much less law school. Many Black found out one day that one of them was a If you are not in an organizational leadership lawyers grew up accused by their family and JAG officer in the army reserves/NC National position, challenge those who are to obtain friends of trying to be white because they Guard. I asked him about it, and after much such training and examine policies. Start a excelled academically.6 As a result, there can research and prayer, I decided that joining his book club and discussion group at work or be a great sense of isolation for them in their unit would help me forge the relationship that home to discuss and examine these issues. personal lives as “the only one” of their family I needed. So, I joined the army. I had never Most of all, leave your ego, and your need to or community who is a lawyer or a fired a gun or even been camping before, but defend it, at the door so that you can really professional. Many Black lawyers who come I didn’t see any other viable path forward. I listen and hear. from rural districts are pressured by their felt that if I failed to make partner, I would be If you’re reading this article and you are home communities and church groups to do letting down my family and that it might be Black and wondering, “How can they all their legal work for free under the moral a long time before the firm hired another (especially white allies) not see this? It’s so mandate that they “give back to the Black attorney (at the time the firm only had obvious.” Please know that it is not obvious community.” They may be judged by their one other Black attorney in its three North because by and large most of us who consider home communities for not working in the Carolina offices).8 Joining his unit gave us ourselves white allies have not encountered social justice field of law. Many Black lawyers something to talk about, something in what you have encountered. We have certainly who work in larger firms and institutions, common, and a way to connect both in the seen things over the years aired on television, even academia, are often the only Black office and when we were in uniform. He but until recently it felt distant and removed lawyer.7 As a result, there can be a great sense became my champion. And largely because from our day-to-day personal experience. It is of isolation for them in their professional lives he was my champion, I eventually became a for this reason why many of us were genuinely as “the only one” of their firm or institution. partner in that firm. I don’t think that would stunned to see the recent years’ surge of overt It would be a rare instance in which a white have happened if I hadn’t joined his unit. I white supremacy. Based on our personal attorney has experienced any of what is don’t think we would have really gotten to experience prior to 2015-2016, it seemed described here. know each other without that. That was years more of a fringe element that would probably With that backdrop, for some Black ago. I have since left the firm.” never be fully eradicated. If we have seen a attorneys, full equity partnership at a large LAP volunteers regularly share their stories racially based exchange in person, we have seen majority white owned firm is the only of depression, anxiety, alcohol, or other that one instance. We don’t see that for the definition of success. Anything less is problems, and their recovery therefrom in this person who is the target, that they may be considered a failure—by them and by their quarterly LAP column. The reason we do experiencing five or ten of those exchanges a families. I share one last, remarkable story that, the “strategy” if you will, is that by day. I do not write any of this as a defense to here. When I heard this story at the Minority sharing personal stories, a reader might anything; it is simply an explanation based on Outreach Conference, I literally gasped. I identify and say to themselves, “Wow. Me conversations I have had, illuminating my and have asked him to tell it. too. I feel or have felt like that.” And our hope others’ (white friends’ and colleagues’) day-to- “I graduated from Duke Law School. is that the reader’s response ranges from day experiences and conversations. After a federal clerkship, I took a job in a large, feeling less alone, to finally picking up the I think to really heal we all must predominantly white firm in Charlotte. I was phone and asking for help. Once a lawyer acknowledge that we are all products of a

THE NORTH CAROLINA STATE BAR JOURNAL 27 society that is a legacy derived from decisions advanced degree. She was put in charge of the cash box, karengeiger.com An example of a Diversity & Inclusion that were made +/- 400 years ago, based on a and one of the moms explained to her how to make 360 Degree Association Scan is at kgdiversity.com/assess- change! Stories like this seem preposterous to me as a ment. mindset and framework that existed long white female lawyer, and yet my Black colleagues 12. Quote taken from Richard Rohr from the Center for before those decisions were made and that encounter this kind of stuff day in and day out. Action and Contemplation daily mediation, June 4, still exists. 3. I know two Black lawyers (one now a judge) who were 2020. “Mother Teresa diagnosed the world’s ills appointed to represent members of the KKK who were in this way: we’ve just ‘forgotten that we involved in lynching of an African American. Law school does not prepare us for the emotional impact of that kind belong to each other.’ Kinship is what of situation. I am hard-pressed to think of a white happens to us when we refuse to let that equivalent experience that would not result in the lawyer Upcoming Appointments happen.”12 having to recuse for conflict of interest. to Commissions My hope is that this article inspires some 4. people.com/human-interest/voices-against-racism-lonnie- chavis. and Boards of us to reach out to our Black or white counterparts and begin to understand we are 5. While many firms have diversity and inclusion policies, it is unclear if they go so far as to directly address racist all products of this system that none of us remarks or behavior. And while a firm may have a nice Anyone interested in being ap- chose. It isn’t us versus them. It needs to be all policy on paper, adequately effectuating it is a different pointed to serve on any of the State of us understanding each other, forming a matter. Bar’s boards, commissions, or commit- true kinship, so that together, hand-in-hand, 6. I was an elementary school teacher prior to attending law tees should email Lanice Heidbrink at school. We were trained specifically about this form of we reshape a broken system and build bias for our Black students and trained to encourage them [email protected] and express that something new. academically. With the knowledge that it might isolate interest, being sure to attach a current The dinosaurs did not become extinct by them socially from their home communities, we were also resume. The council will make the fol- killing each other off. The environment and trained on how to try to form communities within their lowing appointments at its meeting in academic circles. We are social creatures. We need landscape changed enough to make their community; it is hardwired into our brains for survival. October 2020: survival impossible. Kinship, love and Many Black students from economically disadvantaged Client Security Fund Board of empathy—real understanding of how these areas eventually turn away from school to remain part of Trustees (five-year terms)—There is biases operate and a willingness to take their community. It is not a conscious choice. It is an one appointment to be made. Calvin different action—is the environment we need unconscious instinctual survival strategy. Murphy is not eligible for reappoint- 7. There is an implicit bias phenomenon whereby whites today to make individual and institutional evaluate Blacks based on stereotype instead of in their ment. racism, like dinosaurs, a relic of the past. n individual capacity. Based on the behavior of one Black Board of Law Examiners (three-year individual, whites unconsciously generalize the behavior terms)—There are two appointments Robynn Moraites is the director of the North of other Black people. In such a role, there is tremendous to be made. George R. Hicks and Roger pressure on Black lawyers to be the representative example Carolina Lawyer Assistance Program. of all Black lawyers. We (whites) do not do the same for A. Askew are eligible for reappointment. The North Carolina Lawyer Assistance whites. This implicit bias stereotyping is deeply embedded Board of Continuing Legal Program is a confidential program of assistance in our culture and media for historic and sociological Education (three-year terms)—There for all North Carolina lawyers, judges, and law reasons that are the subject of many excellent, scholarly are three appointments to be made. students, which helps address problems of stress, books and documentaries. Robert C. Kemp III is eligible for reap- 8. Per the implicit bias described in endnote 7, a single Black depression, alcoholism, addiction, or other lawyer’s failure to make partner can reinforce unconscious pointment. Linda McGee and J. problems that may impair a lawyer’s ability to biases and stereotypes in white firm leaders’ minds that Dickson Phillips III are not eligible for practice. For more information, go to nclap.org does not occur if a white lawyer fails to make partner. The reappointment. or call: Cathy Killian (Charlotte/areas west) at white lawyer is seen and evaluated on an individual level, NC LEAF (one-year term)—There whereas the Black lawyer could be effectively closing the 704-910-2310, or Nicole Ellington (Raleigh/ door for the firm’s willingness to recruit future Black is one appointment to be made. down east) at 919-719-9267. lawyers. Imagine that kind of additional pressure (if you William Purcell is eligible for reappoint- are white) on top of the baseline pressures we all (Black ment. Endnotes and non-Black) feel as lawyers. Board of Paralegal Certification 1. Disclaimer: I am a white, cisgender, straight woman. 9. A Google doc containing a list of resources was recently (three-year terms)—There are two para- Anything I write or observe is told based on my turned into a website. justiceinjune.org. There is a growing list of actions contained at whiteaccomplices.org. If you legal appointments and one lawyer ap- experience and that perspective. I want to share some of pointment to be made. Lakisha Chich- what I have learned with other white attorneys. I do a Google search with terms “white ally” or “white obtained permission from each of these lawyers to share education about racism” you will find many resources. ester and Sarah H. Kaufman (paralegal these stories, and the lawyers involved had a hand in 10. As Farad Ali, former member of the Durham City members) and H. Russell Neighbors drafting them with me for purposes of this article. council, notes in this fabulous panel discussion on (lawyer member) are eligible for reap- leadership and race hosted by Enlightrepreneurs, having Further disclaimer: I may offend some readers with pointment. choice of language or phrasing. It is not my intention, so a majority-privileged sponsor or champion and an I hope readers can read through any inartful articulations introduction and access to their networks changes the NC Judicial Standards to hear the underlying message and intent. game for minorities. View panel discussion at Commission (six-year terms)—There 2. At our Minority Outreach Conferences, I have benefitted youtu.be/ba26mp8LF6s. are two appointments to be made. so much from hearing people’s stories and being given a 11. Reputable resources abound. The Racial Equity Forrest Ferrell and William H. Jones Jr. Institute in Greensboro is highly regarded: raciale- framework. I have learned about micro-aggressions and are not eligible for reappointment. n implicit bias. For instance, one panelist shared that she quityinstitute.com. For both individual workshops as had attended a fundraiser at her child’s school. She was well as organizational consulting, Karen Geiger, a the only Black mom there, and the only one with an Charlotte-based consultant, is highly recommended.

28 FALL 2020 PATHWAYS TO WELL-BEING

“Something’s Off.” Understanding Your Nervous System’s Response to Cues of Danger

B Y LAURA MAHR

For a profession that is trained to stay our nervous system that level-headed and unemotional—especially something is “off” and during crisis—many of us in the legal field that our safety, content- are finding ourselves exhausted by the emo- ment, and/or connect- tional roller coaster ride of these past edness is at risk. A cue months. “If I didn’t have a family and a job, of danger may be big ©iStockphoto.com/Juergen Sack I’d get into a ball and stay there,” one attor- (for example, a client ney-client shared with me in her resilience goes into a rage and coaching session in June. “I’m usually ener- threatens to make a Bar gized to fight for social justice, but all I complaint against you want to do is crawl into bed and stay there, when the judge rules hoping I’ll feel better when I come out the for the opposing side), other side.” Just the week before, she eagerly or small (a client participated in the Black Lives Matter expresses mild annoy- protests and was planning ways to foster ance that it took you 48 racial equity at her firm. “Something’s off hours to get back to with me,” she said. “I feel exhausted and him). For many of us, change and uncer- check the news, even though the news hopeless, when just last week I was fired up tainty registers as a cue of danger. This is makes me feel more anxious.” and ready for action.” She was not the first especially true in the legal field where our The four ways neuroscience research client who shared with me confusion about jobs center around mitigating loss, predict- found that our nervous system will respond a flip-flop in their physical and emotional ing likely outcomes given our client’s situa- to cues of danger are: fight, flight, freeze, response to current challenges. Another tion, then advocating for the best possible and fold. (Note that while some mental client shared, “I am sick of worrying about outcome while preparing for the worst. health professionals include “fawning” as a getting sick,” he said. “I have no idea how Every day, lawyers are looking for “cues of fifth way people may respond to cues of to keep my family and me safe or how to be danger” in our clients’ cases, and we may danger, I will not be discussing it here.) in the world right now. If everything would stay hyper vigilant for cues even after the Whether it is a threat to our health—such go back to normal I’d be fine, but until work day is done and we go home to our as the coronavirus—or a threat to our per- then, I feel stuck, like I’m just biding my families and personal lives. Trying to assess sonal or societal well-being—such as racial time at work and home.” risk as it relates to the pandemic can be par- injustice—our nervous system responds in a Each of us experiences the world differ- ticularly disconcerting for lawyers: we can’t way that it believes is our best chance for ently based on our personal and profession- “see” COVID-19 and we can’t solve it, survival. Depending on the circumstance al history and our past setbacks and chal- which can be paralyzing for lawyers, judges, and the way our individual nervous system lenges, in addition to the unique combina- and professors who like to be able to find operates, we may be mobilized to move tion of factors that make us who we are (our solutions to problems and prevent loss. toward a threat (fight); or to move away race, religion, national origin, immigration With more unknowns than usual, it is likely from a threat (flee/flight). Other times, we status, gender, gender identity, sexual orien- more challenging than ever to counsel our may be unsure whether to move toward or tation, socioeconomic history, genetics, clients or rule on a case with calm confi- away from a threat and get stuck (freeze); or beliefs, mindset, etc.). As unique as each of dence. We may perceive all of the at times we may shut down or collapse and us is, and as differently as we each may per- unknowns as cues of danger, which can withdraw (fold) when our nervous system ceive the human experience, neuroscience leave our nervous systems continuously on detects a cue of danger. When our nervous research has identified four distinct ways edge, causing us to feel uncertain and system is in fight, flight, freeze, or fold, neu- our nervous systems respond to “cues of afraid. “I feel like I can’t take a deep breath,” robiologists call this a “dysregulated state.” danger.” another attorney-client shared with me. “I Many move between the different nerv- A “cue of danger” is anything that alerts can’t settle down and all I want to do is ous system responses to cues of danger

THE NORTH CAROLINA STATE BAR JOURNAL 29 depending on the day and situation. For ous system is dysregulated—i.e., not feeling than ever by the unifying experience of example, you may be experiencing these calm, clear, and relaxed—the sooner we can going through a historic time of uncertainty four dysregulated nervous system states dur- help ourselves return to a regulated state. and dysregulation together. We can ing the pandemic like this: feeling angry that From a regulated state, we can respond to acknowledge how strange it feels to be a you are facing financial problems and being the cue of danger for ourselves—and for lawyer whose job it is to fight, to feel argumentative with your business partner or our clients—feeling steady, capable, and instead like collapsing; or to be a judge your family when talking about finances able to problem solve with others in mean- whose job it is to feel clear, instead to feel (fight); feeling anxious about losing your job ingful and effective ways. While we may muddled; or to be parents whose job it is to or your practice and frantically looking for a momentarily feel dysregulated (e.g., angry guide their children, to feel stuck. By join- new job or career (flight); feeling unsure about the situation and feel like fighting; ing together as a Bar, we can better under- about what to do with immense financial scared and feel like fleeing; hopeless and feel stand our nervous systems’ responses, and uncertainty and feeling confused about like collapsing; not sure what to do and feel experience the benefits of calming our nerv- whether you should fight to keep your job frozen), ideally we can train our nervous ous systems together. Wouldn’t it be mean- or move in a new direction (freeze); or feel- system to return to a place of clarity and ingful to move forward as the clear-thinking ing totally overwhelmed by your current sit- calm confidence, and then take helpful professionals we are trained and hired to be uation, hopeless about the future, and with- action in a reasonable amount of time. and enjoy being the legal leaders our world drawing from social connections and profes- Finding ways to return to a regulated is looking for to navigate issues arising from sional engagements (even virtual), hoping nervous system state is much easier than both the pandemic and systemic racism— you can come back online when everything you may expect and takes less time than you regardless of the uncertainty and roller is “back to normal” in an imagined “safe may anticipate. Since the beginning of the coaster ride of these times? future” (fold). COVID-19 pandemic in the United States, If you’d like to read about how to regu- Take a moment now to reflect on how I have virtually trained and coached over late your nervous system using “mini- you are responding to any current cues of 15,000 lawyers, judges, professors, legal moments of well-being,” read the article I danger in your life, whether it be the coro- administrators, legal support staff, and law wrote previously for the Journal. navirus, social unrest, racial inequality, per- school students nationally about how to ncbar.gov/for-lawyers/pathways-to-well- sonal or professional challenges, health con- stay resilient in challenging times. There are being/wellbeing-while-you-wait. cerns, etc. You may want to think about one quick and effective ways to move out of a If you’d like to listen to an in-depth dis- thing at a time, or even one specific inci- dysregulated nervous system state and back cussion of the human nervous system’s dent that you registered as a cue of danger into a regulated state. As we—the legal pro- response to cues of danger, check out this today. Think about how your nervous sys- fession in North Carolina—connected vir- interview by my polyvegal theory teacher tem responded. Did you have an impulse to tually over the past few months, we learned Deb Dana, clinician and coordinator of the fight, flee, fold, or did you freeze? Or have that what is happening in our lives right Kinsey Institute Traumatic Stress Research you, at different times, felt some of each? now is difficult for all of us in different Consortium, on the Sounds True Insights at Optimally, as we better understand our ways. And yet, we are also learning from the Edge podcast: bit.ly/Fall2020Pathways. n nervous system responses, we can be more each other that there are many positive mindful about which state we are in. changes happening in our lives and profes- Laura Mahr is a NC lawyer and the Identifying when your nervous system is sion, including many of us having more founder of Conscious Legal Minds LLC, pro- dysregulated is our first step toward helping time to spend with our families, identifying viding mindfulness based well-being coaching, it return to a state of regulation. Of course, where we can “shore up the ship,” and hav- training, and consulting for attorneys and law if there is a real threat to your immediate ing opportunities to share our stressors with offices nationwide. Her work is informed by physical safety, you want it to kick in and each other so that none of us feels alone. 13 years of practice as a civil sexual assault help you to fight or flee or even fold (think It’s inspiring to hear from CLE partici- attorney, 25 years as a student and teacher of “possum”) to help you survive that incident. pants and individual clients how using the mindfulness and yoga, a love of neuroscience, In fact, the four nervous system responses to nervous system-regulating tools is having a and a passion for resilience. If you would like cues of danger are designed for immediate positive impact on their health and well- to bring Laura to your firm or event to con- action and a quick resolution to the threat. being, and on their productivity and opti- duct a well-being CLE or do one-on-one But if the cue you perceive is about a future mism about the future. For example, some resilience coaching with Laura, contact her at danger that may or may not occur and in participants are taking leadership roles at consciouslegalminds.com. ruminating about it we feel undesirable their firm to foster the hiring and retention If you’d like to learn more about stress stress, it’s ideal to catch yourself the moment of lawyers of color. Some are motivated to reduction and improved cognitive functioning you notice you are in fight, flight, freeze, or pursue a job that’s better aligned with their using mindfulness, check out: “Mindfulness fold. Then, do something right then—to goals and purpose. Others are finding ways for Lawyers: Building Resilience to Stress help regulate your nervous system. to improve their personal health by using Using Mindfulness, Meditation, and A regulated nervous system feels calm, the tools to get better sleep. Neuroscience” (approved for up to four hours breathing is steady and slow, muscles are This fall, while we may continue to be of credit of online, on demand, mental health relaxed, emotions are even, and the mind is physically distanced from our colleagues in and/or general CLE in NC), consciouslegal- clear. The sooner we notice that our nerv- the Bar, we can also feel more connected minds.com/register.

30 FALL 2020 LEGAL ETHICS

Establishing Boundaries: Ethical Issues Pertaining to Third-Party Payor

B Y SUZANNE LEVER, ASSISTANT ETHICS COUNSEL

A question I get from lawyers surprisingly risks of the arrangement and any reasonably For example, in 2003 FEO 7 an adult child often has to do with the permissibility of ac- available alternatives. See Rule 1.0(f) (“In- seeks to hire (and pay) a lawyer to prepare a cepting payment for legal fees from someone formed consent” denotes the agreement by a durable power of attorney for her father to other than the client. I say “surprisingly” be- person to a proposed course of conduct after execute. The father is not present at the cause there is actually a Rule of Professional the lawyer has communicated adequate in- time of the request. The adult child asks that Conduct specific to this issue. This nifty formation and an explanation appropriate to specific powers be included in the document, little rule is tucked away in a list of nine spe- the circumstances). For example, where a hus- including the power to transfer to her, as at- cific types of concurrent conflicts of interest band has agreed to pay a wife’s legal fees in a torney-in-fact, title to any of her father’s as- set out in Rule 1.8. Third-party payor volatile domestic matter, the lawyer should sets. The opinion provides that, before agree- arrangements are addressed in Rule 1.8(f). discuss with the client the possible ramifica- ing to the representation, the lawyer must Pursuant to Rule 1.8(f), a lawyer may accept tions if the husband suddenly decides to stop clarify to the payor that he represents the fa- compensation for representing a client from payment, as well as alternative means of fi- ther and conduct an independent consulta- one other than the client if: (1) the client nancing the litigation that may be available tion with the father to obtain his informed gives informed consent; (2) there is no in- to the client. consent to the representation and to deter- terference with the lawyer’s independence of The lawyer will also have to obtain the mine whether father wants or needs the re- professional judgment or with the client- client’s informed consent if the third-party quested power of attorney. Id. See also 2006 lawyer relationship; and (3) information re- payor fee arrangement creates a conflict of in- FEO 11 (lawyer may not, at the request of a lating to representation of a client is pro- terest for the lawyer under Rule 1.7. For ex- third party, prepare documents, such as a tected as required by Rule 1.6. ample, a concurrent conflict of interest may will or trust instrument, that purport to Third-party payor agreements are com- exist if the payor is one of the lawyer’s regular speak solely for principal without consulting monplace in insurance litigation, and no clients. If the lawyer’s representation of the with, exercising independent professional doubt most insurance defense lawyers are fa- client will be materially limited by the lawyer’s judgment on behalf of, and obtaining con- miliar with the provision. The questions I re- own interest in the fee arrangement or by the sent from the principal). ceive generally involve fee payments by friends lawyer’s responsibilities to the third-party Often the attempts to control the repre- or relatives in the areas of family and criminal payor, the lawyer must comply with the re- sentation pertain to the payor’s desire to min- law. Such arrangements are generally permis- quirements set out in Rule 1.7(b). imize the amount of fees spent on the repre- sible, although they create unique ethical is- sentation. For example, in a criminal matter, sues. The expectations of friends or family Control the third party may want the lawyer to plea footing a client’s legal bill often conflict with A lawyer may not accept a financial the case out instead of going to trial. The the obligations the lawyer owes the client un- arrangement that interferes with the lawyer’s lawyer may not enter in a third-party payor der the Rules of Professional Conduct. There- independence of professional judgment or agreement that requires cost saving measures fore, certain ethical issues need to be addressed with the client-lawyer relationship. Rule that may restrain the lawyer’s exercise of in- at the beginning of any representation involv- 1.8(f)(2). A similar prohibition is set out in dependent professional judgment when de- ing a third-party payor. Rule 5.4(c) (lawyer may not permit a person termining the tasks and services necessary to who pays the lawyer to render legal services represent the client competently. If the re- Consent for another to “direct or regulate” the lawyer’s quirements will restrain the lawyer’s profes- Because the expectations and objectives of professional judgment). Third-party payors sional judgment, the lawyer is ethically pro- the third-party payor may not align with the may want to exercise some control over the hibited from complying with restrictions. For best interests of the client, a lawyer who will manner of the representation. It is imperative example, in 98 FEO 17, the Ethics Commit- be compensated by someone other than the for the lawyer to establish at the beginning tee concluded that a lawyer may not enter client must obtain the client’s informed con- of the representation that the third-party into a third party payor billing arrangement sent to the arrangement. Rule 1.8(f)(1). In payor is not the lawyer’s client and that the with an insurance carrier if the billing require- order to obtain “informed” consent, the lawyer will be acting solely at the direction ments interfere with the lawyer’s ability to lawyer must tell the client about any material of—and in the best interest of—the client. exercise his independent professional judg-

THE NORTH CAROLINA STATE BAR JOURNAL 31 ment in the representation of the insured. If payment on the matter will be ongoing, duty of loyalty or independent judgment to Some constraints on the representation billing issues should be addressed in advance the client. Specifically, Lawyer has determined requested by a third-party payor may be per- and the procedure for payments set out in that his or her representation of Client will missible if the client consents in advance the agreements. The lawyer may need to ob- not be materially limited by Lawyer’s own in- after full disclosure of the benefits and risks tain consent from the client to provide the terests in accommodating Third Party Payor involved. Rule 1.2(c) permits a lawyer to third-party payor with information pertain- or by Lawyer’s responsibilities to a payor who limit the scope of a representation “if the ing to billing. Both agreements should pro- is also a co-client. In reaching this conclusion, limitation is reasonable under the circum- vide who is entitled to any funds left over at Lawyer has considered the requirements of stances.” As noted in comment [6] to Rule the end of the legal matter. (For examples of Rule 1.7(b) of the North Carolina Rules of 1.2, “The scope of services to be provided scenarios that may occur without this last Professional Conduct. by a lawyer may be limited by agreement provision in the agreements, take a look at It is understood and agreed that Third with the client or by the terms under which 2005 FEO 12, Payment of Legal Fees by Party Payor is not Lawyer’s client in this mat- the lawyer’s services are made available to Third Parties). ter. Lawyer will take instructions from Client, the client....In addition, the terms upon not from Third Party Payor, and Lawyer will which representation is undertaken may ex- Conclusion only pursue Client’s best interests in this mat- clude specific means that might otherwise Lawyers must be mindful that no matter ter. Third Party Payor will not be consulted be used to accomplish the client’s objectives. the source of payment for legal fees, the concerning strategic decisions in the case, nor Such limitations may exclude actions that lawyer’s professional responsibilities are owed will he or she in any other way have power, the client thinks are too costly.” solely to the client. When a third party will input, or influence as to the representation. pay the lawyer’s legal fee, it is imperative that Lawyer’s sole duty and loyalty in this matter Confidentiality the lawyer explain the restrictions set out in is to Client. Privileged or confidential infor- If a lawyer is accepting payment of legal Rule 1.8(f) to the client and to the third- mation cannot and will not be disseminated fees from someone other than the client, the party payor and memorialize that understand- to any third party, including Third Party lawyer must ensure that information relating ing in a written fee agreement signed by the Payor, except as directed by Client. Please let to representation of a client is protected as client and a separate agreement signed by the the firm know immediately if Client objects required by Rule 1.6. Rule 1.8(f)(3). A third- third-party payor. to the firm sending invoices directly to Third party payor may expect to be kept informed Party Payor that contain details of each task regarding the status of the representation. Lawyers Mutual Sample Contract performed on Client’s behalf, who performed However, the lawyer’s duty of confidentiality Provision the task, and how long the task took to com- runs to the client alone. Therefore, informa- Third Party Payor of Fees and Expenses plete. If Client has any concerns regarding tion about the client’s representation must Note: This is a sample form only and is Lawyer’s billing method, we will work closely not be disclosed to the payor unless the written for the general purposes of facilitating with Client to come up with an alternative lawyer obtains the client’s informed consent clear expectations and avoiding misunder- that is acceptable to Lawyer, Client, and Third or the particular situation fits within another standings between an attorney and client. It Party Payor, such as sending only summary exception to Rule 1.6. Even if the client con- is not intended as legal advice or opinion and invoices to Third Party Payor. sents to the disclosure of information to the will not provide absolute protection against a Although we do not currently anticipate third-party payor, the lawyer should consider malpractice action. any conflict as a result of this arrangement, it the effect such disclosure may have on the [NOTE: In addition to supplementing the is possible that circumstances could change application or waiver of the attorney-client engagement letter with a clause regarding third in the future causing a divergence of interests. privilege. party payment of fees and expenses, a separate If a conflict arises between the duties Lawyer letter should be sent to the third-party payor owes Client and the interests of Third Party Written Agreements confirming that he or she is not the lawyer’s Payor that could materially limit Lawyer’s rep- The lawyer should enter into carefully client, is not entitled to receive privileged or resentation of Client, Lawyer may be required drafted agreements with the client and the confidential information, and will not have to withdraw from this engagement. payor at the outset of the litigation. I have in- input regarding the direction of the represen- Client understands and consents to the cluded below an example of a Third-Party tation. This separate letter should also confirm payment of fees and expenses by Third Party Payor Provision for a client’s engagement details of the billing arrangement with the Payor. agreement provided by Lawyers Mutual. The third-party payor, in accordance with param- [Optional] Although Third Party Payor lawyer should enter into a separate agreement eters set by the client.] has agreed to pay fees incurred by Lawyer on with the third-party payor. Both agreements Fees and Expenses Paid by Third Party Client’s behalf, Lawyer holds both Third Party should state that the third-party payor is not As we have discussed, some or all of the Payor and Client individually and collectively the lawyer’s client in the matter; that the payor fees for legal work performed by Lawyer for responsible for payment of Lawyer’s fees and will have no right to instruct the lawyer in Client will be paid by ______expenses. Should Third Party Payor become the matter; and that lawyer will not, without (the “Third Party Payor”). delinquent regarding payment of Lawyer’s fees the client’s prior permission, disclose confi- Based on all the information presently and expenses, Client will be notified and at- dential information regarding the matter to available, Lawyer has concluded that this tempts will be made to seek payment from the payor. arrangement will not compromise Lawyer’s either Client or an additional third party. n

32 FALL 2020 PROPOSED OPINIONS

Three Opinions Published; Subcommittees Created to Study Inclusion of Anti-Discrimination and Implicit Bias Language in Rules of Professional Conduct

Council Actions a lawyer’s duty of confidentiality regarding The State Bar Council did not adopt any information from a public hearing, a lawyer’s ethics opinions this quarter. Following a permissibility of certain communications Rules, Procedure, favorable vote by the Ethics Committee, the with judges, and a lawyer’s professional State Bar Council voted to publish two pro- responsibility in utilizing machine Comments posed amendments to the Rules of learning/artificial intelligence in a law prac- Professional Conduct for comment. The tice. The committee approved the publica- All opinions of the Ethics Committee first proposal is an amendment to the tion of proposed opinions for the remaining are predicated upon the North Carolina Preamble identifying the avoidance of dis- three inquiries, which appear below. Rules of Professional Conduct. Any criminatory conduct while employed or interested person or group may submit a engaged in a professional capacity as a fun- Proposed 2020 Formal Ethics written comment – including comments damental value of the profession. The sec- Opinion 2 in support of or against the proposed ond proposal is an amendment to Rule 1.5 Advancing Client Portion of opinion – or request to be heard con- (Fees), clarifying that a lawyer may not Settlement cerning a proposed opinion. The Ethics charge anything of value for responding to July 23, 2020 Committee welcomes and encourages an inquiry by a disciplinary authority Proposed opinion rules that a lawyer may the submission of comments, and all regarding allegations concerning the lawyer’s not advance a client’s portion of settlement pro- comments are considered by the com- own conduct. Both proposed amendments ceeds while a matter is pending or litigation is mittee at the next quarterly meeting. are included in this Journal. contemplated, but may advance a client’s por- Any comment or request should be tion of settlement proceeds under other circum- directed to the Ethics Committee at Ethics Committee Actions stance if the lawyer complies with Rule 1.8(a). [email protected] no later At its meeting on July 23, 2020, the than October 2, 2020. Ethics Committee considered a total of four Inquiry #1: proposed amendments to the Rules of Lawyer represents Client in a civil dis- Professional Conduct, including the two pute. On behalf of Client, Lawyer filed a civil proposed Rule amendments published for lawsuit against the defendant claiming dam- comment by the State Bar Council listed ages. Prior to trial, Lawyer settles Client’s Public Information above. The other two proposed Rule matter with the defendant. Client has exe- amendments concern the adoption of anti- cuted the necessary release to resolve the The Ethics Committee’s meetings are discrimination language in the text of the claim, and Lawyer has received a check from public, and materials submitted for con- Rules of Professional Conduct and the the defendant representing the settlement sideration are generally NOT held in adoption of language to the comments of proceeds. The check is not one that would confidence. Persons submitting requests Rule 1.1 (Competency) recognizing a permit disbursement on provisional credit for advice are cautioned that inquiries lawyer’s responsibility to be aware of how pursuant to the Good Funds Settlement Act. should not disclose client confidences or implicit bias and cultural differences can Prior to the settlement proceeds check clear- sensitive information that is not necessary impact the representation of a client. These ing Lawyer’s trust account, Client informs to the resolution of the ethical questions two proposals were sent to separate subcom- Lawyer about a significant and pressing presented. mittees for further study. financial need and asks Lawyer to advance to In addition to the proposed Rule amend- him his share of the settlement proceeds. ments, the Ethics Committee considered a Lawyer will make the advancement to Client from the settlement proceeds once defen- total of ten ethics inquiries. Seven inquiries out of Lawyer’s personal or operating dant’s check clears Lawyer’s trust account. were sent or returned to subcommittee for account. Lawyer will reimburse himself by May Lawyer advance settlement proceeds further study, including inquiries addressing deducting the amount advanced to Client to Client?

THE NORTH CAROLINA STATE BAR JOURNAL 33 Opinion #1: #3 below. Rule 1.8(e)(1) prohibits a lawyer Lawyer has received a check from the defen- No. Rule 1.8(e)(1) prohibits a lawyer from providing financial assistance to a client dant representing the settlement proceeds. from providing financial assistance to a in connection with pending or contemplated The check is not one that would permit dis- client in connection with pending or con- litigation, except that the lawyer may bursement on provisional credit pursuant to templated litigation, except that the lawyer advance court costs and expenses of litiga- the Good Funds Settlement Act. Prior to the may advance court costs and expenses of tion. The scenario in this inquiry differs from settlement proceeds check clearing Lawyer’s litigation. that in Inquiry #1 in that the litigation is not trust account, Client informs Lawyer about a The term “pending” is not defined in the pending (see Opinion #1) and litigation is no significant and pressing financial need and terminology section of the Rules of longer contemplated under Rule 1.8(e). The asks Lawyer to advance to him his share of Professional Conduct. However, citing a Merriam-Webster Dictionary defines “con- the settlement proceeds. Lawyer will make 1941 case, the North Carolina Court of template” as, “To view or consider with con- the advancement to Client out of Lawyer’s Appeals opined that, “an action is deemed to tinued attention; meditate on; to view as personal or operating account. Lawyer will be pending from the time it is commenced likely or probable or as an end or intention.” reimburse himself by deducting the amount until its final determination[.]” Brannock v. With the release signed, the parties have advanced to Client from the settlement pro- Brannock, 135 N.C. App. 635, 523 S.E.2nd effectively resolved their dispute, and the lit- ceeds once defendant’s check clears Lawyer’s 110 (1999) (internal citations omitted). See igation is reasonably presumed to be both trust account. also Black’s Law Dictionary 1021 (5th ed. concluded and no longer contemplated for May Lawyer advance settlement proceeds 1979) (“an action or suit is ‘pending’ from purposes of Rule 1.8(e). to Client under these circumstances? its inception until the rendition of final However, although execution of a settle- judgment”). ment agreement and/or release related to the Opinion #3: Until the release is signed, the settlement action expresses the parties’ collective desire Yes, if the lawyer complies with Rule funds are paid to Lawyer or Client, and an to resolve the matter and serve as a significant 1.8(a). Presuming the lawyer concludes that order dismissing the lawsuit is filed with the step in carrying out that desire, the parties the litigation is no longer pending nor con- court, the matter is pending, and Lawyer may continue to contemplate the continued templated, a lawyer may advance the client’s cannot advance settlement proceeds to pursuit of litigation to resolve the dispute portion of settlement proceeds to the client Client. until the actual exchange of consideration without violating Rule 1.8(e). However, the between the parties occurs and is final. For advancement provided by the lawyer to his Inquiry #2: example, checks representing settlement client is a business transaction made with the Lawyer represents Client in a civil dis- funds can be dishonored, and clients who client subject to Rule 1.8(a). Rule 1.8(a) pro- pute. Lawyer settles Client’s matter with the previously signed a release can withdraw hibits a lawyer from entering into a business defendant prior to filing a lawsuit against the their agreement with the resolution. transaction with a client unless the following defendant. Client has executed the necessary Therefore, whether a matter is no longer provisions are met: release to resolve the claim, and Lawyer has contemplated under Rule 1.8(e) must be (1) the transaction and terms on which received a check from the defendant repre- determined individually by the lawyer based the lawyer acquires the interest are fair senting the settlement proceeds. The check is upon the circumstances. Considerations for and reasonable to the client and are fully not one that would permit disbursement on making this determination can include the disclosed and transmitted in writing in a provisional credit pursuant to the Good financial stability and reliability of the defen- manner that can be reasonably under- Funds Settlement Act. Prior to the settle- dant, the legitimacy of the check or instru- stood by the client; ment proceeds check clearing Lawyer’s trust ment conveying the settlement funds, the (2) the client is advised in writing of the account, Client informs Lawyer about a sig- lawyer’s prior dealings with the defendant, desirability of seeking and is given a rea- nificant and pressing financial need and asks and the client’s certainty and satisfaction sonable opportunity to seek the advice of Lawyer to advance to him his share of the with the resolution. It is incumbent upon the independent legal counsel on the transac- settlement proceeds. Lawyer will make the lawyer to reasonably determine whether liti- tion; and advancement to Client out of Lawyer’s per- gation remains or should remain contem- (3) the client gives informed consent, in a sonal or operating account. Lawyer will plated. If a lawyer reasonably concludes that writing signed by the client, to the essen- reimburse himself by deducting the amount litigation remains contemplated despite steps tial terms of the transaction and the advanced to Client from the settlement pro- taken to act upon a settlement agreement, lawyer’s role in the transaction, including ceeds once defendant’s check clears Lawyer’s the lawyer is prohibited from providing the whether the lawyer is representing the trust account. advancement pursuant to Rule 1.8(e). client in the transaction. May Lawyer advance settlement proceeds Rule 1.8(a)(1)-(3). In considering what to Client? Inquiry #3: terms are “fair and reasonable” to a client in Lawyer represents Client in a civil dis- this scenario, the Ethics Committee consid- Opinion #2: pute. Lawyer settles Client’s matter with the ered the purpose for the advancement and Yes, provided Lawyer satisfies himself that defendant, and the litigation is no longer the need to protect clients from potential dis- the potential litigation against the defendant pending and/or no longer contemplated per putes with their lawyer as a result of this is no longer contemplated and Lawyer com- Rule 1.8(e). Client has executed the neces- advancement. Accordingly, any advance- plies with Rule 1.8(a) as set out in Opinion sary release to resolve the dispute, and ment of settlement proceeds made by a

34 FALL 2020 lawyer to his client in this scenario must con- Opinion #4: sole counsel representing Lawyer Firm tain at least the following “fair and reason- No. Rule 7.1(a) prohibits a lawyer from PLLC. Because Lawyer performed the legal able” terms: making false or misleading communications services that resulted in the dispute over legal 1. Lawyer will not attempt to recover about the lawyer or lawyer’s services. Rule fees owed, Lawyer will be a necessary witness from Client any funds provided to Client as 7.1(a)(2) states that a communication is false in the litigation. part of this advancement should the instru- or misleading if the communication “is likely Lawyer, on behalf of Lawyer Firm PLLC, ment conveying settlement proceeds be dis- to create an unjustified expectation about moved for summary judgment against honored; results the lawyer can achieve[.]” As noted in Client. Prior to the court’s ruling on the 2. Lawyer will not attempt to recover Opinion #2, a lawyer must individually and motion, opposing counsel alleged to the from Client any funds provided to Client as thoroughly evaluate his client’s case and cir- court that Lawyer should be disqualified part of this advancement should Lawyer’s cumstances, as well as the lawyer’s own cir- from representing Lawyer Firm PLLC calculation of funds result in an over-dis- cumstances, to determine whether advancing because Lawyer—a necessary witness to the bursement to Client; settlement proceeds prior to the actual dispute—is prohibited from serving as both 3. Lawyer will provide to Client any and receipt of proceeds is appropriate and some- advocate and witness in the matter pursuant all remaining settlement funds not previous- thing the lawyer is willing to do. Each case to Rule 3.7 of the North Carolina Rules of ly provided to Client via the advancement; and each client is different, and circum- Professional Conduct. and stances surrounding the case, the client, and 4. Lawyer will not charge Client any the lawyer have the potential to change dur- Inquiry #1: interest on the advancement made and will ing the course of the representation. Is Lawyer prohibited from representing not charge an administrative fee associated Accordingly, a lawyer cannot communicate Lawyer Firm PLLC in the dispute between with the advancement to Client. with requisite certainty his willingness to Lawyer Firm PLLC and Client? If Lawyer complies with the entirety of offer an advancement of the client’s settle- Rule 1.8(a), including inclusion of the above ment proceeds prior to actually receiving the Opinion #1: terms into the signed agreement with Client, proceeds at the outset of litigation. Making No. With some limited exceptions, Rule Lawyer may provide Client’s portion of set- such a communication creates an unjustified 3.7 provides that a lawyer may not act as tlement proceeds to Client as described in expectation about the lawyer’s service and the advocate at a trial in which the lawyer is like- the inquiry. results the client can expect through the ly to be a necessary witness. The underlying Lastly, the Ethics Committee notes that, lawyer’s services in violation of Rule 7.1(a). reason for the prohibition is to avoid confu- in making the eventual reimbursement to Accordingly, because of the potential for sion regarding the lawyer’s role. Rule 3.7, Lawyer from Client’s settlement proceeds unjustified expectations in violation of Rule cmt. [2]. The rationale does not apply when once the instrument conveying the funds 7.1(a), the possibility of advancement may the lawyer is also a litigant. See 2011 FEO 1. clears Lawyer’s trust account, Lawyer must not be used as an inducement by the lawyer The same analysis applies in this scenario keep detailed records of the transaction to to obtain employment, and the possibility of where the lawyer-litigant is the sole owner of justify the reimbursement. As a result of the advancement may not be advertised or pub- his own law practice. advancement, Lawyer’s trust account will licized by the lawyer. It is the sole prerogative of a court to reflect disbursements made to himself/his determine advocate/witness issues when practice, and no disbursements made to Proposed 2020 Formal Ethics raised in a motion to disqualify. Id. For Client in the settlement. Every disburse- Opinion 3 example, considering the underlying con- ment from a trust account must be account- Solo Practitioner as Witness/Litigant cerns about confusion regarding the lawyer’s ed for and justified by client directive. See July 23, 2020 role in a particular proceeding, a court may Rule 1.15-2. Accordingly, if Lawyer Proposed opinion rules that a solo practi- find it necessary to disqualify a lawyer from advances Client’s portion of settlement pro- tioner/owner of a PLLC is not prohibited from representing his solo practice in a trial before ceeds as described in this inquiry, Lawyer representing the PLLC and testifying in a dis- a jury, but not in a trial before the bench. must retain all records necessary to support pute with a former client. This ethics opinion merely holds that a the disbursements made, including but not lawyer/litigant in this scenario is not required limited to copies of bank records for the Facts: to find alternative counsel prior to a court’s advancement and Client’s executed agree- Lawyer is a solo practitioner and the sole ruling on a motion to disqualify. ment consenting to the transaction pursuant owner of his practice, Lawyer Firm PLLC. The Ethics Committee is aware of the to Rule 1.8(a). Lawyer, through Lawyer Firm PLLC, repre- North Carolina Court of Appeals’ decisions sented Client in an intellectual property mat- in Cunningham v. Sams, 161 N.C. App. 295 Inquiry #4: ter. Client did not pay the entirety of the (2003) and Harris & Hilton v. Rassette, __ May Lawyer advertise to the public or invoices submitted by Lawyer Firm PLLC to N.C. App. __, 798 S.E.2d 154 (2017). The otherwise inform potential clients that Client for services rendered. Lawyer, on committee is also aware that different juris- Lawyer may consider advancing Client’s por- behalf of Lawyer Firm PLLC, subsequently dictions have reached different conclusions tion of any settlement proceeds prior to the filed a lawsuit against Client seeking to on the issue of whether a lawyer may repre- settlement proceeds check clearing his trust recover the sums Lawyer contends Client sent his or her solely owned law practice in a account? owes to Lawyer Firm PLLC. Lawyer is the dispute against the law practice where the

THE NORTH CAROLINA STATE BAR JOURNAL 35 lawyer is a necessary witness. Compare Nat’l Several prior ethics opinions have Child Care, Inc. v. Dickinson, 446 N.W.2d Proposed 2020 Formal Ethics approved alternative litigation financing 810 (Iowa 1989) and Mt. Rushmore Broad., Opinion 4 arrangements. In 2000 FEO 4, the Ethics Inc. v. Statewide Collections, 42 P.3d 478 Investment in Litigation Financing Committee concluded that a lawyer may (Wyo. 2002). Despite their differing out- July 23, 2020 refer a personal injury client to a finance comes, these cases illustrate the overarching Proposed opinion rules that a lawyer may company that would advance funds to the principle that a trial court can rationally not invest in a fund that provides litigation client in exchange for an interest in any reach different conclusions based upon the financing if the lawyer’s practice accepts clients recovery the client might obtain. In 2005 circumstances of each case, and that the trial who obtain litigation financing. FEO 12, the Ethics Committee concluded court appropriately retains discretion in that a lawyer may obtain litigation funding determining whether disqualification is Facts: from a financing company. In 2018 FEO 4, appropriate in these matters. Lawyer is an associate at Law Firm. the Ethics Committee concluded that a Lawyer has no control over Law Firm’s selec- lawyer may offer clients on-site access to a Inquiry #2: tion of clients or matters. Fund is an invest- financial brokerage company as a payment Should the court determine that Lawyer ment vehicle that provides litigation financ- option for legal fees. is disqualified from representing Lawyer ing. Fund advances money to plaintiffs or law Although an alternative litigation Firm PLLC at trial, is Lawyer prohibited firms in commercial litigation in exchange for financing arrangement may be permissible, from representing Lawyer Firm PLLC in the a share of any recovery. The money advanced a lawyer may never allow the financing motion for summary judgment? by Fund is used to pay litigation expenses and arrangement to interfere with his duty to attorney fees. Fund makes numerous invest- act in the best interests of his client. See Opinion #2: ments on behalf of its partners, with the goal Rule 1.7, cmt. [10]. In that regard, the No. Rule 3.7(a) states, “A lawyer shall of turning a profit. Fund’s profits are passed Ethics Committee concluded in 2006 FEO not act as an advocate at a trial in which the through to investors pro rata. 2 that a lawyer may not refer a client to a lawyer is likely to be a necessary witness...” Lawyer would like to invest in a “feeder company that pays a lump sum to a client (emphasis added). Rule 3.7’s prohibition on fund” that aggregates smaller investments in exchange for the client’s interest in a a lawyer acting as both advocate and witness and invests the larger total in Fund in order structured settlement if the lawyer receives a in a particular matter is confined to a to meet Fund’s investment minimums. “finder’s fee” from the company in exchange lawyer’s representation of a client at trial Lawyer will not refer clients to Fund and will for the referral. Furthermore, the opinion and does not automatically extend to the have no control over Fund’s investment deci- rules that the lawyer may not refer a client lawyer’s representation of a client in pretrial sions. Fund does not disclose the identity of to the company merely as a means of paying proceedings. Absent a conflict created by their clients to their investors (if at all) until the lawyer for his legal services. The lawyer’s the lawyer’s representation in the matter or the litigation matter is concluded. interest in obtaining a finder’s fee or in get- court order disqualifying the lawyer, a It is possible that Fund would advance ting paid from the lump sum could inter- lawyer may represent a client in pretrial pro- money to Law Firm to support litigation that fere with the lawyer’s duty to act in the ceedings even if the lawyer is likely to be a Firm is handling on behalf of a plaintiff or client’s best interest. necessary witness at trial. However, the directly to a plaintiff that is represented by So too, Lawyer may not invest in Fund if Ethics Committee notes that some courts Law firm. It is also possible that Fund would the investment will compromise his profes- would disqualify a lawyer under Rule 3.7 advance money to support a plaintiff or law sional responsibilities to Lawyer’s current or from participating in pretrial activities if the firm in litigation where Firm is representing future clients. Rule 1.7(a)(2). Fund advances pretrial activities involve evidence that, if the defendant. If Law Firm represents a money to plaintiffs or law firms in commer- admitted at trial, would reveal the lawyer’s plaintiff that has obtained money from Fund cial litigation in exchange for a share of any dual role. See, e.g., Williams v. Borden Chem. to pursue particular litigation, Law Firm’s lit- recovery. Fund’s goal of turning a profit may Inc., 501 F. Supp. 2d 1219 (S.D. Iowa igation team for the case will likely be aware not align with the best interests of a particu- 2007) (lawyer, who was to serve as a fact of the client’s transaction with Fund. If a lar recipient of money from Fund. If a firm witness, was disqualified from acting as trial client’s opponent obtains money from Fund, client, or an opposing party to a firm client, counsel but was permitted to engage in pre- it is unlikely that Lawyer or Law Firm would independently contracts with Fund to obtain trial activities other than taking or appear- learn about the transaction. However, if a litigation financing, and Lawyer has no ing at depositions); Lowe v. Experian, 328 F. court ordered disclosure in discovery of liti- knowledge of the arrangement, it is unlikely Supp. 2d 1122 (D. Kan. 2004) (disqualifi- gation finance agreements, Firm’s litigation that Lawyer’s independent professional judg- cation was not required for lawyer’s pretrial team on the particular matter would learn of ment will be affected by the financial activities, “such as participating in strategy the transaction with Fund. arrangement. However, if Lawyer learns dur- sessions, pretrial hearings or conferences, ing the representation that a client or oppos- settlement conferences, or motions prac- Inquiry #1: ing party has received money from Fund, tice,” but may be necessary if pretrial activ- May Lawyer invest in Fund? Lawyer would then have a duty to disclose ities include “obtaining evidence which, if the conflict to Firm’s client and seek consent. admitted at trial, would reveal the attorney’s Opinion #1: dual role[.]”). No. CONTINUED ON PAGE 42

36 FALL 2020 RULE AMENDMENTS

Amendments Pending Supreme Court Approval

At its meeting, July 24, 2020, the Certification Standards for the Council of the North Carolina State Bar Immigration Law Specialty voted to adopt the following rule amend- The proposed amendments update and Highlights ments for transmission to the North clarify the requirements for substantial Carolina Supreme Court for approval. (For involvement for certification as a specialist • Comprehensive proposed amend- the complete text of the proposed rule in immigration law. ments to the rules on legal advertising amendments, see the Spring and Summer in the Rules of Professional Conduct 2020 editions of the Journal or visit the Proposed Amendments to the Rules on are published for comment. To read State Bar website.) Prepaid Legal Services Plans the proposed amendments and learn 27 N.C.A.C. 1E, Section .0300, Rules more about the background on and Proposed Amendments to the Rules on Concerning Prepaid Legal Services Plans reasons for the proposed changes, go the Annual Membership Fee The proposed amendments to the rules to the separate article on the advertis- 27 N.C.A.C. 1A, Section .0200, on prepaid legal services plans are compre- ing rules on page 43. Membership—Annual Membership Fee hensive and include the following: incorpo- • A proposed amendment to the Pre- The proposed amendments make the rating the registration, renewal, and amble to the Rules of Professional language of Rule .0203 consistent with the amendment forms in the rules; eliminating Conduct is published for comment. authorizing statute and delay imposition of the requirement that the State Bar review The amendment identifies the avoid- the late fee until September 1, 2020, for plan documents to determine whether rep- ance of discriminatory conduct while the 2020 calendar year only. resentations made in the registration, acting in a professional capacity as a renewal, and amendment forms are true; value of the provision. See the sidebar Proposed Amendments to the Discipline and specifying that registration and renew- to this article. Rules al fees shall be in amounts to be deter- 27 N.C.A.C. 1B, Section .0100, mined by the State Bar Council. During Discipline and Disability Rules the publication period following the The proposed amendments eliminate January meeting, comments on the pro- admission rules that streamline the process- the requirements that letters of warning, posed amendments were received. At its ing of comity, military-spouse comity, and admonitions, reprimands, and censures meeting on April 17, 2020, the council transfer applications that do not present issued by the Grievance Committee be deferred action on the proposed amend- character and fitness issues. served by certified mail or personal service ments until its July meeting when it con- when valid service has previously been sidered modifications to the proposed accomplished upon the respondent. amendments in response to the comments

NORTH CAROLINA received. The council accepted the modifi- STATE BAR The 2020 Lawyer’s H Proposed Amendments to the Rules on cations, but determined that the modifica- andbook Reinstatement from Inactive Status and tions were not substantive and did not The 2020 Administrative Suspension require republication. 27 N.C.A.C. 1D, Section .0900, Lawyer’s Administrative Rules ......

2-1 C Index ontinuing Le to Ethics O gal Educati pinions . . Proposed Amendments to the Rules on (CLE) ...... 10-2 Procedures for the Administrative . . . . .5-22 . 96 Gen. Stat. Chapter 84 ...... Discipline and Disabil ity ...... 3-1 1-1 Fe IOLTA Q&A ...... e Dispute R esolution ...... 11-1 ...... 5-9 IOL Rules of Professional Conduct ...... TA ...... Governing Admission to the Practice of ...... 9-1 Committee . . . .5-16

Le Rules Handbook gal Special Index . . . ization ...... 5-31 . . . . .9-81 M embership ...... 2-1 Parale The North Carolina State Bar Lawyer’s gal Certifica tion . . . . . Law ...... 7 Handbook 2020 (Abridged) The proposed amendments to Rule . . . -1 P rofessional O rganization An official s ...... publication . o ...... 6-1 containin f the North Ethics Opinions ...... g the most Carolina S North frequently tate Bar Carolina St referenced C ate Bar, ann rules of th 10-1 onduct, all e otated Rule e thics opinio s of Profes Supersed ns adopted sional ed (1985) R under the R ules, and tr ules and ust account .0902 and Rule .0904 eliminate the six- Rules Governing Admission to the The digital guidelines. hour cap on online CLE when fulfilling the Practice of Law in the State of North version of the requirement for reinstatement from inactive Carolina 2020 Lawyer’s Handbook is now status and from administrative suspension. Section .0500, Requirements for available for download, free of charge, Applicants; Section .0600, Moral from the State Bar’s website: Proposed Amendments to the Character and General Fitness; Section ncbar.gov/news-publications/ Certification Standards for the .1200, Board Hearings lawyers-handbook. Immigration Law Specialty The North Carolina Board of Law 27 N.C.A.C. 1D, Section .2600, Examiners proposed amendments to its

THE NORTH CAROLINA STATE BAR JOURNAL 37

Proposed Amendments

At its meeting on July 24, 2020, the coun- als. Faculty have overall responsibility for lawyers. A supervising attorney provides cil voted to publish for comment the follow- assuring the educational value of the learn- direct feedback and guidance to the student. ing proposed rule amendments: ing in the field. Supervising attorneys pro- The site supervisor has administrative vide direct feedback and guidance to the responsibility for the certified law student Proposed Amendments to the Student students. Site supervisors have administra- program at the student practice placement. Practice Rules tive responsibility for the legal intern pro- Such practical training opportunities 27 N.C.A.C.1C, Section .0200, Rules gram at the field placement. Such practical include the following: Governing the Practical Training of Law training opportunities may be referred to as (1) Externship – A course within a law Students “externships.” school’s clinical legal education program The proposed rule amendments clarify (d) Government agencies - The federal or in which the law school places the stu- the different forms of student practice place- state government, any local government, or dent in a legal practice setting external to ments outside the law school and the super- any agency, department, unit, or other entity the law school. An externship may vision requirements for those placements. In of federal, state, or local government, specifi- include placement at a government addition, throughout the rules, the term “stu- cally including a public defender’s office or a agency. dent intern” is replaced with the term “certi- district attorney’s office. (2) Government internship – A practical fied law student” to avoid confusion between (e) Law school - ... training opportunity in which the stu- student practice in law school clinics and (g) Legal intern - A law student who is cer- dent is placed in a government agency practice placements outside the law school. tified to provide supervised representation to and no law school credit is earned. A gov- clients under the provisions of the rules of this ernment internship may be facilitated by .0201 Purpose subchapter. the student’s law school or obtained by The rules in this subchapter are adopted (h) Legal services organization - A non- the student independently. for the following purposes: to support the profit North Carolina organization organized (3) Internship – A practical training development of clinical experiential legal to operate in accordance with N.C. Gen. opportunity in which the student is education programs at North Carolina’s law Stat. §84-5.1. placed in a legal practice setting external schools in order that the law schools may pro- (h) (i) Pro bono activity – An opportunity to the law school and no law school cred- vide their students with supervised practical while in law school for students to provide it is earned. An internship may be facili- training of varying kinds during the period of legal services to those unable to pay, or other- tated by the student’s law school or their formal legal education; to enable law wise under a disability or disadvantage, con- obtained by the student independently. students to obtain supervised practical train- sistent with the objectives of Rule 6.1 of the (l) Supervising attorney - ... ing while serving as legal interns certified law Rules of Professional Conduct. students for government agencies; and to (i) (j) Rules of Professional Conduct – The .0203 Eligibility assist law schools in providing substantial Rules of Professional Conduct adopted by the To engage in activities permitted by these opportunities for student participation and Council of the North Carolina State Bar, rules, a law student must satisfy the following experiential education in pro bono service. approved by the North Carolina Supreme requirements: Court, and in effect at the time of application (a) be enrolled as a J.D. or LL.M. student .0202 Definitions of the rules in this subchapter. in a law school approved by the Council of The following definitions shall apply to (j) (k) Site supervisor – The attorney at a the North Carolina State Bar; the terms used in this section: field student practice placement who (b) be certified in writing by a representa- (a) Clinical legal education program - ... assumes administrative responsibility for the tive of his or her law school, authorized by the (b) Eligible persons - ... certified law student program at the field dean of the law school to provide such certi- (c) Certified law student – A law student placement and provides the notices state- fication, as being of good character with req- who is certified to work in conjunction with ments to the State Bar and the certified law uisite legal ability and legal education to per- a supervising attorney to provide legal serv- student’s law school required by Rule form as a legal intern certified law student, ices to clients under the provisions of this .0205(b) of this subchapter. A site supervisor which education shall include satisfaction of subchapter. may also be a supervising attorney at a field the prerequisites for participation in the clin- Field placement – Practical training student practice placement. ic, externship, or field other student practice opportunities within a law school’s clinical (k) Student practice placement - Legal placement; legal education program that place students practice setting external to the law school (c) ...; in legal practice settings external to the law that provides the student with practical legal (d)...; and school. Students in a field placement repre- training opportunities. A student participat- (e) certify attest in writing that he or she sent clients or perform other lawyering ing in a student practice placement repre- has read the North Carolina Rules of roles under the supervision of practicing sents clients or performs other lawyering Professional Conduct and is familiar with the lawyers or other qualified legal profession- roles under the supervision of practicing opinions interpretive thereof.

38 FALL 2020 .0203 Form and Duration of ing attorney shall (1) Prior to commencing supervision, a Certification (1) for a law school clinic, concurrently supervising attorney in a law school clin- Upon receipt of the written materials supervise an unlimited number of legal ic shall provide a signed statement to the required by Rule .0203(b) and (e) and Rule intern certified law students if the super- North Carolina State Bar (i) assuming .0205(b), the North Carolina State Bar shall vising attorney is a full-time, part-time, or responsibility for the supervision of iden- certify that the law student may serve as a adjunct member of a law school’s faculty tified legal intern certified law students, legal intern certified law student. The certi- or staff whose primary responsibility is (ii) stating the period during which the fication shall be subject to the following lim- supervising legal intern certified law stu- supervising attorney expects to supervise itations: dents in a law school clinic and, further the activities of the identified legal intern (a) Duration. The certification shall be provided, the number of legal intern cer- certified law students, and (iii) certifying effective for 18 consecutive months or until tified law students concurrently super- that the supervising attorney will ade- the announcement of the results of the first vised is not so large as to compromise the quately supervise the legal intern certi- bar examination following the legal intern’s effective and beneficial practical training fied law students in accordance with graduation whichever is earlier. If the legal of the legal intern students or the compe- these rules. intern passes the bar examination, the certi- tent representation of clients; (2) Prior to the commencement of a field fication shall remain in effect until the legal (2) for a field student practice placement, student practice placement for a legal intern is sworn-in by a court and admitted concurrently supervise no more than two intern certified law student(s), the site to the bar. For the duration of the certifica- legal intern certified law students; howev- supervisor shall provide a signed statement tion, the certification shall be transferable er, a greater number of legal intern certi- to the North Carolina State Bar and to the from one student practice placement or fied law students may be concurrently certified law student’s law school (i) law school clinic to another student prac- supervised by a single supervising attorney assuming responsibility for the adminis- tice placement or law school clinic, provid- if the(A) an appropriate faculty member tration of the field placement in compli- ed that (i) all student practice placements of each certified law student’s law school ance with these rules, (ii) identifying the are approved by the law school prior to the supervisor determines, in his or her rea- participating legal intern certified law stu- certified law student’s graduation, and (ii) soned discretion, that the effective and dent(s) and stating the period during the supervision and filing requirements in beneficial practical training of the legal which the legal intern certified law stu- Rule .0205 of this subchapter are at all interns students will not be compro- dent(s) is expected to participate in the times satisfied. mised, and (B) the supervising attorney program at the field placement, (iii) iden- (b) Withdrawal of Certification. The cer- determines that the competent represen- tifying the supervising attorney(s) at the tification shall be withdrawn by the State Bar, tation of clients will not be compromised; field placement, and (iv) certifying that without hearing or a showing of cause, upon (3) assume personal professional responsi- the supervising attorney(s) will adequately receipt of bility for any work undertaken by a legal supervise the legal intern certified law stu- (1) notice from a representative of the intern certified law student while under dent(s) in accordance with these rules. legal intern’s certified law student’s law his or her supervision; (3) A supervising attorney in a law school school, authorized to act by the dean of (4) assist and counsel with a legal intern clinic and a site supervisor for a legal the law school, that the legal intern stu- certified law student in the activities per- intern certified law student program at a dent has not graduated but is no longer mitted by these rules and review such field student practice placement shall enrolled; activities with the legal intern certified law notify the North Carolina State Bar in (2) notice from a representative of the student, all to the extent required for the writing promptly whenever the supervi- legal intern’s certified law student’s law proper practical training of the legal intern sion of a legal intern certified law student school, authorized to act by the dean of student and the competent representation concludes prior to the designated period the law school, that the legal intern stu- of the client; and of supervision. dent is no longer in good standing at the (5) read, approve and personally sign any (c) Responsibilities of Law School Clinic law school; pleadings or other papers prepared by a in Absence of legal intern certified law stu- (3) notice from a supervising attorney that legal intern certified law student prior to dent. During any period when a legal intern the supervising attorney is no longer the filing thereof, and read and approve certified law student is not available to pro- supervising the legal intern certified law any documents prepared by a legal intern vide representation due to law school season- student and that no other qualified attor- certified law student for execution by a al breaks, graduation, or other reason, the ney has assumed the supervision of the client or third party prior to the execution supervising attorney shall maintain the status legal intern student; or thereof; and quo of a client matter and shall take action as (4) notice from a judge before whom the (6) for externships and internships (other necessary to protect the interests of the client legal intern certified law student has than placements at government agen- until the legal intern certified law student is appeared that the certification should be cies), ensure that any activities by the cer- available or a new legal intern certified law withdrawn. tified law student that are authorized by student is assigned to the matter. During law Rule .0206 are limited to representations school seasonal breaks, or other periods .0205 Supervision of eligible persons. when a legal intern certified law student is (a) Supervision Requirements. A supervis- (b) Filing Requirements. not available, if a law school clinic or a super-

THE NORTH CAROLINA STATE BAR JOURNAL 39 vising attorney is presented with an inquiry appearance before a tribunal or agency on designation is “Certified Legal Intern from an eligible person or a legal matter that behalf of a client who is an individual, the Certified Law Student under the may be appropriate for representation by a legal intern certified law student shall have Supervision of [supervising attorney]”, legal intern certified law student, the repre- the written consent in advance of the client. and sentation may be undertaken by a supervis- The client shall be given a clear explanation, (3) be printed on a business card, provided ing attorney to preserve the matter for subse- prior to the giving of his or her consent, that the name of the supervising attorney also quent representation by a legal intern certi- the legal intern certified law student is not appears on the business card and there fied law student. Communications by a an attorney. This consent shall be filed with appears below the legal intern certified supervising attorney with a prospective client the tribunal and made a part of the record in law student’s name a clear statement that to determine whether the prospective client the case. In all cases in which a legal intern the legal intern student is certified under is eligible for clinic representation may certified law student makes an appearance these rules. An appropriate designation is include providing immediate legal advice or before a tribunal or agency on behalf of a Certified Legal Intern Certified Law information even if it is subsequently deter- government agency, the consent of the gov- Student under the Supervision of [super- mined that the matter is not appropriate for ernment agency shall be presumed if the legal vising attorney].” clinic representation. intern certified law student is participating (b) ... (d) Independent Legal Practice. Nothing in a law school externship program or an in these rules prohibits a supervising attorney internship program of the government .0208 Field Student Practice Placements in a law school clinic from providing legal agency. A statement advising the court of the (a) A law student enrolled participating in services to third parties outside of the scope of legal intern’s certified law student’s participa- a field student practice placement at an the supervising attorney’s employment by the tion in an externship or internship program organization, entity, agency, or law firm, or at law school operating the clinic. of at the government agency shall be filed a government agency, shall be certified as a with the tribunal and made a part of the legal intern if the law student will (i) provide .0206 Activities record in the case. legal advice or services in matters governed by (a) A properly certified legal intern law stu- (e) In all cases under this rule in which a North Carolina law to eligible persons or gov- dent may engage in the activities provided in legal intern certified law student is permitted ernment agencies outside the organization, this rule under the supervision of an attorney to make an appearance before a tribunal or entity, agency, or law firm or to the govern- qualified and acting in accordance with the agency, subject to any limitations imposed by ment agency where the student is placed, or provisions of Rule .0205 of this subchapter. the tribunal, the legal intern certified law stu- (ii) appear before any North Carolina tribu- (b) Without the presence of the supervis- dent may engage in all activities appropriate nal or agency on behalf of an eligible person ing attorney, a legal intern certified law stu- to the representation of the client, including, or a government agency. dent may give advice to a client, including a without limitation, selection of and argument (b) Supervision of a legal intern certified government agency, on legal matters provided to the jury, examination and cross-examina- law student enrolled in a field student prac- that the legal intern certified law student tion of witnesses, motions and arguments tice placement may be shared by two or more gives a clear prior explanation that the legal thereon, and giving notice of appeal. attorneys employed by the organization, enti- intern certified law student is not an attorney ty, agency, or law firm, or a government and the supervising attorney has given the .0207 Use of Student’s Name agency, provided one attorney acts as site legal intern certified law student permission (a) A legal intern’s certified law student’s supervisor, assuming administrative responsi- to render legal advice in the subject area name may properly bility for the a legal intern certified law stu- involved. (1) be printed or typed on briefs, plead- dent program at the field placement and pro- (c) A legal intern certified law student ings, and other similar documents on viding the notices to filing with the State Bar may represent an eligible person, the state in which the legal intern certified law stu- and the certified law student’s law school the criminal prosecutions, a criminal defendant dent has worked with or under the direc- statements required by Rule .0205(b) of this who is represented by the public defender, tion of the supervising attorney, provided subchapter. All supervising attorneys at a field or a government agency in any proceeding the legal intern certified law student is student practice placement shall comply with before a federal, state, or local tribunal, clearly identified as a legal intern student the requirements of Rule .0205(a). including an administrative agency, if prior certified under these rules, and provided consent is obtained from the tribunal or further that the legal intern certified law .0209 Relationship of Law School and agency upon application of the supervising student shall not sign his or her name to Clinics; Responsibility Upon Departure of attorney. Each appearance before the tribu- such briefs, pleadings, or other similar Supervising Attorney or Closure of Clinic nal or agency shall be subject to any limita- documents; (a) Relationship to Other Clinics. tions imposed by the tribunal or agency (2) be signed to letters written on the let- ... including, but not limited to, the require- terhead of the supervising attorney, legal (e) Engagement Letter. In addition to the ment that the supervising attorney physical- aid clinic, or government agency, provided consent agreement required by Rule .0206(d) ly accompany the legal intern certified law there appears below the legal intern certi- of this section for any representation of an student. fied law student’s signature a clear identi- individual client in a matter before a tribunal, (d) In all cases under this rule in which a fication that the legal intern student is cer- a written engagement letter or memorandum legal intern certified law student makes an tified under these rules. An appropriate of understanding with each client is recom-

40 FALL 2020 mended. The writing should state the general nature of the legal services to be provided and explain the roles and responsibilities of the Proposed Amendment to the Preamble of the Rules clinic, the supervising attorney, and the legal intern certified law student. See Rule 1.5, of Professional Conduct cmt. [2] of the Rules of Professional Conduct (“A written statement concerning the terms The Preamble to the North Carolina withdraw from a representation in of the engagement reduces the possibility of Rules of Professional Conduct sets forth accordance with Rule 1.16. This para- misunderstanding.”) the values of the legal profession in North graph does not preclude legitimate (f) Responsibility upon Departure of Carolina. Upon the recommendation of advice or advocacy consistent with Supervising Attorney. the Ethics Committee, the council is these Rules. … publishing a proposed amendment to the A subcommittee of the Ethics Preamble that identifies the avoidance of Committee will study this question and .0210 Pro Bono Activities discriminatory conduct while acting in a another ethics subcommittee will study a (a) Pro Bono Activities for Law Students... professional capacity as a fundamental proposal to include awareness of implicit (b) Student Certification Not Required. value of the profession. Although the bias in the description of competency in Regardless of whether the pro bono activity is council approved a substantially similar the comment to Rule 1.1. Comments on provided under the auspices of a clinical legal amendment to the Preamble in 2010, the these proposals are encouraged. education program or another program or North Carolina Supreme Court did not department of a law school, a law student approve the amendment at that time. 0.1 Preamble: A Lawyer's participating in a pro bono activity made avail- The comments of the membership are Responsibilities able by a law school is not required to be cer- encouraged and welcomed. [1] A lawyer, as a member of the legal tified as a legal intern if The Ethics Committee is also consider- profession, is a representative of clients, an (1) the law student will not perform any ing two additional proposed amendments officer of the legal system, and a public cit- legal service; or to the Rules of Professional Conduct, izen having special responsibility for the (2) all of the following conditions are sat- including whether Rule 8.4, Misconduct, quality of justice. isfied: (i) the student will perform specifi- should be amended to include a provision [2] …. cally delegated substantive legal services that is the same or similar to paragraph (g) [6] While acting in a professional for third parties (clients) under the direct of ABA Model Rule 8.4, which provides as capacity, a lawyer should not discriminate supervision of an attorney who is an active follows: on the basis of a person’s race, gender, member of the North Carolina State Bar It is professional misconduct for a national origin, religion, age, disability, or licensed in another jurisdiction as lawyer to:...(g) engage in conduct that sexual orientation, gender identity, mari- appropriate to the legal services to be the lawyer knows or reasonably should tal status, or socioeconomic status. This undertaken (the responsible attorney); (ii) know is harassment or discrimination responsibility of non-discrimination does the legal services shall not include repre- on the basis of race, sex, religion, not limit a lawyer’s right to advocate on sentation of clients before a tribunal or national origin, ethnicity, disability, any issue, nor does this responsibility agency; (iii) the responsible attorney is age, sexual orientation, gender identity, limit the prerogative of a lawyer to accept, personally and professionally responsible marital status, or socioeconomic status decline, or withdraw from a representa- for the representation of the clients and in conduct related to the practice of tion in accordance with these rules. for the law student’s work product; and law. This paragraph does not limit the [6][7] ... (iv) the role of the law student as an assis- ability of a lawyer to accept, decline, or [re-numbering remaining paragraphs] n tant to the responsible attorney is clearly explained to each client in advance of the performance of any legal service for the client by the law student. authority regarding allegations of professional (b) ... (c) Law School Faculty and Staff misconduct by the lawyer; for responding to (g) A lawyer shall not enter into an Providing Pro Bono Services Under Auspices a Client Security Fund claim alleging wrong- arrangement for, charge, or collect anything of a Clinical Legal Education Program. ful conduct by the lawyer; or responding to of value for responding to an inquiry by a ... and participating in the resolution of a peti- disciplinary authority regarding allegations tion for resolution of a disputed fee filed of professional misconduct by the lawyer, for Proposed Amendments to Rule 1.5, Fees, against the lawyer. responding to a Client Security Fund claim of the Rules of Professional Conduct alleging wrongful conduct by the lawyer, or 27 N.C.A.C. Chapter 2, Rules of Rule 1.5, Fees for responding to and participating in the Professional Conduct (a) A lawyer shall not make an agreement resolution of a petition for resolution of a Proposed amendments to Rule 1.5 add a for, charge, or collect an illegal or clearly disputed fee filed against the lawyer. specific prohibition on charging a client for excessive fee or charge or collect a clearly Comment responding to an inquiry by a disciplinary excessive amount for expenses. ... [1] ...

THE NORTH CAROLINA STATE BAR JOURNAL 41 [13] Lawyers have a professional obliga- tion to respond to inquiries by disciplinary authorities regarding allegations of their In Memoriam Alan C. Leonard Tryon, NC own professional misconduct, to respond to Client Security Fund claims alleging wrong- William J. Cathey III Amos E. Link Jr. ful conduct by the lawyer, and to respond to Rosman, NC Raleigh, NC and participate in good faith in the fee dis- Harold Donald Colston Oscar Graydon Lonon III pute resolution process. It is improper for a Rocky Mount, NC West Jefferson, NC lawyer to charge a client for the time expended on these professional obligations Sydney M. Cone III Mitchell M. McEntire because they are not legal services that a New York, NY Graham, NC lawyer provides to a client, but rather they William Reid Dalton III Shawn Middlebrooks advance the interests of the public and the Burlington, NC Apex, NC profession. n Bobby Gray Deaver Lee West Movius Hobe Sound, FL Charlotte, NC Billie Ray Ellerbe Gary Lester Presnell Proposed Opinions (cont.) Charlotte, NC Raleigh, NC Michael Gray Gibson Otto K. Pridgen II Rule 1.7(b). The possibility of a conflict aris- Charlotte, NC Wilmington, NC ing in the midst of litigation based on Allan R. Gitter Anthony Eden Rand Lawyer’s investment in Fund necessarily Winston-Salem, NC Fayetteville, NC means that Lawyer is putting his own interest in receiving a return from Fund over a poten- Lawrence G. Gordon Jr. Harold M. Robinson Jr. tial client’s interest to be represented by a Germanton, NC Morganton, NC lawyer without conflict. Comment [3] to Millicent Goins Graves Wendell H. Sawyer Rule 1.7 states that when a conflict of inter- Wilson, NC Greensboro, NC est exists before representation is undertaken, the representation much be declined, unless Robert C. Hord Jr. Robert Thomas Speed the lawyer obtains the informed consent of Charlotte, NC Boone, NC the client. The potential latent conflict that Joseph Edward Johnson Joel Bond Stevenson exists, to which Lawyer is unable to obtain Raleigh, NC Brevard, NC informed consent, prohibits Lawyer from Thomas W. Jordan Jr. Samuel McDowell Tate investing in Fund. Raleigh, NC Morganton, NC In addition to the prohibitions set out in Rule 1.7, Lawyer is also prohibited from Edwin Nick Kearns Tarlton Roberts Thompson Jr. investing in Fund due to prohibitions set out Raleigh, NC Aurora, NC in Rule 1.8. Rule 1.8(e) prohibits lawyers Devere Craven Lentz Jr. John Gary Vannoy Sr. from providing clients with financial assis- Asheville, NC North Wilkesboro, NC tance in connection with pending or contem- plated litigation with limited exceptions. A violation of Rule 1.8(e) arises because the payments from Fund would constitute finan- lawyer may not acquire a proprietary interest to Rules 1.8(e) and 1.8(i). Furthermore, the cial assistance to Lawyer’s client. While in the cause of action or subject matter of lit- conflict issues raised by Rule 1.8 in relation to Lawyers may advance court costs and expens- igation the lawyer is conducting for a client, Lawyer’s investment in Fund would be es of litigation, money advanced by Fund is except for a lien authorized by law or a rea- imputed to all lawyers associated with Law used to pay litigation expenses and attorney sonable contingent fee in a civil case. Rule Firm. See Rule 1.8(j) (while lawyers are asso- fees. Lawyers are not permitted to advance 1.8(i) is designed to avoid giving a lawyer too ciated in a firm, a prohibition in paragraphs financial assistance that includes lawyer’s fees great an interest in the representation. By pro- (a) through (i), that applies to any one of billed on a non-contingency basis. N.Y. State viding money to Lawyer’s client in exchange them applies to all of them). Therefore, nei- Bar Ass’n Comm. on Prof’l Ethics, Op. 1145 for a share of any recovery, Fund would ther Lawyer nor any lawyer in Lawyer’s firm (2018); see also Rule 8.4(a) (lawyer may not acquire a prohibited proprietary interest in may represent a client who obtains advanced violate Rules of Professional Conduct the client’s claim. As an investor in Fund, litigation financing from a financing compa- through the acts of another.) Lawyer would also acquire a prohibited pro- ny—or is opposed to a party who obtains Lawyer is also prohibited from investing prietary interest. such financing—if any lawyer in the firm is in Fund by Rule 1.8(i), which provides that a There are no informed consent exceptions an investor in Fund. n

42 FALL 2020 RULE AMENDMENTS

Proposed Amendments to Rules on Lawyer Advertising

In August 2018, the American Bar Model Rule, retention of the North Carolina profession’s feedback on these proposed Association amended the Model Rules of Rule, or some other alternative. For two amendments. Comments, which are wel- Professional Conduct on advertising (for- years, the committee thoughtfully consid- come and encouraged, can be emailed to merly Model Rules 7.1 through 7.5). The ered each word in both the Model Rules and [email protected]. ABA identified three primary concerns the North Carolina Rules on advertising in necessitating the review of and amendments determining what would protect the public, Rule 7.1, Communications Concerning a to the Model Rules on advertising. First, the while also recognizing the practical realities Lawyer’s Services need for consistency among the different of practicing law today. Similar to the stated (a) A lawyer shall not make a false or mis- jurisdictions’ lawyer advertising rules—the goals of the Model Rule amendments, the leading communication about the lawyer or ABA explained that lawyers in the 21st cen- committee sought to strengthen and priori- the lawyer’s services. A communication is tury increasingly practiced in multiple juris- tize the prohibition on false and misleading false or misleading if it: dictions, and that a “breathtaking variety” in communications concerning a lawyer’s serv- (1) contains a material misrepresentation advertising rules across the nation made ices; to streamline the Rules on advertising of fact or law, or omits a fact necessary to compliance by lawyers and law firms with and eliminate unnecessary or unclear provi- make the statement considered as a whole multi-jurisdictional practices unnecessarily sions; to update the Rules to reflect the cur- not materially misleading;. Such communi- complex. Second, the substantial presence rent state of society and the profession, cations include but are not limited to a and impact that social media and the including the recognition of technology’s statement that Internet has had on business generally, presence in our personal and professional (2) is likely to create an unjustified expec- including the practice of law. Third, recent lives and the evolution of the consuming tation about results the lawyer can achieve,; a trends in First Amendment and antitrust law public; and to enable lawyers effectively and statement that or states or implies that the suggested burdensome and unnecessary truthfully to communicate the availability of lawyer can achieve results by means that vio- restrictions on lawyer commercial speech legal services, including utilizing new tech- late the Rules of Professional Conduct or may be unlawful. The ABA explained that, nologies. With these worthy goals and con- other law; or a statement that with these considerations in mind, the goals siderations in mind, the committee adopted (3) compares the lawyer’s services with for amending the Model Rules were to elim- the Model Rule provision when appropriate other lawyers’ services, unless the comparison inate compliance confusion and promote in pursuit of consistency with both the can be factually substantiated. consistency in lawyer advertising rules, to Model Rules and potentially other jurisdic- (b) A communication by a lawyer that provide lawyers and regulators across the tions. However, the committee remained contains a dramatization depicting a fictional nation with updates to the advertising rules committed to the ultimate goal of protecting situation is misleading unless it complies that would protect clients from false and the public in North Carolina; to that end, with paragraph (a) above and contains a con- misleading advertising while freeing lawyers the committee deviated from the Model spicuous written or oral statement, at the to use expanding technologies to communi- Rules when necessary and appropriate. beginning and the end of the communica- cate the availability of their services, and to With the approval of the State Bar tion, explaining that the communication increase consumer access to accurate infor- Council, the committee’s recommended contains a dramatization and does not depict mation about legal services. amendments to the Rules of Professional actual events or real persons. In April 2018, then-State Bar President Conduct on advertising appear below. While Comment John Silverstein appointed a special commit- some amendments clarify long-standing False and Misleading Communications tee of the State Bar Council to review the Rules, others present significant changes. For [1] This Rule governs all communications ABA’s proposed amendments to the Model example, under these proposed amend- about a lawyer’s services, including advertis- Rules on advertising. The committee met a ments, lawyers are permitted to give nominal ing permitted by Rule 7.2. Whatever means total of 14 times between April 2018 and gifts as an expression of appreciation for rec- are used to make known a lawyer’s services, July 2020. The committee reviewed each ommending a lawyer’s services; the various statements about them must be truthful. amendment made to the Model Rules on labeling requirements for targeted mail com- [2] Misleading tTruthful statements that advertising, comparing the Model Rules to munications are eliminated; and the bulk of are misleading are also prohibited by this the corresponding provision in the North the rules previously listed in Rules 7.4 and Rule. A truthful statement is misleading if it Carolina Rules of Professional Conduct 7.5 are relocated to the comments of Rules omits a fact necessary to make the lawyer’s (Rules 7.1 through 7.5), and determining 7.1 and 7.2. communication considered as a whole not whether to recommend adoption of the The State Bar Council now solicits the materially misleading. A truthful statement is

THE NORTH CAROLINA STATE BAR JOURNAL 43 also misleading if there is a substantial likeli- fessional designation that is not misleading. and the end of the communication, explain- hood that it will lead a reasonable person to A law firm name or designation is mislead- ing that the communication contains a formulate a specific conclusion about the ing if it implies a connection with a govern- dramatization and does not depict actual lawyer or the lawyer’s services for which there ment agency, with a deceased or retired events or real persons. is no reasonable factual foundation. A truth- lawyer who was not a former principal of ful statement is also misleading if presented the firm, with a lawyer not associated with Rule 7.2 Advertising Communications in a way that creates a substantial likelihood the firm or a predecessor firm, with a non- Concerning a Lawyer’s Services: Specific that a reasonable person would believe the lawyer, or with a public or charitable legal Rules lawyer’s communication requires that per- services organization. If a firm uses a trade (a) Subject to the requirements of Rules son to take further action when, in fact, no name that includes a geographical name 7.1 and 7.3, a A lawyer may advertise com- action is required. such as “Springfield Legal Clinic,” an municate information regarding the [3] An advertisement A communication express statement explaining that it is not a lawyer’s services through written, recorded or that truthfully reports a lawyer’s achieve- public or charitable legal services organiza- electronic communication, including public ments on behalf of clients or former clients tion may be required to avoid a misleading any media. may be misleading if presented so as to lead implication. (b) A lawyer shall not compensate, give, a reasonable person to form an unjustified [6] A law firm with offices in more than or promise anything of value to a person for expectation that the same results could be one jurisdiction may use the same name or recommending the lawyer’s services except obtained for other clients in similar matters other professional designation in each juris- that a lawyer may without reference to the specific factual and diction, but identification of the lawyers in (1) pay the reasonable costs of advertise- legal circumstances of each client’s case. an office of the firm shall indicate the juris- ments or communications permitted by Similarly, an unsubstantiated claim about a dictional limitations on those not licensed this Rule; lawyer’s or law firm’s services or fees, or an to practice in the jurisdiction where the (2) pay the usual charges of a not-for- unsubstantiated comparison of the lawyer’s office is located. profit lawyer referral service that complies or law firm’s services or fees with the services [7] Lawyers may not imply or hold with Rule 7.2(d), an intermediary organ- or fees those of other lawyers or law firms themselves out as practicing together in one ization that complies with Rule 7.4 or a may be misleading if presented with such firm when they are not a firm, as defined in prepaid or group legal services plan that specificity as would lead a reasonable person Rule 1.0(d), because to do so would be false complies with Rule 7.3(d) 27 N.C. to conclude that the comparison or claim and misleading. It is also misleading to use Admin. Code 1E.0301 et seq.; and can be substantiated. The inclusion of an a designation such as “Smith and (3) pay for a law practice in accordance appropriate disclaimer or qualifying lan- Associates” for a solo practice. with Rule 1.17; and guage may preclude a finding that a state- [8] This Rule does not prohibit the (4) give nominal gifts as an expression of ment is likely to create unjustified expecta- employment by a law firm of a lawyer who appreciation that are neither intended tions or otherwise mislead the public. is licensed to practice in another jurisdic- nor reasonably expected to be a form of [4] It is professional misconduct for a tion, but not in North Carolina, provided compensation for recommending a lawyer to engage in conduct involving dis- the lawyer’s practice is exclusively limited to lawyer’s services. honesty, fraud, deceit, or misrepresentation. areas that do not require a North Carolina (c) A lawyer shall not state that the Rule 8.4(c). See also Rule 8.4(e) for the pro- law license. The lawyer’s name may be lawyer specializes or is a specialist in a field hibition against stating or implying an ability included in the firm letterhead, provided all of practice unless: to improperly influence improperly a gov- communications by such lawyer on behalf (1) the lawyer is certified as a specialist ernment agency or official or to achieve of the firm indicate the jurisdiction in in the field of practice by: results by means that violate the Rules of which the lawyer is licensed as well as the (A) the North Carolina State Bar; Professional Conduct or other law. fact that the lawyer is not licensed in North (B) an organization that is accredited Firm Names, Letterheads, and Carolina. by the North Carolina State Bar; or Professional Designations [9] If law offices are maintained in (C) an organization that is accredited [5] Firm names, letterhead, and profes- another jurisdiction, the law firm is an by the American Bar Association under sional designations are communications interstate law firm and must register with procedures and criteria endorsed by the concerning a lawyer’s services. A firm may the North Carolina State Bar as required by North Carolina State Bar; and be designated by the names of all or some of 27 N.C. Admin. Code 1E.0200 et seq. (2) the name of the certifying organiza- its current principals or by the names of Dramatizations tion is clearly identified in the commu- deceased or retired principals where there [10] Dramatizations of fictional cases in nication. has been a succession in the firm’s identity. video advertisements are potentially mis- (c)(d) Any communication made pur- The name of a retired principal may be used leading. See 2010 FEO 9, RPC 164. A com- suant to under this Rule, other than that of a in the name of a law firm only if the princi- munication by a lawyer that contains a lawyer referral service as described in para- pal has ceased the practice of law. A lawyer dramatization depicting a fictional situation graph (d), shall must include the name and or law firm also may be designated by a is not misleading if it complies with para- office address contact information of at least trade name, a distinctive website address, graph (a) above and contains a conspicuous one lawyer or law firm responsible for its social media username, or comparable pro- written or oral statement, at the beginning content.

44 FALL 2020 (d) A lawyer may participate in a lawyer name or law firm’s name, address, email lawyer’s services or for channeling profes- referral service subject to the following con- address, website, and telephone number; the sional work in a manner that violates Rule ditions: kinds of services the lawyer will undertake; 7.3. A communication contains a recom- (1) the lawyer is professionally responsible the basis on which the lawyer’s fees are deter- mendation if it endorses or vouches for a for its operation including the use of a mined, including prices for specific services lawyer’s credentials, abilities, competence, false, deceptive, or misleading name by and payment and credit arrangements; a character, or other professional qualities. the referral service; lawyer’s foreign language ability; names of Directory listings and group advertise- (2) the referral service is not operated for references and, with their consent, names of ments that list lawyers by practice area, a profit; clients regularly represented; and other infor- without more, do not constitute impermis- (3) the lawyer may pay to the lawyer mation that might invite the attention of sible “recommendations.” referral service only a reasonable sum those seeking legal assistance. [3] Paragraph (b)(1), however, allows a which represents a proportionate share of [3] Questions of effectiveness and taste in lawyer to pay for advertising and communi- the referral service’s administrative and advertising are matters of speculation and cations permitted by this Rule, including the advertising costs; subjective judgment. Television, the Internet, costs of print directory listings, on-line direc- (4) the lawyer does not directly or indi- and other forms of electronic communica- tory listings, newspaper ads, television and rectly receive anything of value other than tion are now among the most powerful radio airtime, domain-name registrations, legal fees earned from representation of media for getting information to the public, sponsorship fees, Internet-based advertise- clients referred by the service; particularly persons of low and moderate ments, and group advertising. A lawyer may (5) employees of the referral service do income; prohibiting television, Internet, and compensate employees, agents, and vendors not initiate contact with prospective other forms of electronic advertising, there- who are engaged to provide marketing or clients and do not engage in live tele- fore, would impede the flow of information client-development services, such as publi- phone or in-person solicitation of clients; about legal services to many sectors of the cists, public-relations personnel, business- (6) the referral service does not collect any public. Limiting the information that may development staff, television and radio sta- sums from clients or potential clients for be advertised has a similar effect and assumes tion employees or spokespersons, and web- use of the service; and that the bar can accurately forecast the kind site designers. Moreover, a lawyer may pay (7) all advertisements by the lawyer refer- of information that the public would regard others for generating client leads, such as ral service shall: as relevant. But see Rule 7.1(b) for the dis- Internet-based client leads, as long as the lead (A) state that a list of all participating claimer required in any advertisement that generator does not recommend the lawyer, lawyers will be mailed free of charge to contains a dramatization and see Rule 7.3(a) any payment to the lead generator is consis- members of the public upon request for the prohibition against a solicitation tent with Rule 1.5(e)(division of fees) and and state where such information may through a real-time electronic exchange initi- 5.4 (professional independence of the be obtained; and ated by the lawyer. lawyer), and the lead generator’s communi- (B) explain the method by which the [4] Neither this Rule nor Rule 7.3 pro- cations are consistent with Rule 7.1 (com- needs of the prospective client are hibits communications authorized by law, munications concerning a lawyer’s service). matched with the qualifications of the such as notice to members of a class in class To comply with Rule 7.1, a lawyer must not recommended lawyer. action litigation. pay a lead generator if the lead generator Comment [5] “Electronic communication(s),” as states, implies, or creates an impression that [1] To assist the public in learning about used in Section 7 of the Rules of Professional it is recommending the lawyer, is making the and obtaining legal services, lawyers are per- Conduct, refers to the transfer of writing, sig- referral without payment from the lawyer, or mitted to make known their services not nals, data, sounds, images, signs or intelli- has analyzed a person’s legal problems when only through reputation, but also through gence via an electronic device or over any determining which lawyer should receive the organized information campaigns in the electronic medium. Examples of electric referral. See also Rule 5.3 (duties of lawyers form of advertising. Advertising involves an communications include, but are not limited and law firms with respect to the conduct of active quest for clients, contrary to the tradi- to, websites, email, text messages, social nonlawyers); Rule 8.4(a)(duty to avoid vio- tion that a lawyer should not seek clientele. media messaging and image sharing. A lating the Rules through the acts of another). However, the public’s need to know about lawyer who sends electronic communica- [4] Paragraph (b)(4) permits a lawyer to legal services can be fulfilled in part through tions to advertise or market the lawyer’s pro- give nominal gifts as an expression of appre- advertising. This need is particularly acute in fessional services must comply with these ciation to a person for recommending the the case of persons of moderate means who Rules and with any state or federal restric- lawyer’s services or referring a prospective have not made extensive use of legal services. tions on such communications. See, e.g., client. The gift may not be more than a The interest in expanding public informa- N.C. Gen. Stat. §75-104; Telephone token item as might be given for holidays or tion about legal services ought to prevail over Consumer Protection Act, 47 U.S.C. §227; other ordinary social hospitality. A gift is considerations of tradition. Nevertheless, and 47 CFR 64. prohibited if offered or given in considera- advertising by lawyers may entail the risk of Paying Others to Recommend a Lawyer tion of any promise, agreement, or under- practices that are misleading or overreaching. [6][2] Except as permitted under para- standing that such a gift would be forth- [2][1] This Rule permits public dissemi- graphs (b)(1)-(b)(3)(4), lawyers are not per- coming or that referrals would be made or nation of information concerning a lawyer’s mitted to pay others for recommending the encouraged in the future.

THE NORTH CAROLINA STATE BAR JOURNAL 45 Paying Lead Generators zations that provide unbiased referrals to representation of specialty may be made [5] A lawyer may pay others for generat- lawyers with appropriate experience in the only if the certifying organization is the ing client leads, such as Internet-based subject matter of the representation and North Carolina State Bar, an organization client leads, as long as the lead generator afford other client protections, such as com- accredited by the North Carolina State Bar, does not recommend the lawyer, any pay- plaint procedures or malpractice insurance or an organization accredited by the ment to the lead generator is consistent requirements. Any lawyer who participates American Bar Association under proce- with Rules 1.5(e) (division of fees) and 5.4 in a legal services plan or lawyer referral serv- dures approved by the North Carolina (professional independence of the lawyer), ice is professionally responsible for the oper- State Bar. To ensure that consumers can and the lead generator’s communications ation of the service in accordance with these obtain access to useful information about are consistent with Rule 7.1 (communica- rules regardless of the lawyer’s knowledge, or an organization granting certification, the tions concerning a lawyer’s services). To lack of knowledge, of the activities of the name of the certifying organization or comply with Rule 7.1, a lawyer must not service. Prepaid Llegal service plans and agency must be included in any communi- pay a lead generator that states, implies, or lawyer referral services intermediary organi- cation regarding the certification. creates a reasonable impression that it is rec- zations may communicate with the public, [8] A lawyer may, however, describe his ommending the lawyer, is making the refer- but such communication must be in con- or her practice without using the term “spe- ral without payment from the lawyer, or has formity with these Rules; notably, such com- cialize” in any manner which is truthful and analyzed a person’s legal problems when munication must not be false or misleading. not misleading. This Rule specifically per- determining which lawyer should receive Thus, advertising must not be false or mis- mits a lawyer to indicate areas of practice in the referral. See comment [2] (definition of leading, as would be the case if the commu- communications about the lawyer’s servic- “recommendation”). See also Rule 5.3 nications of a group advertising program or a es. If a lawyer practices only in certain (duties of lawyers and law firms with group legal services plan would mislead fields, or will not accept matters except in a respect to the conduct of nonlawyers); Rule prospective clients to think that it was a specified field or fields, the lawyer is permit- 8.4(a) (duty to avoid violating the Rules lawyer referral service sponsored by a state ted to so indicate. The lawyer may, for through the acts of another). agency or bar association. The term “referral” instance, indicate a “concentration” or an [7] A lawyer may pay the usual charges of implies that some attempt is made to match “interest” or a “limitation.” a prepaid or group legal services plan or a the needs of the prospective client with the Contact Information not-for-profit lawyer referral service. A legal qualifications of the recommended lawyer. [9] This Rule requires that any commu- services plan is defined in Rule 7.3(d). Such To avoid misrepresentation, paragraph nication about a lawyer or law firm’s servic- a plan assists people who seek to secure legal (d)(7)(B) requires that every advertisement es include the name of, and contact infor- representation. A lawyer referral service, on for the service must include an explanation mation for, the lawyer or law firm. Contact the other hand, is any organization that of the method by which a prospective client information includes a website address, a holds itself out to the public as a lawyer refer- is matched with the lawyer to whom he or telephone number, an email address, or a ral service. Such referral services are under- she is referred. In addition, the lawyer may physical office location. stood by the public to be consumer-oriented not allow in-person, telephonic, or real-time organizations that provide unbiased referrals contacts that would violate Rule 7.3. Rule 7.3 Direct Contact with Potential to lawyers with appropriate experience in the Specialty Certification Clients Solicitation of Clients subject matter of the representation and [7] The use of the word “specialize” in (a) “Solicitation” or “solicit” denotes a afford other client protections, such as com- any of its variant forms connotes to the communication initiated by the lawyer that plaint procedures or malpractice insurance public a particular expertise often subject is directed to a specific person and that requirements. Consequently, this Rule only to recognition by the state. Indeed, the offers to provide, or can reasonably be permits a lawyer to pay the usual charges of a North Carolina State Bar has instituted understood as offering to provide, legal not-for-profit lawyer referral service. programs providing for official certification services. Referrals from Intermediary Organiza- of specialists in certain areas of practice. (a)(b) A lawyer shall not by in-person, live tions and Prepaid Legal Service Plans Certification signifies that an objective telephone, or real-time electronic contact [8][6] A lawyer who accepts assignments entity has recognized an advanced degree of solicit professional employment by live per- or referrals from a prepaid or group legal knowledge and experience in the specialty son-to-person contact when a significant service plan or referrals from a lawyer referral area greater than is suggested by general motive for the lawyer’s doing so is the service an intermediary organization must licensure to practice law. Certifying organ- lawyer’s or law firm’s pecuniary gain, unless act reasonably to assure that the activities of izations are expected to apply standards of the person contacted contact is with a: the plan or service organization are compat- experience, knowledge, and proficiency to (1) is a lawyer; or ible with the lawyer’s professional obliga- ensure that a lawyer’s recognition as a spe- (2) person who has a family, close person- tions. See Rule 5.3, Rule 7.3, and Rule 7.4. cialist is meaningful and reliable. To avoid al, or prior business or professional rela- A prepaid legal service plan assists people misrepresentation and deception, a lawyer tionship with the lawyer or law firm.; or who seek to secure legal representation. may not communicate that the lawyer has (3) person who routinely uses for busi- Intermediary organizations, including been recognized or certified as a specialist ness purposes the type of legal services lawyer referral services, are understood by in a particular field of law, except as provid- offered by the lawyer. the public to be consumer-oriented organi- ed by this Rule. The Rule requires that a (b)(c) A lawyer shall not solicit profes-

46 FALL 2020 sional employment from a potential client by The advertising notice shall also appear, ing a will, for a fixed, one-time fee. written, recorded or electronic communica- at the beginning and ending of the elec- (2) Conditions for Participation. tion or by in-person, telephone or real-time tronic communication, in a font as large (A) The plan must be operated by an electronic contact even when not otherwise as or larger than any other printing in the organization that is not owned or prohibited by paragraph (a), if: body of the communication or in any directed by the lawyer; (1) the target of the solicitation has made masthead on the communication. If more (B) The plan must be registered with known to the lawyer a desire not to be than one color or type of font is used in the North Carolina State Bar and com- solicited by the lawyer; or the electronic communication, then the ply with all applicable rules regarding (2) the solicitation involves coercion, font of the advertising notice shall match such plans; duress, or harassment, compulsion, in color, type, and size the largest and (C) The lawyer must notify the State intimidation, or threats. widest of the fonts. Nothing in the elec- Bar in writing before participating in a (c) Targeted Communications. Unless the tronic communication shall be more con- plan and must notify the State Bar no recipient of the communication is a person spicuous than the advertising notice. later than 30 days after the lawyer dis- specified in paragraphs (a)(1) or (a)(2), every (3) Recorded Communications. The continues participation in the plan; written, recorded, or electronic communica- advertising notice shall be clearly articu- (D) After reasonable investigation, the tion from a lawyer soliciting professional lated at the beginning and ending of the lawyer must have a good faith belief that employment from anyone known to be in recorded communication. the plan is being operated in compli- need of legal services in a particular matter (d) This Rule does not prohibit commu- ance with the Revised Rules of shall include the statement, in capital letters, nications authorized by law or ordered by a Professional Conduct and other perti- “THIS IS AN ADVERTISEMENT FOR court or other tribunal. nent rules of the State Bar; LEGAL SERVICES” (the advertising (d)(e) Notwithstanding the prohibitions (E) All advertisements by the plan rep- notice), which shall be conspicuous and sub- in paragraph (a) this Rule, a lawyer may resenting that it is registered with the ject to the following requirements: participate with a prepaid or group legal State Bar shall also explain that registra- (1) Written Communications. Written service plan in compliance with 27 N.C. tion does not constitute approval by the communications shall be mailed in an Admin. Code 1E.0301 et seq. that uses live State Bar; and envelope. The advertising notice shall be person-to-person contact to enroll mem- (F) Notwithstanding the prohibitions in printed on the front of the envelope, in a bers or sell subscriptions for the plan to paragraph (a), the plan may use in-per- font that is as large as any other printing persons who are not known to need legal son or telephone contact to solicit on the front or the back of the envelope. services in a particular matter covered by memberships or subscriptions provided: If more than one color or type of font is the plan, provide that, after reasonable (i) The solicited person is not known used on the front or the back of the enve- investigation, the lawyer must have a good to need legal services in a particular lope, the font used for the advertising faith belief that the plan is being operated matter covered by the plan; and notice shall match in color, type, and size in compliance with 27 N.C. Admin. Code (ii) The contact does not involve coer- the largest and widest of the fonts. The 1E.0301 et seq., and the lawyer’s participa- cion, duress, or harassment and the front of the envelope shall contain no tion in the plan does not otherwise violate communication with the solicited printing other than the name of the the Rules of Professional Conduct. subject person is not false, deceptive or mis- lawyer or law firm and return address, the to the following: leading. name and address of the recipient, and (1) Definition. A prepaid legal services Comment the advertising notice. The advertising plan or a group legal services plan (“a [1] A solicitation is a communication ini- notice shall also be printed at the begin- plan”) is any arrangement by which a per- tiated by the lawyer that is directed to a spe- ning of the body of the enclosed written son, firm, or corporation, not otherwise cific person and that offers to provide, or can communication in a font as large as or authorized to engage in the practice of reasonably be understood as offering to pro- larger than any other printing contained law, in exchange for any valuable consid- vide, legal services. Paragraph (b) prohibits a in the enclosed written communication. eration, offers to provide or arranges the lawyer from soliciting professional employ- If more than one color or type of font is provision of legal services that are paid for ment by live person-to-person contact used on the enclosed written communi- in advance of any immediate need for the when a significant motive for the lawyer’s cation, then the font of the advertising specified legal service (“covered services”). doing so is the lawyer’s or the law firm’s notice shall match in color, type, and size In addition to covered services, a plan pecuniary gain. In contrast, a A lawyer’s the largest and widest of the fonts. may provide specified legal services at fees communication typically does not constitute Nothing on the envelope or the enclosed that are less than what a non-member of is not a solicitation if it is directed to the gen- written communication shall be more the plan would normally pay. The North eral public, such as through a billboard, an conspicuous than the advertising notice. Carolina legal services offered by a plan Internet banner advertisement, a website or a (2) Electronic Communications. The must be provided by a licensed lawyer television commercial, or if it is in response advertising notice shall appear in the “in who is not an employee, director or to a request for information or is automati- reference” or subject box of the address or owner of the plan. A prepaid legal services cally generated in response to Internet elec- header section of the communication. No plan does not include the sale of an iden- tronic searches. other statement shall appear in this block. tified, limited legal service, such as draft- [2] “Live person-to-person contact”

THE NORTH CAROLINA STATE BAR JOURNAL 47 means in-person, face-to-face, live tele- advertisements and communications permit- the lawyer within the meaning of Rule phone and other real-time visual or audito- ted under Rule 7.2 can be permanently 7.3(b)(c)(1) is prohibited. Moreover, if after ry person-to-person communications, recorded so that they cannot be disputed and sending a letter or other communication as where the person is subject to a direct per- may be shared with others who know the permitted by Rule 7.2 the lawyer receives no sonal encounter without time for reflection. lawyer. This potential for informal review is response, any further effort to communicate Such person-to-person contact does not itself likely to help guard against statements with the recipient of the communication include chat rooms, text messages, or other and claims that might constitute false and may violate the provisions of Rule 7.3(b). written communications that recipients misleading communications, in violation of Contact to Establish Prepaid Legal may easily disregard. There is a potential for Rule 7.1. The contents of direct in-person, Service Plan abuse when a solicitation involves direct in- live telephone, or real-time electronic live [7] This Rule is does not intended to pro- person, live telephone, or real-time electronic person-to-person contact can be disputed hibit a lawyer from contacting representa- contact by a lawyer with someone known to and may not be subject to third-party scruti- tives of organizations or groups that may be need legal services. A potential for over- ny. Consequently, they are much more likely interested in establishing a group or prepaid reaching exists when a lawyer, seeking pecu- to approach (and occasionally cross) the legal plan for their members, insureds, bene- niary gain, solicits a person known to be in dividing line between accurate representa- ficiaries, or other third parties for the pur- need of legal services by live person-to-per- tions and those that are false and misleading. pose of informing such entities of the avail- son contact. These forms This form of con- [5] There is far less likelihood that a ability of and details concerning the plan or tact subjects a person to the private impor- lawyer would engage in abusive practices arrangement which the lawyer or lawyer’s tuning of the trained advocate in a direct overreaching against a former client, or a firm is willing to offer. This form of commu- interpersonal encounter. The person, who person with whom the lawyer has a close per- nication is not directed to people who are may already feel overwhelmed by the cir- sonal, or family, business, or professional seeking legal services for themselves. Rather, cumstances giving rise to the need for legal relationship, or in situations in which the it is usually addressed to an individual acting services, may find it difficult fully to evaluate lawyer is motivated by considerations other in a fiduciary capacity seeking a supplier of all available alternatives with reasoned judg- than the lawyer’s pecuniary gain. Nor is there legal services for others who may, if they ment and appropriate self-interest in the face a serious potential for abuse when the person choose, become potential prospective clients of the lawyer’s presence and insistence upon contacted is a lawyer or is known to routine- of the lawyer. Under these circumstances, the being retained immediately an immediate ly use the type of legal services involved for activity which the lawyer undertakes in com- response. The situation is fraught with the business purposes. Examples include per- municating with such representatives and the possibility of undue influence, intimidation, sons who routinely hire outside counsel to type of information transmitted to the indi- and overreaching. represent the entity; entrepreneurs who reg- vidual are functionally similar to and serve [3] This potential for abuse overreaching ularly engage business, employment, or the same purpose as advertising permitted inherent in direct in-person, live telephone, intellectual property lawyers; small business under Rule 7.2. or real-time electronic solicitation live per- proprietors who routinely hire lawyers for [8] Paragraph (c) of this Rule requires that son-to-person contact justifies its prohibi- lease or contract issues; and other people all targeted mail solicitations of potential tion, particularly because since lawyers have who routinely retain lawyers for business clients must be mailed in an envelope on alternative means of conveying necessary transactions or formations. Consequently, which the statement, “This is an advertise- information to those who may be in need of the general prohibition in Rule 7.3(a) and ment for legal services,” appears in capital legal services. In particular, communications the requirements of Rule 7.3(c) are not letters in a font at least as large as any other can be mailed or transmitted by email or applicable in those situations. Also, p printing on the front or the back of the enve- other electronic means that do not involve Paragraph (a) is not intended to prohibit a lope. The statement must appear on the real-time contact and do not violate other lawyer from participating in constitutionally front of the envelope with no other distract- laws governing solicitations. These forms of protected activities of public or charitable ing extraneous written statements other than communications and solicitations make it legal-service organizations or bona fide polit- the name and address of the recipient and possible for the public to be informed about ical, social, civic, fraternal, employee or trade the name and return address of the lawyer or the need for legal services, and about the organizations whose purposes include pro- firm. Postcards may not be used for targeted qualifications of available lawyers and law viding or recommending legal services to its mail solicitations. No embarrassing personal firms, without subjecting the public to direct members or beneficiaries. information about the recipient may appear in-person, telephone or real-time electronic [6] But even permitted forms of solicita- on the back of the envelope. The advertising live person-to-person persuasion that may tion can be abused. Thus, any A solicitation notice must also appear in the “in reference” overwhelm a person’s judgment. which that contains information which is or subject box of an electronic communica- [4] The use of general advertising and false or misleading information within the tion (email) and at the beginning of any written, recorded or electronic communica- meaning of Rule 7.1, which involves coer- paper or electronic communication in a font tions to transmit information from lawyer to cion, duress, or harassment, compulsion, that is at least as large as the font used for any the public, rather than direct in-person, live intimidation, or threats within the meaning other printing in the paper or electronic telephone or real-time electronic contact, of Rule 7.3(b)(c)(2), or which that involves communication. On any paper or electronic will help to assure that the information flows contact with someone who has made known communication required by this Rule to cleanly as well as freely. The contents of to the lawyer a desire not to be solicited by contain the advertising notice, the notice

48 FALL 2020 must be conspicuous and should not be mits a lawyer to participate with an organiza- (1) The intermediary organization does obscured by other objects or printing or by tion which uses personal contact to solicit not direct or regulate the lawyer’s profes- manipulating fonts. For example, inclusion enroll members for its group or prepaid legal sional judgment in rendering legal serv- of a large photograph or graphic image on service plan, provided that the personal con- ices to the client; the communication may diminish the tact is not undertaken by any lawyer who (2) The intermediary organization, prominence of the advertising notice. would be a provider of legal services through including its agents and employees, does Similarly, a font that is narrow or faint may the plan. The organization must not be not engage in improper solicitation pur- render the advertising notice inconspicuous owned by or directed (whether as manager or suant to Rule 7.3; if the fonts used elsewhere in the communi- otherwise) by any lawyer or law firm that (3) The intermediary organization cation are chubby or flamboyant. The font participates in the plan. For example, para- makes the criteria for inclusion available size requirement does not apply to a graph (d)(e) would not permit a lawyer to to prospective clients, including any pay- brochure enclosed with the written commu- create an organization controlled directly or ment made or arranged by the lawyer(s) nication if the written communication con- indirectly by the lawyer and use the organi- participating in the service and any fee tains the required notice. As explained in zation for the in-person or telephone person- charged to the client for use of the serv- 2007 Formal Ethics Opinion 15, the font to-person solicitation of legal employment of ice, at the outset of the client’s interac- size requirement does not apply to an the lawyer through memberships in the plan tion with the intermediary organization; insignia or border used in connection with a or otherwise. The communication permitted (4) The function of the referral arrange- law firm’s name if the insignia or border is by these organizations also must not be ment between lawyer and intermediary used consistently by the firm in official com- directed to a person known to need legal organization is fully disclosed to the munications on behalf of the firm. services in a particular matter, but is to must client at the outset of the client’s interac- Nevertheless, any such insignia or border be designed to inform potential plan mem- tion with the lawyer; cannot be so large that it detracts from the bers generally of another means of affordable (5) The intermediary organization does conspicuousness of the advertising notice. legal services. Lawyers who participate in a not require the lawyer to pay more than The requirement that certain communica- legal service plan must reasonably assure that a reasonable sum representing a propor- tions be marked, “This is an advertisement the plan sponsors are in compliance with tional share of the organization’s admin- for legal services,” does not apply to commu- Rule 7.3(d) 27 N.C. Admin. Code 1E.0301 istrative and advertising costs, including nications sent in response to requests of et seq., as well as Rules 7.1, 7.2 and 7.3(bc). sums paid in accordance with Rule potential clients or their spokespersons or See 8.4(a). 5.4(a)(6); and sponsors. General announcements by (6) The intermediary organization is not lawyers, including changes in personnel or Rule 7.4 Communication of Fields of owned or directed by the lawyer, a law office location, do not constitute communi- Practice and Specialization firm with which the lawyer is associated, cations soliciting professional employment Rule is deleted in its entirety. or a lawyer with whom the lawyer is from a client known to be in need of legal associated in a firm. services within the meaning of this Rule. Rule 7.5 Firm Names and Letterheads (c) If a lawyer discovers an intermediary [8] Communications authorized by law Rule is deleted in its entirety. organization’s noncompliance with Rule or ordered by a court or tribunal include a 7.4(b)(1)-(6), the lawyer shall either with- notice to potential members of a class in Rule 7.4 Intermediary Organizations draw from participation or seek to correct class action litigation. (a) An intermediary organization is a the noncompliance. If the intermediary [9] See Rule 7.2, cmt. [5] for the defini- lawyer referral service, lawyer advertising organization fails to correct the noncompli- tion of “electronic communication(s)” as cooperative, lawyer matching service, ance, the lawyer must withdraw from par- used in paragraph (c)(2) of this Rule. A online marketing platform, or other similar ticipation. lawyer may not send electronic or recorded organization that engages in referring con- Comment communications if prohibited by law. See, sumers of legal services to lawyers or facili- [1] The term “referral” implies that e.g., N.C. Gen. Stat. §75-104; Telephone tating the creation of lawyer-client relation- some attempt is made to match the needs of Consumer Protection Act 47 U.S.C. §227; ships between consumers of legal services the prospective client with the qualifica- and 47 CFR 64. “Real-time electronic con- and lawyers willing to provide assistance. A tions of the recommended lawyer. n tact” as used in paragraph (a) of this Rule is tribunal or similar government agency that distinct from the types of electronic commu- appoints or assigns lawyers to represent par- nication identified in Rule 7.2, cmt. [5]. ties before the tribunal or government Real-time electronic contact includes, for agency is not an intermediary organization example, video telephony (e.g., FaceTime) under this Rule. Thank You to Our during which a potential client cannot ignore (b) Before and while participating in an Meeting Sponsor or delay responding to a communication intermediary organization, the lawyer shall from a lawyer. make reasonable efforts to ensure that the Lawyers Mutual Liability Contact to Enroll Members in Prepaid intermediary organization’s conduct com- Insurance Company Legal Service Plan plies with the professional obligations of the [10][9] Paragraph (d)(e) of this Rule per- lawyer, including the following conditions:

THE NORTH CAROLINA STATE BAR JOURNAL 49 Resolution of Appreciation for A. Root Edmonson

he Council of the North Carolina State Bar in regu- lar quarterly session duly convened does hereby publish and adopt the res- olutionT set forth below: WHEREAS, A. Root Edmonson was employed as a trial attorney by the North Carolina State Bar on May 16, 1979, and has faithfully served the council as its lawyer in various capacities ever since. During his career on the State Bar’s legal staff he has, among other things, counseled the Grievance Committee, the Unauthorized Practice of Law Committee, and the Client Security Fund’s Board of Trustees. He has represented the State Bar in more legal pro- ceedings than any other attorney, including dozens of disciplinary trials and reinstate- ment hearings. For a period of 11 years longest walk you can ever take is from between 1980 and 1991, he served as coun- the entrance of Kenan Stadium to sel, and your seat in the company of Root WHEREAS, Root Edmonson has given Edmonson. Most of the hundreds of notice of his intention to retire as a member people you encounter will recognize of the Office of Counsel after a career of Root, dozens will insist on greeting unprecedented length and remarkable dis- him, and more than a few will indulge tinction. After 41 years, spanning six his passion for long discursive conver- decades and two centuries, Root is partici- sation. It’s ironic, he loves to go to pating in his last quarterly meeting of the football games and has probably never council, albeit remotely, and taking with seen a kickoff. It relates to one of the him into retirement a disproportionate primary reasons he is so beloved. He amount of the organization’s heart and soul, always has time for other people, no and a considerable portion of its institution- matter what.” al memory. Under these circumstances it is As a member of the State Bar’s staff, entirely fitting that we now formally consid- Root has served the profession and his fellow alism rather than preaching it. He has culti- er, at long last, the dimensions of his charac- man in myriad ways. Let us now reflect vated empathy in our young lawyers and has ter, his stature in the legal profession, and upon some of the roles he has played. modeled compassion instead of condemna- the quality of his service to the State Bar and As a friend and colleague he has been tion. He has publicly and persistently insist- the people of North Carolina. dependable and inexhaustible. He has reli- ed on doing the right thing, not the easy or Though not susceptible of proof, it can- ably and sensitively embraced us all in times expedient thing. And he has often been not be doubted that Root Edmonson leaves of exhilaration, crisis, triumph, and grief. He observed doing his clients the great service us as the best known and best liked person has always done what was required, and of not telling them what they want to hear. ever to work for this agency. For legions of often more than his share, with grace, style, As a prosecutor he has been a zealous and lawyers he is the face of the State Bar and is and humility. He has inspired us to be better effective advocate who has never taken widely acknowledged to represent what we people and better lawyers. unfair advantage. He has unfailingly hon- should all aspire to be as lawyers and human As a mentor he has taught by example ored the humanity and dignity of his legal beings. As a colleague once observed, “[T]he and by storytelling, personifying profession- adversaries and, especially, their clients. He

50 FALL 2020 has consistently endeavored to make profes- sional discipline meaningful rather than mean. And no one at the State Bar has ever been more observant of the prosecutor’s fun- damental obligation to “do justice.” For Root Edmonson, the only victory in a disci- plinary case is an outcome that fairly serves the public interest while taking fully into account the possibility of reformation. Incredibly, most of the people he has opposed in such matters seem to have ulti- mately come to respect the State Bar’s posi- tion and to appreciate the decency and integrity of Root’s actions on its behalf. As a legal troubleshooter, Root has put the State Bar’s best foot forward in difficult cases in tribunals throughout the State. More often than not, of course, his appear- ances have simply required the technical legal skills that all of the State Bar’s lawyers understood that by collectively underwriting Since assuming his position as counsel to possess but, occasionally, it has been neces- the integrity of the Bar through the Client the Client Security Fund in 1996, he has sary for him to deploy a remarkable talent Security Fund, lawyers have justified in large also been very active in the National Client that is his alone. As it happens, Root measure the privilege of self-regulation. In Protection Organization, serving as its pres- Edmonson has an uncanny ability to facili- support of the fund’s critical mission, Root ident from 2004 to 2006. His service to and tate dialogue and civility among lawyers and has facilitated a culture of responsible liber- leadership of these important national judges who appear to be incapable of either ality within the board that promotes the res- organizations has been quite significant. He in the midst of hotly contested legal pro- olution of doubt in favor of the innocent has been instrumental in formulating rules, ceedings. Root is the profession’s peacemak- victim and ultimately enhances the public’s policies, and procedures that have vastly er. Time after time he has been able to trust in the legal profession. It may be his improved the profession’s regulation of restore professional decorum in explosive greatest legacy. itself. And in so doing, he has always been situations, often, it would seem, simply by And, finally, as a member of the profes- identified by those present and participat- showing up and bringing his incomparable sion at large, Root has brought great credit ing as the wise and exceptionally personable personality to bear. Perhaps not surprisingly, to the North Carolina State Bar. Active in lawyer from North Carolina, our most people find it hard to be unprofessional in various state and local voluntary bar associ- highly esteemed ambassador for many, his presence. How can such a man ever be ations, he has also been highly visible on the many years. replaced? national scene, principally as a dedicated NOW THEREFORE, BE IT As staff counsel to the Client Security member of the National Organization of RESOLVED that the Council of the North Fund, Root has carefully guided the Board Bar Counsel. In 2011 he received its Carolina State Bar does with surpassing of Trustees in its application of the program’s President’s Award for lifetime achievement affection and appreciation acknowledge the rules. From the program’s inception he has in the field of professional responsibility. splendid service of its lawyer, A. Root Edmonson, and expresses to him in this public statement the unqualified respect, admiration, and gratitude of the lawyers of North Carolina for his efforts on their behalf for the benefit of the public. BE IT FURTHER RESOLVED that a copy of this resolution be made a part of the minutes of this meeting of the council and that copies be published in the State Bar Journal and delivered to A. Root Edmonson. Adopted by the Council of the North Carolina State Bar unanimously by acclama- tion, this the 24th day of July, 2020.

C. Colon Willoughby Jr., President Alice Neece Mine, Secretary

THE NORTH CAROLINA STATE BAR JOURNAL 51 BAR UPDATES

Client Security Fund Reimburses Victims

At its July 23, 2020, meeting, the North client obligations. Coleman was disbarred on 9. An award of $1,500 to a former client Carolina State Bar Client Security Fund June 4, 2020. of Peter S. Coleman. The board determined Board of Trustees approved payments of 5. An award of $2,500 to a former client that Coleman was retained to handle a real $150,954.85 to 32 applicants who suffered of Peter S. Coleman. The board determined estate closing for a client. The client’s earnest financial losses due to the misconduct of that the client asked Coleman to hold a money check was negotiated and deposited North Carolina lawyers. In addition, the renter’s security deposit in his trust account into Coleman’s trust account. However, the board’s counsel reimbursed one claim total- in a fiduciary capacity. When the client was closing did not occur before Coleman was ing $1,273.10 for a title insurance premium able to open her own account for the security enjoined from handling entrusted funds, and paid by a client of John Lafferty pursuant to deposits, she asked Coleman to return the Coleman failed to refund the payment. Due the guidelines established by the board at its funds, and he failed to return the funds. Due to misappropriation, Coleman’s trust account meeting in October 2019. to his misappropriation, Coleman’s trust balance is insufficient to pay all of his client The payments authorized were: account balance is insufficient to pay all of his obligations. 1. An award of $2,000 to a former client client obligations. 10. An award of $10,000 to a former of Sarah J. Brinson of Clinton. The board 6. An award of $10,000 to former clients client of George L. Collins of Jacksonville. determined that Brinson was retained to file of Peter S. Coleman. The board determined The board determined that Collins was a U-visa petition for a client. Brinson failed that Coleman handled a real estate closing in retained to handle a client’s domestic matters. to file the petition or provide any meaningful which the buyer deposited the required The separation agreement was not finalized services for the fee paid. Brinson was dis- escrow funds into Coleman’s trust account. or signed prior to the client’s spouse termi- barred on August 7, 2019. The board previ- The sale fell through and the sellers requested nating communication with his attorney, and ously reimbursed four other Brinson clients a that Coleman release the escrow funds to the client then terminating Collins. Collins total of $12,310. them. Coleman responded that the sellers failed to provide any meaningful legal servic- 2. An award of $1,585 to a former client needed to get the contract canceled to protect es for the fee paid prior to being fired by the of Sarah J. Brinson. The board determined their ability to list the property again. The client. Collins died on April 16, 2020. that Brinson was retained to file a I-130 peti- sellers did not hear further from Coleman 11. An award of $2,500 to a former client tion for the claimant’s husband. Brinson and did not receive the funds prior to of Matthew C. Coxe of Jacksonville. The failed to file the petition or provide any Coleman being jailed for forgery. Coleman’s board determined that Coxe was retained to meaningful services for the fee paid. trust account balance is insufficient to pay all handle a client’s criminal charges. Coxe failed 3. An award of $2,615 to a former client of his client obligations. to provide meaningful legal services for the of Sarah J. Brinson. The board determined 7. An award of $25,000 to a former client fee paid. Coxe’s license was suspended on that Brinson was retained to handle an appli- of Peter S. Coleman. The board determined September 9, 2019. cation for a CR-1 visa for a client. The client that Coleman handled a real estate closing in 12. An award of $5,000 to a former client paid for, and Brinson handled, the first part which he retained funds from the closing pro- of Bruce T. Cunningham of Southern Pines. of the process. After the client paid for ceeds to cover any potential additional charges The board determined that a claimant Brinson’s handling of the second part of the to get the mortgage canceled. However, when retained Cunningham to file an MAR for her process, Brinson failed to file any documents the deed of trust was marked satisfied in the son. Cunningham failed to file the MAR and refused to refund the funds paid. public record, Coleman failed to disburse prior to his death. Cunningham died on July 4. An award of $1,520.45 to an applicant those retained funds back to the client. Due to 5, 2019. The board previously reimbursed who suffered a financial loss because of Peter misappropriation, Coleman’s trust account several other Cunningham clients a total of S. Coleman of Raleigh. The board deter- balance is insufficient to pay all of his client $62,840.00. mined that Coleman handled a real estate obligations. 13. An award of $2,500 to a former client closing in which the buyer used funds from 8. An award of $1,469.24 to a former of Bruce T. Cunningham. The board deter- the applicant for the purchase. Coleman col- client of Peter S. Coleman. The board deter- mined that a client retained Cunningham to lected funds from the buyer to pay unpaid mined that Coleman handled a real estate file an MAR. Cunningham failed to file the property taxes in conjunction with the trans- closing for a client, but failed to make all MAR prior to his death. action. Coleman failed to pay the taxes prior proper disbursements from the sales pro- 14. An award of $3,105 to a former client to his trust account being enjoined due to ceeds. Due to misappropriation, Coleman’s of Bruce T. Cunningham. The board deter- misappropriation. Coleman’s trust account trust account balance is insufficient to pay all mined that a client retained Cunningham to balance is insufficient to satisfy all of his of his client obligations. file an MAR to get his consecutive sentences

52 FALL 2020 consolidated to concurrent sentences. reimbursed seven other Gray clients a total of Leigh owed for unpaid income and with- Cunningham failed to file the MAR prior to $40,700. holding taxes for several years. Leigh failed to his death. 23. An award of $2,500 to a former client pay his taxes and failed to protect his clients’ 15. An award of $5,000 to a former client of John F. Hanzel of Cornelius. The board separate property from seizure by the IRS. of Bruce T. Cunningham. The board deter- determined that a client retained Hanzel to Leigh was disbarred on November 13, 2019. mined that Cunningham was retained to open an estate for his deceased sister and to The board previously reimbursed three other handle the direct appeal of a claimant’s represent him as the personal representative Leigh clients a total of $8,233.83. grandson’s conviction. Cunningham failed to for the estate. Hanzel accepted the represen- 28. An award of $600 to a former client file anything prior to his death. tation knowing he was already disbarred for of Clinton F. Moore of Charlotte. The board 16. An award of $2,500 to a former client dishonest conduct, and failed to provide any determined that Moore was retained to file of Bruce T. Cunningham. The board deter- meaningful services for the fee paid. Hanzel for divorce for a client. The client reconciled mined that Cunningham was retained to was disbarred effective on October 16, 2019. with his spouse and requested a refund soon negotiate with the assistant district attorney The board previously reimbursed one other thereafter, before Moore could do any work as to a client’s second conviction, but Hanzel client a total of $2,000. on the case. Although Moore said multiple Cunningham failed to do so prior to his 24. An award of $3,700 to a former client times that he would refund the fee, he failed death. of John F. Hanzel. The board determined to do so and stopped communicating with 17. An award of $750 to a former client that Hanzel was retained to pursue a foreclo- the client. Moore was disbarred on October of Bruce T. Cunningham. The board deter- sure action for a client. Hanzel failed to initi- 16, 2019. mined that Cunningham was retained to ate the filing of the foreclosure action until 29. An award of $1,900 to a former client review a client’s conviction. There is no evi- after the order was entered disbarring him. of Suzanne A. Nelson of Raleigh. The board dence that Cunningham was able to review Hanzel also failed to properly wind up the determined that a client retained Nelson to anything prior to his death. matter during the wind down of his practice represent her as a potential defendant in an 18. An award of $4,000 to a former client or otherwise inform the client that he could alienation of affection and criminal conversa- of Bruce T. Cunningham. The board deter- not finish the matter. tion lawsuit. Nelson began representing the mined that a client retained Cunningham to 25. An award of $9,850 to a former client client’s paramour in the related divorce file an MAR. Cunningham failed to file the of David V. Hartley of Cary. The board action, and then told the client she could not MAR prior to his death. determined that Hartley was retained to rep- represent her due to the conflict of interest. 19. An award of $3,880 to a former client resent a client on criminal charges. Hartley Nelson failed to provide any meaningful legal of Bruce T. Cunningham. The board deter- failed to provide any meaningful legal servic- services to the client for the fee paid. The mined that Cunningham was retained to rep- es for the fee paid prior to getting sick and board previously reimbursed one other resent a client on an MAR that was expected eventually passing away. Hartley died on Nelson client a total of $2,000. to get an evidentiary hearing. Cunningham September 23, 2019. 30. An award of $2,250 to a former client failed to file the MAR prior to his death. 26. An award of $15,688.52 to a former of Suzanne A. Nelson. The board determined 20. An award of $4,000 to a former client client of John O. Lafferty Jr. of Lincoln. The that a client retained Nelson for representa- of Bruce T. Cunningham. The board deter- board determined that Lafferty was retained tion in an action for divorce, alimony, post- mined that a client retained Cunningham to to represent the estate of a client’s mother. separation support, and equitable distribu- file an MAR. Cunningham failed to file the After preparing an inventory and final tion. Nelson neglected the client’s matter and MAR prior to his death. accounting, Lafferty was disbarred and sent provided no meaningful legal services for the 21. An award of $6,576.64 to a former the client the estate documents to file with fee paid. client of Michael S. Eldredge formerly of the clerk. Lafferty also sent the client a check 31. An award of $7,950 to a former client Lexington. The board determined that from his operating account, which included of Suzanne A. Nelson. The board determined Eldredge was retained to handle a client’s per- the client’s share of his mother’s estate and that a client retained Nelson to handle an sonal injury case. Eldredge settled the case reimbursement for estate-related fees the adoption and termination of parental rights without the client’s knowledge or consent, client had paid, but the client failed to nego- for the client’s niece and nephew. Nelson pro- embezzled the funds, and failed to pay any of tiate the check. Due to misappropriation, vided no meaningful legal services for the fee the settlement proceeds to the client or his Lafferty’s trust account balance was insuffi- and court costs paid. medical providers. Eldredge was disbarred on cient to pay all of his client obligations. 32. An award of $1,515 to a former client August 17, 2017. The board previously reim- Lafferty was disbarred on May 5, 2019. The of Katherine H. Pekman of Hickory. The bursed seven other Eldredge clients a total of board previously reimbursed eight other board determined that Pekman was retained $76,737.92. Lafferty clients a total of $128,906.18. to file a divorce and custody matter for a 22. An award of $5,000 to a former client 27. An award of $2,000 to a former client client. After Pekman stopped providing legal of Clifton J. Gray III of Lucama. The board of Gary S. Leigh of Shelby. The board deter- services to and communicating with the determined that Gray was retained to repre- mined that Leigh handled a personal injury client, Pekman failed to refund the remainder sent a client on criminal charges. Gray failed case for a client. Leigh sent the client a check of the advance fee the client paid. Pekman to provide any meaningful legal services for for her share of the settlement proceeds, but was suspended on April 15, 2019. The board the fee paid. Gray was suspended on the check was returned due to an IRS hold previously reimbursed three other Pekman December 15, 2016. The board previously on Leigh’s trust account to recover funds clients a total of $5,732. n

THE NORTH CAROLINA STATE BAR JOURNAL 53 BAR UPDATES

Law School Briefs

Campbell University School of Law fessor of law and director of the First under the supervision of Troutman Pepper Campbell Law School plans to expand the Amendment Clinic on July 1. She had attorneys—to charitable organizations facing Blanchard Community Law Clinic’s efforts served, since July 2017, as associate dean of coronavirus-related challenges ranging from tied to the The Second Chance Act, which academic affairs at Campbell University’s CARES Act loans and loan forgiveness to improves the ability of North Carolina resi- Norman Adrian Wiggins School of Law, employment law to liability issues. dents to remove prior non-violent criminal where she also taught courses in constitution- Civil Legal Assistance Clinic and immi- convictions from their records. Since its al law, information privacy, and civil proce- grant advocates launch Spanish-language founding in 2016, the clinic has helped citi- dure. She was previously an associate profes- eviction hotline—A day after the expiration zens move forward with their lives following sor of law at Campbell Law, where she was of a statewide moratorium on eviction cases, incarceration and involvement with the crim- granted tenure in 2015. She earlier taught the clinic partnered with Siembra NC to inal justice system. The clinic partners with legal writing at Duke Law and practiced law launch a hotline for Latinx tenants to identify Triangle-area community nonprofits to pro- in Washington, DC, and New York. Her whether their dwellings are covered under the vide free legal services to low-income individ- scholarship has examined the implications of CARES Act, and present them with informa- uals. Pro bono criminal record expunction tenure for the speech of professors and meth- tion to help them advocate for themselves in efforts have been a mainstay of the clinic that ods for deterring the misuse of personally eviction hearings. has helped more than 400 individuals over identifiable information. NCCU and UNC-Chapel Hill law schools the past four years. Campbell Law hopes to The Children’s Law Clinic at Duke Law partner to revive veterans clinic—The expand the clinic’s current efforts to meet has released a report on North Carolina’s schools are collaborating to meet the ongoing what is expected to be a big rise in expunction school voucher program. “School Vouchers in needs of current and former service members petitions, as well as to enable file reviews of North Carolina 2014-2020” presents a in North Carolina. This partnership will sup- former clients who might now be deemed eli- detailed six-year review of the Opportunity port the universities’ joint effort in assisting gible. A “Second Chance” fundraising cam- Scholarship Program, which provides taxpay- active military personnel, veterans, and their paign has launched at app.mobilecause.com er-funded scholarships to low- and moderate- families who might otherwise not be able to /vf/Blanchard with a goal to raise at least income students to assist with the payment of afford proper representation. $100,000 to hire additional clinic staff over tuition at private schools. Included are up-to- Veterans Advocacy Legal Organization two years. date facts and figures about the cost, participa- receives UNC public service awards—The Campbell Law plans to host its annual tion, academic outcomes, and evaluation of student group was recognized for its spring day-long “Campbell Law Speaks CLE” on the program, as well as a program analysis and break pro bono trip. Many homeless veterans Friday, October 23, but with a twist. All recommendations. The report’s release follows with service-related health issues who seek Campbell Law alumni are invited and the introduction of several bills in the state’s medical care are not fully supported due to encouraged to attend the CLE, which will be General Assembly that represent divergent benefit restrictions and discharge characteri- held virtually for the first time, says Assistant views on the continuation of the program. zations. Students spent time completing the Dean of External Relations Megan West Professor Brandon Garrett, faculty direc- intake process for service members in Sherron. Earn six hours of CLE credit tor of the Duke Law Center for Science and Asheville, NC. (including one hour of ethics credit) and hear Justice, has co-authored “Changing Policing: Research on court fines and poverty influ- Campbell lawyers from across the state speak First Steps,” a slate of urgently needed polic- ences Federal Reserve survey—The Survey of on a variety of hot topics in the legal commu- ing reform measured to be implemented at Household Economics and Decisionmaking nity. Registration is available at app.mobile- the federal, state, and local levels. His co- included a new question based on research cause.com/form/ceR1HQ?vid=9qhos. authors of the reports are faculty who run or about debt people face from court fines and “Campbell Law has a wealth of leaders in the are associated with academic research centers fees by Professor Gene Nichol, Heather legal community, and we’re fortunate that so devoted to policing and the criminal justice Hunt, ’02 and students. many of them enjoy sharing their expertise,” system. Professor Annie Scardulla joins the Sherron said. Writing and Learning Resources Center— University of North Carolina School Scardulla teaches research, reasoning, writing, Duke Law School of Law and advocacy. Sarah Ludington, a respected scholar in COVID-19 Response Project addresses Fall classes begin earlier—Due to the fields of free speech and privacy law, legal needs of nonprofits—This summer, a COVID-19, the fall semester started two joined the Duke Law faculty as a clinical pro- team of eight law students offered help— weeks earlier than usual, on August 10. n

54 FALL 2020 THE NORTH CAROLINA STATE BAR JOURNAL 55 The North Carolina State Bar PO Box 25908 Raleigh, NC 27611

Fall 2020