THE NORTH CAROLINA STATE BAR

SPRING JOURNAL2013

IN THIS ISSUE Call 4All—The Opportunity and Need for Pro Bono Service page 12 “So, How Much is My Case Worth?” page 18 Meet the Federal Judges—Judge Max O. Cogburn Jr. page 22

THE NORTH CAROLINA STATE BAR JOURNAL

Spring 2013 FEATURES Volume 18, Number 1 12 Call 4All—The Opportunity and Editor Need for Pro Bono Service Jennifer R. Duncan By Debbie Hildebran-Bachofen

Publications Committee 14 “[A]lmost Nothing in Ready G. Gray Wilson, Chair Dorothy Bernholz, Vice-Chair Change”—The 19th Century Law Lauren Collins Practice of David Swain Harry B. Crow Margaret H. Dickson By Willis P. Whichard Rebecca Eggers-Gryder Forrest A. Ferrell 18“So, How Much is My Case Worth?” Douglas R. Gill By Shannon B. English James W. Hall Anna Hamrick Charles Hardee 22 Meet the Federal Judges—Judge Darrin D. Jordan Max O. Cogburn Jr. Sonya C. McGraw By Michelle Rippon Robert Montgomery Nancy Black Norelli Harold (Butch) Pope 24Lobsters and Lawyers: Barbara B. Weyher Professionalism and Our Alan D. Woodlief Jr. Shared Capital By Woody Connette © Copyright 2013 by the North Carolina State Bar. All rights reserved. Periodicals postage paid at Raleigh, NC, 26The Liar’s Paradox and additional offices. Opinions expressed by contributors By Gary Brian Ernst Jr. are not necessarily those of the North Carolina State Bar. 2012 Fiction Writing Competition POSTMASTER: Send address changes to the North Third Prize Winner Carolina State Bar, PO Box 25908, Raleigh, NC 27611. The North Carolina Bar Journal invites the submission of unsolicited, original articles, essays, and book reviews. Submissions may be made by mail or e-mail (ncbar@bell- south.net) to the editor. Publishing and editorial decisions are based on the Publications Committee’s and the editor’s judgment of 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 manu- scripts.

www.ncbar.gov Update Membership Information: Members who need to update their membership information must do so by contacting the Membership Department via one of the four PRINTED ON RECYCLED PAPER following methods: (1) log on to the Member Access section of the State Bar’s website (www.ncbar.gov); (2) mail changes to: NC State Bar, Membership Dept., PO Box 26088, Raleigh, NC 27611-5908; (3) call (919) 828-4620; or (4) send an e-mail to [email protected]. In deciding what address to list with the State Bar, be advised that this address will be used for all official correspondence from the State Bar and that membership information is a public record pursuant to the NC Public Records Act.

THE NORTH CAROLINA STATE BAR JOURNAL 3 Officers Betsy C. Barham, Receptionist M. Keith Kapp, Raleigh - President 2012-2013 Tim Batchelor, Field Auditor Ronald G. Baker Sr., Ahoskie - President-Elect 2012-2013 Kelly Beck, Compliance Coordinator, Membership/CLE Ronald L. Gibson, Charlotte - Vice-President 2012-2013 Krista Bennett, Fee Dispute Facilitator, ACAP L. Thomas Lunsford II, Raleigh - Secretary-Treasurer Michael D. Blan, Systems Analyst/Programmer James R. Fox, Winston-Salem - Past-President 2012-2013 Peter Bolac, District Bar Liaison/Trust Account Compliance Counsel Councilors Elizabeth E. Bolton, Receptionist DEPARTMENTS By Judicial District Eddie Capel, Investigator 1: Donald C. Prentiss, Elizabeth City Becky B. Carroll, Paralegal 2: G. Thomas Davis Jr., Swan Quarter Joseph D. Cerone, Office Manager 6 President’s Message 3A: Charles R. Hardee, Greenville Alyssa M. Chen, Deputy Counsel 3B: Debra L. Massie, Beaufort Margaret Cloutier, Senior Deputy Counsel 8 State Bar Outlook 4: Robert W. Detwiler, Jacksonville Joseph J. Commisso, Director of Investigations 5: Harold L. Pollock, Burgaw Luella C. Crane, Director of ACAP 30 Profile in Specialization 6A: Gilbert W. Chichester, Roanoke Rapids Sharon Denton, Events Manager Jennifer R. Duncan, Director of Communications 32 6B: Lloyd C. Smith Jr., Windsor Lawyer Assistance Program 7: Randall B. Pridgen, Rocky Mount A. Root Edmonson, Deputy Counsel Kelly Farrow, Asst. Dir., Paralegal Certification 35 The Disciplinary Department 8: Shelby D. Benton, Goldsboro 9: Paul J. Stainback, Henderson Martha Fletcher, Admin. Asst., Administration 36 IOLTA Update 9A: R. Lee Farmer, Yanceyville Towanda Garner, Piedmont LAP Coordinator 10: Nicholas J. Dombalis II, Raleigh Lanice Heidbrink, Exec. Asst., Administration 38 Legal Ethics Theodore C. Edwards II, Raleigh Jeffery Hill, Computer Systems Administrator John N. (Nick) Fountain, Raleigh Leanor Hodge, Deputy Counsel 40 Paralegal Certification David W. Long, Raleigh Joshua Hoffman, Admin. Asst., Office of Counsel Debra P. Holland, Asst. Director, CLE 41 Trust Accounting Donna R. Rascoe, Raleigh Sally H. Scherer, Raleigh Buffy Holt, Admin. Asst., LAP 42 Proposed Ethics Opinions John M. Silverstein, Raleigh Tammy Jackson, Membership Director Cynthia L. Wittmer, Raleigh Katherine Jean, Counsel and Assistant Executive Dir. 46 Rule Amendments 11A: Donald E. Harrop Jr., Dunn David R. Johnson, Deputy Counsel 11B: Marcia H. Armstrong, Smithfield Barbara Kerr, Archivist 12: Lonnie M. Player Jr., Fayetteville Cathy D. Killian, Clinical Case Manager, LAP Melanie Kincaid, Paralegal BAR UPDATES 13: Harold G. Pope, Whiteville 14: John A. Bowman, Durham Erica Leventhall, Grant Data Asst., IOLTA William S. Mills, Durham Suzanne Lever, Asst. Ethics Counsel Joyce L. Lindsay, Exec. Asst., Administration 49 15A: Steven H. Messick, Burlington Client Security Fund 15B: Dorothy Bernholz, Chapel Hill L. Thomas Lunsford II, Executive Director Adam Maner, Professional Organization Coordinator 50 Law School Briefs 16A: William R. Purcell II, Laurinburg 16B: C. Christopher Smith, Lumberton Beth McIntire, IT Manager 52 Distinguished Service Award 17A: Joseph G. Maddrey, Eden Beth McLamb, Payment Coordinator, Membership 17B: Thomas W. Anderson, Pilot Mountain Nichole P. McLaughlin, Deputy Counsel 54 In Memoriam 18: Barbara R. Christy, Greensboro Barry S. McNeill, Deputy Counsel Robert C. Cone, Greensboro Diane Melching, Admin. Asst., ACAP 18H: Richard S. Towers, High Point Sandra R. Melvin, Office Manager (Retiring) 19A: James D. Foster, Concord Dottie K. Miani, Facilities Manager/Deputy Clerk of DHC 19B: W. Edward Bunch, Asheboro Claire U. Mills, Accounts Manager, IOLTA 19C: Darrin D. Jordan, Salisbury Alice Neece Mine, Asst. Executive Dir., Dir. of CLE, 19D: Douglas R. Gill, Southern Pines Specialization, & Paralegal Certification 20A: Frederick D. Poisson Jr., Wadesboro Robynn E. Moraites, LAP Director 20B: Harry B. Crow Jr., Monroe George Muench, Investigator 21: Michael L Robinson, Winston-Salem Denise Mullen, Asst. Director of Specialization G. Gray Wilson, Winston-Salem Pat Murphy, Deputy Counsel 22: Kimberly S. Taylor, Taylorsville Loriann Nicolicchia, Accreditation Coordinator, CLE 22B: Roger S. Tripp, Lexington Emily Oakes, Attendance/Compliance Coordinator, CLE 23: John S. Willardson, Wilkesboro Brian Oten, Deputy Counsel 24: Rebecca Eggers-Gryder, Boone Lisanne Palacios, Accounting Manager 25: Forrest A. Ferrell, Hickory Heather Pattle, Administrator, Office of Counsel 26: Robert J. Bernhardt, Charlotte C. Fred Patton Jr., Investigator A. Todd Brown, Charlotte Wondella Payne, Paralegal Mark Henriques, Charlotte Scott Perry, AP Investigator F. Fincher Jarrell, Charlotte Aaliyah Pierce, Acct. Data Asst., IOLTA Dewitt McCarley, Charlotte Angel Pitts, Mail/Copy Accounting Clerk Mark W. Merritt, Charlotte Jennifer Porter, Deputy Counsel The North Carolina State Bar Journal (ISSN Nancy Black Norelli, Charlotte Evelyn Pursley, Executive Dir., IOLTA 10928626) is published four times per year in 27A: Sonya Campbell McGraw, Gastonia Sonja B. Puryear, Admin. Asst., Investigations Lori Reams, Admin. Asst., Office of Counsel March, June, September, and December under 27B: Ralph W. Meekins, Lincolnton 28: Howard L. Gum, Asheville Joan Renken, Admin. Asst., LAP the direction and supervision of the council of 29A: Marvin R. Sparrow, Rutherfordton Randall C. Ross, Investigator Whit Ruark, Investigator the North Carolina State Bar, PO Box 25908, 29B: Margaret M. Hunt, Brevard 30: Gerald R. Collins Jr., Murphy Sandra L. Saxton, Public Liaison, ACAP Raleigh, NC 27611. Member rate of $6.00 per Fern Gunn Simeon, Deputy Counsel Jaya Singh, Accounting Asst. year is included in dues. Nonmember rates Public Members Jennifer Slattery, Paralegal $10.78 per year. Single copies $3.21. The Margaret H. Dickson, Fayetteville Judith Treadwell, Public Liaison, ACAP Lawyer’s Handbook $10.78. Advertising rates Paul L. Fulton, Winston-Salem Wayne C. Truax, Investigator James W. Hall, Ahoskie Edmund F. Ward, Asst. Director, LAP available upon request. Direct inquiries to A. Dawn Whaley, Admin. Asst., Investigations Director of Communications, the North Edward R. White, Investigator Staff Mary D. Winstead, Deputy Counsel Carolina State Bar, PO Box 25908, Raleigh, Roger Allen, Investigator Christiane Woods, Admin Asst., Investigations North Carolina 27611, tel. (919) 828-4620. Carmen H. Bannon, Deputy Counsel Sonya Zell, Paralegal

4 SPRING 2013

THE PRESIDENT’S MESSAGE

Mentors and Mentoring

B Y M. KEITH K APP

grew up in Rural Hall—a small lieutenant governor of the Kiwanis, which next summer with White and Crumpler town in northern Forsyth sponsors Key Clubs. He provided valuable sparked my interest in trial and appellate law County—in a family of mostly guidance during convention planning and, and persuaded me that criminal practice was farmers and businessmen who as I spent time with him, opened for me a not my first choice. avoided lawyers as new understanding of the I have some empathy with new lawyers muchI as possible. To my many opportunities a law having trouble starting their careers during knowledge, I met only three degree can offer, and an the “Great Recession.” The “Carter malaise” lawyers before I left home appreciation for civic contri- did not cause as deep a trough, but it did put for college. The first—and butions lawyers make. a dent in legal job opportunities the year I probably the most impor- Hamilton C. Horton was graduated and passed the bar. Fortunately, I tant in my life—was Annie the third lawyer I remember found two short-term positions that had Vest Russell, my great- meeting. A fine attorney as long-term impacts on my career. I started grand-aunt. Aunt Annie well as a respected and effec- my practice clerking for Judge Earl Vaughn graduated from Salem tive member of the legisla- of the North Carolina Court of Appeals College in 1903, taught for ture, Senator Horton was on and, because my wife had a good job with several years, and then the local committee that state government and we wanted one more moved to Washington, DC, interviewed me for the year in Raleigh, moved to the North where she earned her law Morehead Scholarship and Carolina Supreme Court for a clerkship degree during the Depression from the night took an interest in my advancement. Our with Justice J. Frank Huskins. Two years school of George Washington University. personal and professional friendship contin- with excellent appellate judges opened a She joined the office of the United States ued until he passed away. window to two lifetimes of wisdom about Solicitor General, where she wrote tax briefs At UNC-Chapel Hill I had the good for- law, government, politics, and life. to be argued before the Federal Circuits and tune to encounter lawyers from several gen- Two years in Raleigh turned into three the United States Supreme Court during the erations, in large part through shared inter- decades and counting, as Charles Neely— Roosevelt, Truman, and Eisenhower admin- ests in the Di-Phi Societies and Di-Phi the young lawyer who impressed me on the istrations. Foundation. John Sanders, then vice-presi- Di-Phi Foundation—recruited me to During my growing-up years, dent of the University of North Carolina Maupin, Taylor and Ellis (now the North Washington shut down for most of August, and former director of the Institute (now Carolina offices of Williams Mullen). What and Aunt Annie would come south for sev- School) of Government, was exceptionally novice North Carolina lawyer could possibly eral weeks and “hold court” in the old family generous in sharing his vast knowledge of have better legal mentors than Armistead home. She intimidated plenty of people, law and government and discussing our Maupin, T. Taylor, and Tom Ellis? including most of the males in that part of shared interest in North Carolina history. This is a short list of the fine lawyers who the county. I will never forget one Sunday Charles Neely, a young lawyer in Raleigh, have been my mentors thus far. Perhaps you when, during a particularly boring harangue impressed me with his determination to have a similar list of men and women who masquerading as a sermon, she leaned over make his family’s century-old firm into a have encouraged, advised, and inspired you. to me and whispered, “Bull****!” I wasn’t major player. I fear, however, that many of today’s young quite sure whether I wanted to be just like Despite these fine examples, the first year attorneys do not and will not have the Aunt Annie, but I was impressed that a of law school was a tough time for me, and chance to learn the profession under the grown-up, particularly a woman, would I was not certain I would be back for the sec- generous wings of mature colleagues. With make her views known so confidently. ond. My mind was made up, however, by a summer clerkships drying up and numbers I met my second lawyer in high school, terrific experience as summer clerk with of law school graduates far outstripping when I served as regional lieutenant gover- Hall, Booker, Scales and Cleland in jobs, lawyers are hanging out their shingles nor of the Key Clubs and had the responsi- Winston-Salem. In 1978, first-year clerk- and learning “on the job” as solo practition- bility of hosting the convention for the Key ships were rare, and my opportunity to learn ers. Sadly, the State Bar is seeing a rise in Clubs of North and South Carolina. John from good, versatile lawyers engaged in the complaints, grievances, and Disciplinary D. Eller, a well-respected tax, estate, and day-to-day reality of legal practice convinced business attorney in Winston-Salem, was me that I had chosen the right career. The CONTINUED ON PAGE 11

6 SPRING 2013 We want your fiction! Tenth Annual Fiction Writing Competition

Rules for the Fiction Writing Competition 4. Articles should not be more than 5,000 words in length and 1. The competition is open to any member in good standing of should be submitted in an electronic format as a text document. the North Carolina State Bar, except current members of the 5. Articles will be judged without knowledge of the identity of the Publications Committee, as well as North Carolina State Bar author’s name. Each submission should include the author’s State Bar Certified Paralegals. Authors may collaborate, but only one submis- or certified paralegal ID number, placed only on a separate cover sion from each member will be considered. sheet along with the name of the story. 2. Subject to the following criteria, the story may be on any fictional 6. All submissions must be received in proper form prior to the topic and may be in any form—the subject matter need not be law relat- close of business on May 31, 2013. Submissions received after that ed). Among the criteria the committee will consider in judging the arti- date and time will not be considered. Please direct all questions and cles submitted are: quality of writing; creativity; extent to which the arti- submissions to: Fiction Writing Competition, Jennifer Duncan, cle comports with the established reputation of the Journal; and adher- 6568 Towles Rd., Wilmington, NC, 28409, [email protected]. ence to specified limitations on length and other competition require- 7. Depending on the number of submissions, the Publications ments. The committee will not consider any article that, in the sole judg- Committee may elect to solicit outside assistance in reviewing the ment of the committee, contains matter that is libelous or violates articles. The final decision, however, will be made by majority vote of accepted community standards of good taste and decency. the committee. Contestants will be advised of the results of the com- 3. All articles submitted to the competition become property of the petition. Honorable mentions may be announced. North Carolina State Bar and, by submitting the article, the author 8. The winning article, if any, will be published. The committee warrants that all persons and events contained in the article are ficti- reserves the right to edit articles and to select no winner and to pub- tious, that any similarity to actual persons or events is purely coinciden- lish no article from among those submitted if the submissions are tal, and that the article has not been previously published. deemed by the committee not to be of notable quality. STATE BAR OUTLOOK

Hello! You Must Be Going!

B Y L. THOMAS L UNSFORD II

wise man once said, “A ing lawyer will put the State Bar to its proof that he or she “has reformed and presently law license is easy to lose, in a contested trial before the Disciplinary possesses the moral qualifications required hard to get back, and Hearing Commission (DHC) or tender the for admission to practice law in this state tak- impossible to return.” I surrender of his or her law license directly to ing into account the gravity of the miscon- made that statement on the council along with a confessional affi- duct which resulted in the order of disbar- the Aeve of the State Bar Council’s quarterly davit fully acknowledging the intentional ment,” and that the petitioner’s resumption business meeting this past January in refer- misconduct. As noted in the preceding para- of the practice of law “will not be detrimental ence to three interesting items then pending: graph, the council’s January meeting featured to the integrity and standing of the bar, to one fairly routine matter and two others that a surrender and a consequent order of disbar- the administration of justice, or to the public were rather extraordinary. ment, as required by the interest, taking into account the gravity of The first and least remark- rules. The whole thing took the misconduct which resulted in the order able case involved a lawyer less than five minutes. It was of disbarment.” After hearing the evidence, who had confessed to misap- very efficient and rather the panel makes a recommendation to the propriating money from an impersonal. The procedure is council as to whether the petitioner has sat- estate. He was asking the fairly common. This sort of isfied the burden of proof in all respects and council to accept the surren- thing happens several times a whether he or she ought to be reinstated. If der of his license in contem- year. Surrenders are motivat- the panel recommends that reinstatement be plation of disbarment. The ed by a variety of concerns. denied, that ends the matter, unless the peti- second case involved a dis- Most of the time lawyers see tioner files a timely appeal to the council. If barred lawyer’s attempt to the handwriting on the wall an appeal is perfected, the record is settled obtain the reinstatement of and are reluctant to put and transmitted to the council for final deci- his law license after having themselves and their families sion. If the recommendation from the DHC been disciplined for stealing through emotionally and is favorable to the petitioner, the matter is money from his employer, the first such peti- financially exhausting trials. Sometimes the automatically referred to the council for tion to reach the council since 2000. The accused individual, facing the prospect of determination. It is important to understand third and final matter concerned a lawyer’s criminal prosecution in regard to the same that reinstatement is different from all other avowed intention to secede from the State misconduct, may prefer to exit on the basis matters that the DHC is required to adjudi- Bar by way of voluntary resignation. of a carefully worded affidavit of surrender cate in one crucial respect. In all disciplinary Although others may have entertained such a rather than the transcript of a three-day hear- cases and in all disability cases, its judgments notion in the past, this formal request was ing. And some may hope that voluntary sub- are final, subject to appeal only as to matters essentially unprecedented. My intention here mission to disbarment will serve to mitigate of law or legal inference directly to the court is to discuss the fate of these three petitions. an inevitable prison sentence. Whatever the of appeals. In reinstatement cases, the DHC Allow me to begin by acknowledging that a reason, the summary nature of the procedure only makes recommendations. The council, wiser man, familiar with the most recent pro- and the nondiscretionary penalty provide sitting as a committee of the whole, makes ceedings of the council, would probably wish ready proof of the assertion that “a law the actual decision. to amend the introductory proverb thusly: license is easy to lose.” It is somewhat unclear why the authority “A law license is easy to lose, hard but not A law license, once lost, is much harder to to determine reinstatement petitions was impossible to get back, and may be return- get back. For the disbarred lawyer, there is no reserved for the council. The members of the able in good condition.” right to be reinstated. There is only a right to DHC’s hearing panels have the advantage of The easiest way to lose your license is to seek reinstatement. Once five years have observing the demeanor of witnesses and liv- steal money entrusted to you in the context elapsed since the effective date of disbar- ing with the evidence as it unfolds in real of your law practice. Theft from the trust ment, the former lawyer may petition for time, often over a period of several days. account is the offense most likely to be reinstatement by the council. This initiates a They also have the opportunity to ask the reported to the State Bar, the easiest case to fairly lengthy process that features an eviden- witnesses questions and have very ample prove, and the one offense for which disbar- tiary hearing before a panel of the DHC at time for deliberation. The councilors, on the ment is virtually guaranteed. In such cases, which the petitioner has the burden of prov- other hand, are dependent upon a cold writ- the only real question is whether the offend- ing by clear, cogent, and convincing evidence ten record and are called upon to make their

8 SPRING 2013 decisions in the context of business meetings was unusual to the point that its value as sion without interruption for most of the in which myriad other matters of signifi- precedent is probably quite small. Even so, eight years between his disbarment and the cance must be determined. That being the the fact that reinstatement cases are very rare filing of his petition for reinstatement. The case, it would be hard to argue that the coun- makes the matter worth commenting upon. evidence showed that during that time he cil is better situated or otherwise more able to The lawyer in question was licensed in both was not publicly disciplined or made the do justice in such matters. My own feeling is North Carolina and California. He had subject of any grievance filed with the pro- that the division of responsibility in regard to been practicing in Greensboro for less than a fessional authorities in California. He also reinstatement has less to do with fact find- year as associate in a small firm when he successfully completed his contract with the ing—of which there is often little to do in misappropriated legal fees amounting to California LAP. There was some evidence of reinstatement cases—and more to do with about $700 from his employer. He com- civic involvement and some written state- maintaining the integrity and credibility of pounded his sin by fabricating documenta- ments were presented from California resi- the profession. It’s one thing to impose such tion to cover his tracks and subsequently lied dents who professed familiarity with the discipline as seems necessary to protect the to his boss about it. He was disbarred in petitioner and attested to his good character. public in regard to a particular act of malfea- 2005 by the DHC. He then decamped for In testimony before the DHC and then in sance. It’s quite another to ascertain reforma- California to continue pursuit of his legal argument before the council, the petitioner tion of character that is fully consonant with career. The California State Bar took cog- acknowledged the serious nature of his mis- the high standards of moral fitness required nizance of the disciplinary action in North conduct and said that he had reformed. In of all licensed attorneys. Authority to make Carolina and, remarkably, decided that the both proceedings, our State Bar’s Office of that sort of judgment is quite properly misconduct warranted only a three-year sus- Counsel argued strenuously that the peti- invested in a body that is not only adjudica- pension, with all but three months stayed tioner had failed to sustain his burden of tive, but is also representative of those stan- upon certain conditions, including comple- proof and that he ought not to be reinstated. dards and of the thousands of people who tion of a program designed by California’s After a full evidentiary hearing on the peti- embody them. Lawyer Assistance Program to address an tion in August 2012, a panel of the DHC A detailed analysis of the reinstatement apparent mental health problem involving recommended reinstatement—the first such case that was decided by the council at its depression. Except for those 90 days of recommendation since September 1999. January meeting is beyond the scope of this enforced professional inactivity and some The council subsequently voted to reinstate, essay and the capability of this writer. As it down time in relocating to the West Coast, 37 to 14. happens, the factual predicate of the case our petitioner was able to practice his profes- It is difficult to say what the impact of

THE NORTH CAROLINA STATE BAR JOURNAL 9 in the rules for voluntary resignation. Leonard T. Jernigan, Jr., attorney and Surprisingly, I cannot recall that this issue has ever come up before. No doubt some adjunct professor of law at NCCU lawyers have contemplated being “reinstat- School of Law, is pleased to announce ed” as ordinary people at times when the that his 2012-13 supplement to profession has been besmirched—the Jernigan’s North Carolina Workers’ Watergate era comes to mind—but the grim Compensation: Law and Practice (4th prospect of life without ready access to the edition) is now available from West Bar Journal has almost surely dissuaded Publishing (1-800-344-5009). them. Anyway, I’m not sure that it’s possible to quit. It’s almost unthinkable, when you n Board Certified Specialist in think about it. After all, the statutes make Workers’ Compensation Law no reference to resignation. They merely n NFL and National Hockey advise us that all members of the North League Workers’ Compensation Carolina State Bar are either active or inac- Panel Member tive. The only expressed means of disassoci- ation is disbarment. I assume that death will also sever the connection, but am doubtful THE JERNIGAN LAW FIRM that one can just pick up one’s marbles and go home, as it were. Were that possible, a Leonard T. Jernigan Jr. Carolina Place Building lawyer suspected of or being prosecuted for Kristina B. Thompson 2626 Glenwood Avenue, Suite 330 serious professional misconduct would be Leila A. Early Raleigh, North Carolina 27608 able unilaterally to divest this agency of its disciplinary jurisdiction simply by slipping Practice Limited To: (919) 833-0299, (919) 256-2595 fax the license under the door or over the tran- Workers’ Compensation www.jernlaw.com som—and then be free to seek admission in Serious Accidental Injury/Civil www.ncworkcompjournal.com another jurisdiction, or readmission in Litigation Twitter: @jernlaw North Carolina, on the basis of an unblem- ished record. And what about those unfor- tunate lawyers who get the random audit this case will be. Although the council’s deci- or she is no longer a thief? And how can the subpoena at an “inopportune” time? Should sion was fact specific in regard to a set of readmission of a former thief not be “detri- they have the right to walk out on Bruno? highly unusual circumstances, it is bound to mental to the standing and integrity of the There is, of course, some appeal to the give hope to a large number of former North bar?” These are very hard questions to notion that in a free society an association Carolina lawyers whose dishonesty has led answer and yet, the very fact that we have a voluntarily joined should be just as easy to them to alternative fields of endeavor, rather reinstatement procedure for disbarred quit—sort of like the Book of the Month than to practice law in jurisdictions more lawyers confesses our belief that character Club, but without the obligation to buy six tolerant of stealing. At present we think can be reformed and our faith that the inter- books over the next two years. Perhaps the there are about 125 such individuals who are ests of the profession and the public will be common law will be found to imply a “right eligible to petition for reinstatement. not subverted by giving a truly rehabilitated to resign” from the “right to choose to try to Lawyers who often represent lawyers and lawyer a second chance. qualify to belong.” Maybe the Constitution former lawyers before the DHC are bound Given that people strive so mightily to embodies a right not to be required to asso- to be searching this record for clues as to become members of the bar, fight so desper- ciate with other lawyers or to be compelled how it is possible to prove reformation of ately to remain members of the bar, and to receive, perchance to read, the Bar character sufficient to warrant reinstate- seek, against all odds, to regain membership Journal. Who knows? No one at the ment. Obviously, most prospective petition- in the bar, it is quite surprising when some- moment—but happily enough, the answer ers will not be able to argue that they have one seeks to be excommunicated. That hap- will soon be forthcoming. The since disbarment honorably practiced law, pened at the council’s January meeting. A Administrative Committee of the council lest they be convicted of the crime of unau- North Carolina lawyer residing in Hawaii has referred the question to the Office of thorized practice. In truth, it has always sought to resign from the North Carolina Counsel for an opinion that should be avail- been hard to say exactly what sort of evi- State Bar. He evidently wishes to regain his able when the council reconvenes in April. dence might be adequate to demonstrate status as a non-lawyer in order to qualify Please stay tuned. In the meantime, don’t clearly, cogently, and convincingly that a dis- “legally” for some appointed position in the even think about resigning. barred lawyer has reformed. Surely, it’s not Aloha State. He was disappointed when he Even if we are advised that voluntary res- enough just to show that you’ve “done your initially made inquiry of the staff as to how ignation is theoretically possible, I expect time” and “kept your nose clean.” But, what he might accomplish his defection and was that there will be some members of the Bar can one do to justify the conclusion that he advised that there is no apparent provision whose service, wherever they happen to

10 SPRING 2013 practicing law, is so important to the general me invite you to take a moment to check in L. Thomas Lunsford II is the executive welfare that they can never be permitted to with her. You’ll be glad you did. Her email director of the North Carolina State Bar. resign, retire, or even get old. One such indi- address is [email protected]. n vidual works for the State Bar. Alice Mine joined the State Bar’s staff in March of 1993 and will soon be celebrating her 20th anniversary as our employee. Now that President’s Message (cont.) forms. In Georgia, it’s required—the State Bruno has moved on, Alice has become the Bar mandates mentoring and pairs all new most famous member of the State Bar’s staff. admittees with mentors. South Carolina is She has been the most valuable for quite a Hearing Commission proceedings against implementing a similar plan. In North while now. I dare say that most of the young lawyers. I attribute much of this Carolina, the North Carolina Bar 26,000 lawyers in the state, and all 23 of increase to a lack of knowledge of what it Association and some local bar associations those who routinely read my column, have means to be a lawyer. offer outstanding programs to match young had some beneficial and gratifying profes- I am not sure that attorneys of my gener- lawyers with volunteer mentors. As I am a sional contact with Alice sometime during ation are as generous with our time and firm believer in avoiding regulatory dictates the past 20 years. Whether she’s given you expertise as were those who helped us find whenever possible, I would like to think that good ethics advice, inspired you at a CLE our way into the profession. How many of voluntary efforts will be enough. However, event, counseled you expertly in a commit- us will walk up to a less-experienced col- the increase in problems associated with new tee, deftly facilitated your application for league in the courthouse, tap him on the lawyers coming before the State Bar makes certification as a specialist, personally ush- back, and whisper how to act in front of a me wonder what the State Bar needs to do ered you through a bureaucratic snarl, or particular judge or how to handle a filing going forward to protect the interest of the kept you from making a colossal mistake with the clerk? That does, of course, work public as well as the profession. that might have gotten you fired as the State both ways—how many brand-new lawyers Is now the time for mandatory mentor- Bar’s executive director, most of you have today will take unsolicited guidance with ing? n had the pleasure of dealing with her—and grace and appreciation? The law is a profes- you’ve felt better about your profession and sion, not a job, and those of us who practice M. Keith Kapp is a partner, vice-president, the State Bar because of it. If it’s been awhile it must look after and respect one another. and vice-chair of the Board of Directors at since you thanked Alice for her service, let Mentoring for lawyers can take many Williams Mullen.

THE NORTH CAROLINA STATE BAR JOURNAL 11 Call 4All—The Opportunity and Need for Pro Bono Service

B Y D EBBIE H ILDEBRAN-BACHOFEN

ere is what is actually happen-

ing to thousands of our fellow

citizens and what is going to

happen during this time when

“Hprivation and hardship stalk our state: Last winter more than 10,000 homes in North

Carolina had no heat and almost twice that number had no indoor plumbing. At some point, 50,000 families went without food in 2011. More than 1.5 million people— over 15% of our population—have no health insurance. By 2010, 30% more North

Carolina families were homeless than in 2007. North Carolina’s poverty rate jumped to Dave Cutler/SIS.com

17.5% in 2010—a 22% increase since the beginning of the recession in 2007—according to recent data from the US Census Bureau. Well over a third of North Carolinians are now classified as low income. The stubborn scourge of poverty is inextricably interwoven with the future of our courts, our public schools, and other public institutions, the viability of which is crucial to our future.” —NCBA Past-President Martin Brinkley

The tremendous need for pro bono legal es help (34% of the population). There are numbers, Legal Aid of North Carolina services for the poor is undisputed and has 19,162 clients eligible for free legal services (LANC) has to turn away a large majority of been well-publicized this year. More than 3.2 for every legal services staff attorney. eligible clients simply because of a lack of million people in NC qualify for legal servic- Tragically, but not surprisingly, given these resources. Who is being turned away? The

12 SPRING 2013 median annual household income for legal Carolina will offer training opportunities. online application, or by printing out the services clients served is $11,000. $24,000 is As stated in Rule 6.1, “A lawyer should application from the website and returning it the maximum gross annual income for a aspire to render at least 50 hours of pro bono to the Bar Association. family of four to be eligible for services by publico legal services per year.” Call 4ALL Returning to Past-President Brinkley’s LANC. They may be seeking advice as to provides a structured way for lawyers to meet challenge: where to turn to receive the health care or this goal, within a limited scope of engage- If we can persuade 500 volunteers to give education benefits to which they are entitled, ment (unless the attorney wants an expanded just one hour a month, we will serve or to have explained a legal notice they have role), and provide essential assistance to peo- 6,000 clients each year who would other- received but don’t understand, or perhaps to ple in need in these difficult times. A survey wise go unserved. We will free up talented avoid finding themselves homeless or the last spring indicated that 96% of participat- LANC in-house lawyers from time-con- continued victim of domestic abuse. The ing Call 4All attorneys were “Satisfied” suming triage on these 6,000 cases. That, stakes are high; the need is great. (11%), “Somewhat Satisfied (13%), or in turn, will let the LANC lawyers work In order to try to address this crisis, the “Highly Satisfied” (72%) with their Call 4All 6,000 more hours on harder cases and North Carolina Bar Association in collabora- experience. Ninety-nine percent would rec- enable them to take on more cases from tion with LANC has inaugurated a new pro- ommend Call 4All to their fellow attorneys. the millions of North Carolinians who gram, Call 4ALL, that provides attorneys the A short video describing the program and need their help. It will save the strength of chance to help a pre-screened client of how it helps those in need of legal advice can LANC, the legal emergency room for LANC. In most instances, Call 4ALL attor- be viewed from the NC Bar Association’s more than two million citizens facing neys will volunteer to talk with clients website homepage, ncbar.org. We would imminent threats of violence, risk of a through approximately one-hour telephone encourage you to take the time to watch this family coming unglued, loss of shelter or consultations, from the attorney’s office or video. In addition, more information, the income, or the need for medical care. even from the comfort of the attorney’s video, and answers to frequently asked ques- As the justice gap leaves unparalleled home, and at the frequency he or she desig- tions about the program can be found at numbers of North Carolinians in need of nates, providing advice or discrete services to ncbar.org/public-pro-bono/call-4all.aspx. legal help—with mortgage foreclosures, these pre-screened Legal Aid clients. Even if Attorneys can volunteer to participate in access to public benefits, and consumer debt the volunteer attorney doesn’t practice in one the Call 4All program by visiting the NC Bar of the areas needed, Legal Aid of North Association’s website and completing an CONTINUED ON PAGE 29

THE NORTH CAROLINA STATE BAR JOURNAL 13 “[A]lmost Nothing in Ready Change”—The 19th Century Law Practice of David Swain

B Y W ILLIS P. W HICHARD

avid Lowry Swain, who would be gov-

ernor of North Carolina (1832-35) and

long-time president of the University of

North Carolina (1835-68), left his home inD the mountains of North Carolina in 1822 to study law under North

Carolina Supreme Court Chief Justice John Lewis Taylor. Chief Justice Taylor’s tute- lage prepared him well for his chosen profession. In June 1823 he was licensed for practice in North Carolina’s county courts, and in December 1824, in its superior Photo courtesy of the North Carolina Collection Photographic Archives. courts. His hometown of Asheville, seat of Buncombe County, afforded a conven- ient locale for commencing a law practice. It was the first time a native of the county had returned there as a lawyer.1

Previous biographical snippets describe the court circuits. ready change.” Despite doing extensive busi- Swain’s professional life as “very successful”2 Lack of business was not a problem. ness on his circuit, he received no money; and “lucrative.”3 Considered in light of his Securing ready compensation for it was. indeed, he said, there was none in the county. lifetime financial achievements, they are However, he had been busily engaged in On one occasion he “barely received almost certainly accurate. Such cannot be sur- arranging his papers and researching his cases, money enough to pay [his] bills”; not only was mised, however, from his contemporaneous he once told his wife Eleanor; his professional he unable to collect $100 due him from an correspondence. Laments of financial woes prospects were promising, but funds were so estate, but he also had to buy in the deceased’s were the common currency of his letters from scarce that he obtained “almost nothing in land, worth perhaps $1200, at $300 to pre-

14 SPRING 2013 serve it for the family. Although he would persuasive best, for the woman was acquitted Swain as counsel to defend purchasers from have his full share of a docket’s cases, doleful “without a scuffle.” Swain was not modest the State against claims asserted by any complaints such as, “I found myself poorly about his role in her release. “I acquitted the American Indian or persons claiming under paid after all for my long and loud speeches” poor woman...,” he reported, “and have gen- such pursuant to a reservation under treaties or, “I have never known so chaffy a court” erally been pretty successful” (emphasis of 1817 and 1819. Every such case was sub- were routine. Failure to secure sufficient fees added).6 mitted to Swain’s discretion, subject to guid- to pay his bills in an eastern county made him On the civil side he reported numerous ance from the report made to the General disinclined to return there.4 visitors who flattered themselves with the Assembly in 1824 by commissioners appoint- Loneliness was the young lawyer’s steady belief that they had important business. While ed to investigate these Indian titles, and to the companion while traversing the circuits. The somewhat deprecating their appraisals, he report of the committee of both legislative press of business somewhat diminished his yielded to their importunings. “[T]alk to houses to which this report was referred. At his brooding over the absent home fires, but he them I must,” he said. Among them were two convenience, Swain was to furnish the gover- clearly and profoundly missed their warmth. United States topographical engineers who nor a list of the cases and the amount of his Often these nomadic periods were quite pro- were surveying the French Broad River to charges. longed. Once he had been away seven weeks; ascertain the practicability of uniting its head- Iredell also appointed Swain to attend the another time he wrote Eleanor in late August waters with the Savannah River by means of a State Bank shareholders’ meeting, vote for the that he could not afford the pleasure of seeing canal or railroad.7 state in the appointment of directors, and rep- her before Christmas. Twice Swain represented a civil client in resent the interests of the state generally.9 Social life on the circuits afforded pleasant, arguments before the North Carolina Governor John Owen, in his capacity as somewhat offsetting amenities. In one week Supreme Court. The first was in an ejectment president of the University of North Carolina Swain attended two parties, the first given by proceeding regarding a tract of land in Board of Trustees, employed Swain as attorney a client, the second by Governor James Iredell. Buncombe County. Swain represented the for the trustees in Buncombe, Haywood, and He rather heedlessly admitted to Eleanor that plaintiff’s lessors; William Gaston and George Macon Counties. Swain was to collect sums he had “seen many very pretty girls” at these Badger—preeminent lawyers of the time— due to the university, probably escheated soirees, but quickly redeemed himself by vow- appeared for the defendant. The result was a funds primarily, in said counties; to sell and ing that a brief embrace with her would give new trial for the plaintiff, indicating that convey lands there to which the trustees held him more heartfelt pleasure than a month of Swain prevailed. title; and to represent their interests generally. such enjoyment. The second was a malicious prosecution As a lawyer Swain is said to have had no Eleanor’s deficiencies as a correspondent case in which Swain represented the plaintiff superior in complex land disputes. One such aggravated her husband’s wayfaring solitude. and Badger the defendant. Plaintiff had been case, described as “a complicated mass of liti- In the above-mentioned seven-week absence, arrested on charges of beating and harassing gation, involving more land than was ever he had received three letters from her and was defendant’s cattle and driving them from their sued for under one title in our state, hopeful that the next mail would not disap- range on defendant’s land. He asserted that except...the claim of Lord Granville’s heirs,” point him. She could not know how much he while he was under arrest, defendant “abused went to the United States Supreme Court. wished to see her and to avoid such long sep- him very grossly, struck him, and spit in his George Badger represented the state of North arations. Once he delayed writing because he face.” Upon examination of plaintiff, the mag- Carolina, which deemed the case of sufficient had expected a letter from her but was disap- istrate discharged him. In the resultant mali- worth and complexity that it associated the pointed. Exceedingly anxious to know every- cious prosecution action, the jury found for legendary Massachusetts lawyer and senator thing that interested her, particularly the state plaintiff, and the defendant appealed. Daniel Webster. It also associated a 27-year- of her health, he was grieved when she “com- The North Carolina Supreme Court, in an old David Swain, to whose careful prepara- plain[ed] of melancholy.” “I declare this long opinion by Justice Thomas Ruffin, awarded a tion, indomitable energy, patient research, and absence is insupportable, and becomes more new trial. It then said the case was affirmed acumen Badger attributed the state’s ultimate intolerable every day,” he would say.5 “per curiam.” The award of a new trial is success. When he was elected governor while Swain’s practice, like that of most lawyers inconsistent with an affirmance, so the out- the case was pending, Swain returned one-half of his day, was general in nature. It appears to come is difficult to determine. It would of his retainer to the state treasury.10 have been predominantly on the civil side of appear, however, that Swain lost this one.8 Estate work composed a portion of Swain’s the dockets, but at least occasionally he han- Swain’s legislative capacity undoubtedly law practice. He served as co-executor, with dled a criminal case. He once found it his duty factored in his acquisition of state legal work. the decedent’s brother David Vance, of the to defend a criminal of a character, and in cir- Governor Hutchins G. Burton appointed him estate of his close friend Congressman Robert cumstances he hoped never to hear of again. a commissioner, pursuant to an act of the Vance, who was killed in a duel. He also The defendant was a destitute, disfigured General Assembly, to implement a state con- served as administrator of his father’s intestate young woman, age 20, on trial for infanti- tract with certain Cherokee Indians. Swain estate.11 cide—the killing of her first-born, illegitimate was to meet in Franklin, North Carolina, with Throughout his life Swain was known for child. She protested her innocence, and Swain Philip Brittain—another House member who his remarkably retentive mind. As a lawyer, it gave her demurrer some credence, but was the other commissioner—to comply with enabled him to cite cases to the court from thought convincing a jury of it would be the act. memory. It was said that in jury trials he exceedingly difficult. He must have been at his Later, Governor James Iredell employed could, without notes, repeat the testimony of

THE NORTH CAROLINA STATE BAR JOURNAL 15 all witnesses regardless of the length of the Swain was distressed that he would have no and January 18, 1825. trial—a feat diminished only slightly by his one to vindicate his conduct, which he con- 2. Biennial Report of the Superintendent of Public Instruction of North Carolina for the Scholastic Years 1898-’99 and late-in-life admission that he could recall no sidered perfectly correct, except those who 1899-1900 (Raleigh: Edwards & Broughton, 1900), instance in which a trial occupied more than were interested in the transaction. He was 414. 12 a day. obviously prepping Roberts to be a “disinter- 3. Vance, supra note 1, 4. In his travels on the court circuits Swain ested” witness if necessary. 4. David L. Swain (DLS) to Eleanor Swain (ES), August 25, met nearly every eminent lawyer in the state. Romulus M. Saunders, then the state’s 1826; April 21, 1827; June 20, 27, July 25, October 10, Wherever he went his professional acumen attorney general, recorded a related state- 1828, EC, NCC. and demeanor favorably impressed both his ment. “The free & voluntary communication 5. DLS to ES, August 25, 1826; April 14, 21, May 6, 1827; June 27, July 25, 1828; February 19, 1830, EC, NCC. colleagues at the bar and the greater public. made by Mr. Swain to me,” Saunders said, 6. DLS to ES, June 27, October 10, 1828, EC, NCC. This gave rise to other professional opportuni- “...resists all idea that he was to be benefitted 7. DLS to ES, September 24, 1828, EC, NCC. ties. Despite “flattering” prospects in in any way in the matter.” Frederick Nash, 8. Smith v. Greenlee, 13 NC 126 (1828-1830); Allen v. Asheville, professionally and politically, he later chief justice of the North Carolina Greenlee, 13 NC 370 (1828-1830). considered both Edenton in the east and Supreme Court, had been a member of the 9. Burton Executive Order, April 9, 1825; Iredell Executive Lincolnton in the west as alternative practice General Assembly select committee to which Order, February 28, 1828; Iredell Executive Order, sites. Asheville was not his settled locale, and the matter was referred. He “considered Mr. November 26, 1828 (William Hill, Secretary of State, at one point he saw himself continuing there Swain as influenced by motives firm & hon- and James Grant were also parties to this order; Grant’s capacity is unclear); Owen Executive Order, January 8, 13 at most another three years. orable—by a wish to save his neighbors and 1830, EC, NCC. Ultimately, however, he maintained an friends from ruin in many instances...these 10. Samuel A. Ashe, Biographical History of North Carolina Asheville-based legal career until his election were the motives aroused and nothing from Colonial Times to the Present (Greensboro, NC: C.L. as a superior court judge removed him from it. occurred to lead me to believe them to be not Van Noppen, 1905-1917), 1:451; Camp, supra note 1, His share of the legal business was then such the correct ones.” 23; William J. Peele, Lives of Distinguished North Carolinians (Raleigh, NC: The North Carolina that John Hall, son of the state Supreme So far as the extant records reveal, noth- Publishing Co., 1898), 235-236. Court justice of the same name, “removed to ing of an improper nature occurred, and 11. Priscilla Vance, mother and beneficiary under will of Buncombe to take charge of [it].” Over three nothing came of the matter. These testimo- Robert Vance, document releasing Swain from duties as years after he left the practice, a former client, nials from leaders of the bar perhaps dis- co-executor, October 6, 1835, Swain Papers, Southern Historical Collection, University of North Carolina at who claimed to have paid Swain “a liberal fee,” armed Swain’s potential critics. But he had Chapel Hill Library (SHC); William Siler et al., docu- was still seeking “some prominent character carefully covered his tracks just in case there ment granting Swain power to petition court for sale or who will attend [in Swain’s stead] in all the was a future problem.16 division of George Swain’s real estate, March 9, 1830, counties if need be.”14 Professional standing was not the sole Swain Papers, SHC; William Coleman, receipt to DLS as administrator of George Swain’s estate, March 20, 1832, No practitioner of the legal craft altogether motivator of Swain’s reputational angst. His Swain Papers, SHC (typescript). The Swain Papers, SHC, escapes criticism and conflicts. Swain was no political future weighed at least equally, prob- contain other typescripts showing Swain as the adminis- exception. He, George Badger, and others ably more so, in these calculations. That, how- trator of George’s estate. For a report on the duel in which contracted to represent the state in Indian ever, is another and a longer story that must Vance was killed, see Raleigh Register and North-Carolina Gazette, November 20, 1827. land-claims cases for $500 each. They had to await another day. n 12. Peele, supra note 10, 246; David L. Swain, Early Times inform the governor, John Owen, that this in Raleigh (Raleigh, NC: Walters, Hughes & Co., 1867), was not intended to include suits that might Willis P. Whichard is a member of the Moore 246. be brought in the federal courts. Still, the crit- & Van Allen law firm, Research Triangle Park 13. Swain, supra note 12, 246; DLS to ES, January 18, ics talked. “They are roasting the governor for office. He formerly served as a judge of the North 1828, March 19, 1830, EC, NCC. the fees paid Badger, Swain & Seawell, and Carolina Court of Appeals, a justice of the North 14. J.G. DeRoulhac Hamilton, ed., The Papers of William me...,” wrote one of the lawyers, “but it can- Carolina Supreme Court, and dean and profes- Alexander Graham (Raleigh, NC: State Dept. of Archives and History, 1957), 1:199; Robert Love to Thomas H. not succeed.” In another matter, the parties sor of law at Campbell University. Blount and William A. Blount, February 11, 1834, James proposed Swain as a commissioner in a case in Gray Blount Papers, North Carolina Division of Archives which he had had some previous, unspecified Endnotes and History, Raleigh, NC. role. “The fact was disclosed,” wrote later 1. D.K. Bennett, Chronology of North Carolina, (New York: 15. G.E. Badger and DLS to Gov. Owen, January 16, 1830, Chief Justice Thomas Ruffin, “but it shook James M. Edney, 1858) 95-97; Cordelia Camp, David Swain Papers, SHC; W.M. Sneed to Willie P. Mangum, 15 Lowry Swain, Governor and University President November 18, 1830, Henry T. Shanks, ed., The Papers of not the confidence of either of the counsel.” (Asheville, NC: Stephens Press, 1963), 20; Carolyn A. Willie P. Mangum (Raleigh, NC: NC Dept. of Archives Swain was sensitive—arguably hypersensi- Daniel, David Lowry Swain 1801-1835 (unpublished and History, 1950-1956), 1:381; Thomas Ruffin to DLS, tive—to reputational concerns. His papers Ph.D. Dissertation, University of North Carolina at August 6, 1829, EC, NCC. contain a statement by Joshua Roberts, an Chapel Hill, 1954), 62; Foster A. Sondley, A History of 16. Joshua Roberts Memo, March 3, 1830; R.M. Saunders Buncombe County, North Carolina (Asheville, NC: Asheville attorney, regarding a conversation Memo, June 11, 1830; F. Nash Memo, June 19, 1830, Advocate Print. Co., 1930), 2:651; Zebulon B. Vance, Swain Papers, SHC. See also B. Shipp Memo, March 27, with Swain in Rutherfordton. Swain had told Life and Character of Hon. David L. Swain, Late President 1830, id. Roberts he was engaged “in a business of a del- of the University of North Carolina (Durham, NC: W.T. For a general treatment of Swain’s role in the land-claim icate nature about which he might be much Blackwell & Co.’s. Steam Presses, 1878), 4; Certificate cases, and the conclusion that the testimonials disarmed dated December 28, 1824, Swain Epistolary the critics, see Carolyn A. Daniel, The Early Career of blamed at some future period...” It related to Correspondence (EC), North Carolina Collection, a large tract of land in Macon County which David Lowry Swain (unpublished M.A. Thesis, University of North Carolina at Chapel Hill Library University of North Carolina at Chapel Hill, 1947), Swain had arranged to purchase for the state. (NCC); Western Carolinian, Salisbury, NC, July 4, 1823 135-45.

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North Carolina State Bar Board of Legal Specialization “So, How Much is My Case Worth?”

B Y S HANNON B. ENGLISH

ou knew it was coming. You are

sitting in a client meeting,

explaining the procedure and the

underlying issues of the case, but you can almost seeY the information being mentally filed away as they itch to ask you their first question…or, perhaps, in their mind, the only question. In asking this question, clients are essentially expecting lawyers to predict a future decision made by 12 other people at the end of that increasingly unlikely process we call a ©iStockphoto.com trial. Indeed, the odds a particular client’s case will end up being decided by an actual jury are slim to none these days.

Some History civil case resolution is largely due to the infor- case are typically uncovered and understood In 1936, just before the creation of our mation-gathering nature of our modern dis- by all parties well in advance, thereby negat- Federal Rules of Civil Procedure, one fifth of covery process. He recounts how at common ing the need to “see what comes out at trial.” all civil cases filed in federal court went to law, the trial process served to bring forth all Obviously, such advances in the ability to trial.1 Over the next six decades that number the facts of the case at hand, as there was no obtain the relevant facts have discouraged the declined at a healthy pace. In 2002, only formal way to obtain information from an need to go to trial, and thus increased the rate 1.2% of all federal filings ended in a jury trial. opposing party.3 at which cases settle. As Lanbein explains, At the state level, the proportion of cases that However, since the implementation of the “This new procedure system has overcome are resolved in a jury trial has declined to Federal Rules of Civil Procedure, and their the information deficit that so afflicted com- 0.6% of all state court dispositions as of subsequently adopted state analogues, the mon law procedure, enabling almost all cases 2002.2 In his article, “The Disappearance of focus of pretrial procedure has shifted from to be settled or dismissed without trial.”4 Civil Trial in the United States,” Yale Law pleading to information-gathering via the dis- The Federal Rules do not contemplate a Professor John H. Lanbein explains that this covery process. Through the mechanisms of turning away from the trial system. Rule dramatic fall in the jury trial as a means of formal and informal discovery, the facts of a 38(a) states, “The right of trial by jury as

18 SPRING 2013 declared by the Seventh Amendment to the tlement strategy. The problem is that some of method for estimating what a case may be Constitution—or as provided by a federal the traditional methods provide formulas that worth is to research prior jury verdicts in the statute—is preserved to the parties invio- are antiquated, not as precise as we need them case venue with similar facts, or to use valua- late.”5 Yet, due to our need today for more to be, and, in some instances, somewhat arbi- tion handbooks. At least in this process, we efficient case resolution from both the courts’ trary. are not relying on our own estimation; how- caseload perspective and from our clients’ Individual clients obviously want to opti- ever, obviously no prior case has exactly the perspective, settlement has become the dom- mize their positions going into a negotiation same facts as the current one. Every client’s inant method of case resolution. or mediation scenario; however, corporate situation is different, and it is impossible to clients, especially, are becoming more inter- measure the impact of all the specific variables What’s Missing in the Case Valuation ested in seeing actual calculations to under- that exist in your present case. Process stand the “method behind the madness” of There are several other methods that With trial an unlikely end to a case, it is case valuation. Moreover, being armed with a attempt to measure a case’s value before, or in important to return to our prospective client’s fair and accurate assessment of what a case is lieu of, its presentation to a jury. Insurance question posed at the outset of this article— realistically worth can be an extremely valu- companies create software programs that use ”How much is my case worth?” We know it able tool in Alternative Dispute Resolution a points system to calculate a settlement is now possible to uncover the case facts (ADR), whether the information is used as a value. Some firms employ expert neutral eval- before, or in lieu of, trial through the discov- reality check, a bargaining chip, or a means to uators to provide a likely damage award ery process. However, the one piece of infor- foster agreement. As pointed out in the analysis. The common goal of all of these mation we are still missing is what a jury “Insightful or Wishful” article, “lawyers methods is to serve as a “best guess” of the would award if the case did proceed all the should consider obtaining more formal exter- amount that a jury would come back with if way to trial. How would a jury perceive the nal third party views on the likelihood of the case proceeded all the way to trial. These facts of the case and what kind of monetary achieving their litigation goals on behalf of methods may offer a better forecast than our value they would assign to the dispute? their clients. It is in the early stages of litiga- own personal speculations. Over the years, lawyers have created varied tion that patterns and expectations for the ways to estimate what this award would be. case are established and where an interven- A Solution The goal of these methods is to obtain an tion can have the most beneficial effects.”10 However, what all of these methods lack is approximation of case value for when we sit a predictive public standard benchmark to down to discuss settlement with our clients A Few Traditional Methods and Why indicate whether a fair and realistic amount is and opposing counsel. An article entitled They May Fall Short being utilized during settlement discussions. “Insightful or Wishful: Lawyers’ Ability to The Multiplier: One method of damages Individual estimates, rule of thumb formulas, Predict Case Outcomes,” published in the assessment is what can be thought of as the computer programs, and even neutral third journal Psychology, Public Policy, and Law, “direct damages times x” formula. Quick and party evaluations all fall short of replicating explored how well lawyers, on their own, simple, even the most math-averse lawyer can what happens in the minds of an actual jury. were able to estimate a particular result in a understand this process of multiplying the If the goal of all of these case valuation pending case.6 While the article discussed the out-of-pocket expenses by a multiplier, usual- methods is to provide a “best guess” as to impact of different variables such as gender ly somewhere between one and three. While what a jury would award if this case were to and years of legal experience, the overarching this has been a long-standing practice, and an be tried, the question begging to be posed is: finding was clear: “Overall, lawyers were over- easy rule of thumb to remember, there are Why don’t we just ask the jurors themselves? confident in their predictions.”7 The attor- limitations, the most obvious being the arbi- True, social science research and the neys who participated in the study were asked trary selection of the multiplier used. industry of traditional litigation consulting to make an outcome prediction regarding an The Decision Tree: Decision trees or have long offered ways to talk to actual poten- actual case they had set to go to trial within 6 dependency diagrams are forms of risk analy- tial jurors. The methodology used in the legal to 12 months. Of the 481 participants, 84% sis that aid in case valuation. Their primary world has primarily been small group were involved in civil cases in which they were purpose is to provide some guidance on liti- research—the focus group or mock trial. seeking a monetary award for their client.8 gation outcomes so we know where we stand Indeed, a version of this kind of qualitative The researchers found that the attorneys mis- in the ultimate decision of whether to settle research exists in current ADR techniques in judged the award amount in nearly seven out or litigate. Assigning outcome percentages to the form of a summary jury trial or a mini- of ten cases. Clearly, individual estimates various decisions made during a jury’s dam- trial, where a condensed version of the evi- leave a lot to be desired if the goal is to accu- ages calculation helps to understand what dence and arguments are presented to a mock rately predict a case value.9 would happen should the case proceed to jury. The jury then renders a verdict and pro- While our individual perceptions may trial, and offers a frame of reference for assess- vides opinions on the issues they discussed. tend to be skewed, many alternative methods ing risk during any negotiation discussion. The information is used to help facilitate set- have been developed over the years to evalu- However, again, these outcome percentages tlement before proceeding to an actual trial. ate case worth or exposure. Honing in on this are, to some extent, arbitrarily assigned based However, less familiar in the legal world is number is not only important in managing on subjective assessments or individual attor- the realm of quantitative research. the increasingly-savvy client’s expectations, ney experiences. Quantitative research differs from small but also in preparing for, and optimizing, set- Prior Jury Verdicts: A more objective group, or qualitative research, in a few key

THE NORTH CAROLINA STATE BAR JOURNAL 19 ways. First, more respondents are involved. the marketing world is a research technique open–ended questions about what facts the So, instead of talking to 10 or 12 mock that utilizes large samples of potential jurors respondents considered, what they thought jurors, quantitative research would involve in order to appraise case valuation. In market- was important, and what questions they had, soliciting responses from hundreds. The goal ing research, price sensitivity research is used thus providing insights on how to strengthen is to improve the validity and reliability of the to help companies determine how to price the overall argument. For example, in one research results. By capturing more responses, their products. In essence, this kind of project involving a medical malpractice case, the probability that they represent the input research evaluates consumers’ concepts of the respondents’ explanations impacted not of the population being surveyed—in this “value:” the perceived benefits of the product only the attorney’s case assessment, but also case, potential jurors— is improved. Also, the or service for the price paid. Since the basis his discovery strategy. The respondents’ eval- more respondents interviewed, the less likely for this technique is the research respondents’ uation of how the plaintiff’s injuries affected a jury’s reactions will differ significantly when ability to assign a monetary value to a propo- his life led the litigation team to improve their presented the same case as the research stim- sition based on the facts surrounding it, the case presentation and, ultimately, to stream- ulus. With a statistically reliable sample of foundational construct on which it is built line their deposition plan. Finally, both participants, more confidence can be assigned has perfect application to the world of litiga- demographic and psychographic questions to the conclusions drawn from the research. tion research. can be included in order to profile respon- This counters the inherent risk of small group Specifically, in a case valuation project, dents based on their tendency to award high- research methodologies when a participant’s this technique provides litigators with a dollar er or lower amounts. opinion varies significantly from that of the amount that jurors from the trial venue are larger venue population. Since only a small likely to perceive as fair after exposure to the Conclusion number of opinions are obtained in the focus evidence and arguments. It offers that public A reliable research-based case valuation group or mock trial, there is a risk that one standard benchmark that is missing from the that also provides potential juror perceptions “outlying” opinion is given more (or less) more traditional methods of case valuation, as of the strengths and weaknesses of the story weight than it deserves in making a decision it measures the reactions of actual potential can finally fill the gap that exists in current about the case. However, in large-sample jurors to the specific facts and evidence in the evaluation methods. Whether the results are quantitative research, this risk is mitigated, as case—not how jurors have reacted in the past used to manage expectations, improve nego- the broader landscape of opinions is seen, and to similar cases, not how one person or even tiation strategy, or encourage agreement, pos- those that are “outliers” are identified. 10 or 12 people perceive the case value. This sessing this kind of rich information can fill While this type of quantitative research technique solicits responses from a large sam- that missing piece of the puzzle left open in might be under utilized in litigation consult- ple of potential jurors who have been demo- our current case evaluation process. We no ing, it has deep roots in the marketing world. graphically screened to be representative of longer have to guess at how jurors will view a Marketing researchers routinely employ these the trial venue, and who have been presented case. Utilizing an objective and empirically- more robust methods in providing insights with the case summary. based tool, we can feel confident in answering into consumer decision-making. The reason In addition to generating an actual dollar that all-important client question: “So, how for the lag on the legal side, historically, has amount that potential jurors perceive as a fair much…” n been cost and access. In the past, only the damage award, this methodology also pro- biggest or most complex cases warranted vides sensitivities around the dollar amount, Shannon English is vice-president of litiga- large-scale juror research. Meanwhile, howev- indicative of how much negotiation room tion consulting with Keynote Consulting, LLC er, marketing researchers have worked to uti- exists. Participants are asked to answer a series in Winston-Salem. She received undergraduate lize advances in technology to improve effec- of questions designed to elicit their percep- degrees from the University of North Carolina at tiveness and efficiency for their corporate tions of not only a fair and reasonable award Chapel Hill in both journalism and psychology, clients. These advancements in research amount, but also of the range of damage and her law degree from Campbell University’s methodology have removed many of the tra- award amounts in which they are willing to Norman Adrian Wiggins School of Law. ditional barriers that existed in the litigation agree. world. Thus, these vigorous quantitative This focus on agreement is the crux of the Endnotes research techniques are more accessible to lit- technique in that it recognizes that damage 1. John H. Lanbein, The Disappearance of the Civil Trial igators than ever before. awards are not a dichotomous choice. It is not in the United States, Yale L.J. (Fall 2012), Yale Law School, Public Law Working Paper No. 256. There are now ways that we can take one number or nothing. Since the goal of a 2. Id. at 3. advantage of the benefits of large-sample jury is to work toward consensus, there is 3. Id. research on more than only the big, complex strong incentive to avoid this false dichotomy 4. Id. at 1. cases that have warranted it in the past. These and to compromise. The technique measures 5. Federal Rules of Civil Procedure 38(a). technological improvements allow quantita- this “compromise effect” and factors it into 6. Jane Goodman-Delahunty et al., Insightful or Wishful: tive litigation research to be not only more projecting the likely award amount. Lawyers’ Ability to Predict Case Outcomes, 15 Psychol., available, but also more routine. Why wait for Beyond the perceived fair award amount, Pub. Pol’y., & L., 133 (2010). only the biggest cases to gauge juror reaction, participants are also asked diagnostic ques- 7. Id. at 133. when it is now actually affordable to obtain tions that are designed to obtain each person’s 8. Id. at 140. this information on a regular basis? thought process in determining the damage 9. Id. at 141. One such methodology borrowed from award. These are rendered in response to 10. Id. at 152.

20 SPRING 2013 DEPRESSION, STRESS, CAREER ISSUES, AND ADDICTIONS. BELIEVE IT OR NOT, THIS IS AN UPLIFTING STORY. Actually, there are many stories. Every one confidential and is received by a professional of them about someone in the legal field. staff person. You can be confident that you’re Lawyers are as vulnerable to personal and talking to the right person and that no one will professional problems as anyone else. know about it. Competition, constant stress, long hours, We understand what it’s like to face person- and high expectations can wear down even the al problems within the profession, because we most competent and energetic lawyer. This can only help lawyers. lead to depression, stress, career problems, Our service is not only confidential, it’s relationship issues, financial problems, or alco- free, paid for with your yearly bar fees. hol and substance abuse. If you have a personal issue, or know some- So where’s the uplifting part? That’s where one who does, we can be the crucial first step we come in. in turning things around, a role we’ve played The Lawyer Assistance Program was created for many of your peers. by lawyers for lawyers. While we started as a We have countless success stories we could way for attorneys to deal with alcohol related tell, and yes, they are uplifting. But we do our problems, we now address any personal issue work quietly, confidentially, and professionally confronted by those in the legal profession. so the stories will stay with us. Our message to anyone who may have a per- We’re here for you. Visit www.nclap.org, sonal issue, whether a lawyer, a judge, or a law call 1-800-720-7257 or [email protected]. student, is don’t wait. Every call we take is We can help if you get in touch with us.

FOR THE ISSUES OF LIFE IN LAW Meet the Federal Judges—Judge Max O. Cogburn Jr.

B Y M ICHELLE R IPPON

In the early 1990s what was then the State they had before they Bar Quarterly published a series of articles loosely spent time with him. held together with the theme, “Meet the Federal It was in Judges.” In the next few editions of the Journal, Massachusetts while his we will be updating that series. father was attending Harvard that Max O. Judge Max O. Cogburn Jr. Cogburn Jr. was born. ax Sr., Max Jr., Max III, That didn’t make him a and now Max IV—here is “northerner,” however! a family of remarkable When he asked his dad achievements. It is a close- how to respond to the ly Mknit family centered around the family suggestion that he was ranch, which has been in the family since the not a true southerner, 1790s. Since 1941 Pisgah View Ranch has Max Sr. replied, “Just been a destination for visitors—a Blue Ridge because kittens are born getaway that includes riding trails over in an oven doesn’t make “16,000 breathtaking acres.” them biscuits.” Although The family of attorneys began with Max Sr. was offered Chester Cogburn, who was born in 1902. lucrative work if he Because of a lack of public education, the remained north, he chose to return to his Mutual and is also a basketball coach. But if only school available was the Haywood home in the North Carolina mountains to you ask Judge Cogburn, he will tell you that Institute, a private school. Chester’s mother practice first with his father in Canton and by far the most brilliant member of the worked as a cook at the school to pay his then, after a term as a Buncombe County Cogburn clan is his two-year-old grandson tuition while Chester worked at a saw mill Court judge, as a partner with Landon Max IV, known as Oliver. for a dollar a day, which he gave to his moth- Roberts, ultimately becoming a partner in Max Jr. attended high school at Enka er. He worked his way through college and the firm Roberts, Stevens & Cogburn. High, the same high school that graduated law school and was a judge and a state legis- Judge Cogburn will readily admit, how- Judge David Sentelle, now a judge with the lator. ever, that while his father’s example influ- DC Circuit Court of Appeals. He obtained Max Sr. graduated high school at age 16 enced his choice of and approach to the law his undergraduate degree from the and finished the University of North as a profession, it was his mother who insist- University of North Carolina at Chapel Hill, Carolina at Chapel Hill undergraduate and ed that all of her five children study for a pro- and his law degree from Samford University’s law school in six years. He obtained his LLM fession. Her second son, David, is a derma- Cumberland School of Law, where his from Harvard University at the age of 24. tologist, her youngest son Steve is an attor- grandfather had attended. Max Sr. was one of those attorneys that you ney and clerk of court in Buncombe County. Cogburn returned to Asheville to practice would never forget once you had the privilege Her daughter Cindy graduated from veteri- with his father at Roberts, Cogburn & of meeting him. He was a true gentleman, a nary school and has recently retired as a lt. Williams, where he remained until 1980 member of the North Carolina Bar for more col. in the air force. A sister Chris, who is when he was appointed assistant US attorney than 50 years, and known throughout deceased, was an accountant who also ran a for the western district of North Carolina, Western North Carolina as an effective advo- group of weekly newspapers. and then chief US attorney from 1986-1988. cate with a quiet, good nature. He always Cogburn’s daughter is a practicing attor- In 1992 Cogburn and Lyle Yurko formed tried to leave those he came in contact with ney in Huntsville, Alabama, and his son Trip Yurko and Cogburn, and they practiced in feeling a little better about themselves than (as in third) is employed at Northwestern Asheville and Charlotte. In 1995 Cogburn

22 SPRING 2013 returned to the practice of law with his father to deal with difficult clients. It has served to although ruling for the bank and confirming and younger brother Steve, who were then give him a “whole different perspective” the award, Cogburn noted: practicing with the firm of Cogburn, when he remembers this aspect of the prac- [A]rbitration under the Federal Cogburn, Goosmann & Brazil. tice of law. Arbitration Act is a process that, although Judge Cogburn was appointed magistrate Toward the end of his term as a magis- retaining the appearance of constitution- judge for the western district in 1995 and trate judge, Cogburn was trying nearly as ality by involving the courts in confirm- remained in that position until 2004 when many civil cases as then Judge Lacy ing an award, does not even attempt to he returned once again to the practice of law, Thornburg, making for a comfortable transi- retain the appearance of fairness. In the joining his brother Steve at the firm of tion to the federal bench. Indeed, while each hearing before this court on the claimant Cogburn, Goosmann, Brazil & Rose. This of the federal judges in the western district is bank’s motion to confirm an arbitration was an opportunity to “get the barnacles off” unique in the way he runs the courtroom, award, counsel for the claimant bank and remember the many challenges for a this judge is not one to appreciate technical- noted that the bank handles hundreds of practicing attorney. He loved the courtroom ities or treat the local rules with the same def- arbitrations a year, and that counsel her- but disliked the billing. He also became a erence as the Federal Rules of Civil self handles 30-40 a year and that she, by skilled and effective mediator. He was nomi- Procedure. “They are there for our conven- the way, has never lost a single case. (“I’ve nated to the federal bench in May 2010, and ience, not to be used as a tool to gain an never lost one and I’ve never not gotten after senate confirmation received his com- advantage over an adversary. Attorneys attorneys fees. I always win these cases.”) mission and was sworn in as a United States should be given the opportunity to try their Now there’s a level playing field. district judge on March 11, 2011. case.” What causes him consternation are In a footnote, the judge adds, “as one Each of these experiences prepared attorneys who submit bad law. And he’s like- author has noted, ‘[a]rbitration is despotic Cogburn for his role as an Article III federal ly not to forget who they are. He is quick to decision-making in the sense that the gov- judge. For example, Cogburn observes that point out, however, that he never rules on a erning law makes arbitrator’s decisions virtu- coming into the position as US attorney case based on the conduct of the attorneys. ally unreviewable while accepting procedural without prosecutorial experience meant that He also runs an efficient courtroom. He took and substantive results that would be consid- he approached the position without any pre- care of a large backlog of cases within the first ered unfair in the judicial setting.’” conceived prosecutorial bent. The most diffi- six months on the bench. Insight into his decisions as a US magis- cult part of the job, he notes, is not “knowing Judge Cogburn is the first to admit that trate can be found on the walls of Judge when to strike because there are many of he doesn’t have all the law at his fingertips, Cogburn’s new chambers where, when he those opportunities, it’s knowing when to and he’s willing to take a second look at a returned to private practice, he was given forbear.” He also understood how difficult it decision. He just wants “to get it right.” awards and commendations from the Federal was for defense attorneys when dealing with Assisting him along the way is his career Wildlife Association, the United States a lack of respect from prosecutors. He clerk, David Davis, who brings to the cham- Forest Service, the Blue Ridge Parkway, and believes that prosecutors need to remember bers significant experience of his own. He the Great Smoky’s National Forest, as well as that they are representatives of the people began as a law clerk in 1989 for Magistrate from the United States Marshals, the Office and coequal with defense attorneys in the Toliver Davis, and then for Magistrate Judge of Probation and Parole, the Federal Bureau criminal process. Cogburn. After a short period as an assistant of Investigation, and the Drug Enforcement Now, as a federal judge, much of his US attorney, David returned to clerk for Agency. work involves sentencing. Here he sits as the Magistrate Judge Dennis Howell, and then His rise to the federal bench has not ultimate arbitrator, understanding the roles made the move to Judge Cogburn’s chambers changed the way Judge Cogburn views him- of both defense attorneys and prosecutors. in 2011. David is known for his willingness self, those with whom he works on a daily Because the sentencing guidelines leave to help attorneys navigate the often complex basis, or the attorneys who appear before room for discretion, Judge Cogburn stays issues that arise in a practice before the feder- him. He’s easygoing and approachable. Like attuned to how the other judges in the dis- al court. his father, he did not use intimidation to trict are interpreting the guidelines as well as As a former mediator, Judge Cogburn succeed as an attorney and does not use those in districts across the country. admits that resolving cases through media- intimidation to control his courtroom. He Cogburn had an opportunity to appear tion is certainly less expensive than a jury loves his work and plans to continue until before two of western North Carolina’s most trial, and for many cases provides an appro- he’s 150. He’ll visit with attorneys before respected judges, Woodrow W. Jones and priate alternative to a jury trial. However, it court and exchange stories. He’s fair and he’s Robert D. Potter. He learned a lot from has created “a dearth of good trial lawyers on honest. He’s humble and humorous. And he these and other fine judges in developing his the civil side.” He would be willing to revisit smiles a lot. n own judicial style. his mediation skills at the request of another From his years as a trial attorney he judge. Michelle Rippon is of counsel with Constangy learned to appreciate that lawyers who On the other hand, Judge Cogburn is Brooks & Smith in Asheville. She is also an appear in his courtroom have many more definitely not enamored with arbitration adjunct professor in the Business Management places to go and many more cases to handle between individuals and large corporations, Department at UNC-Asheville and serves as the than just the one before him, and that they which frequently arbitrate. In Wells Fargo attorney for the Asheville Area Chamber of are pulled in many directions, often having Advisors v. Watts, 2012 WL 831878, Commerce.

THE NORTH CAROLINA STATE BAR JOURNAL 23 Lobsters and Lawyers: Professionalism and Our Shared Capital

B Y W OODY C ONNETTE

hat does the Maine neys I know. The lobster fishery have remarkable thing to do with legal about these fisher- professionalism? men is the way they The lobster fisher- have come together menW of Maine have worked to preserve their to preserve their fish- fishery since the 19th century. They have ery. Struggling with been required by law to release egg-bearing the costs of main- female lobsters since 1872. If they caught taining boats and female lobsters that were not bearing eggs, traps, worried about they could keep them. But the Maine lob- gas prices and feed- stermen chose to release all of the females. ing their families, More than 60 years ago they started marking out there in the fog egg-bearing females before releasing them by where no one would cutting a v-shaped notch in the tail flipper. If ever know the differ- the v-notched females were caught again, ence, they have qui- they would be released, whether they were etly returned the v- bearing eggs or not. The v-notch kept fertile notched lobsters to lobsters in the breeding pool. They devised the sea for over 60 this system themselves and did it voluntarily. years. Maine did not enact legislation protecting v- A previously v-notched lobster is recaptured carrying eggs. notched lobsters until 2003, when the lob- * * * * * Note the piece missing from the left side of the tail. ster fishermen themselves sought legislation protecting their lobsters from trawler opera- Our legal profession is embedded in a professionalism in our dealings with other tors who wanted to keep all of the lobsters system of justice that, in many respects, is as attorneys. The way we carry out these small, swept up in their nets.1 Today, the Maine fragile as the lobster fishery. As attorneys, daily routines gives us the greatest opportu- lobster fishery is thriving, and v-notching is a we cannot extract a living from the legal sys- nity to nurture our legal system. If there were required practice throughout the New tem without putting something back. Our a chapter for litigators in Life’s Little England fishery.2 system of justice needs the nurturing of Instruction Book,3 it might include these I doubt that lobster fishermen attend professionalism if it is to endure. We earn examples of model behavior for the pretrial continuing education programs addressing our living in a legal system that requires eth- phases of a case: professionalism and civility. I imagine them ical and professional conduct by attorneys • Imagine that the opposing counsel in to be an independent bunch, each going out to assure its survival. We serve both the every case is someone you will deal with a alone, tending his or her own traps with no courts and the broader system of justice hundred times during your career. one watching them. I imagine they can be when we act with civility in matters that are • Avoid scandalous or inflammatory alle- big hearted, altruistic, ornery, individualistic, saddled with conflict. I think of this as our gations that serve only to intensify the con- and fiercely proud of the way they make a shared capital. flict between litigants.4 living. I imagine them to be like many attor- We most frequently practice civility and • Use defaults, sanctions, and motions to

24 SPRING 2013 compel sparingly, after trying to address the parties’ respective positions. underlying issues with opposing counsel. There are sound, practical reasons for act- • Ex parte contact with the court, as in ing professionally: seeking a temporary restraining order, should • It creates a level of trust with other be done only after reasonable efforts to notify counsel that enables us to pursue our clients’ and enable opposing counsel to participate interests as efficiently as possible. in the contact, only where warranted by the • It reduces costs, particularly in the pre- Rules of Civil Procedure, and only when you trial discovery phase of litigation, where care- are convinced your client will otherwise suf- fully planned and targeted discovery orches- fer irreparable harm. trated by opposing counsel can save substan- • Be careful in the wording of orders, par- tial time and money. ticularly in state court where judges depend • It models good behavior for the parties on the attorneys to prepare an order. While it to litigation, which in turn helps them see is sometimes tempting to include unneces- and understand the strengths and weaknesses sary findings of fact or expand the court’s rul- of competing claims and defenses. ing, it can destroy credibility with the court • It enhances the odds of dispute resolu- and opposing counsel. tion before trial. • Make written discovery meaningful by • It assures that the pursuit of justice will focusing on the real issues. Give opposing be paramount in any trial. counsel an electronic copy of your interroga- • It gives us the personal and professional tories or document production requests to satisfaction of serving our clients in the best save them the unnecessary labor of retyping way possible.5 your questions and requests. • It gives us a future stream of clients who • Work cooperatively in scheduling depo- seek us out for our knowledge, skill, and pro- sitions. In cases with multiple attorneys, it fessionalism. sometimes is helpful to have all counsel • It earns us membership in a community block off deposition days as part of their ini- of colleagues with similar values and princi- tial discovery planning, with the understand- ples. ing that all counsel will hold those dates for • It makes it easier for our clients to future deposition scheduling. accept the outcome of a matter and to • Make sure you supplement your discov- respect the system that produced it. ery responses as new information comes Civility and professionalism are routines available. The Rules require it, and it sends that we observe with every client who comes the clear message that you operate with can- our way. But the greater benefit of practicing dor and expect the same behavior in return. in this way rests in the larger framework of • Don’t take advantage of another lawyer’s our system of justice. Indeed, it creates a indulgences. If you need an informal exten- level of trust and respect that makes the sion in responding to a discovery request, for whole system work. At any time, any one of example, give opposing counsel a reasonable us could cut corners in ways that might give deadline by which you will produce the dis- us or a client a temporary advantage without Endnotes covery, and then stick to it. Don’t make the bringing down the system, just as one fisher- 1. Me. Rev. Stat. Ann. § 12-6436. lawyer who did you a favor have to come man in the fog might decide to hold back a 2. I first read of this practice in Linda Greenlaw’s excellent back to you asking for the discovery. v-notched lobster without destroying the little book, The Lobster Chronicles: Life on a Very Small • Write every letter to opposing counsel fishery. For the system to endure, however, Island (Hyperion Books, 2002). It is also described in The Secret Life of Lobsters: How Fishermen and Scientists knowing that it probably will be read by their we all need to cultivate professionalism. We Are Unraveling the Mysteries of Our Favorite Crustacean, client. A frank, even-handed, professional are the beneficiaries of this shared capital, Trevor Corson (HarperCollins Publishers, 2004). letter-writing style can help minimize the and we are responsible for growing it for 3. H. Jackson Brown (Rutledge Hill Press, 1995). conflict between opposing parties and future generations. n 4. Abraham Lincoln once said, “In law, it is good policy improve the chances of early resolution. never to plead what you need not, lest you oblige your- • You have a duty of loyalty to your client, Woody Connette is a Charlotte attorney self to prove what you cannot.” (Abraham Lincoln, Letter to Usher F. Linder (Feb. 20, 1848) in The but remember that there usually is another practicing with Essex Richards, PA. He is a for- Quotable Lawyer (Shrager & Frost edits., 1986) p. 96.6, side to whatever your client tells you. mer member of the Chief Justice’s Commission 241) quoted in Korech v. Hornwood, 58 Cal. App. 4th Whenever you state your client’s position in on Professionalism and a recipient of the H. 1412, 1420 (1997). a letter or a conversation, ask for the other Brent McKnight Renaissance Lawyer Award 5. Operating with civility and professionalism fits well party’s response. This gives you the advantage given by the North Carolina Bar Association. with the many excellent principles enunciated by Steven Keeva in his remarkable book, Transforming of informal discovery, while creating an To his knowledge he never has eaten a V- Practices: Finding Joy and Satisfaction in the Legal Life opportunity for better understanding of the notched lobster. (Contemporary Books, 1999).

THE NORTH CAROLINA STATE BAR JOURNAL 25 FICTION WRITING COMPETITION - THIRD PRIZE

The Liar’s Paradox

B Y G ARY B RIAN E RNST J R .

he first thought running room seemed to be sweating as beads of water through Ethan Bonner’s dripped from all surfaces. It smelled as if a The Results Are In! mind once he had awak- fishmonger’s shop had been transported ened was a hope that the inside the latrine of a men’s locker room. He This year the Publications caked blood underneath looked up at the small window near the ceil- Committee of the State Bar sponsored himT was not his. There was a train station ing of the opposing wall and crawled toward its Ninth Annual Fiction Writing inside his head and his ears rang with the it, weaving around the hideous drain. The Competition. Eighteen submissions whistles. He struggled to raise himself off the thought passed his mind that this foul con- were received and judged by the com- stone floor in the squalid room. He felt sick duit must serve as his toilet and he immedi- mittee members. The submission that and tried not to wretch as he braced himself ately stopped thinking. earned third prize is published in this against a cold wall behind him. As his eyes He reached the wall underneath the win- edition of the Journal. adjusted to the beams of light filtering in dow and again raised himself to his feet. through the barred window, he focused his Stretching his arms as high as he could, he mind on comprehending his situation. It was found the window to be just beyond his The attorney raised his hand to plead for obvious he was in a holding cell, a prisoner of reach. The sky beyond was a tantalizing blue. calm, though he himself was plainly uncom- some unknown force with uncertain inten- He stood on his toes and put one ear up to the fortable under such circumstances. tions. aperture and thought he could hear the surf. “Ethan… are you hurt?” He had evidently been stripped of his pos- Suddenly he recognized the sound of foot- The prisoner pointed to his own battered sessions, though his captors had at least per- steps marching down the hall. He quickly face. “I must’ve been roughed up at some mitted him to keep his clothes. His face felt moved back to the gate and scoured the pas- point, but nothing too bad I hope. Hard to different and, putting a hand to it, his cheek- sageway for the source. Down the left side of tell much of anything in this damned place.” bone exploded in blinding pain—no doubt the corridor appeared the shapes of two men, “Before we talk further, I should tell you the result of some brutish trauma. Slowly he both approaching his direction. It occurred to that our friend here speaks surprisingly good paced the perimeter of the room, feeling his him that they might not have his best inten- English.” William motioned toward the way along the walls as his squinted eyes grad- tions in mind so he took a step back from the guard, who remained an armed sentinel just ually took in a dolorous scene. gate. Their paces slowed as they neared his inside the gate. His cell was a square room about the size cell. “No confidentiality here, I take it,” of a restaurant bathroom. As best as he could A portly uniformed man with a swarthy quipped Ethan. tell, it was completely empty other than his complexion glared back at him through the William managed a smile. “Ethan, I’m own presence. A small drain in the middle of bars. The man’s gaze cased the cell to make going to get right to the point. They’re hold- the floor provided a torturous dripping sound sure there were no disturbances before return- ing you here because they think you’re a spy. as rock condensation and God knows what ing to Ethan. The guard produced a pistol They want you to sign a confession.” else percolated down the pipe. A wrought- from a waistholder and ordered him, in Ethan’s head spun some more. “You can- iron gate on the wall opposite him provided accented English, against the far wall. He had not be serious. A spy? I came here for my the only obvious means of access. He instinc- no choice but to comply. vacation. We talked about it in your office just tively approached it and peered through the The guard opened the gate, keeping his a few days ago. Didn’t you tell them?” bars down either side of the hallway on the pistol trained on the prisoner. The second “Of course I told them, Ethan. I told them other side. Only more of the same—rough- man entered the cell and took stock of the you were an ordinary accountant who came hewn stone walls extending as far as the eye environment. He was clean-shaven, bespecta- here simply to see the ruins. Why else would could see. His shouted pleadings echoed cled, and wearing an immaculate business anyone want to visit this place?” down the passage as his own voice seemed to suit. Ethan recognized him immediately as his The guard grunted disapprovingly. mock him in return. lawyer. “Look, William,” replied Ethan, “I don’t His world began to spin so he slumped “William! What the hell are you doing understand any of this. One day I’m sitting himself back down on the floor. The whole here? What the hell am I doing here?” down to a pleasant dinner in the bazaar, and

26 SPRING 2013 the next day I wake up beaten and impris- oned. I can’t remember anything in between. What the hell is going on?” The lawyer looked back at the sentry and then to Ethan before speaking in a more hushed tone. “I believe they drugged your food. They might have slipped you some kind of truth serum as well. I don’t think it had the intended effect.” “What makes you say that?” “Because you’re still here, and they still need your confession.” “I see.” Ethan paused and rubbed a hand through his auburn, greasy hair. “Well, I’m obviously not a spy. So how do I get out of here? What about the consulate?” “Unfortunately, most of the consulate’s staff has already been recalled to the US. I got a call from the government to see if I could arrange some kind of agreement on your behalf. That’s why I’m here.” “Unbelievable. How did you get here so fast?” “The government chartered a jet to get me here as quickly as possible. They weren’t sure how many hours they had. From what I understand, you were unconscious for quite some time.” Ethan slowly sank to the floor in disbelief. At this newfound knowledge he noticed his stomach rumbling in hunger. His throat was “Why me?” these walls.” absolutely parched despite the overwhelming “Perhaps they’re just using you as a politi- Their conversation was abruptly broken dampness of the environment. He looked cal pawn. Who knows? Unfortunately, I don’t by the guard’s loud, grating tone. back up at his friend. think they’re going to release you unless you “Give him the papers. You must leave “What about food?” give in to their demands.” now,” came the order. His voice sounded like William sighed. “They’re trying to starve Ethan shook his head. “So they’re just he had been smoking since infancy. you into complying with their demands. I’ve going to let me go if I sign it, huh?” The attorney nodded in response and done my best to talk them out of it, but “That’s what they told me.” removed the pile of papers from his case they’re absolutely convinced you’re a spy. I’ve “Do you believe that?” before handing them to his client. “I’m really repeatedly told them you are an accountant William’s eyes darted over to the guard and sorry, Ethan, but I think you should use this.” from North Carolina with no knowledge or back to Ethan. “That’s what they told me,” he He offered him the pen. history of such things. I asked them to pro- repeated. He spoke the words with such lack Ethan nodded and took the pen, lightly duce evidence supporting their case, but nat- of conviction that Ethan found little comfort scribbling it on a blank part of the page to get urally they refused. I’m afraid there’s no argu- in them. the ink flowing. The slight indentations made ing with them. My only purpose here is to “Great,” Ethan replied. “Damned if I do, by the instrument were devoid of any colored help arrange a release.” damned if I don’t.” markings. He shook the pen and tried again. The lawyer hunched down to set his brief- “I’m sorry, Ethan. You may as well take the Once again, no luck. case on the floor, looked at the ubiquitous pen and papers. If they truly are just using you “Something’s wrong with the pen,” Ethan grime, and immediately rose back to his feet. for leverage, then they may have no interest in said. His face showed muted exasperation He opened the case to reveal a short stack of harming you once you sign the documents. In toward this latest insult. papers and a fountain pen. any event, you have twenty-four hours to William looked puzzled and took back “These are your confession papers,” decide.” both pen and paper. He tried repeating the William continued. “I’ve already looked “What happens then?” process, dragging the pen firmly back and through them. They contain one false allega- “They’ll take away the papers. I can’t tell forth over the top of the page. Nothing hap- tion after another. It’s an utter fraud, every bit you what their plans would be afterwards. I’m pened. of it. But they’re quite serious about making doing everything I can here to help you, but The attorney looked back at the guard you sign it.” unfortunately there aren’t many laws within and held the pen in the air. “No ink.”

THE NORTH CAROLINA STATE BAR JOURNAL 27 placed the defective pen in his breast pocket everyone back home and whether he would and began examining the unopened parcel. see them again. He brushed back his thick, Preorder Your Copy of the It appeared to be a generic set of push-oper- wavy hair, every now and then swatting away 2013 Lawyers Handbook ated ballpoint pens, black in both ink color flies, which seemed to blow in with the twi- and pen shell. He carefully opened the pack- light breeze. age and withdrew a single instrument from After a moment Ethan nodded to himself You can order a hard copy by the wrapping, placing the container back and picked up the pen. He carried it over to submitting an order form (found at down on the floor as he set about analyzing the disheveled piles of papers and then ncbar.gov) by March 22, 2013. The one of its contents. moved all contents directly under the win- digital version will still be available for The next few moments were spent in dow. Using the last beams of light, he turned download and is free of charge. utter silence as the guard disassembled the to a blank piece of paper, raised the pen high, pen, sniffed the ink, and rubbed the compo- clicked it, and began to write. nents between his fingers. Putting the pen “Impossible,” the guard replied incredu- back together, he paused for a moment and * * * * * lously. “It worked a few minutes ago. We seemed to mumble something to himself both tried it.” before depressing the button on top to pro- On a reconnaissance ship stationed off “What do you want me to say?” the attor- pel the ballpoint from its canister. The typi- the coast, a communications officer listened ney shot back. “It’s your pen. Try it for your- cal click made by this action, when com- intently as he scribbled down an incoming self.” bined with the anxiety of the moment, message. The source of the signal matched The guard instinctively took a step made all the three men visibly tense. In a the location they had been scanning for days. towards them, but then thought better of it. lighter moment they might have shared a It was a simple message in the simplest code “Put the pen on the ground and move laugh. transmitted by a series of familiar clicks. The back to the wall. Slowly.” The guard cocked He cautiously dragged the pen back and officer looked down at the finished transcrip- his pistol and the attorney shuddered. forth over the notepad. It worked without a tion. “Okay, take it easy,” William responded. hitch. Dot, dot, dot. He did as ordered. “So?” asked the attorney. Dash, dash, dash. The guard took several deliberate steps “It seems fine.” Dot, dot, dot. towards them and then kneeled down to “Well, can you leave it here with my pick up the pen, keeping his eyes and firearm client so he can sign the papers? It’s going to * * * * * trained on the two men. He produced a be tough for him otherwise.” small notepad from his side pocket, stepped The guard glared back. He kneeled down The sentry hunched over a small table in back against the cell door and tried to make once more and set the pen on the ground, the dank surveillance room. No matter how the pen work in between furtive glances back then quickly rose to his feet. “Take your hard he tried, he couldn’t put the day’s events up at his audience. His face appeared angry, briefcase. I will keep the pens. Leave now.” out of his mind. Why didn’t the cursed pen and William and Ethan looked nervously at The lawyer sighed and turned to Ethan, work? To be sure, there was nothing special each other. He seemed to be lost for words, who had remained silent but vigilant. “I’ll or necessary about that particular item. But as if his mind were searching for the proper take care of things on my end, Ethan. Good it had worked without a hitch in this very English profanity. luck.” room at this very table minutes before it sud- “I’ve got a pack of new pens in my brief- The guard snatched the opened bag of denly ceased to function. He had considered case,” William said calmly, as he slowly pens and barked again at William, who reporting the incident to his superiors, but removed a clear package from his satchel. closed his briefcase with one hand while rais- what was he to tell them? That he could not “Never been opened. I always carry them for ing the other in protested acknowledgment. be trusted to provide a simple writing instru- situations like these. Well, not exactly like He forced a halfhearted smile for his friend ment in working order to an important pris- these, but you understand. Would you mind before exiting the cell. The guard secured the oner on the cusp of a valuable admission? terribly if I offered one to my friend?” door behind him and Ethan remained still as That sort of incompetence didn’t earn many The irritated guard cast a suspicious look the two men walked back down the hallway promotions, and a promotion was his best upon the attorney. He had already known leaving only silence. chance of escaping this forsaken assignment. about the pen package, having searched the In any event, the insufferable attorney had lawyer thoroughly before permitting him to * * * * * been frisked and processed prior to entry, enter the building. Still, he wasn’t comfort- and besides, the sentry himself had thor- able with the proposal. The light was fading quickly and Ethan oughly examined the substitute pen. “Toss them over here,” he barked. knew it would soon be too dark to see much A large scarab scampered over the guard’s “Slowly. On the ground.” of anything. He sat on the cell floor near the boot from under the table. This minor The attorney nodded and slid the pack spot where the guard had been standing, annoyance reminded him of the wretched across the cell floor towards his adversary. keeping his eye on the nascent moon as it nature of this abominable place, and in his The crackling of the wrinkled plastic peeked through the bars of the window. He foul mood he raised his foot to squash the bounced off the dampened walls. The guard remained silent for a while, thinking about hapless creature.

28 SPRING 2013 With his foot in the air, a liquid dripped down from the bottom of his boot upon the diminutive beetle, forcing it back under the Claude M. Bogues, CPA, PLLC table for cover as the guard looked on with curiosity. He used the rear of his heel to push Offering Attorney Trust Account Reconciliation and Forensic Accounting Services the chair out backwards from under him and (Former SBI – Financial Crimes Investigator) lowered himself to the ground to investigate. There was a small black pool of liquid Hamilton Centre, Bldg. 100, Suite 203 several inches under the table where his foot 1415 Highway 54 West had been resting. He dipped the tip of his left Durham, NC 27707 pinky in it and stood up so he could better examine it under the ceiling lights. It was Telephone: (919) 489-6300 Fax: (919) 489-7923 cool to the touch and he gave it a tentative [email protected] www.claudeboguescpa.com sniff. It had the unmistakable odor of ink. It didn’t take long to deduce what hap- pened. The bastard attorney had drained the He had trouble deciding whether his fate them something to think about. He seemed pen. would be worse than theirs. like the intellectual type.” The guard walked briskly over to the sur- “Still not sure I follow.” veillance equipment and looked at the mon- * * * * * “That’s kind of the point, sir.” itors. Everything seemed normal. The exter- The director shrugged his shoulders. nal cameras showed no disturbances outside In Washington, Agent-in-Charge Ethan “You’re an odd duck, Bonner, but I’m glad the complex. No sign of any trouble in any Bonner waited patiently in the deputy direc- you made it back safe and sound.” He half- of the rooms or hallways. The prisoner was tor’s office as the latter poured over the heartedly flipped through the stack of papers sitting in the corner of his cell opposite the dossier. Ethan had been back in the States for on his desk. It was late and he was getting window and appeared to be resting. only a few days and was already getting anx- hungry. It occurred to the sentry that he should ious. He despised this part of the mission “Anything else, Agent?” retrieve the substitute pen immediately. He and considered personal debriefing a good “I believe that’s all, sir.” grabbed his rifle from the gunshelf on the thing only to the extent it meant he had sur- “Alright. You know the drill. Sign on the wall, opened the door, and proceeded down vived. He coughed conspicuously to ensure last page and we can get you started on some- the hallway towards the cell. his superior hadn’t fallen asleep reviewing the thing else. Maybe send you to a place with Suddenly the whole building shook and paperwork. Finally the director tossed the air conditioning this time.” The director the guard knew the offensive had com- folder onto the desk and stared back at the chuckled at himself. menced. He broke into a full sprint down man sitting across from him. Bonner gave an acknowledging nod and the corridor as smoke began to fill the nar- “Looks like it was pretty hairy there for a patted his side and breast pockets. How row passageway. By the time he reached the moment, Bonner. Glad we got you out in amusing. He looked back up at the director cell he already had the correct key in his hand one piece. We’d been looking for you for with some embarrassment. and wasted no time opening the door. days, you know. The Morse code with the “Excuse me… do you have a pen?” n As the smoke cleared it was painfully pen was a fine idea. Amplified it just enough obvious he was too late. Where the wall with with a cone of paper so that our boys could the window had been there was now only pick it up. Nice work. Ten years ago our rubble and an opening just big enough for a technology wouldn’t have registered any of it. Call 4All (cont.) person to squeeze through to the other side. Your timing is impeccable as always. He approached the smoldering hole and sur- “I understand you kept the pen as a sou- matters, to name only a few high-demand veyed the beach looking for the prisoner. venir. That’s government property, but I’m fields—budget cuts have forced LANC to Tracer fire illuminated the night sky and he going to let it slide. What’d you do with the close offices and cut staff. Call 4All has found it difficult to locate his bearings. paper?” already recruited 605 volunteers who have For a moment he thought he saw a shad- “I left it in case I needed a distraction. I assisted 3,799 clients since March 2011, but ow in the distance running towards the surf knew the guard spoke English so I left him a this is just the beginning. Call 4All needs you and he drew his rifle. He failed to fire off a message.” to help bridge the justice gap. This program single shot before suppressive fire ricocheted “Explain.” is an easy way to provide pro bono service and inches from his head, forcing him to retreat “One side of the paper said, ‘The state- make a real difference in the lives of those in into the relative safety of the cell. He cursed ment on the other side is false.’ The reverse need. Thank you for your consideration of under his breath and peeked up at the guard said, ‘The statement on the other side is volunteering in this worthwhile and impor- tower, hoping his fellow soldiers would do true.’” tant effort. n what he was unable to do. His heart sank as The director looked confused. he spotted two bodies slumped over the rail- “It’s an old Greek paradox. I thought it Debbie Hildebran-Bachofen is with the ings. might buy me some time. You know, give firm of Manning Fulton in Raleigh.

THE NORTH CAROLINA STATE BAR JOURNAL 29 LEGAL SPECIALIZATION

Profiles in Specialization—New Specialists in Juvenile Delinquency-Criminal Law

B Y D ENISE M ULLEN, ASSISTANT D IRECTOR OF L EGAL S PECIALIZATION

recently had an opportunity to talk know us. Having the spe- with the newest board certified spe- cialty allows us to reach cialists in juvenile delinquency - crim- out to the public and give inal law. The committee members them better access to whoI initiated the specialty and wrote and qualified representation. graded the first examination are John Cox, Q: Why did you apply solo practitioner in Graham; Julie Boyer, solo to take the examination? practitioner in Roxboro; Mary Wilson, juve- Valerie Pearce – I nile chief at the Wake County Public pursued certification in Defender’s Office; and Eric Zogry, the North order to raise the bar for Carolina juvenile defender. Two new special- representation in the ists—Geeta Kapur, attorney and adjunct pro- juvenile court system. In fessor at UNC-Chapel Hill & Campbell order to practice well in Schools of Law, and Valerie Pearce, senior staff juvenile court, you need Mary Wilson, Eric Zogry, and John Cox attorney, council for Children’s Rights—also to understand juvenile provided responses. Following are some of law, criminal law, federal law, child welfare, guide of my own. I reviewed criminal law their comments about the specialization pro- mental health, education law, benefits, and and procedure as well as juvenile delinquen- gram, and the anticipated impact specialty family law. I strongly advocated for recogni- cy statutes, the entire evidence code, and certification will have on their individual prac- tion of this important practice area. reviewed recent appellate opinions on the tices and on the practice of juvenile delin- Q: How did you prepare for the examina- topics outlined in the exam guide. I also quency law in general. tion? reviewed trial strategies and motion practices Q: Why did you, the committee members, Julie Boyer – As a committee member, I for jury trials. pursue a specialty designation for juvenile was part of the team that created the first Q: Was the certification process valuable to delinquency? exam. Writing the examination was certainly you in any way? Eric Zogry – The idea actually incubated a group effort. Each of us developed ques- Geeta Kapur – The certification process for a couple of years before we began to fol- tions for different topics, and when we met, was extremely valuable to me. Since I began low up on it. We set up an exploratory com- we reviewed each other’s questions to deter- practicing law, I have not had the time or mittee within the North Carolina Advocates mine the level of complexity and various opportunity to study the entire criminal law, for Justice (NCAJ) Juvenile Defense Section other criteria to ensure the fairness of the criminal procedure, and juvenile code in its and completed the State Bar’s application examination. The process definitely entirety. As a result of studying and taking process for a new specialty area, which increased my knowledge of the practice area. the exam, I feel much more confident about involved assessing support among lawyers Valerie Pearce – my practice of criminal and juvenile delin- and then gathering signatures. The percep- To prepare to take quency law, and I hope to deliver the highest tion of juvenile delinquency law is that it is a the exam I studied quality representation to my clients. practice area a young lawyer can start out in the Juvenile Defender Q: How do you envision certification being before transitioning to something else. Manual, website helpful to the practice of juvenile law in Developing the specialty was one way to help resources from the North Carolina? legitimize the practice. NC Office of Mary Wilson – This should help legit- Mary Wilson – That was important to Indigent Defense imize that juvenile court is difficult and it is us. We wanted to build on the knowledge Services (IDS), and important. There are kids’ futures at stake. that kids are important and worth the time juvenile and criminal Pearce John Cox – We are on the verge of raising to develop the specialty, and then worth the statutes. the age of jurisdiction, which would really investment in a long-term practice. Geeta Kapur – Using the topics that were increase the volume in the juvenile court sys- John Cox – In this practice area, we all outlined in the exam guide on the specialty tem. Currently, North Carolina is the only know each other, but the public doesn’t website, I created a fairly in-depth study state that automatically puts a 16 year-old

30 SPRING 2013 into the adult court system forever. If and would be diverted to teen court in any other Mary Wilson – I think we all review a when this changes, 16 and 17 year-olds state. The stakes are high in North Carolina, lot of case law, talk with the other special- would move into the juvenile courts and and juveniles desperately need a qualified ists, and read the listserves, including the more qualified attorneys will be needed. attorney. one hosted by the NCAJ Juvenile Defense Julie Boyer – All juveniles brought into Geeta Kapur – The “school to prison Section. delinquency court are assumed to be indi- pipeline” that disproportionately affects John Cox – We also attend excellent gent, thus they receive court appointed black and Latino children is an epidemic in continuing legal education programs counsel automatically. As more juveniles are North Carolina that must be addressed by including ones that the UNC School of being brought into court, their parents and high quality, zealous representation. Being Government and the NC Bar Association guardians are seeking private attorneys certified as a criminal law juvenile delinquen- sponsor on a regular basis. much like in adult court matters. cy specialist directly relates to these two Q: How do you see the future of board Certification has helped in that regard, iden- issues. certification for lawyers? tifying myself as one of the few specialists in Q: How does specialization benefit the Geeta Kapur – I hope that more lawyers the state. public or the profession? who focus on indigent defense will become Q: What have your clients, staff, and col- Julie Boyer – In board certified because it conveys to the leagues said about your certification? the years I have prac- poor and disadvantaged client that they Eric Zogry – I told the IDS Commission ticed, the profession also deserve to be represented by specialists and they were pleased. They are able to rec- in general has of the law despite their social and political ognize the movement in this practice area become very special- position in our society. over the last ten years. In some ways we are ized. It is far more Eric Zogry – I hope to see certification ahead of the rest of the country. difficult to be a gen- grow for more specialties in indigent Geeta Kapur – My mentors were proud eral practitioner defense, as those who most need quality of me, which meant the world to me. My nowadays. With representation are often the least able to colleagues have offered their congratulatory clients expecting Boyer afford it. remarks. I told one more and becoming more knowledgeable Q: What would you say to encourage of my clients who about their legal options, board certifica- other lawyers to pursue certification? was in jail at the time tion is one way to tell the public that you Valerie Pearce – Certification is a public that I was studying have committed to that particular practice recognition of achievement and expertise for the exam. Later area. It helps the public decide what attor- in a very specialized area of the law, includ- he asked me about ney they may want to contact for a certain ing juvenile delinquency law. the exam and when I problem. Certification also benefits the John Cox – Find an area of the law that told him I was a spe- profession by recognizing those attorneys excites you and focus on it. The practice of cialist, he was very who have put in the time and effort to law as a whole is moving away from the Kapur happy for me. achieve that level of expertise in their general practice and toward specialization. Q: How do you think your certification will respective practice areas. It’s risky to spread yourself too thin, and benefit your clients? John Cox – It provides a good way to let highly beneficial to find your passion and Mary Wilson – Having this certification other lawyers, potential clients, and mem- pursue it for a better quality of life and for and recognition among the bar of this prac- bers of the public know that we exist. the benefit of the public. n tice area should raise awareness and maintain Lawyers are slowly but surely taking juve- increasing standards for the quality of repre- nile cases more seriously. We used to see For more information on the State Bar’s spe- sentation. new lawyers working in juvenile law for a cialization programs, visit us on the web at Eric Zogry – Additionally, having the short time and then leaving the practice. nclawspecialists.gov. increased requirements for continuing legal Now we are seeing more lawyers choose to education courses should really ensure that stay in this practice area. They are gaining the lawyers who are certified have the most skill and a level of expertise that is critical up-to-date knowledge, which will benefit to strong representation. We are seeing a clients tremendously. passionate few encouraging others and rais- Q: Are there any hot topics in your specialty ing awareness. This benefits both clients Thank You to Our area right now? and the profession. Meeting Sponsor Valerie Pearce – The topic of raising the Q: How do you stay current in your field? age of juvenile jurisdiction in North Carolina Julie Boyer – I keep up with the ever- is a big one right now. Some of the underly- changing court opinions differentiating Thank you to the following sponsor of ing issues that need to be addressed include juvenile and adult offenders. Juvenile delin- the State Bar’s quarterly meeting: capacity, brain development, and reform of quency matters require vast knowledge of the NC mental health system. the juvenile code as well as adult criminal Lawyers Mutual Liability John Cox – I often remind people (juve- law and procedure. Keeping up with Insurance Company niles, parents, judges) that any 16 year-old changes in both areas is very important.

THE NORTH CAROLINA STATE BAR JOURNAL 31 LAWYER ASSISTANCE PROGRAM

When “Helping” Hurts—A Guide for Law Firms and Families, Part 1

B Y R OBYNN M ORAITES

ost lawyers, regardless cover living expenses for a few months until of practice area, are he got back on his feet. If a non-alcoholic accustomed to solving lawyer recently suffered a personal family loss others’ problems and and is grieving, judges and opposing counsel providing solutions. might go to great lengths to have cases con- LawyersM are helpers by nature. While many of tinued. None of these helping impulses is us may try to project a certain image, and wrong or misplaced. In fact, these are the very despite whatever lawyer-joke-du-jour may be types of interactions that build connections fashionable, most lawyers have big hearts and and strengthen community, all of which are want to help people. It only makes sense that imperative for maintaining good mental when a colleague or family member is strug- health as a lawyer. gling with alcoholism or addiction in any When carrying out these very loving, help- form, we want to help. But if we do not ful actions while dealing with an alcoholic or understand the disease of addiction (to alco- addicted lawyer, however, suddenly “helping” hol or any other substance or process), our becomes “hurting,” although it does not seem help can become a hindrance. like it or feel like it to the one offering the help. This help in turn allows him to continue Do you remember “Opposite Day” as a help. Often, when family and friends try to to engage in the destructive behavior of his child? When I was growing up, once a year all help alcoholic or addicted lawyers, they are addiction while simultaneously avoiding the the elementary school kids and our teachers actually—albeit unwittingly—making it easi- consequences. The person giving help (or had an Opposite Day. It was great fun. The er for the lawyer to continue in the progres- even the law firm that continues to look the teacher would dramatically pronounce, “OK sion of the disease. Whatever form of conven- other way) has unknowingly and uncon- class, line up at the door,” and we would settle tional help (as described above) we provide to sciously become an ally of the disease. down at our desks. When she said, “Let’s settle someone who is engaged in the disease of Wikipedia describes an ally as, “...people, down,” we’d all run to the door and line up to addiction, that help often boomerangs and groups, or nations that have joined in an asso- go outside to play. It always made for a fun begins to hurt the addicted person (and us) ciation for mutual benefit or to achieve some day trying to figure out the coded messages of because it allows him or her to avoid the con- common purpose, whether or not explicit our teachers and friends. sequences of the disease. The specific word for agreement has been worked out between Alcoholism is like Opposite Day. It turns the phenomenon when help has crossed the them.” Ouch. For those of us who only sin- everything on its head. Helping an alcoholic line and starts to hurt is “enabling” because the cerely wanted to help, it can be a devastating by enabling an alcoholic to avoid the conse- help provided enables the disease to continue blow to learn that we have been assisting the quences of addiction may feel like helping, unimpeded. disease of addiction, not the lawyer who suf- but it actually hurts him and his chance of The disease of addiction is progressive in fers from it. If we step out of the helper role, recovery. What feels to us like hurting or nature; it builds up over time and gains the alcoholic lawyer is forced to face conse- betrayal, actually helps an alcoholic find recov- momentum. Over any considerable period of quences and may find recovery sooner. It can ery. Let’s consider some real world examples. time it gets worse, not better. What started out be hard to discover we have been actually When a non-alcoholic family member is as the one-time lending of money or continu- hurting the alcoholic lawyer’s chance for in the middle of a contentious divorce (with ing of cases gradually turns into a pattern of recovery. lots of fighting at home), we may offer to behavior. Our first response is to give the As long as the alcoholic lawyer has have the kids stay over for a while and take lawyer the benefit of the doubt: “Joe is in a enabling devices and people in place, it is easy them to school. When a non-alcoholic col- rough patch. Give him some time.” But usu- for him to continue to deny he has a prob- league has an unexpected family emergency, ally a precedent has been set, so if Joe is an lem, because most of his problems are being we may offer to cover for her and handle alcoholic or addict, he knows you are willing solved by those around him. Only when he is some work in the immediate short term. If a to cover for him in whatever way you have forced to face the consequences of his own non-alcoholic friend suddenly became unem- done so in the past. So he continues to come actions and inactions will it finally begin to ployed, we might be willing to lend money to to you—maybe more frequently now— for sink in how deep his problem has become.

32 SPRING 2013 Some of these choices are not easy for the holic lawyer that does not shield him or her every instinct urges us to try to prevent those friends or families of alcoholics. For example, from the consequences of the disease. In consequences and pain that he or she will face if the alcoholic drinks up the money that was almost all cases, only when faced with conse- as a result. But remember, we’re living in supposed to pay the utility bill, he is not the quences is an alcoholic or addicted lawyer able Opposite Day when dealing with alcoholism only one who will be living in a dark, cold, or to begin to gain some clarity about the nature or addiction. Sometimes when we cannot sweltering house. The rest of the family will of the impairment. help an alcoholic up, we need to step out of suffer right along with him. If the alcoholic The acts that truly help an alcoholic or the way as he or she falls down. It is sometimes lawyer is a high-profile, high-functioning addict are those actions (or inactions) which only in that falling down that an alcoholic or lawyer with a reputable practice, the law firm point the alcoholic in the direction of recov- addicted attorney can then begin to wake up may not want to suffer a revenue loss or rep- ery. We may refuse to lend money, except to to the situation and ask for help. utational harm. (Not to mention, it is just help pay for treatment (always give the money It may feel to us like we are hurting the plain hard emotionally for all of us to talk directly to the treatment center, not to the alcoholic when we stop helping. In fact, about these things.) So the firm as a whole alcoholic or the family of the alcoholic). We depending upon how close we are to the may ignore a known, growing problem until may refuse to cover a case load or to have cases addicted lawyer, he may actually accuse us of one day a catastrophe happens in a public continued, unless it is because the lawyer goes hurting him or of causing the consequences. If forum. Often times the firm is left with no to treatment. We may agree to represent the we are very tied to the person emotionally, choice but to fire the lawyer. But it does not lawyer in a contempt hearing before a judge or while we understand intellectually we are not need to happen this way.1 a discipline matter before the State Bar on the causing consequences, it can feel like we are condition that the lawyer agrees to get help because we are not preventing them from When “Hurting” Helps and follows all directives from the EAP, LAP, occurring. It is so important to remember that So let’s change the verbiage and now dis- or treatment center.2 Saying “no” or setting when the alcoholic lawyer is blaming us or cuss what I will call “unconventional help,” these conditions can be very difficult for us others, it is just the disease talking. Because it which, to be frank, will feel to the helper like (the helpers) emotionally, particularly because is hard to remember this and not take the nothing less than a betrayal of the alcoholic we can see so clearly what the impaired attor- blaming personally, often the person who has lawyer friend or colleague. Unconventional ney cannot—the almost sure consequences been put into the helping role needs support help is an action (or a refusal to act) we take in coming down the pipeline. These actions can of his own in order to stand his ground. The response to requests for help from the alco- be very painful for us to carry out, and our LAP offers this kind of support.

The following short story is from one of addict, but he had managed to keep it that the car was repossessed. Soon after, our volunteers. hidden for years, even from me. I sincere- he was evicted and asked if he could sleep ly cared for this man, and we had been in on my couch. I said no. That was one of Years ago when I lived in another state a relationship for a few years at that point. the hardest days for me, but it turned out and before I enrolled in law school I I began attending Al-Anon meetings and to be the day he got sober. He had been began dating a man who lived downstairs open AA meetings to learn about the dis- attending AA off and on for the prior from me in my quadraplex. He was a very ease of addiction. In the few months that months, but that night he slept outside of successful computer engineer. One day he followed, he had four different jobs, even- an AA room, leaned up against the door. was unexpectedly fired from his job. He tually working part-time at a fast food When the person came to make coffee for downplayed the incident and obtained burger place. He parked his car several the 7 AM meeting, he was let in the AA another job of equal stature quickly. Then blocks away from the quadraplex in an room, and he spent the day there attend- one day he was very late in meeting me attempt to avoid repossession of the vehi- ing a bunch of meetings. He began a sin- for an event. When he arrived he seemed cle. He had been spending all of his cere program of recovery that day. He has rushed and preoccupied. He said he had money on cocaine and had not paid rent not had a drink since and is now about 15 been tied up at work. I had no reason not for many months. An eviction notice was years sober. He is married with two chil- to believe him. Soon after, he asked me served on him. At this point we were bro- dren and is back to being a successful for money so that he could make his car ken up, but I lived right upstairs and had computer engineer. There was certainly payment. I asked him why he needed it helped him before. He continued to ask no guarantee he would get sober if I said and he told me that he had some old me for money to pay for his car and rent. no to his request, but it was very clear to debts he was paying off and had come up I started saying no and it was incredibly me he most assuredly would not have got- short that particular month. I was uneasy, difficult. He began blaming me, telling ten sober had I said yes. I got out of the but I lent him the money against my bet- me that if he was evicted or had his car way and he was able to face his disease ter judgment. Within the next few repossessed it would be my fault. I leaned and recover. I do not take credit for him months things unraveled very quickly for heavily on my friends in Al-Anon for sup- getting sober, I take credit for getting out him. I learned that he was a cocaine port during this time. Then the day came of the way so that he could get sober. n

THE NORTH CAROLINA STATE BAR JOURNAL 33 If you know an attorney who you suspect Charlotte and areas west) at 704-892-5699, may be an alcoholic or addicted, give the LAP Towanda Garner (in the Piedmont area) at Have you ever called in sick for the alco- a call. We can help guide and support you as 919-719-9290, or Ed Ward (for Raleigh and holic because he or she was too hung over you navigate what kind of help to offer. n down east) at 919-828-6425. to go to work or school?

The North Carolina Lawyer Assistance Endnotes Do you ever make excuses for the alco- Program is a confidential program of assistance 1. Please tune in next quarter when we will be interview- holic’s drinking or behavior? for all North Carolina lawyers, judges, and law ing a managing partner who orchestrated an interven- tion some years ago with a leading lawyer in the firm. students, which helps address problems of stress, Have you ever lied to ANYONE 2. Requiring treatment as a condition of representation is depression, alcoholism, addiction, or other prob- a practice known as therapeutic jurisprudence. There is (friends, family, neighbors, co-workers, lems that may lead to impairing a lawyer’s ability a growing body of academic research in this area with bosses) to cover up for the alcoholic? to practice. If you would like more information, guidance for lawyers, particularly in criminal practice. go to nclap.org or call: Cathy Killian (for See David Wexler’s work. Have you bailed the alcoholic out of jail or paid his or her legal fees?

Have you accepted part of the blame for the alcoholic’s drinking, behavior, or con- New Look, New Logo, Same Program sequences?

This quarter marks the first official publi- Reorganization – Same Services and Do you avoid talking about the alco- cation use of our new logo for the NC Same Program holic’s drinking with him or her out of Lawyer Assistance Program (“LAP”). We will The LAP is experiencing quite a bit of fear of the response? continue to roll out the new brand, logo, and brand confusion. Lawyers do not realize PALS look via a new website and updated collateral and FRIENDS are programs of the LAP. Have you paid bills that the alcoholic was and print materials. I have now been the Because of this brand confusion, current and supposed to have paid? director of the LAP for a year and a half. expected trends in our client base, and the After getting to know the program from the need to offer targeted programs based on the Have you loaned the alcoholic money? inside out, meeting with our dedicated vol- broader role we now play, the LAP Board and unteers across the state, and working with staff are in the process of reorganizing and Have you tried drinking with the alco- the LAP Board and staff, we have deter- rebranding the LAP as a single program with holic in hopes of strengthening the rela- mined that due to the size of our program a single name to address all issues that may be tionship? and its increasing diversity, we need to impairing to lawyers. The LAP mission, streamline and consolidate some aspects of approach, and services will remain the same. Have you given the alcoholic “one more our program. Moreover, our active volunteer base is and will chance” and then another and another? continue to be comprised of lawyers helping LAP History at a Glance other lawyers overcome whatever impairing Have you threatened to leave if the alco- The Positive Action for Lawyers with issues and challenges they face. holic didn’t stop drinking and then did Substance Abuse Subcommittee (“PALS”) not leave? was formed in 1979 as a purely volunteer-run New Logo and Symbolism organization, formed to help alcoholic The new logo is based on Adolph A. Have you finished a job or project that lawyers. PALS has been extremely successful. Weinman’s image for the “Walking Liberty” the alcoholic failed to complete himself? Then in 1998, several lawyers committed sui- half dollar issued by the United States Mint cide. These suicides were not related to alco- from 1916 to 1947. The image has been mod- If you answered “Yes” to any of these holism or substance abuse. In response, the ified, however, to remove her Depression-era questions you may have enabled the alco- leadership of the Bar recognized the need to hat, the drape of the flag, and her flowers. holic or addict to avoid the consequences broaden PALS’ mission to include issues of Those elements have been replaced with a of his or her own actions. depression, anxiety, burnout, and other men- crown of liberty and scales of justice, creating tal health issues. By that time, however, the the more-familiar and widely-accepted image PALS “brand” was totally associated with of the Lady of Justice. She strides towards the ing out a helping hand to those who need it. alcoholism and substance abuse. So an alto- sun, with her hand extended. For lawyers And finally, she is not blindfolded. Instead, gether new program was created to address dealing with depression, anxiety, alcoholism, she sees those to whom she reaches while she depression, anxiety, and mental health issues: or other impairments, the journey of recovery also looks to the horizon and the path to be the FRIENDS program. The FRIENDS pro- is one from despair to hope and is often taken. It is a dynamic image that we hope con- gram developed its own logo and its own described by many lawyers as moving out of veys the compassion and strength that the brand. The FRIENDS program was launched the darkness into the light. Her extended Lawyer Assistance Program has come to be in 1999-2000 to widespread acceptance and hand represents the work that the LAP and its known for over its many years of assisting success. volunteers have done for four decades: reach- lawyers. n

34 SPRING 2013 THE DISCIPLINARY DEPARTMENT

Lawyers Receive Professional Discipline

was covered by professional liability insurance, manded by the Grievance Committee. Banks Disbarments which a lawyer must maintain in that state to represented an insurance company in a work- James A. Crouch of Raleigh surrendered be eligible for appointment to represent indi- ers’ compensation case. In the course of the his law license and was disbarred by the Wake gent criminal defendants. representation he gave legal advice to an County Superior Court. Crouch pled guilty to unrepresented party and allowed the unrepre- one felony count of altering documents, two Show Cause Hearings sented party to speak with third parties with- felony counts of obstruction of justice, and In 2009 the DHC suspended Mark L. out first retaining counsel. one felony count of conspiracy to obstruct jus- Bibbs of Wilson for one year. Bibbs was con- Joe C. Jauregui of Charlotte was repri- tice. victed of DWI and driving while license manded by the Grievance Committee for Sam H. Edwards of Shallotte surrendered revoked and was profane and abusive to court- assisting a real estate settlement company in his law license and was disbarred by the DHC. house personnel. The suspension was stayed the unauthorized practice of law. Edwards acknowledged that he misappropriat- for three years. In November 2012 the DHC Kristen H. Ruth of Raleigh, previously a ed over $300,000 from an estate for which he concluded that Bibbs did not comply with the district court judge, was reprimanded by the was executor. He also did not file income tax conditions of the stay that required him to Wake County Superior Court. Ruth, who returns and did not pay his tax liability for five abstain from using alcohol and to contact his resigned amid allegations that she signed years. monitoring program daily. The DHC lifted fraudulent orders submitted by James Hugh Wolfe Johnston of Gastonia was dis- the stay and activated three months of the Crouch, pled guilty to one misdemeanor barred by the Lincoln County Superior Court. one-year suspension. After serving three count of failure to discharge her duty. The The court found that Johnston, among other months, Bibbs may apply for a stay of the court found that Ruth did not read the orders things, filed frivolous lawsuits and appeals remainder of the suspension upon proof of and was unaware they were fraudulent. falsely accusing judges and other lawyers of compliance with extensive conditions. committing felonies, without his ostensible In 2010 the DHC suspended Sharyl Transfers to Disability Inactive Status clients’ knowledge. Mason-Watson of Charlotte for two years. Alexander H. Veazey III of Hendersonville Randolph E. Shelton Jr. of Southern Pines Mason-Watson did not disburse entrusted was transferred to disability inactive status by surrendered his law license and was disbarred funds timely, neglected and did not commu- the secretary. by the council at its January meeting. Shelton nicate with clients, did not respond to the Bar, admitted that he misappropriated entrusted and did not maintain required trust account Reinstatements funds from an estate. records. The suspension was stayed for three In 2005 Matthew A. Bromund, formerly C. Gary Triggs of Hildebran was disbarred years. In November 2012 the DHC conclud- of Greensboro and now in California, was dis- by the DHC. He neglected multiple clients ed that Mason-Watson did not comply with barred for misappropriating fees belonging to and engaged in dishonest conduct. the conditions of the stay, lifted the stay, and his law firm employer and fabricating evi- activated the two-year suspension. dence to conceal it. In 2012 the DHC entered Suspensions & Stayed Suspensions In 2010 the DHC suspended Diedra an order recommending that the council rein- Shannon Lovins of Asheville was suspend- Lynn Whitted of Goldsboro for three years. state Bromund’s law license. At the January 25 ed by the DHC for five years. Lovins pled Whitted allowed her disbarred father to accept meeting, the council reinstated Bromund’s guilty to criminal offenses involving substance checks made payable to him for legal services law license. abuse. She also violated rules of trust account to be provided by her, did not supervise the In 2009 Johnny S. Gaskins of Raleigh was management, including failing to reconcile her activities of her father working as a paralegal in convicted in federal court of seven counts of trust account, commingling funds by leaving her law office, and did not act diligently and structuring financial transactions to evade attorney fees in the account, and overdisburs- competently in representing her clients. The federal reporting requirements. In December ing entrusted funds. After serving two years suspension was stayed for three years. In 2010 the DHC suspended Gaskins for the active suspension, Lovins may apply to have November 2012 the DHC concluded that length of his supervised probation but, at the remainder of the suspension stayed upon Whitted did not comply with the conditions minimum, two years. His supervised proba- proof of compliance with extensive conditions. of the stay, lifted the stay, activated the suspen- tion ended in September 2012. The secretary The chair of the Grievance Committee sion, and stayed the suspension for an addi- entered an order reinstating Gaskins to active entered an order of reciprocal discipline sus- tional three years on extensive conditions. practice effective January 2, 2013. pending James I. Durodola for two months. In 2012 Michael D. Lea of Thomasville The Massachusetts Supreme Court suspended Reprimands Durodola because he falsely certified that he F. Douglas Banks of Charlotte was repri- CONTINUED ON PAGE 39

THE NORTH CAROLINA STATE BAR JOURNAL 35 IOLTA UPDATE

Grants Steady for 2013 Thanks to Cy Pres Funds

Income dure for distributing class action residuals grants steady at the 2012 level of $2.3 mil- All IOLTA income earned in 2012 will equally to the Indigent Person’s Attorney lion without using any additional funds from not be received and entered until the end of Fund and to the North Carolina State Bar reserve. And, in fact, we should be able to January. However, we can report that the for the provision of civil legal services for replenish the reserve with close to a half mil- income from IOLTA accounts continues to indigents. A manual on Cy Pres and Other lion dollars to assist with grants in 2014. decrease as many banks are recertifying their Court Awards published by the EAJC is avail- comparability rates at lower levels. able on the NC Equal Access to Justice web- State Funds Participant income declined by 16% in the site ncequalaccesstojustice.com, and the NC In addition to its own funds, NC IOLTA first three quarters of the year. However, our IOLTA website, nciolta.org. administers the state funding for legal aid on total income will surpass last year’s total (of behalf of the NC State Bar. Total state fund- $2.4 million) and will be over $3 million for Grants ing distributed for 2011-12 was $3.8 mil- the first time since 2008. This is due to $1.2 Beginning with the 2010 grants, we have lion, down from over $5 million adminis- million received from residual funds from a limited our grant-making to a core group of tered for 2010-11. The decrease was the class action suit in Washington state in which (mainly) legal aid providers. Even with that result of reductions to both the appropriated the court awarded funds to all IOLTA pro- restriction and using almost $2.4 million in funds and the filing fee allocation for legal grams across the country. reserve funds over three years, grants have aid. We are continuing to work with the NC dramatically decreased (by over 40%), and The Equal Access to Justice Commission, Equal Access to Justice Commission (EAJC) our reserve fund was depleted to under the NCBA, and the legal aid programs con- to educate lawyers and judges about the $450,000. Receiving the cy pres funds, how- tinue to work to sustain and improve the North Carolina statute that sets out a proce- ever, meant that we were able to keep 2013 funding for legal aid. n

NC IOLTA Grantee Spotlight

Medical-Legal Partnerships Thrive in Now endorsed by both the American • defend their rights with a disreputable North Carolina Medical Association and the American Bar landlord; In 2006, Pisgah Legal Services (PLS) in Association, the first such collaboration (the • preserve their housing and avoid home- Asheville proposed to NC IOLTA the initia- Family Advocacy Program at the Boston lessness; tion of an innovative new program—a med- Medical Center) was founded by Barry • avoid predatory creditors; or ical-legal partnership (MLP) to ensure that Zuckerman, MD, chair of pediatrics at the • navigate the bureaucracy to secure patients could meet basic needs that would Boston University School of Medicine. He Medicaid or disability benefits. improve their health. When patients’ hous- said he founded the program after becoming ing, educational, safety, and financial needs frustrated with continuously having to send A True Collaboration are met, medical interventions can have sick children home to apartments that were Through medical-legal partnerships, optimal impact, and the need for ongoing in substandard condition, often unheated health care professionals and attorneys work and crisis-driven medical care may be and with unhealthy levels of mold. He rec- together to form a safety network for their decreased. Such medical-legal collaborations ognized that an attorney could help patients most vulnerable patients/clients. Legal were being implemented in many urban navigate complex legal problems so patients experts are on site at hospitals and medical communities around the country, and PLS could avoid situations that lead to medical clinics to help physicians, nurses, social and Mission Hospital were eager to demon- problems, such as a lack of food or heat. workers, discharge planners, and patients strate the impact of this model in rural west- “We can treat the health problem with tackle the complex socio-economic issues ern North Carolina. Today, this partnership medication, but the point is, the cause of it that impact health. MLPs train healthcare (the Health Education and Legal Support frequently is a legal one, and we’re going right staff to screen for potential legal issues that Project or HEALS) is thriving, and Legal to the root cause,” said Dr. Zuckerman. have a negative impact on health—such as Aid of NC (LANC), our statewide legal aid In many situations, an attorney is substandard housing conditions that lead to program, is expanding the model through- uniquely qualified to assist patients to: chronic asthma—and try to intervene before out the state. • escape an abusive relationship; a legal emergency arises. After a potential

36 SPRING 2013 legal problem has been identified, the skills and in-court experience, which they ment communities. This opportunity for healthcare provider refers the patient to the may not get any other way.” impact work represents a terrific investment MLP lawyer just as a patient would be for the broader legal community.” referred to a cardiologist for a heart problem. Benefits to the Community Extend Kris Shepard sums it up nicely, “In a time Kristoffer B. Shepard, senior associate Beyond the Individual Clients Involved of limited resources, LANC has to make general counsel at Carolinas HealthCare Holton feels particularly pleased when choices about how to allocate our resources. System and member of the LANC Board of results can benefit a larger number of people. If LANC can serve someone in a way that Directors sees this collaboration from both “As it turns out, many of these cases can be has a ripple effect on his or her life in a way sides. “One of our medical providers, Dr. satisfactorily resolved not only to help the that is broader than what health care Daniel R. Neuspiel, has been instrumental individual client, but also to help other resi- providers or lawyers can do alone, that’s a in helping us understand the critical role that dents of the same dwelling units or apart- bigger win.” n lawyers can play in improving our patients’ health. Sometimes we reach the limits of what we can do clinically for someone whose health is being affected by things that are outside of the traditional role of medicine.” Health care providers are more likely to screen patients for such problems when they know that they can refer patients for services to address those concerns. Lawyers can often get better results for a client when a medical professional is on the team. By collaborating with lawyers, medical professionals are grati- fied to see that they can often improve the health of their shared patients/clients.

Volunteer Lawyers Increase the Benefits Charles R. Holton has seen the value of the MLP first-hand. A partner with Womble Carlyle Sandridge & Rice, Holton currently serves as vice-chair and chair-elect of the LANC Board of Directors. And, in October 2012, Mr. Holton was one of five North Carolina attorneys honored by the national Legal Services Corporation (LSC) Board of Directors for volunteer work with LANC. “Legal services attorneys have over- whelming case loads. Private attorneys, par- ticularly litigators, can play an important role in assisting legal services attorneys to bring these claims forward and litigating them in court, if necessary,” says Holton. “I’ve had the opportunity to work with MLP attorneys on several matters that have evolved to litigation, including mold and insect infestation problems in rental housing units. Without a doubt, these cases would not have come to light without the involve- ment of members of the medical community who have observed the connections between their patients’ health and the environmental conditions where they live.” And, those benefits can flow to the lawyers as well, acknowledges Holton. “These cases also present excellent opportu- nities for our newer lawyers to gain litigation

THE NORTH CAROLINA STATE BAR JOURNAL 37 LEGAL ETHICS

“Who You Gonna’ Call?” New Admittee’s FAQs

B Y S UZANNE L EVER

Welcome to the North Carolina State Bar! also has a foundation, which has the primary address on record with the Bar unless you If you are reading this you are most likely a objective of funding worthy projects or activi- request a different district in a letter or email to newly admitted North Carolina lawyer. You ties of the association and the foundation, as the membership department. You can contact no doubt have (or will have) countless ques- well as funding other legally related needs in Beth McLamb at [email protected] or tions. This is especially true if you are one of the community. Kelly Beck at [email protected] for assistance. the many brave new lawyers hanging out their Q: What am I required to do to remain an own shingles. The good news is that the North active member of the Bar? CLE Hours & Requirements Carolina State Bar is here to help. Pay the annual membership fees, fulfill the Q. How many CLE hours do I have to take The North Carolina State Bar (“Bar”) is the CLE and IOLTA requirements, and comply each calendar year? state agency responsible for regulating the with the Rules of Professional Conduct. If you An active member of the Bar who does not practice of law in North Carolina. The Bar’s are a North Carolina resident, you must also qualify for an exemption must take 12 hours of website, along with the North Carolina State maintain membership in the local district bar approved CLE during each calendar year. Of Bar Journal, is a place to: where you work or reside. the 12 hours, at least two must be devoted to • learn more about the regulation of the Q: How much are the mandatory annual the area of professional responsibility (ethics) legal profession in North Carolina; membership fees? or professionalism. At least once every three • review proposed ethics opinions and pro- For 2013 the annual fees are $375. This calendar years you must complete one hour on posed amendments to the rules and regula- includes the membership dues ($300), the substance abuse awareness or debilitating men- tions of the Bar; Client Security Fund assessment ($25), and tal conditions. • research the existing rules, regulations and the Judicial Surcharge ($50). Lawyers licensed before July 1 are subject to ethics opinions of the Bar; and Q: When are the mandatory annual member- all CLE requirements for that calendar year. • catch up on the latest news and informa- ship fees due? Lawyers licensed on or after July 1 of any year tion from the Bar. An invoice for the subsequent calendar year do not have CLE hourly requirements until Not sure who to contact for the informa- is emailed to every active member of the Bar the next calendar year. tion you need? Check out our Bar Staff on or before December 1 of each year, followed The CLE rules also require every active Contacts page: ncbar.gov/contacts/c_staff.asp. by additional reminders. The completed lawyer to file an annual written report of To get you started, I have compiled a Q & invoice and payment are due January 1, but are his/her CLE activity for the preceding year. To A of the questions most frequently asked by not considered late if received/postmarked on facilitate that filing, the CLE office mails each new lawyers seeking advice from the Bar. or before June 30. lawyer an Annual Report Form in January. Q: Once I am licensed by the NC Board of The report includes a transcript of all the CLE Membership Law Examiners when will I become a mem- activity for the previous calendar year reported Q. What is the difference between the Bar ber of the Bar and owe membership fees for to the Bar by CLE sponsors. It is the lawyer’s (NCSB) and the North Carolina Bar the first time? responsibility to review that transcript, make Association (NCBA)? Your membership with the Bar is automat- any necessary changes, verify the CLE activity, The Bar is the regulatory body for the legal ic upon licensure. The membership fees are pay any outstanding attendee fees, and return profession in the state, and membership is waived for the calendar year in which you are the form to the Bar by the last day of February. mandatory. Once you are licensed by the NC admitted by exam. You will owe membership You may contact Debra Holland at dhol- Board of Law Examiners, you automatically fees for the calendar year following the year of [email protected] for more information. become a member of the Bar. To be entitled to your admission to the Bar and continuously practice North Carolina law, you must be an on an annual basis as long as your membership Professionalism for New Admittees active member of the Bar. Also, you must take status is “active.” Q. Are there special CLE requirements for the oath of office and be sworn in as a lawyer Q: Am I required to be a member of a local newly licensed lawyers? before you may begin practicing law. district bar? Yes. If you are admitted on or after January The NCBA is a voluntary association serv- Yes. Every active member of the State Bar 1, 2011, you must complete the 12-hour ing the needs of the legal profession with mem- who resides in North Carolina must be a Professionalism for New Admittees program. ber services such as continuing legal education, member of the judicial district bar where To receive credit for the program, you must legislative lobbying, practice sections, public he/she resides or works. The Bar automatically also complete a written evaluation provided by service activities, and much more. The NCBA assigns you to a local district bar based on your the sponsor.

38 SPRING 2013 Q. What is the content of the Professionalism rules regarding NC IOLTA? The client must be notified of the right to for New Admittees program? All active members of the North Carolina participate in the fee dispute resolution pro- The program consists of 12 hours of train- State Bar who maintain general client trust gram at least 30 days before filing suit against ing in subjects designated by the NCSB, accounts in North Carolina must ensure that the client to collect the fee. See Rule 1.5(f) of including professional responsibility, profes- all of their general client trust accounts are the Rules of Professional Conduct. A sample sionalism, and law office management. established as interest-bearing IOLTA notice letter may be found on the forms page Q. Do the hours for the Professionalism for accounts. Lawyers must certify annually of the State Bar’s website. You may also con- New Admittees program apply to the annual (when paying their NC State Bar dues—either tact Luella Crane at [email protected] for requirements? on the dues notice form or electronically) that assistance. Yes. Credit for the program is applied to the all general client trust accounts maintained by Stay tuned. This is the first in a series of annual mandatory 12-hour requirement. the lawyer/law firm are IOLTA accounts, or articles that will address questions fre- Q. If I am newly admitted to the North that the lawyer is exempt from the require- quently asked by lawyers seeking advice Carolina State Bar but am licensed in another ment as no general trust accounts are main- from the Bar. n state, do I have to complete the tained by the lawyer/law firm. Professionalism for New Admittees program? Lawyers must also inform NC IOLTA Suzanne Lever is assistant ethics counsel for A lawyer who is licensed by a United States when opening or closing IOLTA accounts. the North Carolina State Bar. jurisdiction other than North Carolina for five The NC IOLTA Status Update Form should or more years prior to admission to practice in be used for this purpose. It should also be used North Carolina is exempt from the to report employment or address changes. A Disciplinary Department Professionalism for New Admittees program copy of this form can be found on the IOLTA requirement and must notify the board of the website, nciolta.gov. (cont.) exemption in the first CLE annual report form As of July 1, 2010, lawyers may hold filed with the Bar. IOLTA accounts only at “eligible” banks that was suspended for six months. He neglected will agree to pay IOLTA accounts the highest and did not communicate with his client. He Trust Accounts rate available to that bank’s other customers also signed his client’s name to an affidavit, For detailed trust accounting guidelines, when the IOLTA accounts meet the same notarized the affidavit, and submitted it to you should refer to the State Bar’s Trust minimum balance or other account qualifica- the court. The secretary entered an order Account Handbook: ncbar.com/PDFs/Trust tions. NC IOLTA maintains a list of eligible reinstating Lea to active practice effective %20Account%20Handbook.pdf. banks on its website. You may also contact January 4, 2013. Members of the State Bar staff are also [email protected] for more information. In 2008 Tamla T. Scott of Washington, available to answer questions about maintain- DC, was suspended for three years. She neg- ing a trust account. Contact Peter Bolac, trust Fee Dispute Resolution lected and did not communicate with accounting compliance counsel (pbolac@ Q: When is a lawyer required to participate clients, did not refund unearned fees, and ncbar.gov), or Tim Batchelor, staff auditor in the State Bar’s fee dispute resolution pro- did not respond to the State Bar. Although ([email protected]), for assistance. gram? Scott was eligible to obtain a stay of the sus- Rule 1.5(f) of the Rules of Professional pension after one year, she did not petition IOLTA (Interest on Lawyers’ Trust Conduct requires a lawyer with a dispute for reinstatement until the entire three-year Accounts) with a client over a legal fee to notify the period had lapsed. The secretary entered an Q: What is IOLTA? client of the North Carolina State Bar’s pro- order reinstating Scott to active practice NC IOLTA works with lawyers and banks gram of fee dispute resolution at least 30 days effective December 10, 2012. across the state to collect net interest income prior to initiating a legal proceeding to collect generated from lawyers’ general, pooled trust the disputed fee. Notices of Intent to Seek Reinstatement accounts for the purpose of funding grants to Q: When is a legal fee in “dispute?” Individuals who wish to note their concur- providers of civil legal services for the indigent A fee is in dispute if the client questions or rence with or opposition to these petitions and to programs that further the administra- objects to the amount billed. Also, if a client should file written notice with the secretary of tion of justice. fails to pay the bill, it is assumed that the fee is the State Bar, PO Box 25908, Raleigh, NC Q: Which of my law practice accounts must disputed unless the client affirms the obliga- 27611, before May 1, 2013 (60 days from be established and maintained as IOLTA tion in writing or verbally. If a client pays by a publication). accounts? check that is subsequently returned for insuf- All general client trust accounts must be ficient funds, it is assumed that the client has In the Matter of Ralph Bryant Jr. established and maintained as interest-bearing affirmed the obligation and the lawyer is not Notice is hereby given that Ralph Bryant Jr. IOLTA accounts, interest from which is required to notify the client of the fee dispute intends to file a petition for reinstatement remitted to NC IOLTA at the State Bar. resolution program. before the Disciplinary Hearing Commission General client trust accounts are those Q: What are the notification requirements to of the North Carolina State Bar. Bryant sur- accounts that hold nominal and short-term a client relative to the fee dispute resolution rendered his license in November 2007 as a deposits of client funds. program prior to initiating suit to collect a result of allegations of misappropriation of Q: How do I comply with the NC State Bar legal fee? client funds held in an IOLTA account. n

THE NORTH CAROLINA STATE BAR JOURNAL 39 PARALEGAL CERTIFICATION

Make the Most of Your CPE

B Y K ELLY F ARROW

Certified paralegals are required to take accredited (approved) by the NC State Bar as always check the accredited hours! Check six hours of approved continuing paralegal CPE for paralegals or continuing legal educa- with the sponsor, or search for the credit education (CPE) each year to maintain cer- tion (CLE) for lawyers. Course approval is information on the websites noted above. If tification. Of those six hours, at least one critical if you want the course to satisfy your possible, take courses that deal with the area hour must be designated as a legal ethics CPE requirements. Usually, the sponsor of a of law in which you work. This will help you (professionalism, mental health, substance CLE or CPE program applies for accredita- stay current on changes in the law, and learn abuse, or professional responsibility) course. tion of a particular course. However, not all about new policies and procedures. Perhaps I get a lot of questions about how to find sponsors do this automatically, particularly if you will get a few helpful tips from others approved CPE courses, especially affordable the sponsor is outside of North Carolina. who work in your field as well! If you can’t ones, so I’ve put together some information What if your employer wants to send you to find any courses related to your field of law, that may help. that special conference in San Diego? No try to take something that interests you. It need to panic! If a course meets the require- can be a great introduction to a new field, Read the Rules ments for approval, a certified paralegal can and may provide networking opportunities The rules governing CPE can be found in apply to have a course accredited specifically as well. the Plan for Certification of Paralegals, 27 for herself or himself by completing and NCAC 1G, Section .0200. First and fore- returning the “Paralegal’s Request for Paralegal Organizations most, a CPE course should relate to the law. Approval of a CPE Activity” form found on Local and state paralegal organizations Pursuant to the rules, a CPE course must the Forms and Documents page of our web- can be great places to find CPE courses, par- have “significant intellectual or practical site, nccertifiedparalegal.gov. If you want ticularly less expensive ones. A lot of the local content and the primary objective of increas- advanced approval of a course, try to submit paralegal associations have monthly meet- ing the participant’s professional competence the form at least 45 days before presentation ings, and most of those incorporate some and proficiency as a paralegal” (Rule of the course. This way you’ll know if the CPE. Just make sure that any CPE they pro- .0202(a)), and must deal with “matters course has been approved before you attend. vide has been approved! And, of course, join- directly related to the practice of law, profes- You can apply for approval after attending the ing a paralegal association is a great way to sional responsibility, professionalism, or eth- course as well, but since it can sometimes take meet other paralegals and get involved in ical obligations of paralegals” (Rule several weeks to receive approval, applying your paralegal community. .0202(b)). This means that courses about prior to the course is the best way to go. If you Have you heard about the new webcast mass-market software products, such as want to apply after the course, make sure you series offered by the North Carolina Bar Powerpoint or Excel, probably won’t be do so shortly after you take the course, not Association Paralegal Division? Made possi- approved, nor will courses related to other the day before your annual renewal deadline! ble in part by a grant from the NC State Bar non-law topics, such as increasing productiv- Board of Paralegal Certification, these ity or managing office relationships. How to Find Approved Courses monthly, one-hour CPE webcasts are free to Other aspects of CPE approval aren’t As mentioned previously, the sponsor of a members of the Paralegal Division, and are quite so simple. Did you know that, pur- program will usually apply for CPE or CLE only $25 for non-members. The topic varies suant to Rule .0202(c), a minimum of three accreditation. Once a course is approved as each month, and past topics have included certified paralegals must register to attend the CPE, it is listed on the CPE page of our web- ethics, family law, title searching, and discov- presentation of a replayed prerecorded pro- site (nccertifiedparalegal.gov/cpe). Courses ery. Other sponsors will occasionally present gram? This means that simply ordering a approved for CLE credits are listed on the reduced-cost or free CPE courses, so allow DVD of a recorded live program and watch- CLE website, www.nccle.org. This website is time before your recertification date to do ing it at home by yourself will not earn you a great place to start your search for continu- some research. CPE credit. Additionally, note that in-house ing education courses, as it has some great Making the most of your CPE require- CPE courses don’t qualify either (Rule searching features. You can enter a keyword, ments will ensure that you continue to be a .0202(h)) unless individuals from outside the search by course type (online, live, etc.), look great asset to your firm and the paralegal law firm are invited. for courses from a particular sponsor, and community. n even search for courses that have at least one Approved Courses hour of ethics. Kelly Farrow is the assistant director of the Paralegals must take courses that are When choosing a CPE or CLE course, Paralegal Certification Program.

40 SPRING 2013 TRUST ACCOUNTING

Top Tips for Trust Accounting

To honor the recently deceased author of number keeps the check from being convert- trust account to another you must attribute the Dear Abby column, this quarter’s Top Tips ed to an ACH (automated clearinghouse) the funds for each client on the transfer. For comes to you in the form of a reader mailbag. transaction. instance, if you transferred the funds of three Here are some frequently asked questions and Q: Does the Bar still require paper receipts of clients totaling $1,000, you may write one responses: all transactions, or are photo images from check for $1,000, but you must attribute the Q: I anticipate receiving settlement funds on online banking statements enough? amount transferred for each client in the behalf of a client and holding them for an You must either have paper copies of all memo line (Smith - $250, Jones - $300, appreciable period, such that I am anticipat- required records or have access to the required Adams - $450). The attribution must be on ing establishing a dedicated trust account. records for a period of seven years. If you are the bank record. The funds held may exceed the applicable randomly audited, you will be asked to show Q: Would it be permissible for me to open a FDIC insurance limit. Is there any guidance you have access to these records, and will be second trust account for only my contingent as to whether I am required to divide the required to print at least one year’s worth of fee cases, and leave all my hourly billing funds among multiple insured banks in the records for review. There are advantages to funds in the first, existing account? order to stay within the insurance limit at having paper copies, however, especially when As long as you register your new trust each institution? reviewing cancelled checks. account with the State Bar/IOLTA, file the You are not required by State Bar rules to Q: After earning funds held in trust, I write NSF directive with your bank, and follow all divide the funds among multiple banks, but a check out of my trust account to my oper- of the trust accounting rules, there is no pro- you are acting as a fiduciary when holding ating account in the amount of the earned hibition against having more than one general client funds and should act accordingly. It fee. My bank offers a website feature that trust account. The necessary forms can be would be proper to advise the client of the allows me to simply transfer funds between found at ncbar.gov/resources/forms.asp. current FDIC limits (currently $250,000 per accounts. Am I permitted to electronically Q: Is there a maximum amount of time that client, per bank). Remember, with written transfer funds from the IOLTA account to client funds may be held in trust? If so, consent of the client, a dedicated trust account the operating account, instead of writing a what’s the time limit? may be maintained at a bank that does not check? There is no “maximum” time that funds have offices in NC or at a financial institution You are permitted to use online banking to may be held in a trust account. However, other than a bank in or outside of NC. transfer funds from one account to another there are certain situations that require that Note: On December 31, 2012, unlimited provided that you can properly identify the funds be taken out of a trust account: FDIC coverage of both non-interest bearing and funds to the particular client in the record of 1) If you are no longer performing a legal IOLTA accounts ended. FDIC coverage of the transfer. Most banks have a “memo box” or service for a client, the funds should be IOLTA accounts, therefore, goes back to the type text box that allows you to write a memo to returned to the client. If you can no longer of FDIC coverage that was previously in place, describe the transfer. If your bank has that box, reach the client, or if the client has aban- i.e., the funds of each client in an IOLTA you should type in the name of the client ledger doned the funds, they must be escheated account will be covered to the FDIC limit, which from which you are taking the earned fee. If the to the state after five years. is currently $250,000 (assuming no other client bank does not have this option, you cannot use 2) If you are holding funds for a significant funds in the bank and the lawyer is correctly the online transfer because there is no way of period of time, they may need to be placed handling the account as a fiduciary account). showing from which client’s funds you are tak- in a dedicated trust account so the interest Q: Do I have to use business-size checks for ing the earned fees. See 2011 FEO 7. income will benefit the client. Comment my trust account, or are personal-size okay? Q: I recently joined a new firm and am in the [3] to Rule 1.15-3 explains the factors to You must use business-size checks, which process of closing my practice. A few of my consider when making that determination. are greater than six inches long. They typically old clients are coming with me to the new Remember that at least every 12 months come in book form. The checks must also be firm. Those clients signed letters of intent, you must provide an accounting to a client labeled as trust account checks. new contracts, etc. and now we need to move that discloses the amount of money currently Q: What does this mean: “Auxiliary On-Us their money from my old firm’s trust account held in your trust account on the client’s field in the MICR line is needed”? to the trust account at my new firm. It is my behalf. n On your trust account checks, there must understanding that I need to write a check be a number to the left of the routing and for the amount the client currently has in NOTE: Judicial Districts randomly selected account numbers in the MICR line that cor- trust to my new firm’s trust account. Is this for audit for the first quarter of 2013 are responds with the check number on the top the correct procedure? District 17A (Rockingham County) and right of the check. This “Auxiliary On-Us” When you transfer client funds from one District 21 (Forsyth County).

THE NORTH CAROLINA STATE BAR JOURNAL 41 PROPOSED OPINIONS

Committee Grapples with Two Ethical Dilemmas in Criminal Law Practice

Council Actions Upon Lawyer’s Departure from Firm At its meeting on January 25, 2013, the Opinion rules that a provision in an Proposed 2012 Formal Ethics State Bar Council adopted the ethics opin- agreement for a departing lawyer to pay his Opinion 7 ions summarized below: former firm a percentage of any legal fee sub- Copying Represented Persons on Email 2012 Formal Ethics Opinion 2 sequently recovered from the continued rep- Communications Lawyer-Mediator’s Preparation of resentation of a contingent fee client by the January 24, 2013 Contract for Pro Se Parties to Mediation departing lawyer does not violate Rule 5.6 if Proposed opinion rules that Rule 4.2 requires Opinion rules that a lawyer-mediator may the agreement was negotiated by the depart- a lawyer to have the express consent of a repre- not draft a business contract for pro se parties ing lawyer and the firm after the departing sented person’s lawyer prior to sending the repre- to mediation. lawyer announced his departure from the sented person a copy of an email communication. 2012 Formal Ethics Opinion 4 firm and the specific percentage is a reason- Screening Lateral Hire Who Formerly able, efficient resolution of the dispute over Inquiry #1: Represented Adverse Organization the division of future fees. When Lawyer A sends an email commu- Opinion rules that a lawyer who repre- 2012 Formal Ethics Opinion 14 nication to opposing counsel, Lawyer B, may sented an organization while employed Advertising Content on Gift or Lawyer A “copy” Lawyer B’s client on the with another firm must be screened from Promotional Items email? participation in any matter, or any matter Opinion rules that the advertising content substantially related thereto, in which she displayed on certain gifts or promotional Opinion #1: previously represented the organization, items does not have to include an office No, unless Lawyer B has consented to the and from any matter against the organiza- address. communication. Rule 4.2(a), often called the tion if she acquired confidential informa- 2012 Formal Ethics Opinion 15 “no contact rule,” provides that, during the tion of the organization that is relevant to Lawyer as Witness representation of a client, “a lawyer shall not the matter but has not become generally Opinion rules the issue of whether a communicate about the subject of the repre- known. lawyer is a “necessary witness” and thereby sentation with a person the lawyer knows to 2012 Formal Ethics Opinion 9 disqualified from acting as a client’s advocate be represented by another lawyer in the mat- Identifying the Roles and Responsibilities at a trial is an issue left up to the discretion of ter, unless the lawyer has the consent of the of a Lawyer Appointed to Represent a Child the tribunal. other lawyer or is authorized to do so by law or the Child’s Best Interests in a Contested or a court order.” Copying the opposing Custody or Visitation Case Ethics Committee Actions party on a communication—whether email Opinion holds that a lawyer asked to rep- At its meeting on January 24, 2013, the or conventional mail—to opposing counsel resent a child in a contested custody or visita- Ethics Committee voted to send the follow- is a communication under Rule 4.2(a) and tion case should decline the appointment ing proposed opinions to subcommittees for prohibited unless there is consent. unless the order of appointment identifies the further (or continued) study: Proposed 2011 lawyer’s role and specifies the responsibilities FEO 11, Communication with Represented Inquiry #2: of the lawyer. Party by Lawyer Who is the Opposing Party, Would the answer change if Lawyer A is 2012 Formal Ethics Opinion 10 and Proposed 2012 FEO 11, Use of replying to an email message from Lawyer B Participation as a “Network” Lawyer for Nonlawyer Field Representatives to Obtain in which Lawyer B copied her own client? Company Providing Litigation or Representation Contracts. Proposed 2012 Does the fact that Lawyer B copied her own Administrative Support Services FEO 13, Duty to Safekeep Client Files upon client on the email constitute implied con- Opinion rules a lawyer may not partici- Suspension, Disbarment, Disappearance, or sent to a “reply to all” responsive email from pate as a network lawyer for a company pro- Death of Firm Lawyers, was returned to staff Lawyer A? viding litigation or administrative support for revision. The Ethics Committee also services for clients with a particular voted to publish the following revised pro- Opinion #2: legal/business problem unless certain condi- posed opinion and three new proposed opin- No. Rule 4.2 requires the express consent tions are satisfied. ions. The comments of readers are wel- of opposing counsel. 2012 Formal Ethics Opinion 12 comed. The purposes behind Rule 4.2 are set out Agreement for Division of Fees Entered in comment [1] to the rule. Rule 4.2 con-

42 SPRING 2013 tributes to the proper functioning of the legal consent to communicate with a represented system by “protecting a person who has cho- party is too great in comparison to the ease sen to be represented by a lawyer in a matter with which express consent can be obtained Public Information against possible overreaching by other at the beginning of a transaction or matter. lawyers who are participating in the matter, As noted above, the potential harm is not The Ethics Committee’s meetings are interference by those lawyers with the client- limited to the represented party. The Ethics public, and materials submitted for con- lawyer relationship, and the uncounselled Committee is persuaded by the cautionary sideration are generally NOT held in disclosure of information relating to the rep- words offered by the New York and confidence. Persons submitting requests resentation.” California Committees. Because of the risks for advice are cautioned that inquiries To effectuate it purposes, Rule 4.2 must associated with inferring implied consent, we should not disclose client confidences or be interpreted broadly and strictly. For this conclude that Rule 4.2 requires the express sensitive information that is not neces- reason, the protections accorded by Rule 4.2 consent of opposing counsel. sary to the resolution of the ethical ques- may not be waived by the client. Comment tions presented. [8] to Rule 4.2 provides that the rule “applies Proposed 2013 Formal Ethics even though the represented person initiates Opinion 1 or consents to the communication.” Given Release/Dismissal Agreement Offered the obvious strictness of the rule, a lawyer by Prosecutor to Convict may not rely on what he assumes to be the January 24, 2013 Citation “implied” consent of the opposing counsel. Proposed opinion rules that a state prosecu- This issue was recently addressed by the tor may not condition initiation of or coopera- To foster consistency in citation to Association of the Bar of the City of New tion in a proceeding to dismiss a conviction the North Carolina Rules of Professional York Committee on Professional and Judicial upon the convicted person’s release of civil claims Conduct and the formal ethics opinions Ethics (“New York Committee”) and the against the prosecutor, law enforcement author- adopted by the North Carolina State Bar California Standing Committee on ities, or other public officials or entities. Council, the following formats are rec- Professional Responsibility & Conduct ommended: (“California Committee”). Both the New Inquiry: · To cite a North Carolina Rule of York Committee and the California Defendant was convicted of rape in a Professional Conduct: N.C. Rules of Committee concluded that consent to “reply North Carolina state court and sentenced to Prof’l Conduct Rule 1.1 (2003) to all” communications may sometimes be life in the North Carolina prison system. · To cite a North Carolina formal inferred from the facts and circumstances After Defendant served ten years, the alleged ethics opinion: N.C. State Bar Formal presented. Ass’n of the Bar of the City of NY victim recanted. In the absence of the victim’s Op. 1 (2011) Comm. on Prof’l and Judicial Ethics, Formal testimony, there was no longer evidence suf- Note that the current, informal Op. 2009-1; CA. Standing Comm. on Prof’l ficient to support the conviction. Prosecutor method of citation used within the for- Responsibility & Conduct, Formal Op. presented an agreement to Defendant, while mal ethics opinions themselves and in 2011-181. in prison, offering to initiate proceedings to this Journal article will continue for a Although concluding that consent under dismiss the conviction (and to recommend transitional period. Rule 4.2 may be implied, both opinions cau- Defendant’s release from prison) upon the tion lawyers against relying upon implied condition that Defendant execute a release consent. The New York Committee’s opinion purporting to waive any civil claims for or entities arising from the convicted person’s states that a lawyer who relies on implied wrongful arrest, prosecution, and imprison- arrest, prosecution, or imprisonment? consent “runs the risk that the represented ment against the prosecutor, law enforcement person’s lawyer has not consented to the authorities, or other public officials or enti- Opinion: direct communication” and that “[t]o avoid ties. After the agreement was signed, No. any possibility of running afoul of the no- Prosecutor initiated a proceeding to vacate This opinion is limited to state court contact rule, the prudent course is to secure the conviction, the conviction was vacated, prosecutions in which the state did not also express consent.” The California opinion and Defendant was released from prison. assert civil claims against the defendant aris- states that the consent requirement of Rule When a state prosecutor is made aware of ing from the same alleged criminal conduct. 4.2 should not be taken lightly and that it is new evidence that justifies the granting of a The special responsibilities of a prosecu- not appropriate for lawyers to “stretch motion for appropriate relief, may the prose- tor are set for in Rule 3.8. As explained in improperly to find implied consent.” The cutor prepare, offer, or execute an agreement the comment to the rule, “[a] prosecutor has California Committee further states that (a “release/dismissal agreement”) that condi- the responsibility of a minister of justice and “even where consent may be implied, it is tions the prosecutor’s initiation of a proceed- not simply that of an advocate; the prosecu- good practice to expressly confirm the exis- ing to dismiss the conviction, or the prosecu- tor’s duty is to seek justice, not merely to tence of the other attorney’s consent, and to tor’s agreement not to object or contest such convict. This responsibility carries with it do so in writing.” a proceeding initiated by the convicted per- specific obligations to see that the defendant The potential harm that can occur by son, upon the convicted person’s agreement is accorded procedural justice and that guilt allowing opposing counsel to infer implied to release civil claims against public officials is decided upon the basis of sufficient evi-

THE NORTH CAROLINA STATE BAR JOURNAL 43 in Rule 3.8. To imply that a prosecutor may gently in decisions concerning the objectives withhold or contest the dismissal unless a of the representation and the means by which Rules, Procedure, release is executed by the convicted person they are to be pursued... The guiding princi- also violates Rule 8.4(d), which prohibits ple is that the lawyer should fulfill reasonable Comments conduct that is contrary to the administra- client expectations for information consistent tion of justice. with the duty to act in the client’s best inter- All opinions of the Ethics ests, and the client’s overall requirements as to Committee are predicated upon the Proposed 2013 Formal Ethics the character of representation.” Rules of Professional Conduct as revised Opinion 2 Providing a client with a summary of the effective March 1, 2003, and thereafter Providing Defendant with Discovery discovery will, in most instances, fulfill the amended, and referred to herein as the During Representation duty to keep the client “reasonably Rules of Professional Conduct (2003). January 24, 2013 informed.” The proposed opinions are issued pur- Proposed opinion rules that a lawyer is not suant to the “Procedures for Ruling on required to provide a defendant with copies of Inquiry #2: Questions of Legal Ethics.” 27 discovery from the client’s file so long as a sum- If the answer to Inquiry #1 is “yes,” does N.C.A.C. ID, Sect .0100. Any interest- mary of the discovery materials is sufficient to Lawyer have a duty to redact confidential or ed person or group may submit a writ- satisfy the requirements of Rule 1.4. private material, such as the address of a wit- ten comment or request to be heard ness or pictures of an alleged rape victim? concerning a proposed opinion. Any Inquiry #1: comment or request should be directed Lawyer is appointed to represent Opinion #2: to the Ethics Committee at PO Box Defendant in a non-capital murder case. The If Lawyer provides Defendant with a copy 25908, Raleigh, NC 27611, by March state has provided Lawyer with discovery as of discovery materials, Lawyer may redact or 31, 2013. PDF files. The state has also provided Lawyer otherwise remove information that the DVDs containing copies of the video record- lawyer determines, in his professional discre- ings of interrogations of Defendant and a tion, should not be disclosed to the client at codefendant, surveillance videotapes, and this time, including information that would audio recordings of calls made by Defendant endanger the safety and welfare of the client Captions and and the codefendant from the jail. or others, violate a court rule or order, or is Headnotes Lawyer reviewed the discovery and pro- subject to any protective order or nondisclo- vided Defendant with a summary of the evi- sure agreement. See Rule 1.4, cmt (7). A caption and a short description of dence. Defendant demands that he be pro- each of the proposed opinions precedes vided a copy of the entire 1200 pages of dis- Proposed 2013 Formal Ethics the statement of the inquiry. The cap- covery and be allowed to view/listen to the 17 Opinion 3 tions and descriptions are provided as hours of video and audio recordings. Safekeeping Funds Collected from research aids and are not official state- Does Lawyer have to comply with the Client to Pay Expenses ments of the Ethics Committee or the client’s demand? January 24, 2013 council. Proposed opinion examines a lawyer’s Opinion #1: responsibilities when charging and collecting Comment [2] to Rule 1.2 (Scope of from a client for the expenses of representation. dence.” Rule 3.8, cmt. [1]. Rule 3.8(a) Representation and Allocation of Authority specifically prohibits a prosecutor from pros- between Client and Lawyer) provides that Inquiry #1: ecuting a charge that the prosecutor knows clients “normally defer to the special knowl- Attorney hires a court reporter to take a is not supported by probable cause. When edge and skill of their lawyer with respect to deposition in Client’s case. The court new evidence clearly demonstrates that a the means to be used to accomplish their reporter transcribes the deposition and deliv- convicted person should be released from objectives, particularly with respect to tech- ers the transcript and an invoice to Attorney. prison, the duty to “seek justice” requires a nical, legal, and tactical matters.” A criminal Attorney bills Client for the court reporter’s state prosecutor to initiate a proceeding to defense lawyer’s decision whether to provide services in the amount shown on the invoice. have the conviction vacated if not already his client with copies of discovery materials Client gives Attorney the funds to pay the initiated by the convicted person. Therefore, is a matter of trial strategy and judgment court reporter’s invoice. Attorney has not pre- conditioning the initiation of that proceed- that ultimately lies within the lawyer’s dis- viously paid the court reporter. ing, or cooperation with a proceeding initi- cretion. May Attorney deposit the funds from ated by the convicted person, upon the con- Rule 1.4 requires a lawyer to “keep a client Client into Attorney’s operating account and victed person’s agreement to release civil reasonably informed about the status of a write a check on the operating account to pay claims against the authorities arising from matter” and “promptly comply with reason- the court reporter? the convicted person’s arrest, prosecution, or able requests for information.” As stated in imprisonment violates the most basic tenets comment [5] to Rule 1.4, a client should have Opinion #1: of a prosecutor’s responsibilities as set forth “sufficient information to participate intelli- No. The funds collected from Client

44 SPRING 2013 were collected for the purpose of paying a Opinion #4: Inquiry #7: third party in connection with the perform- Yes. Attorney has advanced the funds to Under the facts in Inquiry #6, Patent ance of legal services and are, therefore, pay the expenses of representation and Attorney collects the funds from the client “entrusted funds.” Entrusted funds are Attorney is entitled to reimbursement from for the foreign agent’s fee but does not use funds belonging to someone other than the the client. Rule 1.8, cmt. [10]. The money that money to pay the foreign agent’s fee. lawyer which are in the lawyer’s possession paid by Client is not entrusted to Attorney Instead Attorney settles the obligation to the or control in connection with the perform- but is owed to him. To avoid commingling foreign agent through offsets or, if no offset ance of legal services or professional fiduci- client funds with the lawyer’s funds as agreement can be reached, by payment from ary services. Rule 1.15-1(d). Entrusted required by Rule 1.15-2(f), Attorney must Patent Attorney. funds must be maintained separately from deposit Client’s payment into his operating Is this permissible? the property of Attorney and deposited in or personal account. Attorney’s trust account in accordance with Opinion #7: Rule 1.15-2(b). Inquiry #5: No. If a lawyer collects money from a Attorney may direct Client to write a In the field of patent law, the services of client for a specific purpose, the lawyer must check for the court reporter’s fee payable patent lawyers or agents in foreign countries either (1) use the money received from the directly to the court reporter. Attorney would (“foreign agents”) are sometimes required in client to make the payment for which the then forward the check to the court reporter the course of applying for international money was collected, (2) return the funds to without depositing the check in Attorney’s patents for US clients. On behalf of Client, the client, or (3) obtain the client’s consent to trust account. Rule 1.15 does not prohibit a Patent Attorney arranges for foreign agent hold the funds in trust until earned by provi- lawyer who receives a check belonging wholly services. The foreign agent performs the sion of legal services or used to pay other to a third party from delivering the check to required services and sends an invoice to expenses. Rule 1.15-2. the appropriate recipient without first Patent Attorney. Patent Attorney bills Client depositing the check in the lawyer’s trust for the foreign agent’s services in the amount Inquiry #8: account. Rule 1.15, cmt. [5]. shown on the invoice. Client sends Patent Under the facts in Inquiry #6, is it permis- Attorney the funds to pay the foreign agent’s sible for Patent Attorney to offset a client Inquiry #2: invoice. Patent Attorney has not previously expense with a fee due to Patent Attorney in Would the answer to Inquiry #1 change if paid the foreign agent. an unrelated matter? Attorney considers payment of a court Do the answers to Inquiries #1-4 change reporter to be the lawyer’s obligation? if the funds at issue are funds received from Opinion #8: the client to pay for the services of a foreign Yes, provided Attorney provides Client Opinion #2: agent? with a full accounting and explanation of the No. It does not matter who has the obli- cost of the foreign agent’s services, the offsets gation to pay the court reporter. If a lawyer Opinion #5: applied to the foreign agent’s invoice, and the receives funds from a client for the purpose of No. amount still owed to the foreign agent or paying a third party, the funds are entrusted owed to Attorney by Client. If a lawyer funds and must be maintained separately Inquiry #6 invoices a client for a specific amount to pay from the property of the lawyer in a trust Patent Attorney and a foreign agent rou- a designated expense, the lawyer must use the account. tinely provide services to clients of the other money received from the client to pay that lawyer upon request. The foreign agent and expense, return the funds to the client, or Inquiry #3: Patent Attorney invoice each other per client obtain the client’s consent to deposit the Would the answer to Inquiry #1 change if matter. The foreign agent and Patent funds in the trust account. See Opinion #7. Attorney is contractually obligated to pay the Attorney also have a practice of arranging off- If an expense was already paid by the lawyer court reporter’s fee regardless of whether sets, such that the total amount due to the through offsets or the advancing of the Client pays Attorney for this expense? foreign agent is reduced by the amount due lawyer’s funds, the lawyer may use the money to Patent Attorney. received from the client to reimburse the Opinion #3: When Patent Attorney receives an invoice lawyer. See Opinion #4. However, offset No. Attorney’s contractual obligations do from the foreign agent for services performed agreements may never be used by a lawyer to not change the fact that Attorney is receiving by the foreign agent for one of Patent earn a profit on the expenses of representa- entrusted funds from a client for the specific Attorney’s clients, Patent Attorney invoices tion. See Rule 1.5(a)(prohibiting the charg- purpose of paying a third party. the client for the amount due for the foreign ing or collecting of an excess amount for agent’s fee and collects the funds from the expenses). Inquiry #4: client. Would the answer to Inquiry #1 change if Do these additional facts change the Inquiry #9 Attorney has already paid the court reporter answer to Inquiry #5? Would the answers to Inquiries #6-8 from either his operating account or personal change if Patent Attorney considers the funds prior to receipt of Client’s funds? Opinion #6: No. CONTINUED ON PAGE 48

THE NORTH CAROLINA STATE BAR JOURNAL 45 RULE AMENDMENTS

Amendments Pending Approval of the Supreme Court

At its meetings on October 26, 2012, and The proposed amendments eliminate Certification Standards for the Criminal Law January 25, 2013, the council of the North consensual suspension by court order in Specialty, and Section .3100, Certification Carolina State Bar voted to adopt the follow- favor of consensual transfer to inactive sta- Standards for the Trademark Law Specialty ing rule amendments for transmission to the tus by court order. The lawyer may only The proposed amendments to the stan- North Carolina Supreme Court for approval return to active status pursuant to a court dards for the criminal law specialty provide (for the complete text see the Fall 2012 and order. that jury trial experience is a component of Winter 2012 editions of the Journal or visit the substantial involvement standard for cer- the State Bar website): Proposed Amendments to the tification in the criminal law specialty. Procedures for Reinstatement from A new section of the Plan for Legal Proposed Amendments to the Inactive or Suspended Administrative Specialization establishes standards for a new Discipline and Disability Rules Status specialty in trademark law. 27 N.C.A.C. 1B, Section .0100, 27 N.C.A.C. 1D, Section .0900, Discipline and Disability of Attorneys Procedures for Administrative Committee Proposed Amendments to The Plan for In addition to rearranging the provisions The proposed amendments to the rule on Certification of Paralegals of the existing disability rule to improve clar- reinstatement from inactive and suspended 27 N.C.A.C. 1G, Section .0100, The ity, the proposed amendments eliminate status will cap the CLE requirement for rein- Plan for Certification of Paralegals, and ambiguity, add a new provision allowing the statement of lawyers who have been inactive Section .0200, Rules Governing Continuing Office of Counsel to initiate a disability pro- or suspended for seven or more years and Paralegal Education ceeding while a disciplinary proceeding is who have been practicing in another state or The proposed rule amendments limit to pending, and explain the procedure to be fol- serving in the military. The proposed rule 30 days the time for appeal to the State Bar lowed when a Disciplinary Hearing amendments also clarify that CLE taken in Council from an unfavorable decision on Commission panel finds probable cause to another state may be used to offset the CLE certification or continued certification ren- believe a defendant in a disciplinary proceed- requirement for reinstatement even if the dered by a hearing panel of the Board of ing is disabled. CLE was taken more than two years prior to Paralegal Certification. The proposed the petition. amendments to the rules on continuing Proposed Amendments to the Lawyer paralegal education clarify that law school Assistance Program Rules Proposed Amendments to The Plan for courses are approved activities for the pur- 27 N.C.A.C. 1D, Section .0600, Rules Legal Specialization pose of satisfying the continuing paralegal Governing the Lawyer Assistance Program 27 N.C.A.C. 1D, Section .2500, education requirements.

Proposed Amendments

At its meeting on January 25, 2013, the sonable access to early voting locations for all whom nominations may be made before the council voted to publish the following pro- active members in the judicial district. election, and advise that all elections must be posed rule amendments for comment from by a majority of the votes cast. If the election the members of the Bar: .0802 Election - When Held; Notice; will be held at a meeting of the bar, the Nominations notice will also advise that additional nomi- Proposed Amendments to the Rules (a) Every judicial district bar, in any cal- nations may be made from the floor at the on Election of Councilors endar year at the end of which the term of meeting itself. 27 N.C.A.C. 1A, Section .0800, Election one or more of its councilors will expire, shall In judicial districts that permit elections and Appointment of State Bar Councilors fill said vacancy or vacancies at an election to by mail or early voting, the notice to mem- The proposed amendments, including a be held during that year. bers shall advise that nominations may be proposed new rule, permit judicial district … made in writing directed to the president of bars to adopt procedures for early voting in (e) The notice shall state the date, time, the district bar and received prior to a date district bar elections for State Bar Councilor and place of the election, give the number of set out in the notice. Sufficient notice shall as long as there is appropriate notice and rea- vacancies to be filled, identify how and to be provided to permit nominations received

46 SPRING 2013 be placed in the United States Mail, postage costs of service and the reinstatement fee. prepaid, at least 30 days prior to the first Reinstatement by the secretary is discre- The Process day of the early voting period. tionary. If the secretary declines to reinstate a (e) Write-in candidates shall be permit- member, the member's petition shall be sub- Proposed amendments to the Rules ted during the early voting period and at the mitted to the Administrative Committee at of the North Carolina State Bar are pub- election, and the instructions shall so state. its next meeting and the procedure for review lished for comment in the Journal. They (f) Early voting locations and hours of the reinstatement petition shall be as set are considered for adoption by the coun- must be reasonably accessible to all active forth in Rule .0902(c)-(f). cil at the succeeding quarterly meeting. members of the judicial district. If adopted, they are submitted to the Proposed Amendments to the North Carolina Supreme Court for .0806 .0807 Vacancies Standards for Certification of approval. Amendments become effective [Rule is unchanged.] Specialists upon approval by the court. Unless oth- [Re-numbering remaining rules in this 27 N.C.A.C. 1D, Section .1700, The erwise noted, proposed additions to section.] Plan of Legal Specialization rules are printed in bold and under- The proposed amendments specify that a lined; deletions are interlined. Proposed Amendments to the Rules satisfactory disciplinary history is required to on Reinstatement from Administrative qualify for initial and continued certification Suspension as a specialist. 27 N.C.A.C. 1D, Section .0900, Comments Procedures for Administrative Committee .1720 Minimum Standards for The proposed amendments extend to one Certification of Specialists The State Bar welcomes your com- year the time period during which an admin- (a) To qualify for certification as a special- ments regarding proposed amendments istratively suspended member may be rein- ist, a lawyer applicant must pay any required to the rules. Please send your written stated by order of the secretary of the State fee, comply with the following minimum comments to L. Thomas Lunsford II, Bar. The rule currently allows reinstatement standards, and meet any other standards The North Carolina State Bar, PO Box by the secretary during the time between the established by the board for the particular 25908, Raleigh, NC 27611. effective date of the suspension order and the area of specialty. next meeting of the Administrative (1) The applicant must be licensed in a Committee. Thereafter, reinstatement must jurisdiction of the United States for at from district bar members to be included on be granted by order of the council entered at least five years immediately preceding his the printed ballots. one of the council’s quarterly meetings. or her application and must be licensed in Extending the time for reinstatement by the North Carolina for at least three years .0806 Procedures Governing Early secretary will allow more lawyers to be rein- immediately preceding his or her applica- Voting stated promptly, thereby avoiding the harms tion. The applicant must be currently in (a) Judicial district bars may adopt to clients and law practices that result when good standing to practice law in this state bylaws permitting early voting for up to 10 a forced wind-down occurs following sus- and the applicant’s disciplinary record business days prior to a councilor election, pension. with the courts, the North Carolina in accordance with procedures approved by State Bar, and any other government the NC State Bar Council and as set out in .0904 Reinstatement from Suspension licensing agency must support qualifica- this subchapter. (a) Compliance Within 30 Days of tion in the specialty. (b) Only active members of the judicial Service of Suspension Order. (2) … district bar may participate in early voting. … (b) … (c) In districts that permit early voting, (f) Reinstatement by Secretary of State the notice sent to members referred to in Bar. At any time during the year after the .1721 Minimum Standards for Rule .0802(e) of this subchapter shall advise effective date of a suspension order and prior Continued Certification of Specialists that early voting will be permitted, and to the next meeting of the Administrative (a) The period of certification as a special- shall identify the locations, dates, and hours Committee, a suspended member may peti- ist shall be five years. During such period the for early voting. The notice shall also advise tion for reinstatement pursuant to para- board or appropriate specialty committee that nominations may be made in writing graphs (b) and (c) of this rule and may be may require evidence from the specialist of directed to the president of the district bar reinstated by the secretary of the State Bar his or her continued qualification for certifi- and received prior to a date set out in the upon a finding that the suspended member cation as a specialist, and the specialist must notice. Sufficient notice shall be provided to has complied with or fulfilled the obligations consent to inquiry by the board, or appropri- permit nominations received from district of membership set forth in the order; there ate specialty committee of lawyers and bar members to be included on the printed are no issues relating to the suspended mem- judges, the appropriate disciplinary body, or ballots. ber's character or fitness; and the suspended others in the community regarding the spe- (d) The notice sent to members referred member has paid the costs of the suspension cialist’s continued competence and qualifica- to in Rule .0802(e) of this subchapter shall and reinstatement procedure including the tion to be certified as a specialist. Application

THE NORTH CAROLINA STATE BAR JOURNAL 47 for and approval of continued certification as ten record and ruled upon by the board. subsequent to that date, the program a specialist shall be required prior to the end There shall be no other right to review by will not be accredited unless the sponsor of each five-year period. To qualify for con- the board or appeal to the council under applies for approval of the program and tinued certification as a specialist, a lawyer this rule. pays the accreditation fee set forth in applicant must pay any required fee, must (b) (a) Denial of Certification or Rule .0204. demonstrate to the board with respect to the Continued Certification. An individual who (3) (2) specialty both continued knowledge of the is denied certification or continued certifica- [Re-numbering remaining paragraphs.] law of this state and continued competence tion as a paralegal or whose certification is … n and must comply with the following mini- suspended or revoked shall have the right to mum standards. a review before the board pursuant to the (1) The specialist’s disciplinary record procedures set forth below and, thereafter, with the courts, the North Carolina the right to appeal the board’s ruling thereon Proposed Opinions (cont.) State Bar, and any other government to the council under such rules and regula- licensing agency supports qualification tions as the council may prescribe. obligation to pay a foreign agent to be the in the specialty. (1) (b) Notification of the Decision of the lawyer’s obligation? (1) (2) … Board. [Re-numbering remaining paragraphs.] … Opinion #9: (2) (c) Request for Review by the Board. No. Proposed Amendments to The Plan for … Certification of Paralegals (3) (d) Review by the Board. Inquiry #10: 27 N.C.A.C. 1G, Section .0100, The … Would the answers to Inquiries #6-8 Plan for Certification of Paralegals, and (A) (1) Review on the Record. change if Patent Attorney is contractually Section .0200, Rules Governing Continuing … obligated to pay for the services of the foreign Paralegal Education (B) (2) Review Hearing. agent regardless of whether Client pays The proposed amendments to Rule .0122 … Patent Attorney for those services? provide that an individual whose certification (C) (3) Decision of the Panel. has lapsed for failure to complete the require- … Opinion #10: ments for renewal within the prescribed time (c) (e) Failure of Written Examination. No. limit may request reinstatement by the Board … of Paralegal Certification. The proposed (1) (f) Request for Review by the Board. Inquiry #11: amendments specify the procedure for doing … Client pays Patent Attorney for the foreign so. Other proposed amendments to Rule agent’s fee after the foreign agent has per- .0122 include re-labeling of the subpara- .0203 General Course Approval formed services and invoiced Patent Attorney. graphs to improve clarity. The proposed (a) Approval - Continuing education Client terminates Patent Attorney’s representa- amendments to the rules on continuing para- activities, not otherwise approved or accredit- tion and retains Patent Attorney #2. At the legal education (CPE) require a CPE sponsor ed by the North Carolina State Bar Board of time of termination, Patent Attorney has not to apply for CPE accreditation for a program Continuing Legal Education, may be paid the foreign agent or used offsets to satisfy if more than five paralegals apply for individ- approved upon the written application of a the obligation to the foreign agent. The for- ual accreditation of the program. sponsor, or of a certified paralegal on an indi- eign agent invoices Patent Attorney #2 for the vidual program basis. An application for con- services provided in Client’s matter. Do these .0122 Right to Review and Appeal to tinuing paralegal education (CPE) approval additional facts or the potential for this to Council shall meet the following requirements: occur change the answers to Inquiries #5-12? (a) Lapsed Certification. An individual (1) If advance approval is requested by a whose certification has lapsed pursuant to sponsor, the application and supporting Opinion #11: Rule .0120(c) of this subchapter for failure documentation (i.e., the agenda with No. Patent Attorney must maintain to complete all of the requirements for timeline, speaker information, and a Client’s entrusted funds in Patent Attorney’s renewal within the prescribed time limit description of the written materials) shall trust account until returned to Client or until shall have the right to request reinstatement be submitted at least 45 days prior to the receipt of instructions for disposition from for good cause shown. A request for rein- date on which the course or program is Client or Client’s new lawyer. If Client or statement shall be in writing, must state the scheduled. If advance approval is request- Patent Attorney #2 instructs Patent Attorney personal circumstances prohibiting or sub- ed by a certified paralegal, the application to pay the foreign agent, Patent Attorney stantially impeding satisfaction of the need not include a complete set of sup- must do so promptly. See Rule 1.5-2(m). requirements for renewal within the pre- porting documentation. Similarly, if instructed to do so, Patent scribed time limit, and must be made with- (2) If more than five certified paralegals Attorney must transfer Client’s funds to in 90 days of the date notice of lapse is request approval of a particular program, Patent Attorney #2 for deposit in Patent mailed to the individual. The request for either in advance of the date on which Attorney #2’s trust account where they will be reinstatement shall be reviewed on the writ- the course or program is scheduled or available to pay the foreign agent. n

48 SPRING 2013 BAR UPDATES

Client Security Fund Reimburses Victims

At its January 24, 2013, meeting, the found that Roughton was retained to handle seller’s proceeds until a potential lien could North Carolina State Bar Client Security a civil dispute. Roughton provided no valu- be resolved. When the lien resolved, the Fund Board of Trustees approved payments able legal services for the fee paid. Roughton escrowed funds were disbursed to Sossomon of $134,236.31 to 16 applicants who suf- abandoned his practice. to be held in trust. Due to misappropriation, fered financial losses due to the misconduct 6. An award of $146 to a former client of Sossomon’s trust account balance is insuffi- of North Carolina lawyers. Robert Morgan Smith of Goldsboro. The cient to pay all of his clients’ obligations. The new payments authorized were: board found that Smith was retained to han- Sossomon was disbarred on October 17, 1. An award of $14,068.64 to a former dle a client’s traffic ticket. Smith failed to pay 2012. client of Willis Harper Jr. of Whiteville. The the client’s court costs and fine. Smith was 14. An award of $30,275.08 to a former board found that Harper misappropriated disbarred on October 14, 2011. The board client of W. Darrell Whitley of Lexington. the client’s $13, 978.64 workers’ comp settle- previously reimbursed four other Smith The board found that Whitley was retained ment and $90 he had received from the clients a total of $13,900. to handle a client’s personal injury matter. client to be used to issue subpoenas in the 7. An award of $1,640 to a former client Whitley settled the matter, took his attorney client’s equitable distribution (“ED”) case of Robert Morgan Smith. The board found fee, disbursed funds to the client, and that were never issued. Harper was disbarred that Smith was retained to represent a client retained funds to pay medical providers. on February 26, 2012. The board previously on criminal charges. Smith provided no valu- Whitley failed to pay all the medical reimbursed two other Harper clients a total able legal services for the fee paid. providers prior to his death. Due to misap- of $4,735. 8. An award of $670 to a former client of propriation, Whitley’s trust account balance 2. An award of $5,870 to another appli- Robert Morgan Smith. The board found that is insufficient to pay all of his clients’ obliga- cant who suffered a loss due to Harper’s con- Smith was retained to represent a client on tions. The reimbursement will be paid to the duct. The board found that Harper settled criminal charges. Smith provided no valuable client’s new lawyer who will be responsible several personal injury cases for clients for legal services for the fee paid. for resolving the liens. Whitley died on whom the applicant had provided medical 9. An award of $1,000 to a former client December 6, 2011. The board previously services. Harper held funds in a fiduciary of Robert Morgan Smith. The board found reimbursed 11 other Whitley clients a total capacity for the applicant from those settle- that Smith was retained to represent a client of $305,464.58. ments. Harper failed to disburse the funds to on a motion for appropriate relief relating to 15. An award of $43,709 to a former the applicant. Due to misappropriation, criminal charges. Smith provided no valuable client of W. Darrell Whitley. The board Harper’s trust account balance is insufficient legal services for the fee paid. found that Whitley was retained to handle a to pay all of his clients’ obligations. 10. An award of $350 to a former client client’s workers’ compensation claim. 3. An award of $25,000 to a former client of Robert Morgan Smith. The board found Whitley settled the matter and later received of Jimmy H. Joyner Jr. of Graham. The that Smith was retained to handle a client’s funds from Medicare for the client’s future board found that Joyner was retained to han- speeding ticket. Smith provided no valuable medical expenses. Whitley failed to disburse dle a client’s personal injury matter. Joyner legal services for the fee paid. the Medicare funds to the client prior to his settled the matter and retained funds from 11. An award of $176 to a former client death. Due to misappropriation, Whitley’s the settlement to resolve potential subroga- of Robert Morgan Smith. The board found trust account balance is insufficient to pay all tion claims. There were no subrogation that Smith was retained to handle a client’s of his clients’ obligations. claims and Joyner never disbursed the speeding ticket. Smith failed to pay the 16. An award of $2,346.59 to a former retained funds. Due to misappropriation, client’s court costs and fine from the funds client of W. Darrell Whitley. The board Joyner’s trust account balance is insufficient the client had provided for that purpose. found that Whitley was retained to handle a to pay all of his clients’ obligations. Joyner 12. An award of $1,750 to a former client client’s personal injury matter. Whitley set- was transferred to disability inactive status on of Robert Morgan Smith. The board found tled the matter and retained funds to settle a October 10, 2011. that Smith was retained to represent a client Medicare lien. Whitley failed to settle the 4. An award of $235 to a former client of on criminal charges. Smith provided no valu- Medicare lien or disburse the funds to the Jimmy H. Joyner Jr. The board found that able legal services for the fee paid. client prior to his death. Due to misappro- Joyner was retained to handle a client’s traffic 13. An award of $5,000 to a former client priation, Whitley’s trust account balance is ticket. Joyner provided no valuable legal serv- of Creighton W. Sossomon of Highlands. insufficient to pay all of his clients’ obliga- ices for the fee paid. The board found that Sossomon represented tions. Counsel was directed to resolve the 5. An award of $2,000 to a former client a seller in a real estate transaction. Funds Medicare lien prior to any distribution being of Alan Roughton of Greenville. The board were escrowed by the closing lawyer from the made to the client. n

THE NORTH CAROLINA STATE BAR JOURNAL 49 BAR UPDATES

Law School Briefs

All of the law schools located in North is one of the most prestigious law school trial finalists to the Presidential Management Carolina are invited to provide material for this competitions in the country. Region V Fellows class of 2013. column. Below are the submissions we received includes law schools from North Carolina, Student Attends Clinton Global Initiative this quarter. South Carolina, and Georgia. You can volun- Annual Summit—For the past five years, teer to be a judge for our regional competi- Sally Santiago, currently a 1L at Charlotte Campbell University School of Law tion by registering online at http://law.camp- School of Law, has worked as team captain in Military Law Student Association bell.edu/ntc. If you have any questions in the logistics for the Clinton Foundation at their Prepares Nearly 1,000 Christmas Cards for meantime, please contact Megan West at Annual Summit in NYC and for CGI Soldiers—Campbell Law’s Military Law 919.865.5875 or by email at America in Chicago every summer. Student Association (MiLSA) recently held [email protected]. Legends and Leaders in the Law— its annual Christmas Cards for Soldiers event, Honorable Judge Mark Hayes II spoke to resulting in an all-time high 992 Christmas Charlotte School of Law Charlotte School of Law students about cards. The cards were sent to soldiers in the Paralegal Certificate Program Recognized ethics in the law and Brigadier General Mark Third Infantry Division in Kandahar, by NC State Bar—Charlotte School of Law’s Martins spoke about reformed military com- Afghanistan. newly created Paralegal Certificate Program missions and their place in the legal system. Professor Essary Receives 2012 Women of has been designated as a qualified paralegal Both men were also recognized as Legends Justice Award—Campbell Law professor and studies program by the North Carolina State and Leaders in the Law. former dean Melissa Essary recently received Bar. The first paralegal certificate session a 2012 Women of Justice Award from North began January 7. The 24-week curriculum Duke Law School Carolina Lawyers Weekly. The Women of includes a fundamentals class, core legal Duke Launches Capital Campaign— Justice Award annually recognizes women areas, an elective, and/or an internship Duke Law School has launched an $85 mil- across the state of North Carolina who have opportunity, providing students with essen- lion fundraising campaign in conjunction demonstrated leadership, integrity, service, tial hands-on experience and networking with Duke University’s “Duke Forward: sacrifice, and accomplishment in improving opportunities. Partnering for the Future” campaign. the quality of justice and exemplifying the December Recognition and Hooding Campaign funding priorities are scholarships highest ideals of the legal profession. In addi- Ceremony—Seventy-three members of the and fellowships for students; professorships tion to Essary, Campbell Law alumnae Charlotte School of Law December class of and research funds for faculty; support for Shelby Benton (L ‘85) and Kimberly Miller 2012 were recognized for their outstanding innovation in the curriculum and clinical (L ‘07) also collected 2012 Women of Justice achievements at a special Recognition and programs; funds for research centers and pro- Awards. Hooding Ceremony held on Friday, grams; and expanded support for current-use Student Trio Awarded ACC Scholar- December 14, in the Halton Theater at operating funds such as the Duke Law ships —Three Campbell Law students have Central Piedmont Community. Judge Annual Fund. been tapped to receive $1,000 scholarships Brenda Branch, chief district court judge, New dual degree in law and entrepreneur- from the Association of Corporate Counsel’s Halifax County, gave the keynote address. ship—Duke Law will offer a new dual-degree (ACC) Research Triangle Area Chapter Dean Spriggs Named to List of Nation’s program in law and entrepreneurship begin- (RTAC). Third-year student Frank Milner Most Influential Black Attorneys—Dean ning in the 2013-14 academic year. The and second-year students Benjamin Buskirk Denise Spriggs has made the top 100 list of “JD/LLMLE,” which includes coursework and Sarah Murray will each collect the honor the nation’s most influential black attorneys. over a portion of two summers, combines a for the 2012-13 academic year. For the sec- On Being A Black Lawyer released the names rigorous JD curriculum with business and ond consecutive year, Campbell Law students of those chosen for the 2nd Annual Power entrepreneurship courses as well as participa- received three of the five available ACC- 100 list, a comprehensive catalog of the tion in the Start-Up Ventures Clinic, through RTAC scholarships. nation’s most influential black attorneys which students provide legal counsel to start- Campbell Law Call for Judges—Campbell working in government, academics, and both ups; an entrepreneurship “boot camp” that Law has been selected to serve as the host the public and private sectors. models the experience of launching a new institution for the 38th National Trial Presidential Management Fellows Semi- company; and an integrated externship in a Regional Competition for Region V, Finalists—Charlotte School of Law students start-up venture. The multifaceted curricu- February 8–10, 2013, at the Wake County Jason Hardy, Chelsea Dalziel, Jamie Vandel, lum is designed to prepare lawyers for careers courthouse. The National Trial Competition and Randall Faircloth were named as semi- as advisers to and leaders of entrepreneurial

50 SPRING 2013 businesses and innovative ventures. transparent. Levine also delivered stakeholder and the UNC School of Law also received DC Summer Institute on Law and presentations at the previous two rounds of funding. NCCU School of Law intends to Policy—Duke has launched the DC Summer TPP negotiations. collaborate with these partners to ensure that Institute on Law and Policy, designed for In January, several law students travelled all necessary services are provided efficiently undergraduates and professionals interested to Vietnam and Singapore with Elon MBA and effectively to our residents. in studying the legal and constitutional students in a collaborative international busi- NCCU Law School Dean Phyllis Craig- framework that undergirds the development ness course. Students analyzed US-based Taylor said, “NCCU Law recently ranked of policy, regulation, and legislation. The pro- businesses operating in both locations before fourth in the nation in the provision of clin- gram offers theoretical and practical insights the trip, and then visited those businesses, as ical opportunities to our students. We’re into how the law affects every aspect of US well as law firms, during the trip to see their proud of our unfaltering commitment to policymaking. One course will highlight con- operations and speak with executives first- work on pressing social justice issues that stitutional law, both its structure and the hand about the challenges and opportunities face our communities, including the loss of rights it guarantees, while others will focus on of doing business internationally. This is the property.” timely subjects such as health care law and the fourth time Elon’s law school and MBA pro- impact of the Affordable Care Act; environ- gram have collaborated in this joint winter University of North Carolina School mental law and climate change; national term course. of Law security law and foreign policy; business law $1 Million Gift—The William R. Kenan and financial regulation; statutory interpreta- North Carolina Central University Charitable Trust announced a gift of $1 mil- tion; and Congress and its functions. Courses School of Law lion to support student scholarships at UNC will be offered during evenings in two two- NCCU School of Law Will Launch a School of Law in memory of alumnus week sessions. Contact Amanda.lacoff@ Foreclosure Clinic—With a grant of William C. “Bill” Friday ‘48, who died law.duke.edu. $800,000 from the North Carolina Housing October 12. Finance Agency, North Carolina Central Pro Bono Winter Break Trip—Twenty- Elon University School of Law University School of Law will transform its one students from UNC School of Law col- Third Annual Billings, Exum, & Frye Foreclosure Prevention Project into a new laborated with Legal Aid of NC over winter National Moot Court Competition, April 4- Foreclosure Clinic. break to run a free legal clinic for residents of 6—Thirty-six teams, representing 24 law Since the beginning of the housing crisis the Cherokee Reservation in Cherokee, NC. schools, are registered to participate. in 2008, NCCU’s Foreclosure Prevention Students live-blogged about their trip at Volunteer judges are crucial to the event’s suc- Project has provided training to volunteers— http://blogs.law.unc.edu/probono/. cess. If you can judge, please contact Prof. law students and private attorneys—in the Conference on “ US v. Jones: Defining a Alan Woodlief, director of the Moot Court identification of predatory lending practices. Search in the 21st Century”—The North Program, at [email protected]. These volunteers counseled potential home- Carolina Journal of International Law and Law Faculty and Students Engage Law buyers and assisted those trapped in predato- Technology (JOLT) and the UNC Center for and Policy Overseas ry contracts with the process of mortgage Media Law and Policy co-hosted a conference Elon Law Professor Enrique Armijo trav- adjustment to prevent foreclosure. on the issues of privacy, law enforcement and elled to Myanmar (Burma) in December as Demand quickly outpaced the capacity of new digital technology on January 25. For part of a State Department-funded team of a volunteer force, particularly with the expan- more information: http://ncjolt.org/sym- experts working with the Myanmar govern- sion of the law school’s outreach efforts posia. ment and civil society there to draft a new through TALIAS—NCCU’s telepresence Frank Porter Graham Award—UNC press law and other communications-related classroom linked to 27 high-definition video- School of Law faculty member Deborah M. legislation. The work supports a number of conferencing locations across the state. Weissman, Reef C. Ivey II Distinguished pro-democracy reforms currently taking place “We had to suspend our foreclosure proj- Professor of Law, received the Frank Porter in Myanmar and is undertaken pursuant to ect,” said Atty. Pamela Glean, assistant dean Graham Award from the NC ACLU on the US’s diplomatic reengagement with the for clinical programs. “Our volunteer attor- February 16 for her work “with various indi- country as well as President Obama’s visit ney was simply overwhelmed.” viduals and organizations across the state to there in 2012. Glean appealed to the North Carolina promote a vision of North Carolina that Elon Law Professor David Levine recent- Department of Justice (DOJ) for funding to respects individual rights, human dignity, and ly presented in The Hague, Netherlands, and support a full-time director and financial due process.” in Auckland, New Zealand, speaking about counselor, as well as contract attorneys to rep- CLE Programs—Recent and upcoming the importance of transparency in interna- resent homeowners in trials and appeals in CLE programs include the Festival of Legal tional trade negotiations. At the 15th round their local jurisdictions. Learning, Chapel Hill, February 8-9; of Trans-Pacific Partnership (TPP) negotia- The funds flowing from the DOJ through Banking Institute, Charlotte, March 21; the tions, held December 3-12 in Auckland, the Housing Finance Agency represent a por- J. Nelson Young Tax Institute, Chapel Hill, Levine delivered a stakeholder presentation tion of the multistate settlement with five May 2-3. Visit www.law.unc.edu/cle. focused on the need to make the negotiations major banks that engaged in fraudulent fore- and the negotiating positions of the nations closures and unethical practices in their mort- Wake Forest University School of Law involved in formulating the agreement more gage lending. Legal Aid of North Carolina Dean Blake D. Morant Ranks 13th

THE NORTH CAROLINA STATE BAR JOURNAL 51 among Most Influential People in Legal the nation’s best known and respected legal course that is part of the law school’s Education—The National Jurist has educators and scholars. He has served in Applied Legal Theory – “Law in Action” announced that Dean Blake D. Morant numerous leadership positions in the program. Through the program, students ranks 13th among 24 legal educators and American Association of Law Schools and can obtain externships with the United one legal education public policy advocate the American Bar Association, and he regu- States Court of Appeals or the Federal on its 2012 list of the most influential peo- larly speaks across the country and abroad Circuit, the United States Court of Federal ple in legal education. The magazine, which on legal education and diversity, as well as Claims, and the Office of the Special made the announcement in the cover story topics relating to his scholarly interests. Masters of the Courts of Federal Claims. of its January issue, requested nominations Inaugural Wake in Washington Summer The program is unique because it includes from every law school in the nation, and Judicial Externship Program to be Offered an externship component and customized received more than 85. Its editorial team in 2013—In an effort to create more hands- instructional component, according to narrowed the list down to 50 and then asked on learning opportunities for students, the Perdue. “It also effectuates Dean Morant’s 350 people in legal education, including Wake Forest University School of Law will goals of expanding our metro externship every law school dean, to rate each nominee begin offering a “Wake in Washington presence, and developing innovative ways to based on how much they influenced them in Summer Judicial Externship Program” this assist our students in securing employment the past 12 months. Dean Morant is one of year. Professor Abby Perdue will teach the and judicial clerkships.” n

John B. McMillan Distinguished Service Award

J. Allen Adams is a recipient of the John Award. Mr. Barnhill graduated first in his Senator Daniel T. Blue Jr. is a recipient B. McMillan Distinguished Service Award. class from Wake Forest University School of of the John B. McMillan Distinguished Mr. Adams received his bachelor’s degree in Law and began his career trying cases in Service Award. Senator Blue received his 1952 and his JD in 1954 from the 1958. He is considered the dean of the bachelor’s degree from NC Central in 1970 University of North Carolina. He began his Womble Carlyle Sandridge & Rice litigation and his JD from Duke University in 1973. law practice in Raleigh and became an early practice and a dean of the Forsyth County He began his law career at what is now partner in the law firm of Sanford, Cannon, Bar. Throughout his over 50 years of litiga- Parker, Poe, Adams and Bernstein and Adams & McCullough in 1967. He tion practice, Mr. Barnhill has advocated for became one of the first African-American remained as a partner of that firm and its hundreds of clients, both big and small, in attorneys to integrate one of the state’s major successors until his retirement from Parker both federal and state courts and before both law firms. In 1980 Senator Blue was elected Poe Adams & Bernstein in 2003. In addi- trial courts and appellate panels. Mr. to the NC House of Representatives, where tion to his legal career, Mr. Adams served Barnhill’s skill in the courtroom has earned he served 11 terms, including an election as five terms in the NC House of him such honors as fellow in the American Speaker of the House of Representatives in Representatives and was an active duty offi- College of Trial Lawyers and advocate in the 1991. After leaving the House in 2002, Mr. cer in the US Navy and naval reserves, retir- American Board of Trial Advocates as well as Blue returned in 2006 and was selected to ing as a captain in the Judge Advocate listings in The Best Lawyers in America and serve as a senator in 2009. Throughout his General’s Corp. A long-time advocate for in North Carolina Business Legal Elite. He career in the NC Legislature, Senator Blue diversity, Mr. Adams led the efforts to inte- has had a long standing and continuous sup- has used his talents, energy, time, and efforts grate the Wake County Bar Association in port for the judiciary, having served on the to improve the legal system as well as the the 1960s. Mr. Adams embraced the obliga- US Magistrate Selection Committee, the community. He has served on the boards at tion of pro bono representation throughout Middle District Local Rules Committee, the Duke University, Duke Health System, and his career and was a zealous advocate for the Commission on the Future of the Business the Center on Ethics in Government in underprivileged. A lifelong volunteer, he has Court, and as a permanent member of the Denver, Colorado. He has been a visiting served on countless boards throughout Fourth Circuit Judicial Conference. He has a instructor at Duke University, and also a fac- North Carolina and has been a consistent passion for supporting young lawyers, and is ulty member of the National Institute for advocate for his alma mater, the University a founding director and master of the bench Trial Advocacy. Senator Blue has been recog- North Carolina. In 2007 Mr. Adams was for the Chief Justice Joseph Branch Inns of nized as one of America’s outstanding politi- awarded the Chief Justice Branch Court. Mr. Barnhill served as a 1st lieutenant cal leaders, earning numerous awards Professionalism Award, the highest honor in the air force and was later promoted to throughout the state and country. He has given by the Wake County Bar Association, captain in the air force reserve. With acco- provided a lifetime of distinguished service to in recognition of his long and honorable lades and accomplishments too numerous to both the legal profession and the people of career of public service to the bar and to the mention, Mr. Barnhill’s life and career have the 10th Judicial District. citizens of North Carolina. greatly enhanced both the Forsyth County Kenneth S. Broun is a recipient of the H. Grady Barnhill Jr. is a recipient of the Bar and the entire legal profession of North John B. McMillan Distinguished Service John B. McMillan Distinguished Service Carolina. Award. Mr. Broun earned his JD with hon-

52 SPRING 2013 ors from the University of Illinois School of for other lawyers, and has been a strong sup- of Directors. She was an original member of Law in 1963 and became licensed in North porter of organizations that provide legal the 10th Judicial District Grievance Carolina in 1976. He is the Henry Brandis services to persons of limited means. He has Committee and was the first chair of the Professor of Law at the UNC Law School. given a lifetime of service to his clients, his Wake County Bar Association Mr. Broun has an international reputation alma mater, the Forsyth County Bar, and the Professionalism Committee. In addition to for aiding the legal profession by seeking to state of North Carolina. her service to the legal profession, Ms. Lynch improve the administration of justice and the Richard S. Jones Jr. is a recipient of the has taught as an adjunct professor at UNC quality of services rendered by professionals John B. McMillan Distinguished Service Law School, as a lecturing fellow at Duke in South Africa. Mr. Broun has cultivated Award. Mr. Jones was born in Asheville and Law School, and at countless CLE programs. knowledge of the law, helped reform the law, attended Davidson College. He received his Maria Lynch has established a standard of and worked to strengthen legal education. JD from the University of North Carolina excellence in her legal field and in her service He has served on the Federal Rules Advisory School of Law and was licensed in 1961. In to the community. Committee since 1993 and on the board of addition to his litigation practice, Jones Norwood Robinson is a recipient of the the National Institute for Trial Advocacy served as the county attorney for Macon John B. McMillan Distinguished Service since 1976. He is nationally recognized for County from 1969 to 2005. Mr. Jones also Award. Mr. Robinson grew up in Sampson his scholarship as the general editor of served as counsel to Macon Bank from 1972 County and attended the United States McCormick on Evidence. Mr. Broun has to 2004. During his 61 years of law practice, Military Academy, from which he graduated trained many North Carolina lawyers to treat Mr. Jones served on many professional in three years. Following his service as a 2nd opposing counsel with courtesy and respect, organizations including 12 years on the lieutenant and company tank commander in and has provided advice and mentoring to North Carolina Board of Law Examiners. In the Army Tank Corps, he attended Duke countless young lawyers. Additionally, Mr. addition to his service in professional organ- Law School, where he was a co-editor of the Broun has devoted his time in civic leader- izations, Mr. Jones has volunteered his time Duke Law Review and graduated as a mem- ship, having served as the mayor of Chapel to numerous civic organizations including ber of the Order of the Coif. Mr. Robinson Hill from 1991-1995. Known across the the local chamber of commerce, Rotary has been practicing complex litigation for state as “Dean Broun” and to the citizens of Club, and Jaycees. In 1999 Mr. Jones was over 50 years and was a co-managing parter Chapel Hill as “Mayor Broun,” Ken Broun inducted into the North Carolina Bar of Petree, Stockton, Robinson, Vaughn, has demonstrated exemplary service to the Association’s General Practice Hall of Fame. Glaze & and Maready. He continues to prac- legal profession. Generations of lawyers in the 30th Judicial tice full-time at Robinson & Lawing. William K. Davis is a recipient of the District have benefited from Mr. Jones’ Among numerous professional honors, Mr. John B. McMillan Distinguished Service knowledge, skill, wisdom, and comforting Robinson has been inducted into the Award. Mr. Davis attended high school in presence. He is known as “President for Life” American College of Trial Lawyers and Winston-Salem, went to Davidson College, of the Macon County Bar, and he continues named one of the Best Lawyers in America. earned an MBA at UNC-Chapel Hill, and to make himself available to any attorney— He has served in many professional endeav- served in the army in 101st Airborne sta- beginning or experienced—as a mentor, ors, including the American Bar Foundation, tioned in Germany. He then attended Wake counselor, and advisor. Richard S. Jones Jr. the NCBA Board of Governors, the Forsyth Forest Law School where he was the editor- has provided a lifetime of distinguished serv- County Bar Association, and as a member of in-chief of the Wake Forest Law Review. In ice to both the legal profession and the peo- the Board of Visitors for both Duke Law 1980 he helped establish the firm of Bell, ple of 30th Judicial District. School and Wake Forest Law School. He has Davis & Pitt where he continues to practice Maria M. Lynch is a recipient of the John given his time to civic service as an admis- today. Mr. Davis has served in a wide variety B. McMillan Distinguished Service Award. sions counselor for West Point, as a co- of professional and public service capacities. Ms. Lynch graduated with honors from the founder of the Winston-Salem Housing He has been president of the North Carolina University of North Carolina School of Law Foundation, as chairperson of the Forsyth State Bar, chair of the Board of Law in 1979. After clerking for the Hon. J. County United Way, and as a Sunday school Examiners, chairman of the Board of Dickson Phillips Jr., she entered private prac- teacher for over 50 years. He evidences all the Continuing Legal Education, and president tice where she has established a reputation as qualities and qualifications set out in the pre- of the North Carolina Association of one of the preeminent tax and estate plan- amble to the Rules of Professional Conduct Defense Attorneys. He is also a founding ning lawyers in North Carolina. She has and is a role model for members of the member of the Chief Joseph Branch Inns of been included in Best Lawyers in America Forsyth County Bar. Court at Wake Forest and has been a mem- since 1991, and included in Super Lawyers James T. (Jim) Williams is a recipient of ber of the NCBA Board of Governors. Mr. in 2006. In 2011 she was named to the Legal the John B. McMillan Distinguished Service Davis has earned numerous professional Elite Hall of Fame for Tax and Estate Award. Mr. Williams received his bachelor’s honors including being listed in Best Planning. Throughout her career Ms. Lynch degree (1962) and his law degree (cum laude, Lawyers in America and North Carolina has consistently represented clients in a pro 1966) from Wake Forest University, where Super Lawyers (as one of NC’s top ten bono capacity. Ms. Lynch served as a State he was a founding member of the Law lawyers). Mr. Davis has always been a role Bar Councilor for the 10th Judicial District Review. Upon graduation from law school, model and mentor for younger lawyers, has from 1993 until 2001, and currently serves Mr. Williams joined what is now known as set an example of professionalism and civility on the Wake County Bar Association Board Brooks, Pierce, McLendon, Humphrey &

THE NORTH CAROLINA STATE BAR JOURNAL 53 Leonard, LLP and is currently a partner in served as chair of the North Carolina State Public Schools. Mr. Williams has shared his the firm. Mr. Williams has been recognized Committee of the American College of Trial legal expertise as an educator, having served by his peers as one of the best business litiga- Lawyers, chair of the Board of Trustees of as an adjunct instructor at Elon, Campbell, tors in North Carolina and was recently Wake Forest University, and chair of the and Wake Forest Law Schools. Young named as one of the top ten Super Lawyers Community Foundation of Greater lawyers in Guilford County would be well in North Carolina. In addition to his legal Greensboro. He has also served on the served to use Jim Williams’s commitment to practice, Mr. Williams has served the bar and Greensboro Development Corporation and the law and to his community as a model for his community with distinction. He has the Board of Education of the Greensboro their careers. n

Seeking Distinguished Service Award Nominations

The John B. McMillan Distinguished who, because of economic or social barriers, tricts, usually at a meeting of the district bar. Service Award program honors current and cannot afford or secure adequate legal coun- The State Bar Councilor from the recipient’s retired members of the North Carolina State sel; seeking to improve the administration of district will participate in introducing the Bar throughout the state who have demon- justice and the quality of services rendered recipient and presenting the certificate. strated exemplary service to the legal profes- by the legal profession; promoting diversity Recipients of the Distinguished Service Award sion. Such service may be evidenced by a and diverse participation within the legal will also be recognized in the State Bar Journal commitment to the principles and goals profession; providing professional services at and honored at the State Bar’s annual meeting stated in the Preamble to the Rules of no fee or a reduced fee to persons of limited in Raleigh. Members of the bar are encour- Professional Conduct, for example: further- means or to public service or charitable aged to nominate colleagues who have ing the public’s understanding of and confi- groups or organizations; encouraging and demonstrated outstanding service to the pro- dence in the rule of law and the justice sys- counseling peers by providing advice and fession. The nomination form is available on tem; working to strengthen legal education; mentoring; and fostering civility among the State Bar’s website, www.ncbar.gov. Please providing civic leadership to ensure equal members of the bar. direct questions to Peter Bolac at the State Bar access to our system of justice for all those Awards will be presented in recipients’ dis- office in Raleigh, (919) 828-4620. n

In Memoriam Laurence Starr Graham Hector MacLean Greenville, NC Lumberton, NC Lyn Bond Jr. Stephen Paul Halstead Duncan Brown McFadyen III Charlotte, NC Winston-Salem, NC Raeford, NC William Frazier Briley Garland Edison Hill Erle E. Peacock Jr. Raleigh, NC Asheville, NC Chapel Hill, NC William James Chandler Jr. James Baxter Hinson Larry William Pitts Charlotte, NC Charlotte, NC Newton, NC James William Clontz Edward Brandt Hipp Eric Alton Saunders High Point, NC Raleigh, NC Winston-Salem, NC Gene Porter Cole James D. Howell James Dale Shepherd Charlotte, NC Matthews, NC Greensboro, NC Robert Davis Darden Jr. John Randolph Ingram Arnold Monty Stone Raleigh, NC Myrtle Beach, SC Morehead City, NC Ralph Patterson Dodds William A. Johnson James Richard Vosburgh Raleigh, NC Lillington, NC Washington, NC Alonzo Hill Gainey Jr. Brian Francis David Lavelle Donald Hurst Wilson III Oak Island, NC Asheville, NC Raleigh, NC John C. Gardner Hugh A. Lee Deborah Williamson Witt Mount Airy, NC Rockingham, NC Midland, NC

54 SPRING 2013

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

Spring 2013