THE NORTH CAROLINA STATE BAR

WINTER JOURNAL2018

IN THIS ISSUE Our New President, G. Gray Wilson page 5 One Last Outlook page 8 Recovering from Disaster page 20

THE NORTH CAROLINA STATE BAR JOURNAL FEATURES Winter 2018 Volume 23, Number 4 5 An Interview with the State Bar’s New Editor President, G. Gray Wilson Jennifer R. Duncan 8 One Last Outlook—An Interview with Retiring Executive Director L. Thomas Lunsford II © Copyright 2018 by the North Carolina State Bar. All rights reserved. Periodicals 12 Summer Session: The Morganton postage paid at Raleigh, NC, and additional Decisions, 1847-1861 offices. Opinions expressed by contributors By Thomas P. Davis are not necessarily those of the North Carolina State Bar. POSTMASTER: Send 18 Counselor address changes to the North Carolina State By Ryan Stowe Bar, PO Box 25908, Raleigh, NC 27611. The North Carolina Bar Journal invites the 20 Recovering from Disaster: “Helpers” submission of unsolicited, original articles, in the Legal Community Respond essays, and book reviews. Submissions may By Mary Irvine be made by mail or email (jduncan@ ncbar.gov) to the editor. Publishing and edi- 22 Running Man torial decisions are based on the Publications By G. Gray Wilson 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 manuscripts. The North Carolina State Bar Journal (ISSN 10928626) is published four times per year in March, June, September, and December under the direction and supervision of the council of the North Carolina State Bar, PO Box 25908, Raleigh, NC 27611. Member rate of $6.00 per year is included in dues. Nonmember rates $10.73 per year. Single copies $5.36. The Lawyer’s Handbook $16.09. Advertising rates available upon request. Direct inquiries to Director of Communications, the North Carolina State Bar, PO Box 25908, Raleigh, North Carolina 27611, tel. (919) 828-4620.

ncbar.gov Follow us at: Twitter: @NCStateBar Facebook: facebook.com/NCStateBar

THE NORTH CAROLINA STATE BAR JOURNAL 3 DEPARTMENTS 38 Proposed Ethics Opinions 45 Client Security Fund 24 The Disciplinary Department 39 Rule Amendments 46 Law School Briefs 36 Pathways to Wellbeing 53 Annual Reports of Boards 28 Lawyer Assistance Program BAR UPDATES 50 Distinguished Service Award 30 IOLTA Update 41 In Memoriam 51 February Bar Exam Applicants 32 Legal Specialization 42 State Bar Swears In New Officers 54 Selected Financial Data 34 Legal Ethics 43 Fifty-Year Lawyers Honored 36 Trust Accounting 44 Resolution of Appreciation

Officers 13: Michael R. Ramos, Shallotte 27B: Rebecca J. Pomeroy, Lincolnton G. Gray Wilson, Winston-Salem 14: Dorothy Hairston Mitchell, 28: Anna Hamrick, Asheville President 2018-2019 Durham 29A: H. Russell Neighbors, Marion C. Colon Willoughby Jr., Raleigh William S. Mills, Durham 29B: Christopher S. Stepp, President-Elect 2018-2019 15A: Charles E. Davis, Mebane Hendersonville Barbara R. Christy, Greensboro 15B: Charles Gordon Brown, Chapel Hill 30: Gerald R. Collins Jr., Murphy Vice-President 2018-2019 16A: Terry R. Garner, Laurinburg Alice Neece Mine, Chapel Hill 16B: David F. Branch Jr., Lumberton Public Members Secretary-Treasurer 16C: Richard Buckner, Rockingham Thomas W. Elkins, Raleigh John M. Silverstein, Raleigh 17A: Matthew W. Smith, Eden Dr. Joseph E. Johnson, Greensboro Past-President 2018-2019 17B: Thomas W. Anderson, Pilot Mohan Venkataraman, Morrisville Mountain Councilors 18: Stephen E. Robertson, Greensboro Executive Director By Judicial District 18H: Raymond A. Bretzmann, High L. Thomas Lunsford II 1: C. Everett Thompson II, Elizabeth Point City 19A: Herbert White, Concord Assistant Executive Director 2: G. Thomas Davis Jr., Swan 19B: Clark R. Bell, Asheboro Alice Neece Mine Quarter 19C: Darrin D. Jordan, Salisbury 3A: Charles R. Hardee, Greenville 19D: Richard Costanza, Southern Pines Counsel 3B: Debra L. Massie, Beaufort 20A: John Webster, Albemarle Katherine Jean 4: Robert W. Detwiler, Jacksonville 20B: H. Ligon Bundy, Monroe 5: W. Allen Cobb Jr., Wilmington 21: Michael L. Robinson, Winston- Editor 6: W. Rob Lewis II, Ahoskie Salem Jennifer R. Duncan 7: Randall B. Pridgen, Rocky Mount Kevin G. Williams, Winston- 8: C. Branson Vickory III, Goldsboro Salem Publications Editorial Board 9: Paul J. Stainback, Henderson 22A: Kimberly S. Taylor, Taylorsville Darrin D. Jordan, Chair 9A: Alan S. Hicks, Roxboro 22B: Sally Strohacker, Mocksville Nancy Black Norelli, Vice Chair 10: Heidi C. Bloom, Raleigh 23: John S. Willardson, Wilkesboro Phillip Bantz (Advisory Member) Walter E. Brock Jr., Raleigh 24: Andrea N. Capua, Boone Richard G. Buckner Nicholas J. Dombalis II, Raleigh 25: M. Alan LeCroy, Morganton Andrea Capua Theodore C. Edwards II, Raleigh 26: David N. Allen, Charlotte Margaret Dickson (Advisory Member) Katherine Ann Frye, Raleigh Robert C. Bowers, Charlotte John Gehring (Advisory Member) Robert Rader, Raleigh A. Todd Brown, Charlotte Ashley London (Advisory Member) Donna R. Rascoe, Raleigh Mark P. Henriques, Charlotte Stephen E. Robertson Warren Savage, Raleigh Dewitt McCarley, Charlotte Christopher S. Stepp 11A: Eddie S. Winstead III, Sanford Nancy Black Norelli, Charlotte John Webster 11B: Marcia H. Armstrong, Smithfield Eben T. Rawls, Charlotte 12: Lonnie M. Player Jr., Fayetteville 27A: Timothy L. Patti, Gastonia

4 FALL 2018 An Interview with the State Bar’s New President, G. Gray Wilson

Q: What can you tell us about your upbringing? I grew up in Boone, North Carolina, the son of a physician who was the last of a dying breed—the general practitioner. I lived through the blizzard of 1960 (23 days out of school), after which nothing really seemed that bad any more. I have one sister and two brothers, and all three of us boys attended Davidson College over a period of six years, but both of my brothers became doctors. I was the black sheep who decided to go to law school because I liked to write and argue more than the sight of blood. Q: When and how did you decide to become a lawyer? I decided to become a lawyer sitting around the dinner table as a boy arguing with my family, and a trial lawyer was the only kind I was ever interested in becoming. There were a lot of storytellers in the mountains, and G. Gray Wilson is sworn in as president by Supreme Court Justice Mark Martin, with his wife, occasionally some of them were truthful, Cheryl, looking on. which I found fascinating. Q: Can you tell us how your career as a a great practice situation is beyond me, but I tion of a replacement. I threw my name into lawyer has evolved? plan to stay here as long as they continue to the hat after several others declared their can- When I finished law school (I could not tolerate me. didacy, survived at least one run-off, and was get into a good school in North Carolina so I Q: How and why did you become involved elected to the vacant seat along with now Past went out of state to Duke), I landed a job in State Bar work? President Jim Fox. with what is now the Kilpatrick Townsend My first leadership position was chair of Q: What has your experience on the Bar firm in Winston-Salem. I stayed there for 15 the Forsyth County Young Lawyers Council been like and how has it differed years and watched the firm grow from 20 to Association in 1980-81. I then became active from what you anticipated? 120 lawyers before I decided that was too big in the North Carolina Bar Association The Bar Council is an entirely different and struck out on my own with three other because my first firm had several past presi- organism from the Bar Association. I was attorneys. I had my own firm for over 25 years dents on the roster. I was chair of the Young assigned to one of the Grievance until I decided I needed to get a retirement Lawyers Division in 1986-87, then president Subcommittees outright, and the delibera- plan in place, primarily for my three younger of the Bar Association in 2004-05. I had tions within that body were a sea change from partners. The Nelson Mullins office in served as an advisory member of the Ethics my former moorings in other professional Winston-Salem turned out to be a perfect fit, Committee of the State Bar during the inter- organizations. Debate in a number of com- and I have wondered why everyone has been im. After I returned to the full-time practice mittee assignments was vigorous but always so delightful to work with over the past year of law in 2006, one of our State Bar coun- respectful, and I met a cross-section of fellow since we merged. How I blundered into such cilors suddenly resigned, prompting the elec- councilors from across the state who shared

THE NORTH CAROLINA STATE BAR JOURNAL 5 the common purpose of protecting the public in 1946, then as State Bar president in 1951. seminar program created with the invaluable from unsavory members of the profession. I He was the first member of the ABA House assistance of David Hostetler. Knowledge is also became acquainted with an all-star cast of of Delegates from this state. What I learned as power, and an understanding of the classics in staff counsel and management personnel who Bar Association president is that its mission is Western civilization provides a sound founda- were utterly devoted to self-regulation of the not really that different from that of the State tion for communicating with those who profession. Bar once you get past the statutory mandate come from all walks of life in a courtroom, Q: How has the work of the State Bar of this state agency. Both organizations strive especially in a jury setting. There will always changed since you first became involved? to make the profession better by helping be another opponent out there smarter than Frankly, the job has gotten tougher over lawyers do their job ably, with counseling you, but he or she may not be better educat- the past decade, as the State Bar has with- services, future planning committees, and ed, and learning has always been the curse of stood assaults from a number of quarters, education and training beyond law school. my family. such as online legal service providers, creative The synergy is there, but has not always been Q: Over the past two years, your predeces- unauthorized practice forays in this jurisdic- tapped to its full extent. It is my fervent hope sors have put a great deal of emphasis on tion, and occasional friction with the that this will change, and that the cooperation increasing the State Bar’s “engagement” with General Assembly. It would be prudent for between these two fine organizations will its constituent lawyers and various other me to stop here. improve in coming years. “stakeholders.” Why is that important and Q: Can you tell us about the most difficult Q: You currently chair the Board of what would you like to see happen in that issue you’ve faced as an officer or member of Directors for Lawyers Mutual. How has that regard? the Bar Council? experience informed your service on the Bar Transparency is key to the ongoing mis- I sat on the Grievance Committee for all Council? sion and perhaps survival of this self-regulat- but one year of my nine-year term, serving as And speaking of synergy, Lawyers Mutual ing agency, one that is often misunderstood a subcommittee chair for several of those has been working closely with the State Bar to by the public. The cure for that malaise is years. I struggled mightily with finding a bal- provide training at no charge to attorneys education (see the previous question), and the ance between the rationale for discipline and across the state with regard to the relatively more we can present what we do and how we a parsing of those violations that were the new trust account rules and the perils of cyber do it in the public domain, the greater under- innocent product of ignorance versus malev- fraud. Sitting on the Board of Directors for standing there will be about the critical value olent intent. the past dozen years, especially the claims of our mission. Q: What do think are the biggest issues cur- committee reviewing mistakes lawyers make, Q: The State Bar is still embroiled in litiga- rently facing the council? has made me a better lawyer. It has also taught tion with Capital Associated Industries in Technology would be at the top of the list, me that lawyers who practice ethically make regard to CAI’s desire to use its own house in so many ways, from online providers to fewer mistakes. counsel to represent its members. Why is the LinkedIn and other social media, to referral Q: Most lawyers realize that you literally State Bar involved? What is the status of the services, to cyber security, to lawyer advertis- “wrote the book” on civil procedure in our case presently? ing. We cannot regulate the Internet, but state, cementing your reputation as a schol- That case was dismissed on summary sometimes I wish we could. The public wants ar and a teacher. Academically speaking, do judgment by Judge Loretta Biggs in the access to services out there that may not you think the lawyers of North Carolina Middle District of North Carolina and has always be in their best interest, but we must have a sufficient understanding of the been appealed to the Fourth Circuit. Oral change with the times to try to accommodate rationale for and the importance of self- arguments are scheduled in the near future, alternative structures that fit within the regulation? and we expect to have a decision at or short- purview of the First Amendment. I consider my treatise on civil procedure ly after year end. Further this deponent Q: Some years ago you served as president of to be a great cure for insomnia, but beyond sayeth not. the North Carolina Bar Association and now that, I hope it provides some guidance to the Q: Programmatically speaking, what do you you are serving as president of the State Bar. trial practitioner on how to navigate a lawsuit hope to accomplish while president of the It appears that you are the first person to without crashing and burning. As for self- North Carolina State Bar? ever serve in both capacities. What did you regulation, I fear that much of the bar of this I hope to promote better ties with the learn as president of the Bar Association that state has little appreciation of the benefits North Carolina Bar Association through a may help you succeed in your current office? and privileges we enjoy through self-regula- joint committee set up with the assistance of How do you see the two organizations relat- tion. I can assure you that there are others its current president, Jackie Grant. Public ing to one another? Are there ways in which out there without a law license ready to reg- education down at the local district bar level the Bar Association and the State Bar can ulate us with abandon should we fail to per- remains a priority. We are looking into a better cooperate to assist lawyers and protect form our work properly. means to provide universal and ready access the public? Q: A couple of years ago you organized a to every courthouse in the state for any I am not the first to hold both offices. very successful CLE program at the State Bar attorney who shows up for business. We will Louis Poisson, grandfather of former coun- concerning law and the humanities. Why is also be monitoring the rollout of the univer- cilor Fred Poisson (a Davidson College class- it important that lawyers be exposed to and sal bar examination for the first time in mate of mine), was one of the founders of the mindful of great literature and philosophy? February 2019. State Bar, served as Bar Association president I am proud of the Law and Humanities Q: The State Bar recently appointed for the

6 WINTER 2018 Fastest smartest malpractice insurance. Period.

800.906.9654 GilsbarPRO.com first time a member of its staff to act as “leg- over the years as assistant director. The tran- Hailey works for a couple of other attorneys islative liaison.” Does this foreshadow the sition should be seamless, the only caveat in the Nelson Mullins office I joined a year agency’s increased involvement in legislative being that I hope she is prepared to match ago in Winston-Salem. Jared is employed matters? If so, how can the State Bar and its the wit and good humor that Mr. Lunsford with Central Coca-Cola Bottling Company membership be most effective in promoting has displayed with his regular piece in the in Charlotte. Harper is in his third year of its agenda? Bar Journal, not to mention the roasting of medical school at Wake Forest. And baby girl While strictly respecting our function as the next outgoing president. Claire is pursuing her Ph.D. in psychology at a regulatory agency, the State Bar needs to Q: If you had not chosen to become a the University of Indiana in Bloomington. build relationships with our legislators, par- lawyer, what do you think you would have Q: What do you most enjoy doing when ticularly our lawyer legislators. Recently pro- done for a living? you’re not representing clients or working moted Peter Bolac will take the lead, as he My mother was a cast-iron Calvinist des- for the State Bar? has so ably in the past, at keeping us and the perate for me to join the clergy, but since boy- Reading military history (I was a reluctant General Assembly informed on issues direct- hood my passion has been writing, and that guest of the US Army right after the tempo- ly affecting our mission, and this effort at means fiction, not multi-volume legal treatis- rary truce was declared in Vietnam), running, liaison will be pursued at the local district es. So I could have been a starving artist, but and flying. I have also been privileged since bar level as well. chose the law in order to earn a living and my youth to travel extensively around the Q: Tom Lunsford, the State Bar’s executive continue writing in a number of contexts. planet, but there are still some far pavilions on director since 1992, will be retiring at the Q: Tell us about your family. my bucket list that I have yet to visit. end of 2018 and will be succeeded by the I already mentioned my physician broth- Q: How would you like for your presidency long-time assistant director, Alice Mine. Do ers, and I have a sister who is also overeducat- to be remembered when the history of the you anticipate an easy transition? How will ed. My wife Cheryl, a certified yoga instruc- State Bar is finally written? things be different under the “Mine tor, and I have been married over 17 years and That I built relationships with other bar Administration”? have a blended family of six children, all of organizations (e.g., NC Bar Association, There could not have been an easier deci- whom were teenagers when I was Bar Lawyers Mutual), increased public aware- sion than the elevation of the multi-talented Association president, a daunting challenge. ness of the mission of the State Bar, and Alice Mine to replace our legendary The eldest, Trover, is a social worker/psychol- maintained a flexible and responsive Executive Director Tom Lunsford. In fact, ogist in Chicago. Lindsey is a mad artist mar- approach to the challenges of technology. I we had to find two other staff members to ried to a Dartmouth man who runs an auto- would also like to write at least a chapter of take her place, as she has worn so many hats motive software company in Charlotte. such a history book. n

THE NORTH CAROLINA STATE BAR JOURNAL 7 One Last Outlook—An Interview with Retiring Executive Director L. Thomas Lunsford II

After 27 years as the North Carolina State Bar’s executive director, Tom Lunsford will be retiring at the end of 2018. In a September 2017 letter to then State Bar President Mark Merritt, Lunsford advised that his decision to retire resulted from, “my desire to try to be useful in a different way in my seniority, and my feel- ing that, going forward, the State Bar will be best served administratively by my stepping aside in favor of someone else with more energy and a fresh perspective.” The State Bar Council voted to promote the agency’s long-time assistant director, Alice Neece Mine, to the executive director position, and she was sworn in as the Bar’s new secretary/treasurer during the State Bar’s Annual Meeting on October 25.

Q: You grew up in Burlington. What was that like? Burlington was a great town to grow up In 1992 L. Thomas Lunsford II was sworn in as secretary/treasurer of the North Carolina State Bar in, and I am very proud to claim it as my by Supreme Court of North Carolina Chief Justice James G. Exum. hometown. My childhood was idyllic in a community that seemed large and somewhat ed to avoid manual labor, I would be well- innocent of the criminal law, on Wednesday, exciting, but was actually small, safe, and pre- advised to trade upon my “way with words.” I was negligent in bankruptcy court, etc. For dictable. I had nurturant parents who under- Since law school seemed like a relatively most of my similarly situated colleagues, this stood the value of education, mostly because “wordy” enterprise and I had good grades, I was not an insurmountable problem, but I they had had relatively little, and they sacri- applied. It turned out to be a good choice for hated being bad at law and wasn’t very satis- ficed quite willingly to make sure that I and me. Not only was it language-intensive, but it fied with my situation. Things came to crisis my two brothers had every chance to make prepared me for a wonderful career as a legal in my third year out when interest rates good use of our talents and opportunities. bureaucrat. reached 18% and the firm’s foundational real Q: When and how did you decide to Q: Tell us about your years in practice as a estate practice went away. The firm’s partners, become a lawyer? young lawyer before you joined the State all of whom were terrific gentlemen, decided To be honest, I think law school seemed Bar. to economize by making me a partner so that like the path of least resistance when I was I joined a small firm back in Burlington I might share in the risk as well as the expec- nearing the end of my undergraduate experi- right after law school and commenced gener- tation of entrepreneurship. Before long I was ence in Chapel Hill. I had no firm idea what al practice. Like most new lawyers in that era looking for the door. I wanted to be when I grew up and very lim- and in that kind of environment, I was serial- Q: How and when did you become involved ited ambition. I did know that I was math ly incompetent. On Monday I was unpre- with the State Bar? and science-averse, and figured that if I want- pared for estates and trusts, on Tuesday I was My involvement with the State Bar pre-

8 WINTER 2018 Above: Circa 1985, Tom with State Bar Counsel Root Edmonson and State Bar Councilor George Davis.

Above: In 1988, Tom is pictured with his long- serving executive assistant, Joyce Lindsay. Left: As a fan of the Tar Heels, Tom was delighted to have legendary UNC basketball coach Dean Smith as the speaker at the State Bar’s 1997 Annual Meeting.

After I decided to leave private practice, I called the State Bar’s then executive director, Bobby James, for whom I had worked as a clerk. As luck would have it, an opening on the staff had just developed and he decided to take another chance on me. It was my great good fortune. I started on February 1, 1981, as a staff lawyer with a disciplinary caseload and responsibility for counseling the Ethics Committee along with Norma Harrell of the Attorney General’s Office. In a fairly short dated my licensure. After my second year in analyze the case and explain it and its impli- period of time, I transitioned from incompe- law school in the summer of 1977, I was cations to the State Bar’s Ethics Committee. tence as a general practitioner to relative hired as the agency’s very first ever law clerk. It was a heady experience, lecturing preemi- expertise in the field of professional responsi- Fortunately for me, the Supreme Court nent lawyers like Frank Spruill and Clifton bility. I was much happier and soon realized I decided the case of Bates v. the State Bar of Everett about that landmark decision, partic- had found my calling. Arizona that summer. That case, which ularly since I was so obviously in over my Q: How has the work of the State Bar declared that lawyer advertising was com- head. But, amazingly, those incredibly changed over the years since you first mercial speech deserving of First accomplished lawyers treated me with same became involved? Amendment protection, was tremendously consideration and respect that they custom- I think the biggest change relates to the important to the profession. Since there was arily afforded “real” lawyers. It was my first higher “profile” we’ve attained in recent years. no one else handy at the State Bar that sum- meaningful experience with professionalism, For most of my tenure, the State Bar was able mer to come to terms with it, I was asked to and I will never forget it. to go about its work in relative obscurity. Our

THE NORTH CAROLINA STATE BAR JOURNAL 9 Below: At the groundbreaking for the new North Carolina State Bar headquarters in 2011. From Left: Raleigh Mayor Charles E. Meeker, State Bar Vice-President M. Keith Kapp, Former State Bar President M. Ann Reed, Immediate Past State Bar President Barbara B. Weyher, Chief Justice Sarah Parker, State Bar President Anthony S. di Santi, State Bar President-Elect James R. Fox, State Bar Executive Director Tom Lunsford.

Above: Tom and former State Bar presidents participate in the new State Bar building’s “topping out” ceremony, which is a builders’ rite traditionally held when the last beam (or its equiv- alent) is placed atop a structure during its construction.

amateur theatrics and appear to have suc- cessfully impersonated a credible executive for nearly three decades. That’s no small thing. I suspect your question, though, may have been intended to query me in regard to challenges faced by the agency while I have been in charge. And there have been some. As a self-regulating regulator, the State Bar Council is continually challenged to subor- dinate self-interest. I am proud to say, how- ever, that in virtually every instance of which I have been aware, councilors have recog- nized and sustained the primacy of the pub- lic’s interest. Indeed, I think self-regulation has been successful in large part because the lawyers serving on the council have been ever-mindful that the primary purpose of After touring the State Bar’s new headquarters, Tom is pictured with (from left to right) Former the State Bar is protection of the public. State Bar President M. Keith Kapp, Former North Carolina Governor Pat McCrory, and the gov- Although it hasn’t been a big problem lately, ernor’s legal counsel, Robert C. Stephens. councilors who served during the first 25 years or so of my tenure on the staff were efforts generally attracted very little public and to be appreciated. But sometimes when hard-pressed to make appropriate regulatory attention and even our members were rela- the TV cameras are outside my door, I wist- accommodation of the developing constitu- tively indifferent to what we were doing. fully recall anonymity. tional law concerning advertising. In those Most people, including all of the media and Q: What were some of the challenges you’ve days, the feeling that advertising was unpro- many of the lawyers, tended to confuse us faced at the State Bar? fessional was so pervasive and deeply with the North Carolina Bar Association. In Personally, I have been challenged by ingrained that it was difficult to persuade recent years, though, we have been discovered feelings of inadequacy and ill-preparation. members of the council that our rules con- and have had to become mindful of public, After all, there were no law school courses cerning advertising and solicitation had to political, and professional relations to a much on bar management, and I have never been be made less restrictive. That necessary greater extent than before. Of course, it’s a entirely sure of the difference between debits change came hard and haltingly, and for good thing to be noticed, to be accountable, and credits. Even so, I seem to have a gift for most councilors it had nothing to do with

10 WINTER 2018 preserving economic advantage. Rather, the ognize what constitutes a “win.” I believe I former Julie Ogden, also of Burlington. We opposition and intransigence sprang from may have other useful talents that are more were married a week before law school began the deep-seated conviction of that genera- ephemeral and random. For instance, I during the Ford administration. An incom- tion of attorneys that advertising was an think I have had some inexplicable and parable woman in every sense of the word, anathema to professionalism and a danger to unquantifiable role in fostering a culture she is currently a member of the clinical fac- the profession. As the Ethics Committee’s within the staff and the council that is ulty at UNC’s medical school where she prac- counsel for many years, I spent a lot of time uncommonly humane and productive, and tices as a board certified geriatric psychiatrist. telling people what they didn’t want to hear I am very proud of that. I also believe that I I have two sons: Thomas is a retired school about advertising. have generally been successful in assisting teacher who is now a first-year resident in in- Q: What was it like working with a long line the State Bar’s leadership to focus on what’s ternal medicine at UNC. His wife Mignon is of State Bar presidents? important, to do what makes sense and is a member of the Bar and they are proud par- I have been privileged to serve 27 different right, and to do it by consensus. I am also ents of my remarkable grandson, Gray. My presidents, including persons who became convinced that my relative ignorance of younger son Joe is a CPA working with the the first female and the first African- management theory and best practices has Meritage Corporation in Austin, Texas. He’s American presidents of the State Bar. Those served me and the agency well. getting married in January to a classmate from professional and personal relationships have Q: How do you feel about handing the Davidson, Louisa Williams, who consults with been immensely gratifying to me. I have reins over to your long-standing assistant Deloitte. And my dad is still the best man in learned a great deal from each of those men director and successor Alice Neece Mine? Burlington at age 93. and women and am honored to call them all The only aspect of this transaction that Q: How would you like to be remembered my friends. Our Nominating Committee has I’m entirely sure about is the promotion of when the history of the State Bar is written? done a wonderful job over the years in select- Alice Mine. Alice is superbly qualified and Although I can’t really claim much ing our leaders, and the process whereby totally deserving of the opportunity. And, responsibility for this, it is very pleasing to someone comes to the presidency has proven perhaps more to the point, the agency, the me that virtually all of the men and women to be very beneficial to the agency. Generally lawyers, and the public ought to have the who have served as councilors during my speaking, a councilor isn’t seriously consid- benefit of her inspired leadership. The only tenure have testified publicly that their serv- ered for service as an officer of the State Bar unfortunate thing about her selection at this ice on the council was the finest thing that until he or she has served three consecutive point in time is that she and I are genera- they had ever done professionally. I hope to three-year terms on the council. By that time, tionally yoked, being close to the same age. be long associated with those sentiments, at candidates are fully conversant with our regu- Although I wouldn’t want to compare myself least in their minds. n latory program, are fully convinced of the to Dean Smith, I do necessity and importance of our role in pro- think Alice is in much tecting the public, and are fully aware of the the same position as Bill strengths and weaknesses of people like me. Guthridge when Coach They respect the institution of the State Bar Smith retired. She may and its culture, and they are prepared to lead have time to take us to a effectively and sensibly. couple of Final Fours, Q: When and how did you become the exec- but she probably won’t utive director? have enough time at the I came into office in a time of scandal. In helm to accomplish all September 1992 my predecessor was found that she might. In any to have misappropriated funds and resigned event, though, Alice is very suddenly. I was the assistant executive great and choosing her director at the time and the officers asked me was really a “no-brainer” to take charge of the agency as interim execu- for the State Bar. In a tive director. Though somewhat over- very real sense, she’s my whelmed by the responsibility, I felt that I was legacy, and I couldn’t be reasonably well qualified for the job and soon prouder. expressed my desire to be hired permanently. Q: If you hadn’t chosen At the State Bar’s Annual Meeting in October to become a lawyer, of 1992, the council was persuaded to offer what would you think me the position. you would have done Q: What do you consider your greatest per- for a living? sonal asset as executive director, other than I think I would have your ability to write irreverent essays in the tried to be writer. Journal? Q: Tell us about your Tom Lunsford with the State Bar’s new executive director and secre- I think I have pretty good judgment and family. tary/treasurer, Alice Neece Mine, at the State Bar’s Annual Meeting perspective, and I think I can generally rec- I am married to the in October 2018.

THE NORTH CAROLINA STATE BAR JOURNAL 11 Summer Session: The Morganton Decisions, 1847-1861

B Y T HOMAS P. D AVIS

INTRODUCTION

Western Feats North Carolina is indebted to its western peoples, according to Governor William A. Graham, for having declared independence from Great Britain in 1775.1 Our state flag and our state seal have acknowledged this accomplishment for more than a century.2 And North Carolina owes its western peoples gratitude, too, for having secured fairer leg- islative apportionment in the early 19th cen- tury. Our constitution has evidenced this achievement since the amendments of 1835.3 Not only have the birth and develop- ment of the state been influenced by the western peoples of North Carolina, but so also has the history of our state’s modern Supreme Court. The Court’s antebellum equity jurisdiction and its summer session in Burke County Courthouse, ca. 1912. This photograph was created by L. E. Webb and submitted by R. Douglas Walker,Jr. to Picture Burke, a digital photograph preservation project of the Burke County Public Burke County demonstrate this influence. Library. The overarching ideal which inspired each of these feats of North Carolina’s west- statutes recognized this court by its colonial ment on “demurrers, cases agreed, special ern peoples is faith in a democratic element name of “superior courts,” the general assem- verdicts, bills of exception to evidence, and in republican government: representation bly continuing this usage from a colonial act motions in arrest of judgment.”10 In the should ground government; population despite the term being omitted from the con- absence of two of the judges, the remaining should determine representation; members stitution.6 A superior court of law sat as a judge could hold court, give judgment, and and officers of government should stay in court of general jurisdiction which tried award execution in all other situations.11 close touch with the people who found and causes and which heard appeals from inferior The administration of justice by the supe- tolerate it.4 This short note commemorates courts.7 Equity jurisdiction was tacked on a rior courts faltered after an act of 1790 added the influence of the ideal of democracy on few years later.8 There were six superior a fourth superior court judge, increased the the establishment and development of the courts of law and equity, one for each judicial number of judicial districts from six to eight, Supreme Court of North Carolina during its district established by the general assembly. and grouped the eight judicial districts of the antebellum period as we celebrate the Court’s The state’s three superior court judges com- state into eastern and western ridings, two 200th anniversary. prised the court in each of these judicial dis- judges to each riding, one judge from each tricts. The judges were Samuel Ashe of New riding rotating to the other riding at the com- Colonial Roots Hanover County, Samuel Spencer of Anson pletion of a circuit.12 With two judges hear- Under the state constitution of 1776, the County, and James Iredell of Chowan ing important questions of law, split deci- “supreme court of law and equity” was the County.9 In the absence of one of these sions occurred.13 And with different judges highest court in North Carolina.5 Early state judges, the other two judges could hear argu- deciding cases on the different ridings, uni-

12 WINTER 2018 formity of decision was lost.14 In response to helped the large western counties that suf- Gaston on 23 January 1844. The state these problems, the general assembly experi- fered from severe delays in the hearing of mourned the loss of Gaston. A resolution was mented with a semiannual conference of the equity suits.25 printed in both the senate and house journals four superior court judges.15 The conference By the success of this compromise con- remembering Gaston’s contributions to the soon became a permanent court of record, at cerning jurisdiction, William Gaston, senator betterment of his state: first called the “Court of Conference” and for the eastern county of Craven, became the Resolved, by the General Assembly of the later called the “Supreme Court.”16 founder of the modern Supreme Court and State of North Carolina, That in the death Such is the history of our early Supreme began a friendship with the representatives of of William Gaston, one of the Judges of Court.17 Its inspiration, though, was altered the state’s western counties. the Supreme Court, the State has experi- by statute 13 years after the renaming of the enced a loss of one of its most patriotic Court of Conference.18 This statutory inno- Democratic-Republican Discontent citizens, a faithful public servant, and a vation created what one may properly call the Even with this compromise accepted and learned and impartial judge. That in the modern Supreme Court, the newly-designed the modern Supreme Court established, dis- course of a long and brilliant life, his court having had important features in com- trust of the fledgling institution festered bright career is left to us an example wor- mon with today’s Supreme Court. throughout the 1820s and into the 1830s. thy of all imitation, and his unsullied Session after legislative session, democracy- character one of the brightest jewels of the Statutory Innovation minded reformers in the general assembly State....33 The emergence of the modern Supreme attacked the Court and the salary of its mem- Senator Bogle of Iredell County presented a Court of North Carolina began with failure bers.26 After all, for most litigants the Court bill to carve out a new western county to be and ended with compromise. Some members sat remotely, never venturing from its quar- named “Gaston.”34 This honor was of the general assembly thought that a peri- ters in the North Carolina State House on bestowed upon the easterner Gaston not sim- odic conference of trial judges did not ade- Union Square in Raleigh, and it viewed cases ply because of his work on the bill concern- quately address the difficulties first caused by at law through the sterile lens of their ing the Supreme Court in 1818, but also the populist attack on the court system in records. Furthermore, the Court cabined its because “he had the pluck to advocate a con- 1790. During the 1817 session of the general judgment by precedents developed in accor- vention for doing justice to the west.”35 assembly, Senator Bartlett Yancey of Caswell dance with an academic, systematized, 18th- Another bill from that session—one present- County reported from committee a bill con- century view of our inherited common law. ed by Senator Nicholas W. Woodfin of the cerning the Supreme Court which aimed to No Benthamite-reformers were Chief Justice 49th District of Buncombe, Yancey, and remedy these problems, but the bill did not John Louis Taylor, Judge John Hall, and Henderson Counties—also links to the pass.19 Nonetheless, with Governor Branch Judge Leonard Henderson.27 That the Court mourning of Gaston’s death by the west. throwing in his support at the next session of engaged in particularized justice in suits in That bill provided for an annual summer ses- the general assembly, Senator William equity28 did not remedy its distance from the sion of the Supreme Court in the western Gaston guided a similar bill into law which people or its reactionary bent. And when the part of the state.36 With their friend on the established the modern Supreme Court of widely-admired Chief Justice Henderson Court now dead, apparently the fear of a too- North Carolina.20 This bill and a supplemen- died in 1833, common law-adherent though distant, too-aristocratic Court surged again tal bill passed into law in December 1818, he was, the Court’s very survival was put in among the representatives of the western while the election of the court’s clerk and the question.29 counties.37 A legislative remedy was fash- sitting of the court at its first session occurred Doubt was quickly laid to rest by the ioned: the Supreme Court would ride a cir- the following month in Raleigh.21 election of William Gaston to a seat on the cuit of its own, one running between west The jurisdiction of this modern Supreme Court, and by the selection of Thomas and east. Court was innovative in two respects. First, Ruffin as the Court’s third chief justice.30 the members of the Supreme Court would The Court’s reading of the separation of SUMMER SESSION FOR WESTERN not try cases at law, which was “a wide depar- powers and the law of the land provisions of COUNTIES ture from the old English system, and from the North Carolina constitution in Hoke v. that of our general government….”22 As a Henderson also added to the security of the Morganton purely appellate court of law with no duties Court,31 as did amendments by the state Under the new law, the Supreme Court on circuit, its members would stand at a dis- constitutional convention of 1835, which would hold a summer session of court in tance from the people—at an uncomfortable increased the independence of the Morganton, Burke County, on the first distance in the opinion of the swelling ranks judiciary.32 Over the next ten years, Chief Monday of each August beginning in 1847 of pro-democracy reformers,23 including Justice Thomas Ruffin, Judge William for “all appeals taken, and causes transmit- reformers agitating in the under-represented Gaston, and Judge Joseph Daniel served as ted…from the superior courts of law or the western part of the state.24 Second, the members of a Court that the general assem- courts of equity of the counties of Stokes, Court would enjoy removal jurisdiction over bly let sit in relative peace. Davidson, Union, Stanly, and of the coun- pending equity cases. While this removal ties lying west of the same....”38 The jurisdiction compromised the vision of a Death of Gaston smooth operation of this session of court purely appellate court, it did not require the The Court’s roots in legislative compro- would depend primarily upon the judges members of the Court to ride circuit, and it mise were exposed again at the death of Judge and attorneys in attendance, but also upon

THE NORTH CAROLINA STATE BAR JOURNAL 13 the officials acting as marshal, clerk of appointed counsellor, handled the state’s Morganton,50 and the other addressing friv- court, reporter, and librarian for the sum- business at the summer session of the olous motions for rehearings.51 Four men mer session. Supreme Court.43 Seven men served as served as reporter during the years the court attorney general during the years that sum- held summer session: James Iredell Jr. Judges mer sessions were held at Morganton: (1840-1852), Perrin Busbee (1852-1853), Only six members of the Supreme Court Edward Stanley (1846-1848), Bartholomew Quentin Busbee (1853), and Hamilton C. of North Carolina ever rode to summer ses- F. Moore (1848-1851), William Eaton Jr. Jones (1853-1863). sion at Morganton. At the first summer ses- (1851-1852), Matthew W. Ransom (1853- sion, Thomas Ruffin was chief justice and 1855), Joseph B. Batchelor (1855-1856), Librarian the judges were Frederick Nash (who had William H. Bailey (1857), and William A. The creation of a Supreme Court Library been elected upon Judge Gaston’s death) and Jenkins (1857-1862).44 The reported opin- at Morganton dates to 1851.52 The clerk of Joseph Daniel. Judge Daniel died before the ions for the summer session indicate “attor- court acted as librarian, acquiring what next summer session. To replace him, the ney general” for the state in the vast major- resources could be spared from the collec- governor appointed William Battle, who ity of cases, but on rare occasion an opinion tion of law books at Raleigh53 and using served until the general assembly met that indicates representation by appointed coun- taxes on attorney’s licenses to fund the pur- fall, when it elected Richmond Pearson to sellor.45 chase of new law books for Morganton.54 the Court. Four years later, Chief Justice Ruffin resigned. William Battle then became Marshal Books, Books, Books a member of the Court by election of the The sheriff of Burke County acted as It would be conjectured in an address general assembly and Judge Nash was select- marshal for the summer session of the from 1889 by the Honorable Kemp P. ed as chief justice. When Chief Justice Nash Supreme Court.46 Five men served as sheriff Battle, president of the University of North died six years later, the general assembly re- during the years that summer session was Carolina, that a weak law library at elected Thomas Ruffin to the Supreme held at Morganton: Alexander Duckworth Morganton resulted in weak opinions at Court and Judge Pearson was selected as (1846-1848), Milton Wellborn Kincaid summer session: chief justice. The next year, Judge Ruffin (1848-1850), Alexander Duckworth (1850- In 1846 the lawyers of the western por- resigned and the general assembly elected 1854), Joseph Brittain (1854-1860), and tion of the State induced the General Matthias Manly to the Court.39 Bartlett A. Berry (1860-1865).47 Assembly to order a term of the Court to be held in Morganton....The experiment Attorneys Clerk of Court was not satisfactory to the Court or to The attorneys reported to have argued in Prior to the first summer session, the the profession. Owing to a want of a law Morganton were numerous, and many of Court exercised its statutory power to library, ‘Morganton decisions,’ as they them appeared frequently. The Court’s offi- appoint a clerk at Morganton, instead of were called, were regarded as less certain- cial reporters referred to counsel by last name imposing additional duties on the clerk of ly sound than those at Raleigh. The only or by last name and initials. Appearing the Supreme Court in Raleigh. The Court Constitution of 1868 fixed the sessions of often were counsel by the names of appointed James Richard Dodge to the posi- the Court ‘at the seat of government;’ “Alexander,” “W. W. Avery,” “Baxter,” tion.48 Mr. Dodge would serve as clerk of that of 1876 leaves the sessions at ‘the city “Boyden,” “Bynum,” “Edney,” “Francis,” court for each of the 15 years in which sum- of Raleigh, until otherwise ordered by the “Gaither,” “Guion,” “H. C. Jones,” “Lander,” mer session was held. General Assembly.’55 “Osborne,” “Shipp,” “Thompson,” Since no record exists today of the hold- “Wilson,” “J. W. Woodfin,” and “N. W. Reporter ings of the Supreme Court Library at Woodfin.” At least 70 different attorneys The Supreme Court did not exercise its Morganton, one can only speculate about argued in Morganton. statutory power to appoint a separate the nature of this reported weakness in the It seems that many accomplished lawyers reporter for the summer session.49 Instead, collection. It seems unlikely that the law populate the list of attorneys appearing at the Court’s official reporter handled the library lacked the widely-read legal treatises sessions of the Supreme Court held at headnoting, indexing, and publishing of the required by the Supreme Court of applicants Morganton. For example, “W. W. Avery” opinions at Raleigh and at Morganton. for law license, such as the classic works of may refer to William Waightstill Avery, who None of the four men who reported cases Sir Edward Coke and Sir William served in the state house of commons;40 “N. from summer session distinguished Blackstone or the contemporary works of W. Woodfin” may refer to Nicholas Morganton opinions from Raleigh opinions John Adams on equity and James Iredell on Washington Woodfin, who served in the in tables of cases, tables of cases cited, or sub- executors.56 And the clerk of court probably state senate;41 and “H. C. Jones” may refer ject indexes of reporter volumes, though had no difficulty acquiring recently com- to Hamilton C. Jones, who served for a “August Term” was indicated in the running piled digests of North Carolina cases57 or decade as the official reporter for the header of the pages of the reports where recently compiled codifications of North Supreme Court.42 appropriate. Besides opinions, two rules Carolina laws58 for the law library. The most were issued from Morganton, one concern- likely gaps in the collection of law books at Attorney General or Counsellor ing the county court at which execution Morganton were the statutes of Parliament, The attorney general, or in his absence an would be returnable for judgments had at the reports of judicial opinion in England,59

14 WINTER 2018 CHECKERED FLAG MEDIATIONS

DOUGLAS J. MEIS Helping your clients Driver/Mediator cross the finish line

Phone: (336) 725­9090 www.lawyermeis.com [email protected]

early state session laws, and early state raised by levies on the inhabitants of both reports.60 the counties in common,” and declined to SUMMARY CONCLUSION Not only did the judges suffer a scarcity review the exercise of these powers, first Tyranny is always despised. At the state of resources at Morganton, they may have explaining that the statute complained of constitutional convention of 1835, delegates endured time pressure in the preparation of depended-upon “sound discretion by a just condemned unequal representation as a opinions. Some evidence suggests that the lawgiver,” and then noting that “if there be back-sliding of the republic into an excess of judges filed their Morganton opinions while an abuse of power in its exercise, it is like aristocracy, the established eastern counties on circuit.61 And they filed many most other cases of such abuse, beyond the of North Carolina in effect having governed Morganton opinions. During the 15 sum- judicial perception or redress....”63 the burgeoning population of the western mer sessions, more than 700 opinions were One ought not gainsay the near contem- part of the state. Under these circumstances, filed, consuming 2,000 pages within 27 vol- poraneous opinion that Morganton deci- democracy had emerged as an ideal during umes of reports.62 sions were “less certainly sound” than the early decades of the 19th century, and it Still, Morganton decisions contributed to Raleigh decisions. Yet, as the quality of was during this era of democratic reform in the development of our common law and Schenck indicates, bench and bar at summer North Carolina that the general assembly our equity doctrine in the same manner as session could reach great heights, even when had established the modern Supreme Court Raleigh decisions—by a confluence of prac- suffering from diminished resources and of North Carolina. Unfortunately, legislative tical reasoning by bench and bar in particu- restrictions on time, and perhaps they often compromise at its founding still left the lar cases. The attorneys argued fundamental did so. Court’s democratic credentials in question. issues on circuit, sometimes resulting in While the election of William Gaston to the opinions that display elegant legal reasoning. Discontinuance of Summer Session Court in the 1830s helped stabilize its exis- For instance, in Love v. Schenck, concerning A few months after North Carolina tence, his death in 1844 unsettled the repre- the creation of Gaston County, the chief jus- seceded from the union, an act of the general sentatives of the state’s western counties once tice described as inherent the power of the assembly discontinued the summer session again. They demanded a summer session in general assembly to divide one county into at Morganton.64 Mr. Dodge shipped back the western part of the state for the Supreme two counties, identified incidental and nec- to Raleigh the records, books, and papers Court. That tribute to equality for the west essary powers to this inherent power, such as pertaining to the court in Morganton.65 He took effect in 1847 and endured for 15 years, the “power to make also a fair and reasonable also shipped the library back to Raleigh, first but then it, too, died, perhaps of irrelevance. division between them of any fund before selling off duplicates at public auction.66 In 1861, delegates met in convention once

THE NORTH CAROLINA STATE BAR JOURNAL 15 more to consider the current of equality, but Williams of Granville County. In 1790, a statute added in Antebellum North Carolina: The Story of Two Judges, 4 no longer did the demand for reform run a fourth superior court judgeship, to which Spruce Law & History Review 129, 130 (1986). Macay of Rowan County was elected by the general n 24. Pratt, supra note 23, at 135-39. from west to east. assembly. Judge Spencer died in 1794 and was replaced 25. Pratt, supra note 23, at 139. by John Haywood of Halifax County. 26. Pratt, supra note 23, at 129-32, 135. Thomas P. Davis is librarian of the North 10. 1777 Courts Act, supra note 7, sec. 1, at 49. 27. Honorable Robert W. Winston, A Century of Law in 11. 1777 Courts Act, supra note 7, sec. 1, at 48. Carolina Supreme Court Library. The author North Carolina in 176 N.C. 763, 770 (1919) (describing thanks James Barrett Fish, assistant librarian 12. An Act to Amend An Act, Entitled, “An Act for the first members of the modern Supreme Court of for public services, North Carolina Supreme Establishing Courts of Law and Regulating the North Carolina as “of the Iredell school of thought”). Proceeding Therein,“ and Another Act, Entitled, “An Court Library, for his aid in compiling the 28. See, e.g., Grantham v. Bizzel, 10 N.C. (3 Hawks) 196 Act for Giving an Equity Jurisdiction to the Superior (1824) (reporting “cause … heard on Bill, answer and names of the attorneys who argued at Courts,” ch. 3, Fayetteville, 01 November 1790, 1st ses- depositions,” the court’s opinion by Judge Hall denying sion in 25 The State Records of North Carolina, Laws Morganton, and Fred A. Wood, director of relief from obvious errors in a deed where the deed was 1777-1788, at 65 (Walter Clark, ed., Wilmington, information technology, North Carolina obtained under oppressive circumstances). Thus, not Broadfoot Pub. Co., 1994) (1906). Appellate Courts, for his assistance in determin- only do the reports of the state’s early Supreme Court ing the number of pages of Morganton opin- 13. See, e.g., State v. Long, 2 N.C. (1 Hayw.) 154 (1795) include more than decisions on appeals, see supra note (after trial of a felony and special verdict given by the jury, 13, but also the antebellum reports of the state’s modern ions. The author thanks Ellen Marie Davis, Judges Macay and Haywood were left split on the ques- Supreme Court include more than decisions on appeals, Grant E. Buckner, Jason R. Jones, Joseph L. tion on which the jury “pray[ed] the advice of the court”: as in Grantham. whether felony larceny is committed by one who, with Hyde, and John V. Orth for having served as 29. Pratt, supra note 23, at 144-47 (describing the fate of a fraudulent intent, obtains the owner’s consent to the tak- bill to abolish the Supreme Court and to restore the readers of this essay. ing of property; the judges sought the opinions of the court of conference). other superior court judges of the state, but Judges Ashe Endnotes and Williams, too, were divided; “and the prisoner was 30. Pratt, supra note 23, at 129. 1. The Address of the Hon. Wm. A. Graham on the recommended to mercy, and obtained his pardon.”). 31. Pratt, supra note 23, at 148 (arguing that the constitu- Mecklenburg Declaration of Independence of the 20th of 14. Battle, supra note 6, at 357-58 (bemoaning the frequen- tional protection declared in Hoke v. Henderson, 15 N.C. May, 1775 (New York, E. J. Hale & Son 1875); id. at 8 cy of “diverse decisions by different supreme tribunals of 1 (1834), of the property interest of Mr. Lawson (quoting from a letter to the organizers of the anniversary the same question....”). Henderson in the statutory office of clerk of superior court for Lincoln County extended by analogy to the celebration of the Mecklenburg Declaration of 15. An Act directing the judges of the superior courts to statutory office of judge of the supreme court). Independence in 1835 by Judge William Gaston, who meet together to settle questions of law or equity arising had written, “‘American liberty—here first declared and on the circuit, and to provide for the trial of all persons 32. Pratt, supra note 23, at 131 (noting three amendments here most sacredly cherished ….’”). But see, e.g., William concerned in certain frauds, ch. 4, Raleigh, 18 concerning salary and removal from office). Henry Hoyt, The Mecklenburg Declaration of November 1799, 1st session in 2 The Public Acts of the 33. See, e.g., Resolution in relation to the death of the late Independence (New York, G. P. Putnam’s Sons 1907) General Assembly of North-Carolina 133 (Francois-Xavier Wm. Gaston, Tuesday, Dec. 31, 1844, Senate Journal (expressing skepticism about the existence of the Martin, compiler, New Bern, Martin & Ogden 1804). 1844-’45 in Journals of the Senate and House of Commons Mecklenburg Declaration of Independence). 16. An Act to continue in force an act passed in the year one of the General Assembly of the State of North Carolina, at 2. North Carolina Manual 2007-2008 at 29 (Elaine F. thousand eight hundred and one, entitled “An act to its Session in 1844-’45, at 232 (Raleigh, Weston B. Gales Marshall, Secretary of State, [Raleigh], [2008]) (noting continue longer in force and to amend an act passed in 1845) [hereinafter Senate Journal 1844-’45]. that since 1861, the year in which North Carolina the year one thousand seven hundred and ninety-nine, 34. A Bill to lay off and establish a County by the name of became the last southern state to secede from the Union, entitled An act directing the judges of the superior courts Gaston, Thursday, November 28, 1844, id. at 55. This our state flag has displayed the date of the Mecklenburg to meet together to settle questions of law or equity aris- bill was rejected on Wednesday, January 8, 1845, id. at Declaration of Independence (“May 20, 1775”)); id. at ing on the circuit, and to provide for the trial of persons 327, but Gaston County was established during the fol- 24, 27-28 (noting that since 1893, our state seal has dis- concerned in certain frauds.,” ch. 18, Raleigh, 19 lowing legislative session. An Act to establish a new coun- played the date of the Mecklenburg Declaration of November 1804 in Laws of N.C. [of 1804,] at 9; An Act ty by the name of Gaston, and to annex a part of the Independence). relative to the Court of Conference, ch. 1, Raleigh, 18 county of Catawba to the county of Lincoln, ch. 24, 3. Henry Groves Connor, The Convention of 1835 November 1805 in Laws of N.C. [of 1805,] at 1. 1846-’47 Laws of N.C. 73; An Act supplemental to an (Raleigh, Edwards & Broughton Printing Company 17. For a cursory discussion of three subsequent statutes act, passed by the present General Assembly, entitled, “an 1908). concerning the early Supreme Court, see Battle, supra act to lay off and establish a new county by the name of 4. Id. at 15-16 (reporting Judge Gaston as having said that note 6, at 358-59. Gaston, and to annex a part of Catawba county to the county of Lincoln,” ch. 25, 1846-’47 Laws of N.C. 73. the convention compromise of 50 senators, distributed 18. Potter’s Revisal, chs. 962 & 963 (1818). 35. Battle, supra note 6, at 371. upon the basis of taxable property, and 120 members in 19. Guion Griffis Johnson, Ante-bellum North Carolina the House of Commons, distributed upon the basis of 626 (Chapel Hill, UNC Press 1937); Gaston’s Report 36. Friday, December 20, 1844, Senate Journal 1844-’45, Federal population, each county having at least one Relating to the Judiciary, Monday, December 6, 1819, supra note 33, at 173. This bill was laid on the table on member, bases apportionment upon a correct principle). Journal of the Senate in Journals of the Senate and House of Tuesday, January 7, 1845, id. at 309, but the western rid- 5. N.C. Const. of 1776, § 13 (referencing “supreme courts Commons of the General Assembly of North-Carolina at its ing was established during the following legislative ses- of law and equity”). Session in 1819, at 113, 114 (Raleigh 1820) (musing on sion. An Act to Provide for Holding a Session of the 6. Honorable Kemp P. Battle, An Address on the History of the failure of the 1817 bill concerning the supreme court Supreme Court, Once a Year, in the Western Part of the the Supreme Court: Delivered in the Hall of the House of and speculating that perhaps our representatives pre- State, ch. 28, 1846-’47 Laws of NC 86 [hereinafter Act Representatives, 4 February 1889, 103 N.C. 339, 353 ferred to endure a current problem than to risk its reme- for Summer Session]; An Act Supplemental to an Act, (3rd prtg., 1929). dy). Passed at the Present Session of the General Assembly, Entitled An “An Act to Provide for Holding a Session of 20. Johnson, supra note 19, at 626. 7. An Act for Establishing Court of Law, and for Regulating the Supreme Court, Once a Year, in the Western Part of Proceedings therein, ch. 2, New Bern, 15 November 21. Chief Justice Walter Clark, History of the Supreme Court the State,” ch. 29, 1846-’47 Laws of N.C. 89 [hereinafter 1777, 2nd session in 24 The State Records of North of North Carolina, 177 N.C. 615, 620 (1919) (noting Supplemental Act for Summer Session]. Representative Carolina, Laws 1777-1788, at 48, 61 (Walter Clark, ed., that the first session of the modern Supreme Court was Michael Hoke of Lincoln County had toyed with a sim- Wilmington, Broadfoot Pub. Co., 1994) (1905) [here- held on 5 January 1819). ilar idea even prior to Judge Gaston’s death. Resolution inafter 1777 Courts Act]. 22. Battle, supra note 6, at 360. for the Committee on the Judiciary to Inquire into the 8. Potter’s Revisal, ch. 177 (1782). 23. Walter F. Pratt Jr., The Struggle for Judicial Independence Expediency of Establishing a Branch of the Supreme 9. James Iredell resigned in 1778 and was replaced by John Court in the Western part of this State, Tuesday, Nov. 27,

16 WINTER 2018 1838, Journal of the Senate in Journals of the Senate and Jones) 414 (1855). Carolina Law Repository (1814, 1816) and the North House of Commons of the General Assembly of the State of 46. Act for Summer Session, supra note 36, sec. 4, at 88. Carolina Term Reports (1818). Later, in 1857 and 1860, North Carolina, at its Session in 1838-39, at 319 (Raleigh, Battle would reprint 1st Devereux & Battle (1837) and 47. Burke County Sheriffs–1777 to Present, Burke County Thos. J. Lemay 1839). 2nd Devereux & Battle (1838). 1 William H. Battle, A Sheriff’s Office, (burkesheriff.org/pastsheriffs.htm) Digest of All the Reported Cases Both in Law and Equity, 37. Contrary to the thesis of this essay, the Honorable (accessed 12 July 2018). Kemp P. Battle, president of the University of North Determined in the Courts of North Carolina at vi (Raleigh, 48. Act for Summer Session, supra note 36, sec. 3, at 87-88; Carolina, attributes the legislation requiring a summer Nichols, Gorman & Neathery 1866). Supplemental Act for Summer Session, supra note 36, session of the Supreme Court to the lawyers of the west- 61. For instance, a spot-check of entries in the Supreme sec. 3, at 90; see also Marshall DeLancey Haywood, The ern part of the state. See infra text accompanying note 55. Court Equity Docket, August, 1847-August, 1861 (Book Officers of the Court, 1819-1919, 176 N.C. 811-13 No. 158), Volume No. 325, Records, Dockets, and 38. Act for Summer Session, supra note 36, sec. 2, at 87 (describing James Richard Dodge as a native New Yorker Miscellaneous Volumes, 1800-1929, which is available for (including also two provisos, one concerning appeals in first barred in Virginia before moving to North Carolina inspection at the N.C. Office of Archives and History in certain criminal cases, the other concerning the right to to practice law, and as a great friend of a number of Raleigh, shows that: (1) case “#53” was an appeal of an return appeals from named counties to Raleigh); see also notable attorneys who practiced law in Raleigh). Supplemental Act for Summer Session, supra note 36, order of Spring Term, 1858, from “Gaston County,” 49. Act for Summer Session, supra note 36, sec. 5 at 88. sec. 1, at 89 (providing for removal to Morganton of cer- which was “filed” (docketed?) at Morganton on “27 July tain appeals undecided at Raleigh). 50. 32 N.C. 277 (1849); 41 N.C. 290 (1849). 1858” and which was reported among the decisions for August Term 1858 as High Schoals Mining Co. v. Grier, 39. The judges of the supreme court who served in session 51. 57 N.C. 154 (1858). 57 N.C. (4 Jones Eq.) 132 (1858) (Pearson, J.); and (2) at Morganton were: 52. An Act to provide Law Books for the Supreme Court at Morganton, ch. 93, sec. 1, 1850-‘51 Laws of N.C. case “#57” was a cause removed to Morganton from the CHIEF Court of Equity of Lincoln County which was “filed” YEAR JUDGE JUDGE 164 (ratified 28 January 1851). JUSTICE (docketed?) on “8 August 1858” and which was reported 1847 Ruffin, Thomas Daniel, Joseph J. Nash, Frederick 53. Regarding the history of the library at Raleigh, see Battle, William H. among the decisions for August Term 1858 as Boyd v. 1848 Raymond M. Taylor, History of the North Carolina Pearson, Richmond M. King, 57 N.C. (4 Jones Eq.) 152 (1858) (Battle, J.). 1852 Nash, Frederick Battle, William H. Supreme Court Library, 275 N.C. 713 (July 1, 1969). 1858 Pearson, Richmond M. Ruffin, Thomas 62. The number of pages of Morganton opinions is here 54. Id. 1859 Manly, Matthias E. calculated by counting pages in the volumes of the North 55. Battle, supra note 6, at 363. President Battle’s remarks Carolina Reports sold today by the North Carolina Matthias Manly was the last-elected antebellum judge of might suggest that either no law library or no worthwhile Administrative Office of the Courts. Of the reports in the Supreme Court of North Carolina and, like Judge law library existed at Morganton. I take him to have which opinions from a summer session at Morganton Gaston, was a Roman Catholic. See Clark, supra note 21, meant the latter, since the general assembly funded its appear, all 27 volumes sold today are reprints, and only at 624-25; Manly, Matthias in 4 Dictionary of North mandate to the clerk of court, see supra note 52, and since eight of those 27 volumes are facsimile reprints of the Carolina Biography 211 (William S. Powell, ed., 1991). Hice v. Cox may evidence an inadequate collection of law originals. 40. “W. W. Avery” argued at Morganton in 1853; “Avery” books at Morganton, 34 N.C. 315, 321 (1851) (August ORIGINAL N.C. # OF argued both law and equity cases at Morganton from term) (“For this, is cited Wright v Beckett, 1 Moo. and # TERM TYPE REPORT REPORTPAGES 1847-1860. William Waightstill Avery studied law Rob., 414 [174 English Reports 143 (1833)], which is not 1847 opinions 7 Iredell Law 29 110 1 under William Gaston, practiced law in Morganton, and in our library.”) (Pearson, J., dissenting). 1847 opinions 4 Iredell Equity 39 37 represented Burke County three times in the state house 1848 opinions 8 Iredell Law 30 92 56. General Order at December Term 1849, 32 N.C. (10 1848 opinions 10 Iredell Law 32 20 2 of commons during the 1840s and 1850s. Avery, Ired.) 607 (setting out the first reading list of the judges 1848 opinions 5 Iredell Equity 40 30 William Waightstill in 1 Dictionary of North Carolina 1848 opinions 6 Iredell Equity 41 48 of the Supreme Court of North Carolina for applicants 1849 opinions 10 Iredell Law 32 175 3 Biography 71-72 (William S. Powell, ed., 1979). for law license); General Order at December Term 1850, 1849 opinions 6 Iredell Equity 41 75 1850 opinions 11 Iredell Law 33 103 4 41. “N. W. Woodfin” argued at every Morganton session, 33 N.C. (11 Ired.) 658 (requiring the reading of “Adams’ 1850 opinions 7 Iredell Equity 42 38 handling both law and equity cases in all years except 1851 opinions 12 Iredell Law 34 108 Equity”); Rule by the Court at December Term 1854, 47 5 1861. Nicholas Washington Woodfin served from 1844- 1851 opinions 7 Iredell Equity 42 58 N.C. (2 Jones) 132 (requiring the reading of “Iredell on 1852 opinions 13 Iredell Law 35 56 6 1852 as state senator from the “Buncombe and Executors”). 1852 opinions 8 Iredell Equity 43 14 1853 opinions Busbee Law 44 92 Henderson District” and introduced the bill which 7 57. Antebellum digests of opinions of the Supreme Court 1853 opinions Busbee Equity 45 57 established the summer session of the supreme court. 1854 opinions 1 Jones Law 46* 111 of North Carolina were produced by official reporters 8 Woodfin, Nicholas Washington in 6 Dictionary of North 1854 opinions 1 Jones Equity 54 58 Francis Hawks (1826), James Iredell, Jr. (1839), and 1855 opinions 2 Jones Law 47* 138 Carolina Biography 263-64 (William S. Powell, ed., 9 Hamilton C. Jones (1854) (dedicated by Jones to the 1855 opinions 2 Jones Equity 55 34 1996). 1856 opinions 3 Jones Law 48* 75 memory of “The Honorable William Gaston”). 10 1856 opinions 2 Jones Equity 55 49 42. “H. C. Jones” chiefly argued cases at law at Morganton 1857 opinions 4 Jones Law 49* 89 58. Early codifications of North Carolina session laws were 11 from 1848-1856; “Jones” argued at Morganton from 1857 opinions 3 Jones Equity 56* 32 The Revised Statutes of The State of North Carolina (1837) 1858 opinions 5 Jones Law 50* 35 12 1857-1859. Hamilton Chamberlain Jones represented and the Revised Code of North Carolina (1855). 1858 opinions 4 Jones Equity 57* 34 Rowan County in the House of Commons in 1827, 1859 opinions 6 Jones Law 51* 80 59. Cf. Hice v. Cox, 34 N.C. 315, 321 (1851) (August 13 1829, 1838, and 1840, as well as finished the term of 1859 opinions 4 Jones Equity 57* 47 1860 opinions 7 Jones Law 52 58 term) (perhaps evidencing a gap in the collection of law 14 another in 1849; from 1842-1848 he served as solicitor 1860 opinions 5 Jones Equity 58 23 books at Morganton when dissenting Judge Pearson 1861 opinions 8 Jones Law 53 15 for the Sixth North Carolina Judicial District; he also 15 notes the absence of a report of Wright v Beckett, 1 Moo. 1861 opinions 6 Jones Equity 59 3 served as reporter for the Supreme Court from 1853- and Rob., 414 [174 English Reports 143 (1833)] from 1849 rule 10 Iredell Law 32 2 1863. Jones, Hamilton Chamberlain in 3 Dictionary of the court’s library). 1849 rule 6 Iredell Equity 41 2 North Carolina Biography 318-19 (William S. Powell, 1858 rule 4 Jones Equity 57 2 ed., 1988). 60. For example, at about the time that Senator Woodfin TOTAL NUMBER OF PAGES = 2,000 called for a session of the Supreme Court in the west, 43. Supplemental Act for Summer Session, supra note 36, * facsimile reprint William Battle addressed the problem of scarcity of the sec. 4, at 90. early state reports for a second time. In 1832 he had 44. North Carolina Government, 1585-1974: A Narrative reprinted volume 1 of Haywood’s Reports from 1799. 63. 34 N.C. (12 Ired.) 304, 307-09 (1851) (Ruffin, C.J.). and Statistical History 182 (John L. Cheney Jr., ed., Now in 1843 to 1844, Battle compressed seven original 64. An Act to Change the Jurisdiction of the Courts and Raleigh, N.C. Sec’y of State 1975). volumes of North Carolina nominal reports into three the Rules of Pleading Therein, ch. 4, sec. 14, 1861-’62- 45. For example, “T. R. Caldwell” appeared in Attorney- reprint volumes: the first of these three reprint volumes ’63-’64 & 1859 Public Laws of the State of North General v. Carver, 34 N.C. (12 Ired.) 231 (1851); contained Martin’s Reports (1797) and volume two of Carolina 5, 8-9 (Raleigh 1866) (ratified September 11, “Baxter” appeared in State v. Shelton, 47 N.C. (2 Jones) Haywood’s Reports (1806); the second contained 1861). 360 (1855) and in State v. Gentry, 47 N.C. (2 Jones) 406 Taylor’s Reports (1802) and the Conference Reports 65. Id. (1855); and “Avery” appeared in State v. Tom, 47 N.C. (2 (1805); and the third contained the two volumes of the 66. Id.

THE NORTH CAROLINA STATE BAR JOURNAL 17 Counselor

B Y R YAN S TOWE

n the center of every North Carolina law license, printed in bold type, are the words “ATTORNEY AND

COUNSELOR AT LAW.” That language is not archaic. In fact, I think it’s particularly relevant to the practice

of law today. I don’t make the argument that the latter part of our title is more important to our practice than

the former; however, I do believeI that it is more critical

to our clients than many lawyers acknowl- ©iStockphoto.com/PeopleImages edge. It seems that all too often attorneys overlook their duties as counselors. Despite the historic charge our licenses bear, in prac- tice and in theory the profession seems to have forgotten the fullness of its original intentions.

I realized early in my career that obliga- have ever had a close interpersonal relation- access. Most of our clients’ salient issues will tions to my clients far exceed the representa- ship. As such, said attorney will probably be fall outside of our practice areas. I think this tion provided in the courtroom. This is dou- asked questions that surpass the scope of the is when being a counselor at law matters. It bly true anytime one represents indigent court-appointed representation. It’s not doesn’t hurt to at least read the letter, provide clients, especially in the arena of criminal uncommon, for example, for a client to show a referral to a colleague or Legal Aid, or even defense. Most indigent clients face severe up to court and present their attorney with offer limited legal advice with regards to the underrepresentation for their legal matters, any number of legal notices they have situation when possible. except where an attorney is a constitutional received, including collections, evictions, Often our clients are in jail not because right, such as court-appointed representation DMV suspension notices, even announce- they have been convicted of a crime, but for a criminal charge. Under these circum- ments for public rezoning hearings. The real- because they are accused of a crime and can- stances, it is likely that their court-appointed ity is that this attorney may be the only not afford bail. When representing clients in attorney is the first lawyer with whom they counsel to which they have or have had jail, I find our duties as a counselor some-

18 WINTER 2018 times outweigh our responsibilities as an actualize the process. When clients under- attorney. Frequently, when visiting clients stand the finer points of documentation and who are in jail I am asked to send messages to motions as well as the big picture, it helps family members and other loved ones to them make better-informed decisions in their update them on their cases. Sometimes those general business operations. This is a very messages have involved me calling a client’s simple consideration that can have a major mom to say, “John Doe asked me to tell you impact on a client’s endeavors. Things like that he loves you.” In that situation, limiting this aren’t always stressed in law school, but my role to that of an attorney would probably are essential to the practice. have involved me making motions for bond As counselors, by actively listening we get reductions or eschewing such sentimental to know our clients, leading to clearer insight pursuits in favor of working on the case at into their needs and goals. The first opportu- hand. Accepting the full charge of “attorney nity to build this rapport arises during our and counselor,” however, means making con- initial client interview. This rapport is imper- cessions for interpersonal considerations, ative, especially to any situation in which an which can be just as impactful as the legal attorney must negotiate with another party proceedings themselves. on behalf of their client. The more effectively Empathy is a vital attribute, even in fulfill- we listen, the higher the chances are that we ing the basic tenets of an attorney’s legal obli- can meet our clients’ needs during negotia- gations to their clients. Understanding how tions, and perhaps even broker a win-win sce- other people feel—and doing more active lis- nario for the other party as well. As intuitive tening than talking—is the basis of showing as it seems, simply listening to clients and empathy, which is a critical factor in the lead- paying attention to what they express is a fun- ing models of displaying emotional intelli- damental technique many attorneys fail to gence. Most clients are not oblivious to the employ, especially when working within dis- fact that some attorneys care more about their advantaged communities. cases than the clients do themselves, and On a surface level, prioritizing counsel some criticize the one-dimensional approach over simplifying practical action may seem of their attorney towards their legal cases. To averse to a client’s best interest. A closer look, dispel these perceptions and advance the pro- however, may show that carefully considered fession, attorneys must concern themselves interpersonal action is indeed beneficial. I with the welfare of the client, not just their recently represented a 16-year-old male, a legal matter. This rededication to the individ- ward of the state living in a Department of uals and communities we serve will foster Social Services group home. I represented 18-206 professional growth, and attorney-client rela- him on two simple assault charges. My client tionships will take firmer root. Seemingly had severe issues managing his anger. The innocuous details such as showing empathy judge sentenced the young man to supervised to clients are often invaluable to winning probation. During sentencing I asked the cases. In the event of a loss, compassion can judge if he would consider requiring the com- be a potent salve to the client’s immediate pletion of an anger management course as a reaction to the outcome. part of his probation requirements. Generally, to be heard. For some, just “getting their day There are times when one’s duties to their tacking on extra requirements for a client is in court” is more important than the out- client seem skewed to counseling rather than counterintuitive, but I knew my client would come. In those moments, client consultations practical representation. While it is important benefit as a person as a result. I didn’t want to can easily feel like therapy sessions, especially to maintain professional boundaries and see him in the court system again. I in the context of family law. When our clients decorum, we must understand the necessity thought—or at least I hoped—that maybe want to know if they are validated in their of providing earnest counsel tailored to spe- this anger management course would be the feelings, an impersonal, strictly legal perspec- cific client needs. An attorney can contribute intervention he needed in order to not tive may be inconducive to positive develop- immensely to the growth of their client by become a person involved with the criminal ment. This is when embracing the counselor empowering them to prevent the reoccur- justice system for the remainder of his life. role flourishes the most. rence of problems. Addressing singular cases While there is no guarantee this will be the Sometimes being a counselor feels more without taking the time to appreciate a case, I am confident in my judgment of the like being a social worker than an attorney, client’s root issue is shortsighted and may situation based on the earnest conversations I but I think those moments are when we do inadvertently contribute to future conun- had with my client. Judgment calls can and our best work. There have been times when drums. For example, when assisting clients in will be wrong; practicing empathy successful- I’ve had to drive clients to court or even call filing copyright applications, I make it a point ly mitigates these risks. to clarify every stage in order to help them There are times when our clients just want CONTINUED ON PAGE 21

THE NORTH CAROLINA STATE BAR JOURNAL 19 Recovering from Disaster: “Helpers” in the Legal Community Respond

B Y M ARY I RVINE

n September 14, 2018, hurricane lingered and Hurricane Florence hit the some areas across the coast of North Carolina state experienced three near Wrightsville Beach. feet of rain, the wettest When it reached the shore, tropical cyclone record- Othe Category 1 storm brought winds of 90 ed in North Carolina. miles per hour. Record-breaking storm Catastrophic flooding surge levels were recorded in several coastal across North Carolina communities. Over the next four days, the lasted for several weeks closing major roads and damaging infrastruc- Disaster Legal Services Volunteer ture, homes, and busi- Opportunities nesses. A disaster was declared in 31 out of The North Carolina Bar Association, 100 North Carolina FEMA, the American Bar Association, counties. Just a few and Legal Aid of North Carolina are weeks later, a new round Hurricane Florence is pictured from the International Space Station collaborating to provide immediate pro of wind, rain, and flood- as a Category 1 storm as it was making landfall near Wrightsville bono assistance to Hurricane Florence ing hit as Tropical Storm Beach, North Carolina. Photo from NASA. victims through the Disaster Legal Michael passed through Services Hotline. Volunteers are needed North Carolina, impacting western and cen- history. to provide brief advice and services and tral North Carolina counties. Arriving at the peak of fall harvest season assist with phone intake. in North Carolina, the storm brought an Legal Aid of North Carolina, the Impact of the Hurricane estimated $1 billion in crop damages and North Carolina Bar Foundation, and As the legal community responds, initial livestock losses. State and federal officials are the North Carolina Pro Bono Resource assessments about the impact of Hurricane still working to determine the extent of the Center are also working to staff infor- Florence suggest we will be in this recovery storm’s impact on water quality and to mation and resource tables at disaster for years to come. The social and economic address concerns about other environmental recovery centers and host other clinics costs of Hurricane Florence are still being contaminations. Another less quantifiable on the ground with community organi- assessed. At least 48 deaths were attributed significant cost is the lost educational time zations to answer legal questions. to the storm, including the loss of 37 North for school children in impacted areas where Visit ncbar.org/florence for more Carolinians. According to Moody’s some schools were closed for several weeks. information about volunteer opportuni- Analytics, the estimated economic cost of Even though the daily updates on the ties. the event ranges from $38 to $50 billion as local news have subsided, real problems per- Additional information and of September 21, including property dam- sist in eastern North Carolina following resources for volunteers are available at age, vehicle loss, and lost output. By these Hurricane Florence. Common sense tells us ncprobono.org. estimates, Hurricane Florence is among the that the individuals in need before disaster ten most costly hurricanes in United States strikes will continue to be among the most

20 WINTER 2018 vulnerable during and after the event. Using other efforts. Census data, the Social Vulnerability Index In this moment of crisis in North created by the Centers for Disease Control Carolina, it is heartening to see concern Counselor (cont.) and Prevention seeks to pinpoint the most pouring in from outside our state. In the vulnerable communities expected to need early days after Florence hit, lawyers, law them a taxi, especially clients with revoked support, a need only exacerbated by disas- firms, and bar groups across the country licenses. Of course, forcing clients to court ter. Variables like socioeconomic status, began reaching out to offer their support. In isn’t in our job description, but acting in the household composition, disability, minority response to the need, on October 2, 2018, best interests of our clients is supremely root- status, language, housing, and transporta- the North Carolina Supreme Court ed in our duties. When it’s 8:30 AM and a tion are considered. Twenty-one of the 31 approved the North Carolina State Bar’s client realizes that they no longer have a ride counties where disaster has been declared temporary rule amendment allowing lawyers to court at 9:00 AM, they are faced with are identified by the index as the most vul- licensed outside of North Carolina to imme- either breaking the law and driving them- nerable. diately begin providing pro bono legal services selves or missing court in its entirety. Their With support from NC IOLTA, the NC to indigent victims of Hurricane Florence. instinct is to call their lawyer, and that Equal Access to Justice Commission, in This emergency rule streamlines the process instinct should be a reliable one. partnership with various legal groups in by which out of state lawyers can provide pro We should not only be proud to be attor- South Carolina, created a website with story bono services through a nonprofit legal serv- neys, but to also be counselors at law. While maps to help demonstrate the impact and ices organization. For more information the strategy and satisfaction of courtroom legal needs following Hurricane Florence. about the rule and a copy of the form to reg- proceedings are often more appealing, there For more information, visit bitly.com/ ister with the State Bar, visit the State Bar’s is a certain level of gratification that comes NClegalaid. website at ncbar.gov. when serving the interpersonal needs of a client. It is my belief that if attorneys serve in How Legal Aid Helps Look for the Helpers their capacity as counselors more passionate- Civil legal aid has a critical role in help- Fred Rogers, the longtime PBS host who ly, they’ll see an increase in their effectiveness ing communities recover from disasters. In spent more than 30 years teaching young as well as career satisfaction, the legal indus- the immediate aftermath of a disaster, attor- children through his show Mister Rogers’ try will become more robust and expansive, neys and legal advocates guide victims Neighborhood, relayed a story from his child- and the perception of the profession by the through administrative processes and identi- hood to ease the minds of his watchers in public will become more amiable. As you go fy legal issues. Landlord-tenant questions, times of tragedy and disaster. Mr. Rogers about practicing your craft, I invite you to issues with applying for FEMA assistance said his mother always told him that, despite ask yourself, “How completely am I respond- and other benefits, referrals to community the hardship that accompanies disaster, we ing to the full call of the attorney and coun- services, and replacement of lost documents should “look for the helpers” because there selor at law?” n are among the most pressing concerns. are always people helping, people who care Later, as victims rebuild, other civil legal and want to give of themselves to lift others Ryan Stowe is the principal attorney at The issues arise: appeals of benefit denials, con- and ease their suffering. Polaris Law Firm. Stowe is a first generation sumer scams, foreclosure prevention, and In the early days following the hurricane, Rowan County attorney, who is proud to be insurance claims. many “helpers” were on the ground to practicing in his hometown of Salisbury, NC. To help respond to these issues, NC respond to the disaster: rescue teams, fire- He focuses his practice on traffic violations, crim- IOLTA recently approved grants to two col- fighters, first responders, police officers, Red inal law, and intellectual property. laborative projects that will provide legal Cross workers, neighbors, line crews work- services to Hurricane Florence victims: ing to restore power, volunteers serving hot • Legal Aid of North Carolina, the North meals in shelters, collecting and transporting Carolina Bar Foundation, and the North supplies to communities in need, and Interested in acquiring/merging Carolina Pro Bono Resource Center were removing debris from yards. The second with estate planning law firms awarded $161,100 to engage pro bono vol- wave of support encompasses a broader unteers to help individuals impacted by group, including staff of NC’s legal aid or take over from Hurricane Florence including advice offered providers and private attorney volunteers retiring/deceased attorneys through the Disaster Legal Services Hotline who are working to help the most vulnerable especially in western North and in-person “know your rights” presenta- individuals and communities recover from Carolina. We have 7 lawyers tions and brief advice clinics. Hurricane Florence. and a full support team • The North Carolina Justice Center If you have not already, considering join- including probate. Very client­ and the Financial Protection Law Center ing the legal community’s team of “helpers” centric. Contact: Andrew A. n received $65,500 to support placement of a today. Strauss at bilingual legal services advocate in Wilmington to assist hurricane victims in Mary Irvine is the executive director of the [email protected] or eastern North Carolina who are immi- North Carolina State Bar Plan for Interest on 828.210.0506. grants and may not be able to be served by Lawyers’ Trust Accounts (NC IOLTA).

THE NORTH CAROLINA STATE BAR JOURNAL 21 Running Man

B Y G. GRAY W ILSON

heidippides never met George Cleland IV. The former ran from the

Battle of Marathon in 490 BC to Athens to tell the Greek citizens that

the Persians had been defeated, then collapsed and died. George Cleland

is also a man on the run. He has been running for years now from his

Phome base in Winston-Salem, after raising a family of three with his wife Melissa (a charming

redhead, but not a runner) while engaged in a full-time general civil and criminal law practice

with his father (you guessed it, George Cleland III) and sister. He has been running literally all

over the world during the past eight years.

You see, George (his enemies and only a But this was not always the case. In 2009 and a beautiful new addiction started to kick few friends call him Georgie, which makes George was just another lawyer in private in. He found he liked moving forward in a sense when you consider that there are a sheaf practice, and a major couch potato. At five straight line, watching his waistline shrink, of Georges walking around in the family) feet, ten inches, he weighed in at 240 pounds, not unlike Jim Fixx (The Complete Book of likes to run one, and only one, kind of foot with a body mass index approaching morbid Running, 1977), who was an overweight, race: marathons. Across town, another obesity and an ominous upward trend in his chain-smoking weakling at the age of 35 lawyer, “Iron Man” David Daggett, has par- blood pressure. He knew he needed to trim when he hit the pavement and jump-started ticipated in over 100 triathlons, a unique some serious pounds off his beltline, but he the American fitness revolution in the 70s achievement in the bar of this and many had the body of a boxer, not a runner. Yet before dying of a massive coronary at the age other states. But George prefers marathons, boxing was not an option for a man in his late of 52. In the heat of July 2009, George drove all 26 miles, 385 yards, although he logs a lot 40s, so he dressed out in running togs and a out to Salem Lake after work and knocked of half-marathons for training purposes only pair of Nikes and starting jogging. And badly. out his first seven-mile run. By then, he was (around 60 to date), and before he reaches It was a struggle at first; Cleland was happy to totally hooked. that fast-approaching age where he can no make it around the block a couple of times. George was ready for his first race that longer go the distance, he plans to blanket the But every single day, hot or cold, rain or September—not a big one, 5K (3.1 miles). globe. With 800 marathons to choose from shine, he faithfully trotted out his laps. He finished that challenge, but that was world-wide each year, he can take his pick. After a while he got up to a mile or more, about all, for despite an amazing weight loss,

22 WINTER 2018 he was still hauling a 200-pound frame utes, climbing a horrific hill at the finish line. around the track. So he kept on running, and Then he logged the RDC Marathon in as he progressed he was able to pick up the Durham in December 2017, followed by the pace and the mileage, while dropping down Charleston Marathon in January 2018. And to a trim 175 pounds. A year later he was in October 2018 he ran the Amsterdam ready. On December 5, 2010, at the age of Marathon. 47, Cleland flew to Dallas, Texas, and logged George was in Boston on April 15, 2013, the White Rock Marathon in three hours and when he ran a personal best of three hours 48 minutes, not too shabby for a running and 21 minutes, which may be why he is alive debut. Maybe not Abebe Bikila, the today. He was already back in his hotel near Ethiopian marathon god who won the 1960 the finish line when two pressure-cooker Olympics in Rome—barefooted—only to bombs detonated, killing three, maiming 16, repeat the feat in Tokyo four years later, but and injuring hundreds. He first learned about still a respectable showing, especially consid- the explosion that rocked the country while ering that while they were the same height, standing in front of the television in the hotel Bikila only weighed 126 pounds. (Note that bar. Outside it was pure chaos, with law Bikila died at the age of 41 from a stroke, five enforcement trying to lock down the city years younger than Cleland was when he hit while everyone rushed to the airport to leave. the trail for the first time.) Every year since, he has qualified and The training for this race had been gruel- returned to Boston for this legendary race. ing, up to 50 miles per week with a couple of Despite temperatures in the 80s in 2017, jaunts over 20 miles. While that alone might George still posted a time of three hours, 40 be enough to check off the bucket list for minutes, an excellent performance from a guy most men (and women) his age, Cleland in his mid-50s. Then on April 16, 2018, in launched into an odyssey of marathoning 40 degree rain and a fierce headwind, he still around the United States and elsewhere. It managed to eke out a time of four hours, ten takes a lot of maintenance: 35-40 miles per minutes. This was his sixth trip to Boston for week, about 1,800 miles per year. The follow- the race. With him was his son, George V, WWee add value to your ing is a list of belt notches he has added since running his fourth Boston Marathon in two Dallas: hours, 50 minutes. Georges IV and V have practice by extending your 2011 UHC Marathon, High Point already qualified and registered to run the expertise and helping your 2012 Rock & Roll Marathon, Phoenix Boston Marathon again in April 2019. clients reachreach their Edinburgh Marathon, Scotland So why does a mere lawyer engage in such philanthrphilanthropicopic goals. Richmond Marathon, VA herculean pursuits? He has nothing to 2013 Boston Marathon prove—certainly not now—to himself, to his Budapest Marathon, Hungary family, or to anyone else. Cleland has a strong CALL 800.532.1349800.532.1349 2014 Boston Marathon heart, unlike Mr. Fixx, but he is never going NCCOMMUNITYFOUNDANCCOMMUNITYFOUNDATION.ORGATTIOTION.ORG New York City Marathon to work off another 50 pounds to get down 2015 Boston Marathon to Bikila’s running heft. After Boston this Auckland Marathon, New Zealand year, George was having trouble going down 2016 Boston Marathon stairs for over a week. However, as long as his decided he like them. That was all it took. Grandfather Mountain Marathon legs hold out, he plans to keep on trucking. This endorsement launched a billion-dollar Erie Marathon, PA Maybe George has another reason for enterprise as “Pre,” as he was known, Dublin Marathon, Ireland running. Forty-five years ago a company promptly headed out to the track and broke 2017 Charleston Marathon, SC now known as Nike was a struggling mom ‘n’ every distance record in the country from Boston Marathon pop shoe store based in Oregon. Sales were 2,000 to 10,000 meters. Today, running is an Hatfield & McCoy Marathon, steady but limited despite its new waffle sole even bigger business than the craze that KY/WV innovation, which should have been a mar- seized a nation several decades ago. It is the Hamilton Marathon, OH keting smash hit. The founder, Phil Knight quintessential fitness regimen that without a Chicago Marathon (now in his 80s), was forced to the brink of doubt has extended countless life spans, not RDC Marathon, Durham bankruptcy on multiple occasions for lack of to mention the reduction in stress and 2018 Charleston Marathon, SC that liquid gold known as cash flow, because improved quality of life for millions. Boston Marathon the American banking industry frankly had George could just be riding the wave. n Amsterdam Marathon no use for a start-up sports shoe manufactur- George is not planning to slack off any er in need of capital. Then a kid at the G. Gray Wilson, president of the State Bar, time soon. On October 8, 2017, he ran the University of Oregon named Steve is a partner with the Winston-Salem firm of Chicago Marathon in three hours, 30 min- Prefontaine strapped on a pair of Nikes and Nelson Mullins Riley & Scarborough LLP.

THE NORTH CAROLINA STATE BAR JOURNAL 23 THE DISCIPLINARY DEPARTMENT

Grievance Committee and DHC Actions

Huck pled guilty and was convicted of the tion of the five-year suspension imposed in Disbarments felony offense of receipt of child pornogra- 15 DHC 16. Paige C. Cabe of Sanford embezzled phy in violation of 18 U.S.C. Jonathan Hunt of Durham falsified dates entrusted funds and committed other trust §2252A(a)(2)(A) and (b)(2). on certificates of service. The DHC suspend- account violations, did not respond to the Matthew A. Smith of Raleigh was con- ed him for one year. The suspension is stayed State Bar, neglected and did not communi- victed of taking indecent liberties with a for three years upon Hunt’s compliance with cate with clients, did not refund unearned child, a felony, in violation of N.C. Gen. enumerated conditions. fees, and engaged in dishonest conduct and Stat. § 14-202.1. He was disbarred by the James N. Jorgensen of Raleigh neglected in conduct prejudicial to the administration DHC. clients, did not promptly disburse entrusted of justice. She was disbarred by the Lawrence Wittenburg of Cary surren- funds, made a false statement to clients, did Disciplinary Hearing Commission. dered his law license and was disbarred by not reconcile his trust accounts, and did not Alvaro De La Calle of Greensboro aban- the Wake County Superior Court. timely respond to the Grievance Committee. doned clients, collected fees without provid- Wittenberg acknowledged that he misap- The DHC suspended him for three years. ing the legal services for which he was paid, propriated at least $170,000 to which his The suspension is stayed for three years upon misrepresented the services he would pro- law firm was entitled by cashing checks ten- Jorgensen’s compliance with enumerated vide to clients, engaged in conduct involving dered in payment of legal fees while he was conditions. dishonesty, revealed confidential informa- a salaried employee of the firm. Brent King of Huntersville violated mul- tion about his clients to others, split fees tiple trust account rules. The DHC suspend- without his clients’ knowledge or permis- Suspensions & Stayed Suspensions ed him for two years. The suspension is sion, and engaged in conduct prejudicial to The DHC found that Joseph Eric stayed for two years upon King’s compliance the administration of justice. At the time of Altman of Rockingham violated multiple with enumerated conditions. his surrender, De La Calle was serving a five- trust account rules. Altman also disclosed year suspension imposed in 16 DHC 19. He confidential client information to a jury Stayed Suspensions Activated surrendered his license and was disbarred by without his client’s permission, resulting in a In August 2017 the DHC suspended the DHC. mistrial. He was suspended for two years. Charlotte lawyer Robert M. Donlon’s license The DHC disbarred Carson Freeman of The suspension is stayed for three years for one year and stayed the suspension for Charlotte. Freeman misappropriated upon Altman’s compliance with enumerated two years. Donlon threatened to expose entrusted funds and committed other trust conditions. embarrassing or incriminating information account violations. Joseph Forbes of Elizabeth City violated about attorneys in a firm that had brought a A. Scott Hamilton of Henderson surren- multiple trust account rules. The rule viola- lawsuit against him in order to intimidate dered his law license and was disbarred by tions were established by default. The DHC them into paying legal fees he incurred the Wake County Superior Court. suspended Forbes for three years. After serv- defending the lawsuit. The DHC concluded Hamilton acknowledged that he misappro- ing six months active suspension, Forbes will that Donlon did not comply with the condi- priated entrusted funds totaling at least be eligible to petition for a stay of the bal- tions of the stay. On October 18, 2018, it $3122.50. ance upon demonstrating compliance with lifted the stay and activated the suspension. Fletcher R. Hartsell Jr. of Concord sub- enumerated conditions. After serving six months active suspension, mitted his affidavit of surrender of law The Martin County Superior Court sus- Donlon will be eligible to apply for a stay of license and was disbarred by the council on pended the law license of David E. the balance. October 26. Hartsell pled guilty and was Gurganus of Williamston. Gurganus is dis- convicted of (1) mail fraud in violation of 18 abled by a condition that renders him Censures U.S.C. §§1341 and 1342; (2) filing false tax unavailable to perform legal services for his Kenneth Davies of Charlotte was cen- returns for the year 2010 in violation of 26 clients. sured by the Grievance Committee. Davies U.S.C. §7206(1); and (3) certifying and fil- The DHC found that Thomas S. Hicks allowed his paralegal, a former lawyer who ing false campaign reports with the North of Wilmington abandoned several clients, was disbarred because he misappropriated Carolina State Board of Elections in viola- did not refund unearned fees when he was entrusted funds, to provide legal services and tion of N.C. Gen. Stat. §163-278.32. suspended by the DHC in 15 DHC 16, and advice directly to a North Carolina resident Trevor Huck of Albemarle submitted his did not respond to the Grievance and failed to take reasonable measures to affidavit of surrender of law license and was Committee. It suspended him for three ensure that his nonlawyer assistant’s conduct disbarred by the council on October 26. years effective immediately upon the expira- was compatible with Davies’ professional

24 WINTER 2018 obligations. action before it was time barred. of active suspension. In March 2018 the The Grievance Committee censured The Grievance Committee reprimanded DHC denied Calloway’s first petition for a attorney David Michael O’Bryan, formerly Douglas K. Simmons of Charlotte. stay, but allowed Calloway to petition again of Kannapolis. O’Bryan was convicted of Simmons aided the unauthorized practice of after six months. The DHC granted contempt of court. The court found that, law by Lexington Law. Before Lexington Law Calloway’s second petition effective while representing a criminal defendant, registered as an interstate law firm, Simmons September 13, 2018. O’Bryan made misrepresentations to the provided legal services to North Carolina res- court, knowingly disobeyed an obligation idents on behalf of and at the direction of Orders of Reciprocal Discipline under the rules of the tribunal, did not act Lexington Law, allowed Lexington Law to The chair of the Grievance Committee with diligence, and did not adequately com- direct and control the legal services he pro- issued an order of reciprocal discipline repri- municate with his client. vided, shared a fee with a nonlawyer, and col- manding George Robert Blakey of Paradise The Grievance Committee censured lected an illegal fee by accepting a portion of Valley, Arizona. In 2015 the District of Shannon Reid of Gastonia. Reid neglected the fees collected by Lexington Law from Columbia Office of Bar Counsel issued a and did not keep his client informed. He also North Carolina consumers. Simmons did public informal admonition to Blakey for did not respond to the local Grievance not supervise his nonlawyer assistants of knowingly assisting his client in revealing Committee. The committee found as aggra- Lexington Law and allowed his nonlawyer confidences and secrets or using a confidence vating circumstances that Reid had prior dis- assistants to solicit clients. or secret to the disadvantage of a former cipline for failing to respond to the State Bar client/employer. and for neglecting a client’s case. Transfers to Disability Inactive Status Robin Verhoeven of Carrboro was cen- Wendelyn R. Harris of Virginia, formerly Notices of Intent to Seek sured by the Grievance Committee. of Raleigh, was transferred to disability inac- Reinstatement Verhoeven neglected and did not communi- tive status by the DHC. cate with her clients in three domestic cases, In the Matter of Alexander Lapinski made material misrepresentations to one Reinstatements from Disability Notice is hereby given that Alexander client and to the Grievance Committee, and Inactive Status Lapinski of Durham intends to file a petition did not respond to the Grievance The DHC reinstated Heather Anne for reinstatement before the Disciplinary Committee. Shade of Fairview to active status from dis- Hearing Commission of the North Carolina ability inactive status. State Bar. Lapinski surrendered his license Reprimands and was disbarred by the Wake County The Grievance Committee reprimanded Stays of Existing Suspensions Superior Court effective June 20, 2012. Joseph Altman of Rockingham for neglect- Tracey Cline was the elected district attor- Lapinski’s disbarment was the result of his ing and failing to communicate with a client. ney of Durham County until she was guilty plea in federal court to one felony The committee found as an aggravating cir- removed from office pursuant to N.C. Gen. count of unlawful procurement of citizen- cumstance that Altman had a prior repri- Stat. §7A-66. In June 2015, Cline was sus- ship or naturalization under 18 U.S.C. Sec. mand for neglecting a client and failing to pended by the DHC for five years for filing 1425 by aiding and abetting his client in appear in court. pleadings containing false and outrageous seeking US citizenship under a false name. Sean T. Dillenbeck of Paw Creek was rep- statements about a judge and for making rimanded by the Grievance Committee. He false representations in court filings in an In the Matter of Creighton W. did not notify his client that arbitration was attempt to obtain confidential prison visita- Sossomon scheduled in its case and did not attend the tion records. The order provided that Cline Notice is hereby given that Creighton W. arbitration. When his law partners called to would receive credit toward the five years for Sossomon of Highlands intends to file a peti- find out where he was, Dillenbeck told them any time she did not practice law since she tion for reinstatement before the that he was working from home when he was was removed from office, and provided that Disciplinary Hearing Commission of the actually in New York City. A significant judg- after serving two years of the suspension, North Carolina State Bar. Sossomon was ment was entered at arbitration against his Cline would be eligible to petition for a stay disbarred by Order dated October 16, 2012, client. Later, Dillenbeck did not assist his of the balance. Cline filed two petitions to pursuant to voluntary surrender of his license then former law partners in their efforts to reinstate her law license which were denied on October 2, 2012, in which he admitted obtain relief from the judgment, effectively because Cline was not eligible at those times the unauthorized use of entrusted funds for abandoning his client. He also made a mis- to seek reinstatement. Cline’s third petition the benefit of someone other than the bene- representation to the Grievance Committee. for reinstatement was granted. ficial owner. Joseph H. Forbes Jr. of Elizabeth City In October 2016, R. Kelly Calloway Jr. Individuals who wish to note their con- was reprimanded by the Grievance of Hendersonville was suspended for four currence with or opposition to these peti- Committee. He did not communicate with years for failing to file and pay state taxes in tions should file written notice with the his client and did not settle his client’s per- 2009 and failing to file or pay withholding secretary of the North Carolina State Bar, sonal injury claim or file a civil action before and unemployment taxes for six years. The PO Box 25908, Raleigh, NC, 27611, the statute of limitations expired. Forbes had order provided that Calloway would be eligi- before February 1, 2019 (60 days after previously failed to file a personal injury ble to petition for a stay after serving a year publication). n

THE NORTH CAROLINA STATE BAR JOURNAL 25 PATHWAYS TO WELLBEING

Is It Time for Your Firm to Take Up the Mindfulness Mantle?

B Y L AURA M AHR

his summer, the ABA’s Law Practice

Division’s monthly publication,

Law Practice Today (LPT), focused ©iStockphoto.com/Juergen Sack entirely on the issue of lawyer well- being. TheT “Attorney Wellbeing Issue” (lawpracticetoday.org/?is- sue=attorney-well-being-issue-august-2018) highlighted a myriad of wellness-related topics, from how law practice impacts our intimate relationships, to how to think like a leader. I was invited to submit an article on mindfulness for the publication. Based on the positive feedback I’ve received from LPT readers, I share my article, “Is It Time for Your Firm to Take Up the Mindfulness Mantle?” here. In doing so, I would like to recognize and commend the numerous forward-thinking North Carolina law firms, judicial districts, nonprofits, and organizations that, in addition to the

North Carolina Bar Association and the North Carolina State Bar’s Lawyer Assistance Program, have sponsored me to conduct mindfulness CLEs. The pioneering leadership around our state in understanding the value of mindfulness training for attorneys and judges is putting North Carolina on the national lawyer wellbeing map.

By now, you’ve probably heard about the Whose Job Is It? Think of it This Way benefits of mindfulness for lawyers. From re- By and large, the legal field perceives Your firm is a fish tank—your workforce ducing stress and strengthening the immune mindfulness as something to be undertaken are the fish, the water is the office culture. system, to improving sleep, lowering blood for personal reasons after hours. Despite the Which is more efficient: hoping one fish at a pressure, and reducing anxiety, mindfulness benefits of practicing mindfulness, most firms time will take up the mantle for its own well- (the practice of being present in the moment do not regard mindfulness education as a being, or providing the water, food, and aer- without judgment)—and mindfulness med- business necessity, nor do they invest in in- ation that creates an environment that bol- itation in particular—has been shown to im- house mindfulness training for lawyers, let sters the wellbeing of the entire school? prove mental and physical health in innu- alone for the entire staff. It may be time to Simply put, why hope individual lawyers will merable ways. Research also shows that shift perspectives. Employing a workforce eventually find tools to decrease stress in their mindfulness meditation has positive benefits that practices mindfulness has tangible ben- “free time” when you can operationalize on cognitive functioning, including improved efits, including less absenteeism due to illness, mindfulness practices, cultivating an office memory, attention span, focus, and creative fewer mistakes due to absent-mindedness, culture that supports the wellbeing and effi- thinking—the exact competencies lawyers and lower turnover due to burnout. cacy of the entire legal team… starting now? are paid to affect daily.

26 WINTER 2018 ABA Call to Action How Mindfulness Improves your sciously build positive neuroplasticity by The recommendations published by the Mind and Your Bottom Line spending just a few minutes each day taking ABA’s National Task Force on Lawyer Well- One of the most important benefits of stock of your successes. Being follow this logic. In 2016, after the mindfulness is its ability to promote positive Try this: Journal of Addiction Medicine published a neuroplasticity. Neuroplasticity is your brain’s 1. Take a moment to pause in your work- landmark study conducted by the ABA ability to rewire itself by growing new neural day. Commission on Lawyer Assistance networks that inform the way you cognitively 2. Write down five successes your team Programs and the Betty Hazelden Ford function, impacting the way you think about, has recently accomplished (be mindful to sus- Foundation revealing alarmingly high rates perceive, and remember things. This affects pend all judgment of how it could have gone of mental health distress among lawyers, the your current decision-making and informs better). ABA’s National Task Force on Lawyer Well- the actions you take, and it can have a signif- 3. During your next team meeting, or in Being published The Path to Lawyer Well- icant impact on the success or failure of our your next casual encounter with a team mem- Being: Practical Recommendations for Positive law practices. ber, bring up one of those successes. Change. The publication is an appeal to Unfortunately, the practice of law can im- 4. Talk about what makes the success numerous stakeholders in the legal field to pact our neuroplasticity in uniquely adverse meaningful to you and how it ties into the build infrastructures that support attorney ways. Being steeped in our clients’ problems goals/mission of the firm. wellbeing. It “recommend[s]that legal all day and being paid to remain hypervigilant 5. Appreciate specific team members (or employers provide education and training to what could go wrong has consequences. It the individual with whom you’re talking) for on wellbeing-related topics and recruit grows neural networks that over time can specific ways that they contributed to the experts to help them do so,” citing that “a cause lawyers and support staff to perceive success. number of law firms already offer wellbeing- the world and its people as contentious. This 6. Notice ways—large or small—the con- related programs, like meditation, yoga ses- perspective can cause both individuals and versation positively impacts you and/or your sions, and resilience workshops.” entire legal teams to feel pessimistic, jaded, team. and wary. We are less effective when our office Bang for your Buck culture is poisoned by pessimism as we are Collateral Benefits of Bringing Mind- Law offices can take many paths to re- more prone to miss opportunities that could fulness Training to Your Firm spond to the ABA’s call to action, yet mind- resolve conflicts—whether with clients, staff, Participants in firms where I have con- fulness is a relatively simple, cost-effective, opposing counsel, courts, or in our personal ducted mindfulness training report feeling and yielding place to start. While mindfulness relationships. Instead of moving quickly to- more connected to their colleagues as a result itself is not a panacea to the many stress-re- ward resolution, we may instead ruminate of the training. They convey how helpful it lated health challenges that lawyers face, it for days on the problem. is to have a shared professional experience does offer concrete tools that, if practiced, Having the tools to successfully navigate that is not casework-specific. They also com- result in real-life change. One benefit to conflict is a large part of effective law office ment that it is refreshing to have something mindfulness practices is that they don’t wear management. Mindfulness tools can not only work-related but not legal to talk about, and out or become irrelevant, and they can be help individuals and teams notice when they how remarkable it feels to be learning some- expanded on over time. In addition, the fi- feel stuck due to a pervasive “pessimistic per- thing new alongside managing partners. The nancial investment is relatively low, as an en- spective,” but can also provide new options observation I hear most frequently relates to tire workforce—management, lawyers, and for resolving conflict. Mindfulness tools that how relieving it is to have a shared language support staff—can be trained at the same promote positive neuroplasticity and buttress around stress and wellbeing, and a better un- time using the same curriculum. clearer thinking inspire the kind of creative derstanding of how to manage stress as a Finding a trainer who is not only an expert problem solving that makes our internal op- team. These anecdotal comments about the in mindfulness, but is also versed in law, can erations run smoothly. Creative problem solv- collateral social benefits of firm-wide mind- make the material more relevant and tailored ing also provides our clients with better op- fulness trainings support the task force’s rec- to your legal team, increasing the likelihood tions, and better options often lead to greater ommendation for law firms to “actively com- of follow-through. In my experience as a client satisfaction, and greater client satisfac- bat social isolation and encourage mindfulness-based resilience trainer, a one- tion may naturally lead to optimal business interconnectivity” as a way to support lawyer shot office-wide training is an effective way growth. wellbeing. to introduce basic mindfulness concepts and gauge interest and receptivity to integrating An Exercise to Build Positive Neuro- Take a Step mindfulness into the workplace. If your team plasticity through Mindfulness You can introduce mindfulness into your buys in, an ongoing course, such as one that Pay attention to how much time your firm’s culture or take your firm’s “mindfulness meets weekly for six to eight weeks—in per- team spends in meetings (or even in casual mentality” to the next level in many ways. son or virtually—and provides time for skill- conversation) focusing on what’s “going Whether you or your team members are new building and practice will most effectively wrong” or what needs to be fixed. Then no- to mindfulness or are already steeped in it, “aerate the water in your tank” and lay the tice how much time is spent praising what’s ask yourself, “What is the next best step for foundation for infusing a “mindfulness men- “going right.” While it is normal to focus on tality” into your firm culture. problems that need solving, you can con- CONTINUED ON PAGE 38

THE NORTH CAROLINA STATE BAR JOURNAL 27 LAWYER ASSISTANCE PROGRAM

Self-Care vs. Car Wrecks: A Compassion Fatigue Story

B Y A NONYMOUS

am smart. I really enjoy using my smarts to solve problems: logic problems,

crossword puzzles, strangers needing directions, my clients’ problems, my

friends’ problems, and my family’s problems. But, fixing problems has a

sinister side, just like any addiction, and one can develop compassion fatigue.

IThe best way to explain “compassion fatigue” comes from my therapist. During a session,

as I was throwing off my defensive statements to her regarding “not caring” or “it’s not my problem,” she openly scoffed that I enjoyed

fixing other’s problems the same way alcoholics drink beer. She observed that I would never be the person who just didn’t care. She is so

right. I like helping people. I like being smart and solving problems. I discovered, however, that the bad side of caring too much and about

the wrong things can lead to not caring at all about most everything.

My story starts sometime in 2014. On my and a much-needed break. chubby, middle-school days where I hated way to work, I started (at least once a week) I tried so many things to stop the thoughts the PE and would eat an entire pan of Rice contemplating driving my car off a seven-to- and get over being so tired all the time. I tried Krispy treats in a single sitting. eight foot cliff overlooking the railroads. At the vacations. I went to the beach, the mountains, Unfortunately, except for the hour or so that time, my family law practice was thriving, and Florida, and New York City. But I’d be I was participating in the exercise or event, it I doubt anyone could have known the feelings exhausted before I left on the trip and even really didn’t change any of my thoughts or and thoughts that I was having. The thoughts more exhausted upon my return, faced with my mentally exhausted state. increased in frequency, but each time I had catching up on the backlog. Not only didn’t Sleep was minimal during this time. I these thoughts, I always convinced myself not they fix my problem, vacations seemed to routinely woke up at 3 AM and couldn’t go to do it because I couldn’t guarantee that I exacerbate it. back to sleep because of thoughts racing wouldn’t kill myself or inflict life-long trauma, Diet and exercise helped somewhat. I was through my head. I stayed up late at night which would just cause more problems. I running a 5K a month and participating in rehearsing my statements for trial, arguments didn’t want to die. I just wanted a break from Crossfit and Spartan races. I was the most that would usually never even be spoken. I my life. However, each day I invested a little physically fit that I have ever been in my life considered going to the doctor, but I had more time in trying to plan how I could do it during this same time. No processed foods heard strange things about sleep meds like and manage to get a short stint in the hospital for me. This was wonderful compared to my Ambien. I didn’t want to murder someone in

28 WINTER 2018 my sleep or go parading around my an option for me, which was thoroughly for therapy with a psychologist. I hated the neighborhood in the nude, so I stayed on disappointing. Not to mention, my kid was thought of talking to a therapist, but it didn’t course with my preferred plan— back and court appearances were looming. matter, because I needed to talk to one. Just as contemplating my car wreck/hospital stay. This problem seemed to now be out of hand. many people with legal problems need an This went on for about a year, until I had I couldn’t just return to the way things were attorney but hate coming to and paying for had enough. I decided I would address my before, but did not know what to do one, I knew going to a therapist was the best problem, even though I had no idea what my differently. thing to do. I was sure a therapist would want problem actually was at that time. Unaware It was at my first follow-up appointment to talk it out and want me to say that I was of how much I was subverting my needs to with my doctor that my “problem” started depressed, and anxiety-ridden, and admit that everyone else’s, my life presented the perfect getting defined. My doctor said that I didn’t attorneys just have sucky lives. Well, she didn’t. opportunity for me to finally focus on myself. have a support system. Eureka! I KNEW IT! She told me about “Compassion Fatigue.” It’s My 11-year-old was going on a school trip for I finally had confirmation that I was like burnout, but it is from dealing with other almost a week with no access to a cell phone surrounding by hapless, greedy, needy people peoples’ problems For example, like where you or me. You see, I didn’t want to upset her or that constantly took and took and took from solve people’s problems for a living but also put inconvenience her, because I was responsible me. So it turns out they were all jerks after all! yourself in a position to have everyone come for driving her to school, helping her with Then he went on to say, “You have no support to you with their problems because you really homework, and generally making sure her life system because you don’t tell anybody what is like solving others’ problems, and they don’t was good. Plus, her not having a cell phone going on and instead just try and handle it all know to stop because you haven’t told them meant that if she had any problems, then she on your own.” to stop and now you’re ill because of it. She couldn’t call me to fix the problem. In Wait. explained that in her profession, compassion addition, I didn’t have court that week either. What? fatigue is common and they have workshops, My clients didn’t have pressing problems to But there it was. I was the jerk. I thought I conferences, and retreats to deal with fix! So, I dropped her off at school and was so smart. That I was above it all. That I compassion fatigue/vicarious trauma. watched her get on the bus. Now I could did not need community. You did. But not The first thing that she taught me was that finally focus on me and this problem, me. I was different and special. The realization I need to put myself first. If I am exhausted, I whatever it was. I was sure a trip to the doctor was gut wrenching. am of no use to my clients, my family, or would somehow fix it all. I was told I could resolve my issues by “just anyone. She spoke about the teapot needing My regular doctor couldn’t see me. I started sharing.” Ah, ok. Maybe “just sharing” is easy to be full in order to pour tea out for others. I to get frazzled and after casting about for ways for you. Not me. left therapy with homework. My homework to avoid doing so, I finally relented and told Here is where my anxiety started amping was to do three things over the weekend that my husband that I needed to go to the ER. At up. In order to be effective, my sharing had to would bring me joy. She could have asked me the ER all went smoothly until the doctor be regardless of how others responded to what to murder someone and it would have been asked me the standard question, “Are you I was sharing. And I needed to share it all, easier. I seriously couldn’t come up with suicidal?” Even though I knew the question especially the toes-curling-in-my-shoes stuff. I anything. I gave up golf years ago because I was coming, I hadn’t rehearsed or even discovered that I was really a people-pleasing, didn’t have four to five hours to be detached thought about what I’d say. However, the most low-self-esteem fraud. I faked life well. I from the world. This rationale is why I gave profound words came to me regarding my pretended to have it all together, but I was up most things that I enjoyed: I was too busy current state of mind and problem. I blurted constantly speaking unkindly to myself. I solving others’ problems or being there for out, “I don’t think so, but I don’t know what I created unrealistic expectations for myself and others to be there for myself. I completed her am going to do if I have to hear another was way too consumed by others’ perception homework, but not until stressing about it all f***king person’s problems.” With that of my life. Or what I imagined their weekend. I ended up with a nice bath, Rice statement I meant “person” to include every perception to be. In sharing, I started really Krispy treats, and moving furniture around in single living thing on this earth: family, friends, discovering what was going on in my head and my house. I stumbled on to the big secret to clients, political activist groups, donation my life and why I was always so tired. I was joy that weekend—it comes from the simplest seekers, Leonardo DiCaprio, random strangers exhausted because I was battling this inner of things. I am happy to say I can easily come asking for directions…EVERYONE! He jerk. As I shared this with my support people, up with three things to do everyday to bring responded with, “So possibly homicidal or I realized that I could change the script going myself joy. suicidal,” and laughed kindly. through my head. Noteworthy, my support Next, I learned how to prevent compassion I got through that day and was given a system was and still is a work in progress. fatigue with self-care. Honestly, I had no idea prescription for the normal stuff doctors hand Some people didn’t make the cut and I limited what that meant other than taking a bath and out for depression and anxiety. I scheduled their role in my life. I am working on me and getting my eyebrows done. Being an attorney some follow-up doctor appointments. It was I need truly supportive friends and allies to really put me in a good place to help myself a lackluster resolution. None of the help with that project. here. I started doing research and reading medications worked for me; they only The lone soldier approach doesn’t work. about self-care. After a few years of managing exacerbated my problems over the following Neither does working by yourself on problems this, I can say that my self-care seems to be week. I discovered I don’t synthesize those that you aren’t properly trained to fix. medications well, so they were not going to be Reluctantly, my next step was an appointment CONTINUED ON PAGE 37

THE NORTH CAROLINA STATE BAR JOURNAL 29 IOLTA UPDATE

Celebrating Pro Bono: Successful Collaboration Supports Employment through Social Enterprise

Pro Bono Week is an effort led by the Opportunities, a dynamic, innovative non- American Bar Association to recognize, profit based in Asheville, whose mission is to IOLTA Update recruit, and engage lawyers who positively train, support, and connect people from mar- contribute to the growing unmet legal needs ginalized communities to sustainable employ- • Income received from participating in their communities by providing pro bono ment pathways. Green Opportunities offers financial institutions that hold legal services. Every day, committed lawyers technical training, life skills training, indus- IOLTA accounts through August of provide free legal services to individuals and try-recognized credentials, and personalized 2018 has increased by 34% compared organizations that cannot afford an attorney. support services to unemployed and under- to 2017. In celebration of Pro Bono Week, held employed residents of Asheville and • Specifically, interest income received October 21-27, 2018, North Carolina Buncombe County. While their vision and in August of 2018 was 87% more Interest on Lawyers’ Trust Accounts (NC use of social enterprises, such as Southside than that received in August of 2017. IOLTA) recognizes the collaborations hap- Kitchen Catering and Southside Woodworks, • The IOLTA Board of Trustees will pening across our state that make pro bono has led to a sustainable business structure to review 2019 grant applications and possible. benefit their nonprofit work, it also involves award grants at the November grant- As the charitable arm of the North complicated legal issues including nonprofit, making meeting. Carolina State Bar, NC IOLTA administers business, and tax law. • During the October 15 meeting of grants to civil legal aid organizations and In creating their most recent social enter- the IOLTA Board of Trustees, two administration of justice initiatives prise, UpStaff Personnel, Green grants were approved for collaborative statewide. Since its creation in 1983, NC Opportunities reached out to Pisgah Legal projects to serve victims of Hurricane IOLTA has administered over $90 million Services for advanced legal assistance. With Florence. The two grant awards total dollars to organizations that provide civil the breadth of corporate legal expertise $226,600. legal assistance for low-income individuals required to meet their needs, Pisgah Legal who lack the ability to pay an attorney to Services’ staff attorney, Justin Edge, and resolve legal issues relating to their basic executive director, Jim Barrett, began reach- a given year, and offered trainings and other human needs. In 2016, with funds received ing out to current pro bono volunteers and resources to facilitate pro bono. by IOLTA through the Bank of America set- law firm partners. Sylvia and the NC Pro Bono Resource tlement, IOLTA made grants to fund com- Early in their IOLTA-funded communi- Center also frequently play the role of munity economic redevelopment legal serv- ty redevelopment project, Pisgah Legal matchmaker, pairing interested lawyers and ices projects. Each year, IOLTA also sup- Services’ attorneys had connected with law firms seeking to contribute their skills ports volunteer lawyer programs that engage Sylvia Novinsky, the director of the NC Pro together with legal services organizations and private attorneys as volunteers. Bono Resource Center, which was launched community groups in search of quality, com- With a 40-year track record of pursuing by the NC Equal Access to Justice mitted volunteers. justice by providing legal assistance and Commission in April 2016. The Pro Bono Through its broad network of pro bono advocacy to help low-income people in Resource Center was formed to assist attorneys, the Pro Bono Resource Center western North Carolina meet their basic lawyers in fulfilling their professional identified an eager pro bono team to work needs and improve their lives, Pisgah Legal responsibility under Rule of Professional with Green Opportunities: attorneys Ran Services received dedicated funding from Conduct 6.1 with the goal of ultimately Bell and Alyse Young of Womble Bond IOLTA to enhance their already successful increasing pro bono participation statewide. Dickinson (US) LLP. Ran Bell, of counsel at community redevelopment initiatives. As Since its inception, the Center has launched Womble Bond Dickinson, has worked with part of that project, Pisgah Legal Services a website (ncprobono.org) with a list of nonprofit organizations for 25 years, bring- supports the creation, expansion, and oper- searchable pro bono opportunities, collabo- ing detailed knowledge of formation, expan- ation of nonprofits engaged in community rated with numerous bar associations and sion, management, and dissolution of redevelopment work in their six-county legal services providers, worked with the NC 501(c)(3) charitable organizations and other service area. Supreme Court to recognize attorneys who One such community partner is Green report 50 hours of pro bono legal services in CONTINUED ON PAGE 33

30 WINTER 2018 THE NORTH CAROLINA STATE BAR JOURNAL 31 LEGAL SPECIALIZATION

Christon Halkiotis, Board Certified Specialist in State Criminal Law

B Y D ENISE E. MULLEN, ASSISTANT D IRECTOR FOR THE B OARD OF L EGAL S PECIALIZATION

recently had an opportunity to and I specifically chose to attend a state law excellent trial attorneys choose to work as talk to Christon Halkiotis, a school so that my financial indebtedness career prosecutors and career defenders. If board certified specialist in state would not prevent me from seeking employ- more of them were certified, it could go a criminal law practicing in High ment as an assistant district attorney. long way toward helping the general public Point. Christon, a native of Q: Why did you pursue board certification realize just how valuable these public ser- Chapel Hill, graduat- with the State Bar? vants truly are. ed from Rutgers University in Early on in my career, I set Q: Are there any hot topics in your special- 2000,I where she majored in polit- board certification as a personal ty area right now? ical science and minored in phi- goal for myself to know that I There are a number of hot topics in supe- losophy. She returned home and had attained a benchmarked rior court criminal litigation right now. One graduated cum laude with a JD level of professional expertise in in particular has come up multiple times for from the North Carolina Central my practice area. After ten years me over the past year. I am assigned all of the University School of Law in of practicing criminal law exclu- petitions for removal from the sex offender 2004. Christon’s favorite law sively, I decided it was time to registry in High Point, as well as the satellite- school activities were serving as apply to sit for the exam. The based monitoring reasonableness hearings. articles editor of the Law Review Halkiotis year I applied to take the exam After the United States Supreme Court rul- during her third year, as well as (2014) was the first year that the ing in Grady v. North Carolina, 135 S. Ct. interning in the Orange County District NC LEAF stipend to cover the application 1368 (2015), which held that North Attorney’s Office with then-DA (now Senior expense for public service lawyers was avail- Carolina’s satellite-based monitoring pro- Resident Superior Court Judge) Carl Fox able. I was thankful for that help. gram is a search under the Fourth and his wonderful assistants. She never went Q: How has certification been helpful to Amendment, and therefore must be reason- out for any mock trial activities in school, your career and to your work as an assistant able, we have seen multiple North Carolina since she was having way too much fun and district attorney? appellate court rulings in the last year learning so much trying real cases in Orange Certification allows me to bring credibil- regarding satellite-based monitoring and County District Court. Christon was hired ity to the table before people even meet me. how it may or may not be reasonable as by the Guilford County District Attorney’s Women are still underrepresented in superi- applied to variously situated defendants. Office shortly after passing the bar exam in or court criminal litigation, and I feel that Q: What do lawyers who don’t handle 2004. She has since prosecuted in district certification helps me be taken more serious- criminal cases need to know from a crimi- court in Greensboro and High Point, juve- ly. I prosecute a large number of child sex nal law specialist? nile court in High Point, and since 2007 she cases, felony domestic violence cases, and Any lawyer who doesn’t handle criminal has been assigned to prosecute felonies in homicides, and it is nice to be able to tell cases should never go to court and try to superior court in High Point. She became a victims in my most serious cases that I have handle a criminal case. There is simply too board certified specialist in state criminal attained a certification commensurate with much at stake for the defendant, even in law in 2014. Following are some of her com- that of some of the best defense attorneys. traffic cases. If you don’t know a good crim- ments about the specialization program and Q: How does your certification benefit the inal defense attorney to refer someone to, the impact it has had on her career. criminal justice process and the public? find a specialist on the list and make a refer- Q: What were your early indications Certification can inspire a great deal of ral that way. Whenever someone asks me for toward criminal law? confidence from the public. I believe that if a recommendation, and I don’t know any- I knew I wanted to be a lawyer from an more judges, assistant district attorneys, one in the field in that part of the state, the early age, but I cannot remember one specif- and assistant public defenders become cer- specialist list is always what I pass along to ic day where I decided that criminal law was tified, that can help increase public confi- them and suggest they pick someone who is what I wanted to practice, although it always dence in the court system and the criminal certified in that area. greatly interested me. By the time I finished justice process as a whole. We all benefit as Q: How do you stay current in your field? college, I knew I wanted to be a prosecutor, a society when ethical, experienced, and The additional CLE requirement for spe-

32 WINTER 2018 cialists certainly helps to ensure that I stay certification? current on the law in my field. In addition, I hope that eligible lawyers continue to I subscribe to and read the School of seek board certification, especially women, Government’s North Carolina Criminal Law minorities, and public service attorneys. blog religiously, as well as the case law There is no reason not to pursue certifica- update emails from the School of tion! As the six law schools in our state con- Government. The North Carolina Criminal tinue to graduate new classes of attorneys to Law blog was such a useful tool when I was populate our ranks, board certification is a studying for the specialization exam. great way to make sure that you stand out as Multiple essay questions had fact patterns someone who has reached the highest level that came straight out of real North of professional expertise in your practice Carolina criminal appellate cases, which the area. Even though a large amount of study- blog had addressed with specific case analy- ing is necessary, it will be beneficial since ses within the year leading up to the exam. you will review so much material in your Q: Do you work with any volunteer organ- practice area. The reviews I did of Chapters izations or other groups, related to work or 14, 15, 15A, 20, and 90 of the NC General outside of work, that you enjoy? Statutes during my exam preparation were I am currently serving as the 2018-2019 worth their weight in gold to me in my president of the Junior League of everyday practice. For public service lawyers, Greensboro. I also volunteer, along with my remember that the NC LEAF stipend is Pembroke Welsh Corgi, Orso, as a registered available to cover the application expense pet therapy team with the Greensboro chap- and apply for that early! n ter of Alliance of Therapy Dogs. Q: How do you see the future of specializa- For more information on how to become tion/board certification? What would you certified, visit our website at nclawspecialists. say to encourage other lawyers to pursue gov.

IOLTA Update (cont.) focused on their areas of expertise. Between Justin’s relationship and in-depth knowl- tax exempt entities. Alyse Young, associate edge of Green Opportunities, and Alyse and member of the firm’s Pro Bono and Ran’s extensive experience in corpo- Committee, focuses her practice on trans- rate, nonprofit, and social entrepreneurship actional and corporate matters, including issues, the team found a favorable business acquisitions, divestitures, mergers, corpo- structure that would not adversely affect rate reorganizations, and general corporate Green Opportunities’ non-profit tax- governance matters. exempt status and would still allow for the “The Pro Bono Resource Center is hon- social enterprise to provide a holistic ored to play a role in bringing together pri- approach to community and employment vate attorneys with unmet legal needs. This impact in Asheville. particular collaboration truly highlights the UpStaff Personnel is now a thriving importance and value of that collabora- social enterprise, which provides motivated tion,” says Sylvia. job seekers with a pathway to career-track With a pro bono team assembled, Pisgah employment, while offering Asheville-area Legal Services was able to expand resources employers a screened, dependable, and available to Green Opportunities. “Ran diverse workforce. and I enjoyed collaborating with Justin NC IOLTA is proud to help support the Edge and working with the Green legal aid community and remains thankful Opportunities and UpStaff Personnel team to attorneys around the state who fulfill to accomplish their goals,” says Alyse. their professional responsibility of provid- “Justin was an invaluable partner in the ing pro bono legal services to enhance the process, providing critical guidance and lives of those with the most need. knowledge regarding Green To learn more about how to get Opportunities.” involved with pro bono opportunities in Each partner of the collaboration North Carolina, visit ncprobono.org. n

THE NORTH CAROLINA STATE BAR JOURNAL 33 LEGAL ETHICS

Talking to the Judge (or Maybe Not)

B Y J UDGE M ICHAEL L. ROBINSON AND E LLEN M URPHY

n my two years and three party to a matter pending before a tribunal should not send your memo without months on the superior court that occurs (1) in the absence of an oppos- simultaneously copying the other side. bench, I have been unpleasantly ing party, (2) without notice to that party, surprised by the frequency with and (3) outside the record.” If each of these Situation No. 2: which practicing attorneys three factors is present, the communication Having decided you couldn’t properly attempt to engage in ex parte is considered ex parte. send your memo, you attend the hearing, communications with the court. And even The policy behind the prohibition is during which opposing counsel argues facts whereI the communications aren’t techni- straightforward: “[a]ll litigants and lawyers and law that you believe are inaccurate. You cally ex parte, I despair that attorneys fail to should have access to tribunals on an equal didn’t think to say so at the time, but fol- grasp the rules regarding informal commu- basis.” Comment [8] to Rule 3.5. When a lowing the hearing, you decide it would aid nications with presiding judges. lawyer communicates with a presiding the court in making its decision if you sent As a result, I teamed with Wake Forest judge about a pending1 matter, it “might a letter to the judge. The purposes of the University Law Professor Ellen Murphy to, have the effect or give the appearance of letter are to point out opposing counsel’s hopefully, shed some practical light on the granting undue advantage to one party” misrepresentations and to provide deposi- rules as they relate to this subject. over another. Id. (Emphasis added.) tion testimony and case law illustrating the Comment [8] to Rule 3.5 provides true state of the facts and the relevant legal Situation No. 1: additional guidance: precedents. May you do so? It’s the week before a motion hearing in A lawyer should not communicate state superior court that will have impor- with a tribunal by a writing unless a Informal Communications with the tant consequences to your civil case. Based copy thereof is promptly delivered to Court on your previous experience with the opposing counsel or to the adverse Often, counsel for all sides of a litigated judge, you believe providing a memoran- party if unrepresented. matter agree that communication with the dum of law would both help the judge Neither the Rule nor its comments presiding judge is necessary, or at a mini- more efficiently understand the issue and define “promptly.” However, simultaneous mum advisable. Additionally, when a judge improve your chances of success. You have delivery (if not delivery to opposing coun- has a disputed motion under advisement, dutifully researched the law and have pre- sel in advance of delivery to a judge) is one or more parties may want to bring pared the brief. You would like to email a optimal. In any event, and on a “worst information to the court’s attention copy of the relevant motion and your case” basis, opposing counsel and parties because counsel believes there are things memo to the judge with a request that, to should receive the communication with the judge should know before ruling. This the extent the judge’s busy schedule per- sufficient time to respond. is often accomplished by a letter delivered mits, he/she review the materials prior to Lawyers are not alone in their duty to to the judge’s chambers or, more frequently the hearing. May you do so? avoid ex parte communications. The Code today, by email. of Judicial Conduct provides guidance to Some judges worry about the potential Ex Parte Communications are judges as well. Canon 3 A.(4) states that onslaught of “informal” communications Prohibited Except in (Very) Limited “[a] judge should accord to every person by email or letter outside of formal pro- Circumstances who is legally interested in a ceedings in the case, and the inability of North Carolina Rule 3.5(a), revised in proceeding...full right to be heard accord- opposing parties to adequately respond. April 2018, prohibits ex parte communica- ing to law, and, except as authorized by law, Some of these same jurists believe that tions about a matter with the presiding neither knowingly initiate nor knowingly informal communications about a disputed judge or official. While the Rule seems consider ex parte or other communications issue are improper. They are not without clear on its face, in our experience, the gen- concerning a pending proceeding.” support for their position. eral prohibition against ex parte communi- Most simply, with respect to ex parte First, Rule 7 of the North Carolina cations with a presiding judge is poorly communications, the prohibition is pretty Rules of Civil Procedure sets forth that understood and frequently disregarded. straightforward—lawyers shouldn’t do it only certain pleadings and motions are per- Rule 3.5(d) defines ex parte communica- and judges shouldn’t allow it. Therefore, mitted to be filed in a civil proceeding. tion as “a communication on behalf of a with reference to Situation No. 1, you Second, 98 Formal Ethics Opinion 13,

34 WINTER 2018 Written Communications with a Judge or seeking permission to file a discovery court in appropriate circumstances. Judicial Official, prohibits informal com- motion. Opposing counsel is provided an munications with the court except in limit- opportunity to respond, again expressly by A Final Note—Reconsideration of 98 ed circumstances. utilizing email. Each of these communica- FEO 13 This formal ethics opinion provides that tions must be simultaneously copied to all The North Carolina State Bar Council “to avoid the appearance of improper influ- counsel of record and unrepresented par- is considering the continuing advisability ence upon a tribunal, informal written ties. of 98 FEO 13 following the revision of communication with a judge or other judi- Absent a local rule permitting informal Rule 3.5 of the Rules of Professional cial office should be limited to”: communication with the court, the only Conduct. If you have thoughts about the 1) Communications permitted by law way for a lawyer to communicate with the ethics opinion and how it might be or the rules or written procedures of the judge off the record is: (1) at the court’s improved, you are encouraged to reach out tribunal; direction, (2) with consent of all other to the State Bar or to your local State Bar 2) Written communications…prepared counsel, or (3) as a result of and relating to councilor. n pursuant to the court's instructions; an emergency. 3) Written communications relative to As a practical matter, an attorney who Michael L. Robinson, a special superior emergencies, changed circumstances, or has a good relationship with opposing court judge for complex business cases, is for- scheduling matters….; and counsel likely can get consent to submit- mer chair of the Ethics Committee of the 4) Written communications sent to the ting supplemental information following a North Carolina State Bar. Professor Ellen tribunal with the consent of the oppos- hearing. If this is not possible, and there is Murphy is assistant dean of instructional ing lawyer or opposing party if unrepre- not a true emergency necessitating the technologies and design at Wake Forest sented. communications, the attorney must University Law School and teaches profession- With respect to exception number 1, attempt to obtain court authorization. al responsibility. some courts have enacted “local” rules of How does a lawyer get the court’s per- the court to permit informal communica- mission to send an informal communica- Endnotes tions about disputed matters.2 tion? There are several potential ways. First, 1. A matter is “pending” before a particular tribunal In many case management orders consider asking for permission during the when that tribunal has been selected to determine entered in the business court, words similar hearing. If you think there may be merit to the matter or when it is reasonably foreseeable that the tribunal will be so selected. Rule 3.5(d)(2). to the following are included: supplemental briefing, give the court (and 2. In the North Carolina Business Court where I The court will actively monitor the opposing counsel) notice during your argu- work, for example, communication by email is not progress of the case through the case ment and ask whether the court would like only an indispensable part of the court’s operation, management procedures set forth in the and permit supplemental briefing. Most use of email as a mode of communication by parties with the court is expressly incorporated into, and in BCR and this Order. To do so efficiently, judges I know want badly to make a correct at least one instance mandated by, the Business the court and the parties may utilize the decision on the law and the facts, and Court Rules (“BCR”). BCR 10.9(b)(1) provides: medium of email for some matters where a therefore welcome supplemental briefing. “Before a party files a motion related to discovery, formal motion or other filing may not be Second, most judicial districts have local the party must initiate a telephone conference among counsel and the presiding business court efficient, including, for example, schedul- procedural rules about calendaring of judge about the dispute. To initiate this conference, ing and BCR 10.9(b) disputes. Any such motions and trial, and more technical/pro- a party must email a summary of the dispute to the email communication remains subject cedural issues. Consider contacting the judicial assistant and law clerk for the presiding to Rule 3.5 of the North Carolina Rules leaders of your local bar and the senior res- business court judge and to opposing counsel....Any other party may submit a response to the summa- of Professional Conduct and BCR 6.4, ident judge of your judicial district seeking ry...and must be emailed to the judicial assistant which requires all such communications an amendment of these local rules to per- and opposing counsel....” to be copied to all counsel of record and mit informal communications with the all unrepresented parties. Unless responding to a court inquiry, the court anticipates that the parties will endeav- or, wherever possible, to communicate 2019 Meeting Schedule with the court by email only after prior notice to each other, and the communi- Below are the 2019 dates of the quarterly State Bar Council meetings. cating party shall, where appropriate, reflect in their communication with the January 15-18 NC State Bar Headquarters, Raleigh court the position of all other parties concerning the matter at issue. April 23-26 NC State Bar Headquarters, Raleigh (Emphasis added.) July 16-17 Chetola Resort, Blowing Rock Pursuant to Business Court Rule 10.9, a October 22-25 NC State Bar Headquarters, Raleigh party may not file a motion to compel dis- (Election of officers on October 24, 2019, at 11:45 am) covery without first emailing the court, describing the dispute in question, and

THE NORTH CAROLINA STATE BAR JOURNAL 35 TRUST ACCOUNTING

Dollars and Sense—Making the Case for Three-Way Reconciliation and Quarterly Transaction Review

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

The failure to perform three-way recon- who regularly perform it in accord with the Professional Conduct shows that lawyers rec- ciliation of the general trust account is one of requirements of the Rules of Professional ognize that we receive many things in trust: the more common violations found during Conduct. Interestingly, of the attorneys information, funds, and non-monetary prop- the random audit process. It seems this ethi- whose trust accounts were audited this past erty. Rule 1.15 and its subparts communicate cal duty is dreaded even by those lawyers quarter more failed to perform quarterly ran- that when lawyers receive funds in trust, we dom transaction reviews than failed to per- will be vigilant in our maintenance and safe- form three-way trust account reconciliation, guarding of such funds. As a self-regulating suggesting that there may be a level of dread profession, recognition of this fact is impor- building around the quarterly transaction tant to maintaining the public trust and to Escrow Consulting review process as well. As a trial lawyer, I have maintaining integrity as a profession. Thus, & Accounting, LLC found that I am most effective when I am the ethical duty to perform the requisite rec- Protecting Your Trust Accounts passionate about the cause. Here, I make the onciliations and reviews is good for the pub- case for both the three-way reconciliation lic because it conveys to the public that when and the quarterly random transaction review. we receive their funds in trust, we do not take AArere YYourour TTrustrust AccountsAccounts in This case is easy for me to make because I the grant of this trust lightly. Also, this rule is AAccordanceccordance with Rule 1.15? believe in these processes and the value they good for the profession as a constant Protecting your business byby...y.... bring. Performing these procedures yields reminder of the significance of such trust. good results for the public, the profession, 2. Practice Makes Proficient and ࠮*VUMPYTPUN4VU[OS`HUK8\HY[LYS` and clients. Also, dutiful and regular three- Efficient – Good for Clients 9LJVUJPSPH[PVUZ4LL[5*)HY9\SLZ way reconciliation of the general trust Another reason to regularly perform ࠮=HSPKH[PUN*SPLU[;Y\Z[3LKNLYZ(YL account and quarterly random transaction three-way trust account reconciliation and -\SS`-\UKLK review of all trust and fiduciary accounts is quarterly random transaction reviews is that, good for lawyers. like most things in life, the more you do it the ࠮,UZ\YPUN;Y\Z[(JJV\U[Z(YLPU 1. Ethical Duty – Good for the Public more effortless it becomes. For a busy lawyer, *VTWSPHUJLHUK4HRPUN5LJLZZHY`   3LKNLY*VYYLJ[PVUZ and the Profession sitting down quarterly (or more often) to Rule of Professional Conduct 1.15- review and analyze trust account records and ࠮:LY]PJLZ]HY`MYVTHVUL[PTLYL]PL^3(d)(1) requires lawyers to reconcile quarterly the data needed to perform the required rec- VMJSPLU[WYLWHYLKYLWVY[Z[V,*(   the balance of the general trust account as onciliations and reviews can seem onerous YLJVUJPSPUN[OL[Y\Z[HJJV\U[ZVUH   shown on the following records: the general and tedious. While as trust account compli- TVU[OS`IHZPZ ledger, total of individual client/subsidiary ance counsel I do not maintain a trust ledgers with a positive balance, and the bank account that requires me to perform reconcil- statement (adjusted after accounting for out- iations and random transaction reviews, I standing checks and outstanding deposits). review a LOT of both for the trust accounts Rule 1.15-3(i) requires lawyers to review of others, so I understand very well the time quarterly the statement of costs and receipts, and effort required to carry out this charge. I client ledger, and canceled checks for a ran- discovered that with more frequent perform- dom sample of transactions in the trust ance of these tasks, I became more adept at Dawn Cash-Salau account (minimum of three), to verify that the process. Also, through discussions with the disbursements were properly made and lawyers who regularly (monthly as opposed 252.531.4241 that no transactions were payable to cash. to quarterly) perform the required reconcilia- TrustComplianceNC.com The Rules of Professional Conduct affirm for tions and reviews, I found that they also lawyers and declare to the public how seri- report increased efficiency, and thus, an Over 20 years of professional accounting experience ously we take our professional responsibili- improvement in the level of ease required to ties. A thoughtful reading of the Rules of complete these exercises. Improved efficiency

36 WINTER 2018 in the processes designed to help safeguard does not receive payment because a scammer three-way reconciliation and quarterly ran- entrusted funds is good for clients because it was successful in getting the lawyer to dis- dom transaction reviews can support peace of ensures that their funds remain protected. burse the funds to the thief and not the true mind, at least as it relates to trust account Additionally, a collateral benefit to the client owner. However, in other cases, the fraud is management, thereby moving lawyers one of an efficient trust account manager is more passive and ongoing in the form of step closer to that seemingly impossible aim. increased time and energy to focus on the spoofed trust account checks for small I can think of many reasons why peace of substance of the representation. amounts that can go undetected unless the mind is a good thing for lawyers, but I can- 3. Peace of Mind – Good for Lawyers lawyer regularly performs the prescribed rec- not conceive of even one reason why it is not. There are risks associated with maintain- onciliations and reviews. There you have it. The case is closed; my ing one or more trust accounts, and those Another source of anxiety for lawyers is argument is finished. I hope I have persuaded risks can be a source of anxiety for lawyers. the random audit. Anyone who has ever been you, even if you dread the tasks, that regular Those risks include employee embezzlement the subject of a random audit knows the three-way reconciliation of the general trust and fraud. History has shown that trusted angst that typically accompanies the news account and quarterly random transaction staff upon whom lawyers rely to help manage that you will be audited. While nothing can review of all trust and fiduciary accounts are and maintain entrusted funds may instead entirely alleviate this stress, knowing that the good things worthy of the routine commit- help themselves to money in the trust trust account is properly maintained and ment of your time and attention. Such a account. In many instances, this embezzle- holds the funds you are required to keep in commitment is our ethical duty, and regular ment could have been detected if the lawyer trust for your clients can certainly help mini- completion of these acts can increase profi- had regularly performed three-way reconcili- mize any anxiety. I have a friend who is fond ciency and efficiency in the execution of these ation of the trust account and quarterly ran- of saying, “If your house is clean, you don’t tasks. Also, regular (at least quarterly) three- dom transaction reviews in accordance with mind company.” This is true of reconciliation way reconciliation of the general trust the applicable rules. The same is true regard- and review as pertains to a random audit— account and quarterly random transaction ing the discovery of fraud. Increasingly, when routinely performed, three-way recon- review of all trust and fiduciary accounts can lawyers’ trust accounts have been targeted by ciliation and quarterly random transaction help foster lawyer peace of mind. Promotion external actors perpetrating fraud. In some review make the prospect of a random audit of lawyer peace of mind is good for you, good cases, the fraud is promptly discovered when less of a concern. For lawyers, peace of mind for the public, good for the profession, and a rightful recipient of a large sum of money can be that elusive holy grail. Performing good for your clients. n

LAP (cont.) anymore. I don’t email with my clients on the may be suffering from compassion fatigue. I weekend, and they know upfront to never am now a LAP volunteer and have shared this balancing the joys of a 12- year old with the expect a response from me on the weekend. story at CLE events. It has been cathartic for obligations of a 40+ year old. Sleep is first and My clients need to be more invested in their me. So many lawyers have told me they relate foremost. I discovered that if I want good case than I am, and they also need to have to my story. It is not so hard sharing now. Not sleep, then I need a schedule for sleep, much good self-care. I have advised lots of clients to hard at all. like my morning schedule to get ready for my seek therapy because I recognize their mental If you think my story sounds even remotely waking hours. No matter how good of a health issues or poor self-care. It makes so close to what you are going through, please parent, attorney, caregiver, or friend that I can much sense because poor self-care can lead to look at the LAP website under “compassion be, if I have eight to ten hours of sleep then I numerous marital issues, thereby leading them fatigue” for some wonderful info and advice can be 500 times better. Second, I deserve just to my office. Being more present to my needs and call LAP. Hindsight being 20/20, if I had as much love and kindness as everyone else. I has put me in a good place to give my clients looked at that website earlier, then I could have buy myself flowers. I skip work on Friday really good advice for their lives and inevitably prevented about a year of my suffering and afternoons to watch Star Wars and Marvel their cases. started on the road to recovery sooner. n movies. I really try to connect with the things I still really enjoy fixing other’s problems, that I enjoy. I have found that meditation and but I really enjoy working on my own, too. The North Carolina Lawyer Assistance mindfulness greatly help me connect to For years I have heard the remarks about Program is a confidential program of assistance finding those things that bring me joy and attorneys fixing others’ problems and for all North Carolina lawyers, judges, and law understanding the things that impede my joy. neglecting their own. While that may be true, students, which helps address problems of stress, Lastly, practicing meditation and mindfulness I also believe that attorneys have a very good depression, alcoholism, addiction, or other helps me let go of a lot of useless thoughts skill set for solving problems, even when those problems that may impair a lawyer’s ability to and worry. problems are their own. As I look back I have practice. If you would like more information, go My new self-care regimen also meant a big enjoyed my learning experience and am so to nclap.org or call: Cathy Killian (western areas change at work. I needed to set up and grateful for where I am today. I still want to of the state) at 704-910-2310, or Nicole maintain good boundaries with clients. I don’t solve others’ problems, especially in the form Ellington (for eastern areas of the state) at 919- give my cell phone number to clients of sharing my experience to help peers who 719-9267.

THE NORTH CAROLINA STATE BAR JOURNAL 37 PROPOSED OPINIONS

Council Rejects Proposed Ethics Opinion on Accessing Social Network Presence of Represented or Unrepresented Persons

Council Actions increase the lawyer’s ranking on internet At its meeting on October 25, 2018, the search engines. Ethics Committee voted to send Proposed Public Information 2018 Formal Ethics Opinion 5, Accessing Ethics Committee Actions Social Network Presence of Represented or At its meeting on October 25, 2018, the The Ethics Committee’s meetings are Unrepresented Persons, to the State Bar Ethics Committee sent Proposed 2018 public, and materials submitted for con- Council for adoption. However, at its Formal Ethics Opinion 8, Advertising sideration are generally NOT held in meeting on October 26, 2018, the council Membership in Marketing Company with confidence. Persons submitting requests voted not to adopt Proposed 2018 Formal Misleading Title, back to subcommittee for for advice are cautioned that inquiries Ethics Opinion 5. The inquiry will be further study based upon comments should not disclose client confidences or reconsidered by the Ethics Committee at received about the proposed opinion dur- sensitive information that is not neces- its next regularly scheduled meeting in ing the prior quarter. The committee also sary to the resolution of the ethical ques- January 2019. Additionally, at its October received reports from two subcommittees tions presented. 26 meeting, the State Bar Council adopted created to study inquiries concerning ex the ethics opinion summarized below: parte communications and concerning 2018 Formal Ethics Opinion 7 Bitcoin and other cryptocurrency. Lastly, Online Review Solicitation Service the committee received three new one concerning intimate relationships Opinion explains that, subject to certain inquiries: one concerning ERISA plans, between opposing counsel. All three conditions, a lawyer may participate in an one concerning a lawyer’s ability to act as inquiries were sent to subcommittee for online service for soliciting client reviews an intermediary between amicable but further study. n that collects and posts positive reviews to opposing parties in a domestic dispute, and

Pathways to Wellbeing (cont.) using mindfulness, join Laura for these up- August 2018, by the American Bar Association. coming offerings: Reproduced with permission. All rights reserved. my team?” Not every school of fish is ready 12/14/18: “Cultivating Collegiality with This information or any portion thereof may to change the water in the tank all at once— Mindful Connections,” NCBA Promoting not be copied or disseminated in any form or by some may do better filtering in new ideas a Civility and Sanity in Your Practice, Cary any means or stored in an electronic database little bit at a time. If that is the case, you may (co-sponsored by NCLAP, gateway.ncbar.org/ or retrieval system without the express written try handing this or another mindfulness ar- store/seminar/seminar.php?seminar=130890) consent of the American Bar Association or the ticle out to your team and having a discussion 12/14/18: “Mindfulness and Neuro- copyright holder. about it. On the other hand, if your firm is science for Building Resilience to Stress,” Mc- Laura Mahr is a NC lawyer and the ready to take up the mindfulness mantle, get Dowell Co. Judicial District CLE, Marion founder of Conscious Legal Minds LLC, pro- ready to swim in a whole new ocean of pro- (co-sponsored by NCLAP) viding mindfulness-based coaching, training, ductivity and possibility. 1/10; 1/17; 1/24; 1/31: “Mindfulness for and consulting for attorneys and law offices Lawyers: Building Resilience to Stress Using nationwide. Her work is informed by 11 years * * * * * Mindfulness, Meditation, and Neuroscience” of practice as a civil sexual assault attorney (four week online CLE course, consciousle- and 25 years as a student and teacher of mind- If you would like to connect with other galminds.com/register) n fulness and yoga, and a love of neuroscience. lawyers who are interested in lawyer wellbeing Find out more about Laura’s work at con- and learn how to raise your resilience to stress ©2018. Published in Law Practice Today, sciouslegalminds.com.

38 WINTER 2018 RULE AMENDMENTS

Amendments Approved by the Supreme Court

At a conference on September 20, 2018, “technology training” and mandate that one the North Carolina Supreme Court approved of the 12 hours of approved CLE required the following amendments to the rules of annually must be devoted to technology the North Carolina State Bar: training. Highlights • NC Supreme Court approves rule Amendments to the Rules on Amendments to the Rules amendments mandating that one of Election, Succession, and Duties of Governing the Administration of the the 12 hours of approved CLE re- Officers Continuing Legal Education quired annually must be devoted to 27 N.C.A.C. 1A, Section .0400, Organ- Program technology training. ization of the North Carolina State Bar 27 N.C.A.C. 1D, Section .1500, Rules • Supreme Court also approves emer- Replacing a less comprehensive rule, a Governing the Administration of the Con- gency rule amendment to allow new rule specifies what occurs when any of tinuing Legal Education Program lawyers licensed in another state to the State Bar’s officers become temporarily Amendments to Rule .1522 specify that provide pro bono services to victims unable to perform the duties of office. members may file their annual report forms of Hurricane Florence for a temporary online and, in lieu of mailing the forms, al- period. Amendments to the State Bar low the State Bar to email a notice to mem- • No new rule amendments proposed Council’s Rulemaking Procedures bers advising them that forms are posted to this quarter. 27 N.C.A.C. 1A, Section .1400, Rule- the members’ online records. making Procedures Amendments to Rule .1401 allow pro- Amendments to the Certification posed amendments to be published for com- Standards for the Elder Law .0600, Moral Character and General Fitness; ment in a digital version of the Journal, the Specialty and Section .1200, Board Hearings State Bar’s official publication. Amendments 27 N.C.A.C. 1D, Section .2900, Certi- Amendments to the rules of the Board of to Rule .1403 specify when a proposed rule fication Standards for the Elder Law Spe- Law Examiners provide a time period within amendment or proposed rule takes effect. cialty which a general applicant is required to suc- The amendments clarify what constitutes cessfully complete the state-specific compo- Amendments to the Requirements elder law CLE for the purpose of satisfying nent of the Uniform Bar Examination and for Reinstatement from Inactive the CLE standards for certification and for require transfer applicants as well as general Status and Administrative continued certification. applicants to appear before bar candidate Suspension committees. 27 N.C.A.C. 1D, Section .0900, Proce- Amendments to Rules for the

Paralegal Certification Program NORTH CAROLINA dures for Administrative Committee STATE BAR The 2018 Lawyer’s H The amendments require a lawyer peti- 27 N.C.A.C. 1G, Section .0100, The andbook tioning for reinstatement to complete the Plan for Certification of Paralegals Preorder mandatory CLE hours for the year in which Amendments to The Plan for Certifica- the lawyer went inactive or was administra- tion of Paralegals allow an additional one- the 2019

Administrative Rules ...... 2­1 Co Index ntinuing Leg to Ethics Op tively suspended if inactive or suspended sta- year term for service as the chair of the certi- al Education inions . . . (CLE) ...... 10­28 . . . .5­22 Gen. Stat. Chapter 84 ...... 5 Discipline and Disabil ity ...... 3­1 1­1 Fee IOLTA Q&A ...... Dispute Re solution ...... 11­1 . . . . .5­9 Rules of Professional Conduct ...... IOLTA ...... tus was ordered on or after July 1. fication committee and establish a vice-chair ...... Lawyer’s ...... 5­16 9­1 R Legal Spe ules Index cialization ...... 5­32 ...... 9­81 Members hip ...... 2­1 Paralega The North Carolina State Bar Lawyer’s l Certificati position for the committee. Other amend- on ...... Handbook 2018 (Abridged) ...... 7­1 Professional Organizatio An official ns ...... publication ...... 6­1 contain of the No . ing the mo rth Carolina Ethics Opinions ...... No st frequen State Bar rth Carolina tly referenc State Bar, ed rules of Conduct, a annotated R the 10­1 ll ethics opi ules of Prof Supers nions adopt essional Amendments to the Annual CLE eded (1985 ed under th ) e Rules, and Rules and ments eliminate the rights of an applicant to trust accoun t Handbook guidelines. Requirements review a failed examination and to request a 27 N.C.A.C. 1D, Section .1500, Rules review by the board of a failed examination. You can order a hard copy by Governing the Administration of the Con- submitting an order form (found on tinuing Legal Education Program; and Sec- Amendments to the Rules the State Bar’s website at tion .1600, Regulations Governing the Ad- Governing the Admission to the bit.ly/2SGJaGU) by March 22, 2019. ministration of the Continuing Legal Practice of Law in North Carolina The digital version will still be available Education Program NC Board of Law Examiners, Section for download and is free of charge. The amendments provide a definition of .0500, Requirements for Applicants; Section

THE NORTH CAROLINA STATE BAR JOURNAL 39 Emergency Rule Amendment Approved by the Supreme Court

27 N.C.A.C. Chapter ID, Section .0900, other state but not North Carolina who de- good standing with the entity that Procedures for Administrative Committee sires to provide legal services free of charge governs the practice of law in each ju- At a conference on October 2, 2018, the to indigent persons may file a petition with risdiction where the lawyer is licensed North Carolina Supreme Court approved an the secretary addressed to the council setting to practice law; amendment to Rule .0905 in 27 N.C. Admin. forth: (iv) a statement that the lawyer’s li- Code Chapter 1D. This rule permits a lawyer (1) The petitioner's name and address; cense to practice law has not been re- who is licensed in another state to provide … voked or suspended in any jurisdiction pro bono representation to indigent persons (h) Emergency Rule Permitting Tem- in which the lawyer has ever been li- under the supervision of a North Carolina porary Pro Bono Practice by Lawyers not censed to practice law; lawyer employed by a nonprofit corporation Licensed in North Carolina. A lawyer li- (v) a statement that the lawyer agrees qualified to render legal series pursuant to censed to practice in another state but not to abide by the North Carolina Rules N.C. Gen. Stat. §84-5.1. Under the existing in North Carolina who desires to provide of Professional Conduct and submits rule, the lawyer’s petition to act in this capacity legal services free of charge to indigent vic- to the disciplinary jurisdiction of the is approved by the State Bar Council at a tims of Hurricane Florence under the su- courts of North Carolina and of the quarterly meeting of the council. The next pervision of a member employed by a non- North Carolina State Bar in regard to quarterly meeting of the council was not profit corporation qualified to render legal any acts or omissions of the lawyer re- scheduled until more than a month after Hur- services pursuant to G.S. 84-5.1 may do lated to the practice of law in North ricane Florence’s devastation of many North so notwithstanding paragraphs (a) through Carolina; Carolina counties. In light of the dire need (g) of this rule under the following condi- (vi) a statement that the lawyer will for lawyers to assist with legal problems arising tions: only engage in the limited pro bono from the hurricane, the State Bar submitted (1) The lawyer's practice of law in practice of law authorized by this an emergency petition to the Supreme Court North Carolina under Rule .0905(h) is emergency rule; and asking the Court to approve an amendment limited to pro bono assistance of indi- (vii) a certification that all information to Rule .0905 to permit lawyers licensed in gent victims of Hurricane Florence and contained on the form is true and other states, but not in North Carolina, to must be rendered under the supervision complete. temporarily register with the State Bar and of a member employed by a nonprofit (3) Permission to practice law in North begin immediately providing pro bono legal corporation qualified to render legal Carolina under Rule .0905(h) termi- services to indigent residents of North Car- services pursuant to G.S. 84-5.1. nates on January 16, 2019. A lawyer olina who are victims of Hurricane Florence. (2) The lawyer must file with the North practicing law under Rule .0905(h) who Due to the need for haste, the proposed rule Carolina State Bar the Registration for desires to continue to provide pro bono amendment was not published for comment Temporary Pro Bono Practice of North services after January 16, 2019 must prior to adoption. Permission to practice law Carolina Law form containing: submit a petition to the State Bar Coun- in North Carolina under registration proce- (i) the lawyer’s mailing address, tele- cil pursuant to paragraphs (a) through dure authorized by the rule amendment ter- phone number, and email address; (g) of this rule on or before January 4, minates on January 16, 2019. (ii) identification of all jurisdictions 2019 in order for the petition to be con- in which the lawyer is licensed to prac- sidered by the Administrative Commit- Rule .0905 Pro Bono Practice by Out of tice law, dates of licensure and license tee of the State Bar at the January meet- State Lawyers number(s); ing of the State Bar Council. (a) A lawyer licensed to practice in an- (iii) a statement that the lawyer is in

Amendments Pending Approval by the Supreme Court

At its meeting on October 26, 2018, the transmission to the North Carolina Supreme Fall 2018 edition of the Journal or visit the council of the North Carolina State Bar voted Court for approval. (For the complete text State Bar website: www.ncbar.gov.) to adopt the following rule amendments for of the proposed rule amendments, see the

40 WINTER 2018 Proposed Amendments to the Rules mands of the Grievance Committee for in- Law Specialty; Section .2200, Certification on Discipline and Disability of formation or evidence relating to a grievance Standards for the Bankruptcy Law Specialty; Attorneys investigation. Section .2300, Certification Standards for 27 N.C.A.C. 1B, Section .0100, Disci- the Estate Planning and Probate Law Spe- pline and Disability of Attorneys Proposed Amendments to the cialty; Section .2400, Certification Standards Proposed amendments to Rule .0113 es- Minimum Standards for Continued for the Family Law Specialty; Section .2500, tablish a procedure for imposition of cen- Certification of Specialists and to Certification Standards for the Criminal sures that is consistent with the procedures the Recertification Standards for All Law Specialty; Section .2600, Certification for imposition of reprimands and admoni- Specialties Standards for the Immigration Law Spe- tions. Proposed new Rule .0135 establishes 27 N.C.A.C. 1D, Section .1700, The cialty; Section .2700, Certification Standards a procedure to suspend the license of a li- Plan for Legal Specialization; Section .2100, for the Workers’ Compensation Law Spe- censee who is not in compliance with de- Certification Standards for the Real Property cialty; Section .2800, Certification Standards for the Social Security Disability Law Spe- cialty; Section .2900, Certification Standards for the Elder Law Specialty; Section .3000, In Memoriam Certification Standards for the Appellate Practice Specialty; Section .3100, Certifica- Thomas Johnson Ashcraft William Frank Maready tion Standards for the Trademark Law Spe- Charlotte, NC Winston-Salem, NC cialty; Section .3200, Certification Standards Martin Douglass Bellis Rhonda Register Moorefield for the Utilities Law Specialty; and Section Washington, DC Asheville, NC .3300, Certification Standards for the Pri- vacy and Information Security Law Spe- Freda Bowman Black John August Mraz cialty Durham, NC Asheville, NC The proposed amendments reduce the John Maclachlan Boxley Frederick Clay Ernest Murray number of peer references required for re- Raleigh, NC Reidsville, NC certification as a specialist from ten to six for all specialties. Joseph Edmiston Bruner Charles Johnson Nooe Randleman, NC Eden, NC Proposed Amendments to the Rules Frederick A. Burke Laura S. Pocock of Professional Conduct Raleigh, NC Rutherfordton, NC 27 NCAC 2, Rule 1.15, Safekeeping Property; Rule 3.5, Impartiality and Deco- Stephen Gray Calaway William Edward Poe Jr. rum of the Tribunal; and Rule 5.4, Profes- Winston-Salem, NC Charlotte, NC sional Independence of Lawyer Deborah Alice Casey Diane Martin Pomper The proposed amendments to the official Boone, NC Raleigh, NC comment to Rule 1.15 explain the due dili- Leroy R. Castle Michael B. Pross gence required if a lawyer uses an interme- Durham, NC Salisbury, NC diary (such as a bank, credit card processor, or litigation funding entity) to collect a fee. James Joseph Coman Larry Truman Reida The proposed amendments to Rule 3.5 cor- Raleigh, NC Waynesville, NC rect a typographical error included in an Stacy Clyde Eggers Jr. Richard Von Biberstein Jr. amendment to the Rules of Professional Boone, NC Burgaw, NC Conduct approved by the North Carolina Supreme Court on April 5, 2018. They also William Harrell Everett Jr. Christopher Allen White revise the official comment to specify that Goldsboro, NC Charlotte, NC gifts or loans to judges are only prohibited James E. Floors Samuel Cramer Whitt Jr. if made under circumstances that might give Smithfield, NC Houston, TX the appearance that the gift or loan was made to influence official action. The pro- Joseph Duane Gilliam James Thomas Williams Jr. posed amendments to Rule 5.4 add an ex- Fayetteville, NC Greensboro, NC ception to the prohibition on fee sharing James Taylor Hedrick Albert Lee Willis with a nonlawyer which would allow a Durham, NC Durham, NC lawyer to pay a portion of a legal fee to cer- tain third parties if the amount paid is for Scarlett VanStory Levinson Robert A. Yancey administrative or marketing services and Raleigh, NC Marion, NC there is no interference with the lawyer’s in- dependent professional judgment. n

THE NORTH CAROLINA STATE BAR JOURNAL 41 BAR UPDATES

State Bar Swears In New Officers

Authorized Practice Committee, and as vice-chair of the Grievance Committee. Willoughby has been extensively involved in the community. He has served on the Board of Governors of Summit House, Inc., as director of Artspace, Inc., as a member of the Raleigh Rotary Club, on the Triangle YMCA Board of Directors, and on the Board of Directors for Wilson Willoughby Christy Mine NCLEAF. He also is an active member of White Memorial Presbyterian Church, Wilson Installed as President Willoughby Sworn In as President- where he serves as an Elder. Winston-Salem attorney G. Gray Wilson Elect has been sworn in as president of the North Raleigh attorney C. Colon Willoughby Christy Sworn In as Vice-President Carolina State Bar. He was sworn in by has been sworn in as president-elect of the Greensboro attorney Barbara R. Christy North Carolina Supreme Court Chief North Carolina State Bar. He was sworn in has been sworn in as vice-president of the Justice Mark Martin at the State Bar’s by North Carolina Supreme Court Chief North Carolina State Bar. She was sworn in Annual Dinner on Thursday, October 25, Justice Mark Martin at the State Bar’s by North Carolina Supreme Court Chief 2018. Annual Dinner on Thursday, October 25, Justice Mark Martin at the State Bar’s Wilson is a cum laude graduate of 2018. Annual Dinner on Thursday, October 25, Davidson College, and earned his law degree Willoughby earned an undergraduate 2018. from Duke University School of Law. He degree in business administration from the Christy earned her BS magna cum laude was admitted to the practice of law in North University of North Carolina at Chapel from Appalachian State University, and her Carolina in 1976. He is a currently a partner Hill, and an MBA from East Carolina JD from the University of North Carolina with the Winston-Salem office Nelson University. In 1979 he graduated from School of Law. Mullins Riley & Scarborough. Campbell University’s Norman Adrian A member of Schell Bray, her practice Wilson’s professional activities include Wiggins School of Law. focuses on commercial real estate transac- being a fellow in the American College of Willoughby is a partner with the tions. Trial Lawyers. He also served the North Raleigh firm McGuireWoods, where he Christy’s professional activities include Carolina Bar Association on its Board of focuses his practice on government, regula- volunteering with Legal Aid of North Governors, and was president from 2004- tion, and criminal investigations. Prior to Carolina’s Lawyer on the Line initiative. 2005. Since 2006 he has served on the joining McGuireWoods, he worked as a She is also a North Carolina State Bar Board of Directors of Lawyers Mutual mortgage banker, as a member of the facul- board certified specialist in real property Liability Insurance Company, and has been ty at Peace College, as a private practition- law—business, commercial, and industrial chair of the board since 2015. er, and served as the elected district attor- transactions, a fellow with the American Wilson was a North Carolina State Bar ney in Wake County for 27 years. College of Real Estate Lawyers, and a councilor from 2007-2015, during which His other professional activities have member of the Piedmont Triad time he was vice-chair of the Grievance included serving as president of the Wake Commercial Real Estate Women. Committee, and chair of the Board of County Academy of Trial Lawyers, director Additionally, Christy is involved with her Paralegal Certification and Publications of the Wake County Bar Association, pres- community, serving on the Board of Committee. ident of North Carolina Conference of Directors for Southern Alamance Family In addition to his numerous professional District Attorneys, and a member of the Empowerment, Inc., and is a past member activities, Wilson is also involved with his Board of Directors of the National District of the UNC Law Foundation, Inc. Board community, serving his church as a deacon, Attorney’s Association. of Directors. and working with the Old Hickory Council Willoughby served as a State Bar coun- As a Bar councilor, Christy has served as of the Boy Scouts of America. cilor from 1998-2006, and was elected vice-chair of the Authorized Practice again in 2014. During his time as a coun- cilor he has served as chair of the CONTINUED ON PAGE 43

42 WINTER 2018 BAR UPDATES

Fifty-Year Lawyers Honored

As is traditional, members of the North Carolina State Bar who are celebrating the 50th anniversary of their admission to practice were hon- ored during the State Bar’s Annual Meeting at the 50-Year Lawyers Luncheon. One of the honorees, Larry S. McDevitt, addressed the attendees, and each honoree was presented a certificate by the president of the State Bar, John Silverstein, in recognition of his or her service. After the ceremonies were concluded, the honorees in attendance sat for the photograph below. n

First row (left to right): John E. Gehring, David Grier Martin Jr., Milton Bays Shoaf Jr., William S. Hoyle, Mahlon W. Deloatch Jr., Edwin W. Welch, Wesley D. Corle, Robert J. Bernhardt, Gerald H. Davidson Jr., Meyressa Hughes Schoonmaker, Richard S. Towers, James L. Graham, F. Nelson Blount-Crisp, Burnace M. Hancock Jr., Robert D. Douglas III, Richard L. Voorhees, Howard E. Manning Jr. Second row (left to right): Marvin E. Taylor Jr., J. Thomas Dunn Jr., Stephen E. Culbreth, W. Hugh Thompson, William P. Pope, Robert G. Ray, James N. Duggins Jr., Algernon L. Butler Jr., John N. Fountain, George M. Cleland III, Steve C. Horowitz, Richard E. Jonas, Ronald Vance Shearin, Pender R. McElroy, Eugene Woods Purdom, James H. Kelly Jr. Third row (left to right): Douglas R. Gill, O. Tracy Parks III, David B. Sentelle, George V. Hanna III, Robert Phillips Gruber, W. Louis Bissette Jr., Charles R. Young Sr., William P. Harris, Kenneth Allen Moser, H. Dockery Teele Jr., William E. Clark, Thomas E. Archie, Larry S. McDevitt, Samuel G. Thompson

New Officers (cont.) executive director of the North Carolina Bar’s assistant executive director in 1993. State Bar, has been installed as the agency’s Since that time, she has served as senior Committee, Grievance Committee, and secretary/treasurer, succeeding L. Thomas ethics counsel and as director of the Boards Legislative Committee, and as chair of the Lunsford, II, who had held the post since of Legal Specialization, Continuing Legal Ethics Committee. 1992. Ms. Mine was sworn in by North Education, and Paralegal Certification. Christy and her family live on a small Carolina Supreme Court Justice Mark Mar- A nationally recognized expert on the farm in the Snow Camp community where tin at the State Bar’s Annual Dinner on subject of professional ethics, Ms. Mine they raise beef cattle, honey bees, and fruit Thursday, October 25, 2018. also taught professional responsibility as an trees. She is a member of Saxapahaw Ms. Mine is a summa cum laude gradu- adjunct professor at the Duke University United Methodist Church where she has ate of North Carolina State University. She Law School for many years, and served on been the long-time church pianist. earned her law degree from the University the American Bar Association’s Standing of North Carolina at Chapel Hill and was Committees on Legal Specialization and Mine Sworn In as Secretary/ admitted to practice in 1985. Professional Discipline. She also served on Treasurer After eight years of private practice in the Board of Directors of the UNC School Alice Neece Mine, long-time assistant Durham, she accepted a position as the State of Law’s Alumni Association. n

THE NORTH CAROLINA STATE BAR JOURNAL 43 Resolution of Appreciation for John M. Silverstein

WHEREAS, John M. Silverstein was elected by his fellow lawyers from Judicial District 10 in 2007 to serve as their representative in this body. Thereafter, he was elected for three successive three-year terms as councilor; and

WHEREAS, in October 2015, Mr. Silverstein was elected vice-president, and in October 2016, he was elected president- elect. On October 26, 2017, he was sworn in as president of the North Carolina State Bar; and

WHEREAS, during his service to the North Carolina State Bar, Mr. Silverstein has served on the following committees: Ad Hoc Trust Accounting; Administrative; Appointments; Attorney/Client Assistance; Authorized Practice; Executive; Facilities; Finance and Audit; Grievance; Issues; Issues Outreach Subcommittee; Issues Special Committee to Review AP Advisory Opinion 2002-1; Legislative; Program Evaluation; Program Evaluation Trust Account Subcommittee; and Special Committee to Study Ethics 20/20 Resolution; and

WHEREAS, having pledged to continue the important work of his predecessor in regard to the State Bar’s engagement with the legal community and the general public, President Silverstein never declined an opportunity to personally explain and promote the important work of the State Bar and the effectiveness of self-regulation. He was, in this undertaking, tireless and ubiquitous, appearing throughout the state and throughout the year in person, in print, in PowerPoint, and in podcast, never failing to enlighten and inspire; and

WHEREAS, President Silverstein’s energy and attention were inwardly directed as well. Recognizing that ten years had elapsed since the last comprehensive evaluation of the State Bar’s disciplinary program had been undertaken, he commissioned a special committee to review the organization and performance of this most important of the State Bar’s regulatory endeavors. The painstaking review confirmed the disciplinary program’s effectiveness and efficiency while suggesting a few modest changes to rules, policies, and procedures to enhance the fairness and credibility of the undertaking; and

WHEREAS, during his year as president, Mr. Silverstein initiated several other special projects that individually and collectively strengthened and invigorated the State Bar’s regulatory program. In particular, President Silverstein commissioned special committees to review the American Bar Association’s new Model Rules on Advertising, as well as the State Bar’s own rules concerning the practical training of law students and the operation of the attorney/client assistance program. All of these initiatives were calculated to validate the premise that self-regulation is credible and justifiable only when leavened by critical introspection; and

WHEREAS, President Silverstein has with a sure and steady hand guided the State Bar through a transition in administrative leadership, the likes of which the agency had not experienced in a generation. By facilitating Alice Mine’s succession of Tom Lunsford as executive director, Mr. Silverstein ensured that the policies of the council will continue to be executed with competence, fidelity, and imagination, and perpetuated an administrative culture that is stable and humane; and

WHEREAS, John Silverstein, by virtue of his own surpassing humanity and grace, has personified the North Carolina State Bar. In so doing, he has elevated our spirits and our sense of purpose. All of us, and the agency he served, are better for having been led by John Silverstein.

NOW, THEREFORE, BE IT RESOLVED that the council of the North Carolina State Bar does hereby publicly and with deep appreciation acknowledge the strong, effective, and unselfish leadership of John M. Silverstein, and expresses to him its debt for his personal service and dedication to the principles of integrity, trust, honesty, and fidelity.

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

44 WINTER 2018 BAR UPDATES

Client Security Fund Reimburses Victims

At its October 25, 2018, meeting, the of Kenneth Holmes of Statesville. The board Reconsideration of a Denied North Carolina State Bar Client Security determined that Holmes was retained by a Christopher Greene Claim Fund Board of Trustees approved payments client to handle his accident claim. Holmes At its July meeting the board considered of $13,479 to eight applicants who suffered settled the matter and received the settle- a $680 claim made by a former client of financial losses due to the misconduct of ment. Holmes retained some of the settle- Christopher Greene of Charlotte, who had North Carolina lawyers. As set out below, ment funds to pay a Medicaid lien; however, retained Greene to obtain a work permit for another $58,440 was paid to 58 additional he never paid any funds to Medicaid. Due the client. Greene provided no meaningful applicants between the July and October to misappropriation, Holmes’ trust account legal services to the client for the fee paid. meetings for a total of $71,919 paid this balance is insufficient to pay all client obli- The claim was denied due to the client’s quarter. gations. This award will be subject to the failure to provide proof of payment of the The payments authorized were: Medicaid lien. fee to Greene. The claim was reconsidered 1. An award of $600 to a former client 6. An award of $455 to a former client of online shortly after the July meeting after of Robert A. Bell of Fayetteville. The board Christi Misocky of Fort Mill, South Carolina. the trustee of Greene’s practice provided the determined that Bell was retained to handle The board determined that Misocky handled receipt. Greene was disbarred on February a client’s custody matter regarding his step- a client’s real estate closing. Misocky was sup- 11, 2017. The board previously reimbursed grandson. Bell failed to provide any mean- posed to purchase a home warranty for the 12 other Greene clients a total of $32,625. ingful legal services for the fee paid. Bell client from the closing proceeds. Misocky was transferred to disability inactive status never paid the premium. Due to misappro- Additional Charles R. Gurley Claims on April 10, 2015. The board previously re- priation, Misocky’s trust account balance is At the July meeting, the board considered imbursed six other Bell clients a total of insufficient to pay all client obligations. ten of the 78 claims then pending against $12,375. 7. An award of $5,000 to former clients Charles R. Gurley from Goldsboro. The 2. An award of $1,000 to a former client of Christi Misocky. The board determined board established criteria for its counsel to of Charles R. Gurley of Goldsboro. The that Misocky was retained by a couple to use in evaluating the remaining claims and board determined that Gurley was retained handle the adoption of their niece. Upon authorized counsel to pay, with the chair’s to represent a client on DWI charges. Gurley receipt of the entire fee from the couple, approval, all claims that met the board’s cri- failed to provide any meaningful legal serv- Misocky closed her office and cut off all teria for payment. Pursuant to the board’s ices for the client for the fee paid prior to communication with the couple and the criteria and authorization, counsel paid 57 being jailed, and then suspended from the clerk’s office. Misocky failed to provide the additional Charles R. Gurley claims totaling practice of law, by a superior court judge clients with any meaningful legal services $57,760 between the July and October due to his failing to provide the State Bar for the fee paid. meetings. n with records of his handling of clients’ funds. Gurley was enjoined from practicing law on November 22, 2017. The board previously reimbursed nine other Gurley clients a total of $4,375. Speakers Bureau Available 3. An award of $200 to a former client of Charles Gurley. The board determined that Gurley was retained to represent a client Speakers on topics relative to the North Carolina State Bar’s regulatory mission are on a DWLR charge. Gurley failed to provide available at no charge for presentations in North Carolina to lawyers and to members the client with any meaningful legal services of the public. Topics include the State Bar’s role in the regulation of the legal profession; for the fee paid prior to his suspension. the State Bar’s disciplinary process; how the State Bar provides ethical guidance to 4. An award of $524 to a former client lawyers; the Lawyer Assistance Program of the State Bar; the Client Security Fund; of Charles Gurley. The board determined IOLTA: Advancing Justice for more than 20 Years; LegalZoom, and updating concepts that Gurley was retained to represent a client of the practice of law; and anti-trust questions for the regulation of the practice of law on criminal charges. Gurley failed to provide in North Carolina. Requests for speakers on other relevant topics are welcomed. For the client with any meaningful legal services more information, call or email Lanice Heidbrink at 919-828-4630 or for the fee paid prior to his suspension. [email protected]. 5. An award of $5,700 to a former client

THE NORTH CAROLINA STATE BAR JOURNAL 45 BAR UPDATES

Law School Briefs

joins the Duke Law faculty in November as of Law marked an institutional milestone in Campbell University School of Law the Archibald C. and Frances Fulk Rufty October when, for the first time since the Campbell Law welcomes second-largest research professor of law, associate dean of school opened in 2006, the US Court of class—The 188 first-year law students enter- information services and technology, and Appeals for the Fourth Circuit heard oral ing the 2018 academic year at Campbell director of the J. Michael Goodson Law arguments inside Elon Law’s Robert E. Law School represent a significant mile- Library at Duke Law School. She comes to Long Courtroom. The three judges who stone—the 10th new class of 1L students Duke from Cornell Law School, where she will rule on the cases also used their visit as since the school moved from Buies Creek to was the Edward Cornell law librarian, associ- an opportunity to share with Elon Law stu- its Raleigh campus just steps from the ate dean for library services, and professor of dents their reflections on what the judiciary Capitol. In addition to being the school’s the practice. She previously served in various and the service attorneys provide in faithful- second-largest, the Class of 2021 comes roles in the law libraries at Yale Law School, ly representing clients. The Hon. Roger L. from 64 undergraduate institutions with 45 George Mason University School of Law, Gregory, the Hon. Diana Gribbon Motz, majors and includes eight Campbell FLEX and the University of Oklahoma School of and the Hon. Albert Diaz and their law students, two transfers, and one Patent Law. She currently serves as president of the clerks later gathered for a private lunch with Certificate student. American Association of Law Libraries, and select students who have expressed interest Campbell Law students partner with Neota in July she was named to the “Fastcase 50” in judicial clerkships following graduation. Logic on criminal records expunction app— list of entrepreneurs and innovators in law NC attorney general to deliver Elon Law Campbell Law students partnered with and legal technology for her efforts to pro- Commencement address—North Carolina Neota Logic to develop an app specifically mote open access to legal scholarship and Attorney General Josh Stein will deliver for the Blanchard Community Law Clinic to information. Elon Law’s commencement address for the aid in the recent increase in criminal record In The Positive Second Amendment: Rights, second class to graduate from an innovative expunction requests—more evidence the law Regulation, and the Future of Heller 2.5-year legal education program that school is blazing trails in legal technology. In (Cambridge University Press, 2018), emphasizes experiential learning and practi- December 2017 North Carolina implement- Professors Joseph Blocher and Darrell Miller cal training. Commencement takes place ed drastic changes in its expunction law, to offer the first comprehensive account of the Saturday, December 15, at 11 AM inside include reducing the misdemeanor convic- history, theory, and law of the right to keep Elon University’s Alumni Gym. tions wait period; the felony convictions wait and bear arms in the aftermath of District of Elon Law alumna named law school’s period; and eliminating a limit on the num- Columbia v. Heller. assistant dean for development—Barbara ber of dismissals that can be expunged. This With The Death Penalty: Concepts and Cini has been named Elon Law’s assistant change has resulted in a significant increase Insights (Foundation Press, 2018), Professor dean for development following a national in the number of residents seeking help Brandon Garrett and co-author Lee search. In her new role at the law school, through the clinic and other providers, Kovarsky offer readers an overview of the law Cini—a 2011 graduate of Elon Law—will explained Ashley Campbell, director of the and practice of the death penalty in the develop and execute a comprehensive devel- law school’s Blanchard Community Law United States, as well as the fierce social and opment program that includes major gifts, Clinic. The new application is the brainchild political debate around it. corporation and foundation relations, of Adjunct Professor Tom Brooke ’80, who In When Lawyers Screw Up: Improving donor relations, and alumni engagement. teaches “Coding for Lawyers” and saw the Access to Justice for Legal Malpractice Victims Cini will work with Elon University and opportunity to marry technology and this (University Press of Kansas, 2018) Professor Elon Law leaders in establishing fundraising growing legal need with the help of some cre- Neil Vidmar and co-author Herbert Kritzer priorities, assist in the management of the ative law students. Brooke and his students report on their comprehensive empirical Elon Law Board of Advisors, manage the used Neota Logic, a software development study of lawyers’ professional liability. One Elon Law Alumni Council, and oversee tool set for automating expertise, to create key finding: Some clients fail to obtain annual giving, directed through the Elon the app, the first version of which was used redress for their attorneys’ mistakes or negli- University Office of Annual Giving. on October 13 when expunction clinics were gence, even when they have suffered signifi- held throughout the state. cant harm. North Carolina Central School of Law Duke Law School Elon University School of Law The Square One Project, a newly Femi Cadmus, a leader in the field of law Elon Law hosts US Court of Appeals for launched three-year initiative to rethink jus- librarianship and legal information access, the Fourth Circuit—Elon University School tice policies hosted the Reimagine Justice

46 WINTER 2018 Roundtable at North Carolina Central exceeded the overall state passage rate of and the National Moot Court University School of Law October 11-13. 72.5% for first time test takers by over Competition in consecutive years. The Future of Justice Policy panel examined 14%. The law school’s Research, Faculty jumped 20 spots since 2013 to No. the history of racial and economic inequality, Reasoning, Writing, and Advocacy 44 in Brian Leiter's ranking of scholarly and implications for justice policy and prac- (RRWA) program, now in its eighth year, impact—Among Wake Forest Law’s top tice. The event was co-hosted by the North ranks number 12 in legal writing by US cited tenured faculty, three professors were Carolina Central University Juvenile Justice News & World Report’s 2019 edition of placed in the top 20 of their areas of spe- Institute, NCCU School of Law Virtual “America’s Best Graduate Schools.” cialty, including Mark Hall at No. 2 for Justice Project, and the Justice Lab at Earn CLE credit at festival and more— Health Law, Ronald Wright at No. 12 for Columbia University. Upcoming CLE programs in Chapel Hill Criminal Law and Procedure, and Sidney The opening panel was led by Jeremy include the Festival of Legal Learning, Shapiro at No. 17 for Public Law. Top cited Travis, who is the co-founder of Square One February 8-9; The ABCs of Banking Law, tenured faculty include Professors Jonathan Project; the executive vice president of crim- March 20; the Banking Institute, March Cardi, Michael Curtis, Margaret Taylor, inal justice, Laura and John Arnold 21-22. Visit law.unc.edu/cle. Mike Green, Gregory Parks, John Knox, Foundation; and president emeritus, John Health law student group receives grant to Alan Palmiter, Kami Chavis, and Margaret Jay College of Criminal Justice. The panel’s increase low-income access to medical Taylor. topic was: The Racial History of Criminal resources—The North Carolina Society of Wake Forest School of Law students place Justice in America. The panelist included Health Care Attorneys awarded the first in multiple writing competitions— Heather Ann Thompson, author; and Carolina Health Law Organization a Hailey Cleek (JD/MA Bioethics ’19) won Cedric J. Robinson, professor of History $1,500 grant to create a resource for low- the 2018 American Society for Bioethics and African American Studies, University of income individuals seeking pro bono and and Humanities (ASBH) Student Writing Michigan. An evening reception was held at reduced-fee legal and consumer services Competition for her paper, “The Price of Durham’s Beyù Cafè where an award was related to health care. Rights: Centering Class in Contraception presented to Cameron R. Wiley, winner of Carolina Law welcomes new faculty mem- Access.” Katherine Wenner (JD ’19) placed the Square One Student Paper bers—Leigh Osofsky teaches Income first in the New York State Bar Association Competition. Taxation, Partnership Tax, and Tax Law Committee on Animals Law Student The roundtable closed with a discussion Research & Writing; Elizabeth Sherowski Writing Competition for her paper, led by Bruce Western, co-founder, Square teaches Research, Reasoning, Writing, and “Pulling Wool Over Our Eyes: How One Project; co-director, Justice Lab; and Advocacy I and II; Sheldon Holliday Inconsistent and Misleading Voluntary professor of Sociology, Columbia University. Welton teaches Energy Law: Resources & Animal Welfare Food Labels are Failing North Carolina Central University Electricity and Environmental Law; and Consumers and Animals.” School of Law collected 98 books to donate John Wesley Brooker ’03 is director of the Professors Ronald Wright, Kami Chavis, to the North Carolina Bar Foundation’s Veterans Legal Assistance Project in the and Gregory Parks released “The Jury Lawyers for Literacy program’s 2018 summer clinical program. Sunshine Project”—The project is a collec- book drive. Senior Director Kim Bart Professor Eric L. Muller receives Professor tion of statistics from felony trial jury selec- Mulkin praised the law school’s efforts: Keith Aoki Asian Pacific American tion across North Carolina’s 100 counties, “Thank you to NCCU Law School and Jurisprudence Award—The award, estab- which is publicly available to journalists everyone who participated in the book drive. lished by the Conference of Asian Pacific and scholars. n The books that you donated will be shared American Law Faculty (CAPALF), is made with elementary school students across the annually to an individual who has written state who benefit from the Lawyers for or advocated on behalf of Asian Pacific Literacy reading program.” American rights, or explored Asian Pacific Professor Irving Joyner was a guest pan- American identity, history, or rights elist on WRAL’s “On the Record” on through law, art, music, or in other forms. Thank You to Our September 1. He discussed the six proposed amendments to the NC Constitution Wake Forest School of Law Annual Meeting Sponsors which were voted on in the November 2018 Trial teams ranked No. 1 for their collec- elections. tive team performances since 2016—Wake Forest Law also placed among the top three Lawyers Mutual Liability University of North Carolina School law schools in the country for its 2017- Insurance Company of Law 2018 trial team competition performances. Carolina Law ranks No. 1 among North The Wake Forest National Trial Team won Nelson Mullins Riley & Scarborough, LLP Carolina law schools for first time bar tak- their first-ever National Trial Team ers—Eighty-six percent of the 106 Carolina Championship in 2018, making Wake Engineering Systems, Law graduates who took the North Forest the only US law school to win the Incorporated Carolina bar exam for the first time in July national TYLA competition, the national 2018 passed. Carolina Law’s passage rate AAJ Student Trial Advocacy Competition,

THE NORTH CAROLINA STATE BAR JOURNAL 47 BAR UPDATES

Annual Reports of State Bar Boards

Board of Continuing Legal Education ment will be effective in 2019. North specific field so that the public can more Submitted by Arnita M. Dula, Chair Carolina is one of only two states that now closely match its needs with available services; Lawyers continue to meet and exceed requires technology training. and second, to improve the competency of their mandatory continuing legal education The board also studied whether to elimi- the Bar. 27 N.C. Admin. Code 1D.1701. I requirements. By mid-March 2018, the CLE nate the six hour on-demand cap on CLE am proud to report that, under the guidance department processed and filed over 27,455 programs. Education is the primary purpose of the Board of Legal Specialization, and with annual report forms for the 2017 compliance of CLE and lawyers should have more oppor- the tireless efforts of the specialty committees year. I am pleased to report that 99% of the tunities to satisfy their requirements. It is and staff, our program is stronger than ever active members of the North Carolina State anticipated that a proposed amendment will and continually achieving the very purpose Bar complied with the mandatory CLE be submitted to the council in January 2019. for which the State Bar Council created the requirements for 2017. The report forms Earlier this year the Supreme Court program in 1985. On top of that, our pro- show that North Carolina lawyers took a approved amendments to the rules governing gram is entirely self-sufficient. total of 375,928 hours of CLE in 2017, or the CLE program to replace the term With the addition of 47 new specialists 15 CLE hours on average per active member “accredited sponsor” with the term “regis- last November, there are now 1,040 certified of the State Bar. This is three hours above the tered sponsor.” This change will avoid mis- legal specialists in North Carolina. The State mandated 12 CLE hours per year. leading consumers of CLE as to the extent to Bar’s specialization program certifies lawyers The CLE program operates on a sound which such sponsors are vetted by the board. in 13 specialties. This spring we received 118 financial footing and has done so almost The amendments also reconcile the require- applications from lawyers seeking certifica- from its inception over 30 years ago. Funds ments for designation as a registered sponsor tion. Of the 2018 applicants, 106 met the raised from attendee and noncompliance fees with current practice. substantial involvement, CLE, and peer not only support the administration of the Regrettably, my and Christina Goshaw review standards for certification and were CLE program, but also support three pro- Hinkle’s terms have come to an end. We will approved to sit for the specialty exams. This grams that are fundamental to the adminis- miss serving on the board. will be one of the largest groups of examinees tration of justice and the promotion of the The board wishes to thank Alice Mine for since the creation of the program. professional conduct of lawyers in North her leadership with the CLE program over To assist lawyers interested in becoming Carolina. The program’s total 2017 contri- the last 25 years. Her knowledge, expertise, certified specialists but who are not yet quali- bution to the operation of the Lawyers and guidance have been invaluable to the fied, this year we successfully created and Assistance Program (LAP) was $250,610.26. board. We wish her only the best as she steps implemented a new process allowing lawyers To date in 2018, the board has also collected into the role of executive director of the Bar. to fill out a Declaration of Intent form. This and distributed $298,123 to support the The board strives to ensure that the con- form allows our staff to track, communicate work of the Equal Access to Justice tinuing legal education requirements mean- with, and assist interested lawyers regarding Commission and $298,362.55 to support ingfully advance the competency of North the lawyer’s eligibility under the applicable the work of the Chief Justice’s Commission Carolina lawyers. We welcome any recom- certification standards. We also started a law on Professionalism. In addition, the CLE mendations or suggestions that councilors school outreach program that included visits program generated $74,529.21 to cover the may have in this regard. On behalf of the to the law schools and presentation of an State Bar’s costs for administering the CLE- other members of the board, I thank you for informational poster that the law school staff generated funds for the LAP and the two the opportunity to contribute to the protec- can post in their career services office. commissions. tion of the public by overseeing the manda- In April 2018 the Board of Legal This year the board proposed an amend- tory continuing legal education program of Specialization held its annual luncheon to ment to the annual CLE requirements to the State Bar. honor both long-time and newly-certified require that one hour of the 12 mandatory specialists at the North Hills Renaissance in CLE hours per year be devoted to technolo- Board of Legal Specialization Raleigh. At the lunch, the specialists who were gy education. Technology is rapidly changing Submitted by Robert A. Mason, Chair certified in November 2017 were recognized and is having an ever-increasing impact on North Carolina’s Legal Specialization pro- and presented with specialization lapel pins. the practice of law. To maintain competence, gram exists for two reasons: First, to assist in The board also recognized 33 specialists who it is critical that lawyers understand technol- the delivery of legal services to the public by were originally certified in 1993 and who ogy. The Supreme Court approved the identifying lawyers who have demonstrated have maintained their certifications for the amendment last month, and the require- special knowledge, skill, and proficiency in a past 25 years. Additionally, we had the honor

48 WINTER 2018 of presenting the board’s three Service and for all of our testing needs. Examsoft is a with the tireless efforts of various volunteers Excellence Awards named in honor of past secure, cloud-based software that is used by and staff, our program is thriving and contin- chairs of the board. The Howard L. Gum many law schools and on most bar exams. ually achieving the very purpose for which the Excellence in Committee Service Award was The program’s significant capabilities help State Bar Council created the program in given to Robert C. Kemp III, a criminal law streamline all aspects of the testing process, 2004. Importantly, our program is entirely specialist from Greenville, for his dedication, from writing and storing exam questions to self-sufficient. service, and leadership as chair of the grading and analyzing exams. Thirteen years after the first application Criminal Law Specialty Committee. The Completing the process begun in 2017, for paralegal certification was accepted by the James E. Cross Leadership Award was pre- we are excited to offer the first privacy and board on July 1, 2005, there are today 4,039 sented to Leonard T. Jernigan Jr., who is a information security law specialty exams in North Carolina State Bar certified paralegals. workers’ compensation law specialist in October 2018. Privacy and information secu- This year, 147 paralegals were eligible for the Raleigh, for his long history as an esteemed rity law is an ever-growing field and is increas- April 2018 exam; of that number, 107 passed CLE presenter and author, as well as for his ingly in demand amongst the public. Eight the exam. We recently administered our widely recognized knowledge and dedication lawyers were appointed to the initial Privacy October 2018 exam, for which 203 paralegals to the field. The Sara H. Davis Excellence and Information Law Specialty Committee. were eligible. We anticipate designating well Award was presented to Rose M. Stout, a cer- These lawyers volunteered their time to estab- over 100 new certified paralegals after the tified specialist in family law from Raleigh, for lish the standards for certification and draft results of the October exam are released in serving as an exceptional role model for other the exam. The committee is chaired by November. lawyers and exemplifying excellence in her Matthew Cordell, who has practiced in the Also, in 2018 the board considered 3,489 daily law practice. field of privacy and information security law recertification applications. To maintain certi- I am also happy to report the Jeri L. since 2007. Matthew and the other specialty fication, a certified paralegal must complete Whitfield Legal Specialty Certification committee members bring a wealth of knowl- six hours of continuing paralegal education Scholarship Fund established to provide edge about this area of law to our program. (CPE) credits annually, including one hour of scholarships for specialization application fees Also in this year’s specialization news, the ethics. I am pleased to report that certified for prosecutors, public defenders, and non- State Bar Journal featured interviews with the paralegals have continued to improve their profit public interest lawyers who wish to members of the Privacy and Information competency by taking over 20,000 hours of become certified specialists has been very suc- Security Law Specialty Committee; with CPE in the last 12 months. cessful in 2018. The fund is administered by Leslie Carter Rawls, an appellate practice spe- The board held its annual retreat in April the North Carolina Legal Education cialist practicing in Charlotte; and with at the State Bar building in Raleigh. Among Assistance Foundation (NC LEAF). We Delores Todd, a public member of the special- the various agenda items were two important received several donations during the special- ization board. Regrettably, Ms. Todd rotated requests submitted by certified paralegals. ists’ luncheon in April, and several specialists off the board this year. We are thankful for the First, we received a request to create and pro- made donations when paying their annual council’s addition of our new public member, vide to certified paralegals a laminated mem- specialization fees. The fund balance at the Patricia Head of Raleigh. Lastly, with the pro- bership card, similar to attorney bar cards, to beginning of 2018 was $655; we have motion of Alice Mine to executive director of allow certified paralegals to identify them- received an additional $1,385 for the scholar- the North Carolina State Bar, we welcomed selves as such to courthouse and other govern- ship fund thus far in 2018. All contributions Brian Oten as the new director for the Board mental officials. Second, in recognition of the are tax deductible and can be made through of Legal Specialization in July 2018. sometimes significant distress experienced by NC LEAF. As a result of this scholarship On behalf of the board, I want to express paralegals, we received a request to offer men- fund, I am pleased to report that seven public my sincere appreciation to the members of tal health services to certified paralegals simi- interest applicants received scholarships this the council for your continuing support of lar to the Lawyer’s Assistance Program (LAP). year, thereby offering these lawyers the oppor- the Legal Specialization program. The board continues to debate these requests, tunity to not only attain certified status, but both in terms of logistics and contribution to also instill trust and confidence in the legal Board of Paralegal Certification the legal profession. services received by the clients they serve. Submitted by Robert C. Bowers, Chair Our exams continue to be a strong and Our exams continue to be a strong and North Carolina’s Paralegal Certification objective measure of proficiency for paralegals objective measure of proficiency for the vari- program exists for two reasons: First, to assist in this state, and we are ever-striving to ous specialties, and we are ever-striving to in the delivery of legal services to the public by improve both the content of the exams and improve both the content of the exams and identifying individuals who are qualified by the testing experience. In 2018 we continued the testing experience. In 2018 we continued education and training and have demonstrat- to work with Dr. Devdass Sunnassee of to work with Dr. Devdass Sunnassee of ed knowledge, skill, and proficiency to per- UNC-Greensboro. Dr. Sunnassee and his UNC-Greensboro. Dr. Sunnassee and his form substantive legal work under the direc- graduate students provided valuable psycho- graduate students provided valuable psycho- tion and supervision of a licensed lawyer; and metric analysis for our certification exam to metric analysis for each of our specialty exams second, to improve the competency of those ensure our exam remains valid and reliable. to ensure they remain valid and reliable. We individuals. 27 N.C. Admin. Code 1G.0101. We also continue to utilize ExamSoft, a also continue to utilize ExamSoft and its I am proud to report that, under the guidance secure, cloud-based software that is used by recently released testing program, Examplify, of the Board of Paralegal Certification, and many law schools and on most bar exams.

THE NORTH CAROLINA STATE BAR JOURNAL 49 The software’s significant capabilities help program continues to allow the board, on fied paralegals to help with the delivery of streamline all aspects of the testing process, occasion, to make substantial contributions of legal services to the citizens of North from writing and storing exam questions to funds to important initiatives. This year the Carolina. We welcome any recommendations grading and analyzing exams. We are current- board contributed $5,000 to the North or suggestions that councilors may have for ly speaking with different paralegal schools Carolina Paralegal Association for the produc- ways in which the board might improve the around the state in an attempt to offer our tion of a low-cost continuing paralegal educa- paralegal certification program. On behalf of certification exam at their facilities using tion course. the other members of the board, thank you ExamSoft. If we succeed in this endeavor, we Regrettably, Shelby D. Benton’s term as a for the opportunity to contribute to the pro- will be able to offer the certification exam in a member of the board, along with my own, tection of the public by overseeing this impor- number of convenient locations, thereby have come to an end. Councilor Matthew W. tant program of the North Carolina State Bar. increasing paralegals’ access to our program Smith of Eden and attorney Benita Powell of and the public’s access to certified paralegals. Fayetteville are recommended to fill the cur- Lawyer Assistance Program Nine years ago, at the State Bar’s October rent vacant positions. Warren C. Hodges, our Submitted by Robynn Moraites, Director 2009 annual meeting, the board presented a current vice-chair, has agreed to serve as chair Your NC Lawyer Assistance Program check to then President John McMillan in the if appointed. Bryan G. Scott has agreed to (LAP) and its dedicated volunteers continue amount of $500,000 as a contribution to the serve as vice-chair if appointed. Lastly, with to make unprecedented inroads across the State Bar Foundation for the construction of the promotion of Alice Mine to executive state, carrying a message of hope, recovery, the new State Bar building. This contribution director of the North Carolina State Bar, we and transformation of personal and profes- was possible because paralegals embraced the welcomed Brian Oten as the new director for sional lives. certification program from its inception, the Board of Paralegal Certification in July A riveting NY Times feature article about a thereby enabling the program to operate “in 2018. big firm, Silicon Valley lawyer who died from the black” financially from the beginning. The Board of Paralegal Certification looks Prudent management of the finances of the forward to continued success certifying quali- CONTINUED ON PAGE 53

John B. McMillan Distinguished Service Award

Barbara B. Weyher is an American Arbitration Association Section. Barbara B. (Bonnie) Weyher was present- Panel member. Ms. Weyher served as president of the ed with the John B. McMillan Ms. Weyher has provided invaluable Wake County Bar Association in 1997 and Distinguished Service Award at the Wake service to the North Carolina State Bar. She as a member of the American Bar County Bar Association’s luncheon on served as the president of the State Bar from Association’s House of Delegates from 2012 October 2, 2018. The award was presented 2009 to 2010. In addition to her role as an to 2016. by North Carolina State Bar Vice President officer, Ms. Weyher’s service to the State Bar Ms. Weyher is active with UNC Law Colon Willoughby. included nine years as a State Bar councilor School. She has served as president of the Ms. Weyher is a 1977 honors graduate of representing Wake County’s 10th Judicial Alumni Association and as a member of the the UNC School of Law, where she served as District. During her time as a councilor, Ms. Chancellor’s Scholarship Committee for the a staff member of the North Carolina Law Weyher served on the Executive law school. In 2014 she received the UNC Review. Following law school, Ms. Weyher Committee, the Issues Committee, and the School of Law Distinguished Alumni began her legal career in New York City. In Publications Committee. She also chaired Award. She has also been awarded the North 1979 she returned to North Carolina and the Grievance Committee, the Ethics Carolina Association of Women Attorneys’ joined the firm of Young, Moore, Committee, and the Authorized Practice of Gweneth B. Davis Public Service Award and Henderson & Alvis in Raleigh. In 1983 Ms. Law Committee. In addition, she served on the Women of Justice Award by North Weyher became one of the founding part- the State Bar’s Disciplinary Hearing Carolina Lawyers Weekly. ners of Yates, McLamb & Weyher. She now Commission from 2012 to 2015. serves as senior counsel to the firm. Ms. Weyher has also been active with the Nominations Sought Ms. Weyher’s practice is primarily in the North Carolina Bar Association. She is a Members of the Bar are encouraged to areas of insurance coverage, professional lia- member of the Litigation Section, the nominate colleagues who have demonstrat- bility, and alternate dispute resolution. She Insurance Section, and the Dispute ed outstanding service to the profession. The has been a certified mediator since 1995. Resolution Section. She has served as chair nomination form is available on the State She is a member of the North Carolina of the Litigation Section and as secretary Bar’s website, ncbar.gov. Please direct ques- Academy of Superior Court Mediators and and CLE chair of the Dispute Resolution tions to Suzanne Lever, [email protected]. n

50 WINTER 2018 BOARD OF LAW EXAMINERS

February 2019 Bar Exam Applicants

The February 2019 bar examination will be held in Raleigh on February 26 and 27, 2019. Published below are the names of the applicants whose applications were received on or before October 30, 2018. Members are requested to examine it and notify the board in a signed letter of any information which might influence the board in considering the general fitness of any applicant for admission. Correspondence should be directed to Lee A. Vlahos, Executive Director, Board of Law Examiners, 5510 Six Forks Rd., Suite 300, Raleigh, NC 27609.

Sarah Abdelmessih Katherine Bordwine Jean Christy Jacqueline Douglas Tanisha Folks Raleigh, NC Greensboro, NC Asheville, NC Greensboro, NC Fuquay Varina, NC James Ablard Kevin Boston Timothy Clanton Elizabeth Downer Jamaal Forney Wilmington, NC Lumberton, NC Raleigh, NC Greensboro, NC Fayetteville, NC Robert Adler Michael Boykin Thomas Clark Charles Draeger Kerese Foster Waxhaw, NC Raleigh, NC Roebuck, SC Colfax, NC Greensboro, NC David Ahmadi Daniel Braswell Gerard Clodomir William Drennen Meghan Francis Raleigh, NC Durham, NC Greensboro, NC St. Louis, MO Ravenel, SC Dawnwin Allen Joseph Brennan Monica Cloud Megan Dyer Lauren Franklin Charlotte, NC Charlotte, NC Silver Spring, MD Winston-Salem, NC Rockwell, NC Markea Allen Joseph Brewer Roger Condrey Abigail Eder Joshua Franks Fayetteville, NC Raleigh, NC Concord, NC Cary, NC Raleigh, NC Margarete Allio Kayla Britt Chelsea Cook Shanelle Edmonds Sarah Freeman Johns Island, SC Durham, NC Durham, NC Pittsboro, NC Charlotte, NC Toya Allison Connor Brooks Birshari Cooper Jake Edwards Matthew Freeze Fayetteville, NC Raleigh, NC Cary, NC Gastonia, NC Salisbury, NC Hailey Amico Blakeney Brown Rodneycia Cooper Michael Edwards Nikira Fults Mount Pleasant, SC Gastonia, NC St. Petersburg, FL Dudley, NC Concord, NC Katherine Anderson Carmen Brown Sarah Cortvriend Nicole Edwards Lisa Garner Charleston, SC Hickory, NC North Palm Beach, FL Raleigh, NC Greensboro, NC Rebecca Anderson Julia Brown Jason Cramer Jonathan Ekblad Danielle Garon Greensboro, NC Greensboro, NC Fuquay Varina, NC Raleigh, NC Charlotte, NC Nicole Arrington Neilson Brown Jordan Cranman Jacques El-Chayeb Gary Gassel Charlotte, NC Huntersville, NC Raleigh, NC Chapel Hill, NC Sarasota, FL Zeliha Arslan Jennifer Bryan Ashia Crooms-Carpenter Grant Engebretsen Gia Gaster High Point, NC Bladenboro, NC Mint Hill, NC Durham, NC Mcleansville, NC Taimoor Aziz Catherine Bryant Reko Currie Lomenie Etienne Seth Gerringer Bunnlevel, NC Greensboro, NC Greensboro, NC Olando, FL Burlington, NC Tameka Baldwin Renee Burris Coy Curry Micaela Evans Rachel Gessouroun Raleigh, NC New London, NC Wilkesboro, NC Greensboro, NC Edmond, OK Catherine Bamba Asia Buss Jason Dangler Celsey Fannin Shauna Gibson Raeford, NC Spring Lake, NC Charlotte, NC Greensboro, NC Wilmington, NC Jenna Bass Micah Byrd Rachel Davis Cala Farina Geoffrey Gilbert Fuquay Varina, NC Winston-Salem, NC Mooresville, NC Cary, NC Delray Beach, FL Latasha Bembury Brent Caldwell Yolanda Davis Caitlin Farmer Charlene Gilliam Durham, NC Durham, NC Raleigh, NC Waxhaw, NC Asheville, NC Victoria Bennett Anthony Campbell Nicole Debartolo Imran Farooqi Kiarra Gilliam Raleigh, NC Whitsett, NC Monroe, NC Huntersville, NC Charlotte, NC Andre Bess Ashley Campbell Lane Debellis Annette Faw Amie Goldberg Durham, NC Whitsett, NC Winston-Salem, NC Wilkesboro, NC Winston Salem, NC Kevona Bethune Bridget Campbell Joseph Demartin Elizaveta Fedun Zachary Goldberg Hope Mills, NC Atkinson, NC Raleigh, NC Hendersonville, NC Charlotte, NC Kimberley Beyer Natashia Cannedy Joseph Dennis Jennifer Feinstein Madeline Gootman Glenville, NC Charlotte, NC Morganton, NC Raleigh, NC Durham, NC Brandye Birdsall Christa Castillo Anna Devries Anna Finger Linda Green Elizabeth City, NC Indian Land, SC Charlotte, NC Dallas, TX Holly Springs, NC Latoya Blackwell James Chandler Bertha Dixon James Fleming Susan Gregory Fuquay- Varina, NC Charlotte, NC Browns Summit, NC Winston-Salem, NC Sarasota, FL Sarah Blessing Laura Chase Greg Dixon Alexa Flores Chelsea Habermann Raleigh, NC Angier, NC Elizabeth City, NC Cary, NC Rock Hill, SC James Blohm Katherine Chatman Jeffrey Dodson Anna Bryce Flowe Lejla Hadzic Raleigh, NC Tampa, FL Nashville, NC Matthews, NC Concord, NC Marvilyn Bohannan Richard Chen Alexander Doernberg Alexandra Floyd Sandra Hagood Mebane, NC Raleigh, NC Cary, NC Whiteville, NC Chapel Hill, NC Paula Booth Yingtong Chen Timothy Doherty Derrick Foard Matthew Hall Winston-Salem, NC Oakland, CA Charlotte, NC Concord, NC Dobson, NC

THE NORTH CAROLINA STATE BAR JOURNAL 51 Chao Han Omar Kalala Natalie Mccann David Nolan Gary Redding Swannanoa, NC Charlotte, NC Wake Forest, NC Hope Mills, NC Halifax, NC Matthew Hartburg Caitlin Kannan Kia Mccormick Robert Northington Katlyn Reh Raleigh, NC Castle Hayne, NC Raleigh, NC Greensboro, NC Charlotte, NC Kia Harvey Mark Kaplan Courtney Mcginness Erick Odom Stacy Reid Monroe Winston-Salem, NC Charlotte, NC Wilmington, NC Raleigh, NC Charlotte, NC Morgan Harvey Laura Kays Kelli Mcgonagle Laura O'Grady Jacqueline Reitz Greensboro, NC Wilmington, NC Clayton, NC Fayetteville, NC Raleigh, NC Tommy Harvey Jackie Keener Samantha Mchone Rebecca Olla Maria Rengifo Tyrone, GA Knightdale, NC Mount Airy, NC Durham, NC Raleigh, NC Latonya Hayes Maryam Khan William Mchugh Valery Ortiz Caicedo Amber Resetar Stone Mountain, GA Greensboro, NC Leland, NC Fort Mill, SC Castle Hayne, NC Holly Hege Korey Kiger Ian Mcintyre Sarah Owens Julie Reynolds-Engel Lexington, NC Raleigh, NC Macon, GA Charlotte, NC Asheville, NC Christopher Heller Javier King Scarlett Mckinney Gunsel Ozcan Morgan Ricci Winnabow, NC Chapel Hill, NC Leicester, NC Charlotte, NC Matthews, NC Jaclyn Helton Michael King Lauren Mckoy Gabrielle Padgett Gloria Rice Burlington, NC Morrisville, NC Broadway, NC Irvine, CA Charlotte, NC Jordan Hensley Julie Kirstein Jeffrey Mcmillion Joseph Parda Elinor Riefkohl Greensboro, NC Fairview, NC Graham, NC Bunnlevel, NC Pinehurst, NC Ashley Henson Meredith Kittrell Alfred Mcqueen Jonathan Parisi Lisa Roach Wilmington, NC Raleigh, NC Winston Salem, NC Greensboro, NC Charlotte, NC Michelle Herd Mercedes Knight Jazemine Mcsween Ellie Parker Jalisa Roberts Birmingham, AL Tarboro, NC Rockingham, NC Burlington, NC Winston-Salem, NC Madison Hill Larry Koonce Heidi Mehaffey Roshni Patidar Nicholas Roberts Hendersonville, NC Fayetteville, NC Plantation, FL Charlotte, NC Salado, TX Gary Hilton Daniel Krchnavek Charles Melcombe Andrew Peace Zachary Roberts Maiden, NC Waco, TX Durham, NC Charlotte, NC Huntersville, NC Catherine Hipps Fredrick Kromis Russell Michalec Joshua Peace Steffi Rodriguez Carrboro, NC Dallas, NC Salisbury, NC Charlotte, NC Saint Cloud, FL Stephen Hodges Shveta Kulkarni Sherold Michaux Michael Peevy Laura Rodriguez Castro Los Angeles, CA Raleigh, NC Greensboro, NC Raleigh, NC Raleigh, NC Tia Hudgins Margaret Kurz David Miller Blanca Pilgrim Matthew Roller Rocky Mount, NC Fayetteville, NC Charlotte, NC Raleigh, NC Lexington, NC Tayler Hudson Asia Lance Jonathan Miller Scheherazade Pittman Bradley Rooney Apex, NC Greensboro, NC Raleigh, NC Raleigh, NC Advance, NC Michelle Iqbal Adam Langino William Miller Tanya Plekan Erin Rousseau Charlotte, NC Chapel Hill, NC Greensboro, NC Cary, NC Morrisville, NC Olivia Izze John Lanier Catherine Mitchell Alexandra Porte David Rusk Durham, NC Greensboro, NC Durham, NC Charleston, SC Charlotte, NC Shinead James Scott Lanier Heather Mitchell Jeffrey Porter Lauren Russell Loris, SC Charlotte, NC Charlotte, NC Whitsett, NC Wilmington, DE Dana Jamison Rebecca Laton David Mohrmann Jose Posada Karen Rust Riverside, CA Carthage, NC Raleigh, NC Charlotte, NC Jamestown, NC Joseph Jenkins Elizabeth Lawson Kelsey Monk Marsha Poston Carlton Ryals Charlotte, NC Winston Salem, NC Raleigh, NC King, NC Raleigh, NC Lucas Jensen Clifford Leagan Sondra Monroe Lauren Presnell Misty Ryan Cary, NC Mount Airy, NC Huntersville, NC Black Mountain, NC Charlotte, NC Cameron Joe Kelsey Lee Jessica Moreau Brandon Price Ziaedeen Saadat Raleigh, NC Concord, NC Mooresville, NC Fayetteville, NC Greensboro, NC Ariana Johnson Shianne Legrand Jana Morrison William Price Steven Sacco Charotte, NC Greensboro, NC Charlotte, NC Durham, NC Sneads Ferry, NC Jasmine Johnson William Leopard Timberley Motsinger Victoria Prince Leonard Saltzman Elm City, NC Chapel Hill, NC Greensboro, NC Raleigh, NC Albemarle, NC Sarah Johnson Andrew Leslie Sarah Mullins Rachel Procaccini Jessalyn Santiago Siloam, NC Kannapolis, NC Cornelius, NC Bluefield, WV Wake Forest, NC Bridget Jolly Colin Lloyd Ryan Mumper Michael Provencher Noel Santorelli Mint Hill, NC Raleigh, NC Durham, NC Fayetteville, NC Leland, NC April Jones Sara Locklear Gilbert Munoz-Cornejo Elyse Purnell Crawford David Saterfield Charlotte, NC Landis, NC Fuquay Varina, NC Macon, GA Raleigh, AR Casey Jones Jared Lumley Jerry Murphy Brandi Quattlebaum Ashlee Schaller Wilson'S Mills, NC Greensboro, NC Tyler, TX Columbia, SC Durham, NC Charles Jones Kelcee Mader Talicia Neal Miroslava Radieva Michael Schehr Greenville, NC Gainesville, FL Raleigh, NC Hurdle Mills, NC Charlotte, NC Dax Jones Mason Maney Barbara Nelson Carlton Rainer Abigail Schuette Greensboro, NC Philadelphia, PA Goldsboro, NC Charlotte, NC Charlotte, NC Keren Jones Robert Martin James Nelson Hollie Ramalingam Brooke Scott Greensboro, NC Greensboro, NC Harrisburg, NC Mebane, NC Raleigh, NC Thomas Jones Joseph Martinez Benjamin Newbern William Ramos Christopher Scott Candler, NC Valdese, NC Aulander, NC Holly Springs, NC Asheboro, NC Marianna Kacjuba Ellen Mathews Jonathan Nobles Caroline Ray Djenaba Scott Charlotte, NC Birmingham, AL Raleigh, NC Graham, NC Charlotte, NC

52 WINTER 2018 Emily Scotton Emily Smith Peacock Alexis Sylvester Gabriell Vires Patti Williams Greensboro, NC Raleigh, NC Greensboro, NC Durham, NC Waxhaw, NC Taylor Scruggs-Smith Meredith Solomon Johnson Edward Tarantino Stephanie Vlasis Richard Williams Raleigh, NC Raleigh, NC Troutman, NC Winston-Salem, NC Greensboro, NC Matthew Sellers Gabriel Soto-Perez Justine Tate Armand Volta Herman Wilson Jr Chapel Hill, NC Chantilly, VA West Columbia, SC Westminster, MD Fayetteville, NC Edith Serrano Brittany Spencer Olivia Taylor Beutrice Walker Benjamin Winograd Rougemont, NC Wadesboro, NC Washington, NC Knightdale, NC Carrboro, NC Deondra Sexton Jordan Sprenger-Wilson Frederick Terrell Grace Wallace Lauren Wolfe Charlotte, NC Charlotte, NC Hamlet, NC Durham, NC Charleston, SC Abigail Seymour Marissa Sprick Sara-Beth Testerman Evan Walton Zachary Woltz Greensboro, NC Charlotte, NC Charlotte, NC Winston Salem, NC Sneads Ferry, NC Kerry Shipman Avery Staley Madison Thornton Austin Warner Kyla Wonder Charleston, SC Mooresville, NC Greensboro, NC Atlanta, GA Durham, NC Casey Simmons Danny Stamey Geoffrey Tilford Angela Watkins Dorian Woolaston Charlotte, NC Pasadena, CA Pittsboro, NC Monroe, NC Winston-Salem, NC Andrew Simpson Happy Stewart Tyson Toles Tamikiyo Watters Brian Wooten Chapel Hill, NC Asheville, NC Apex, NC Durham, NC Winston Salem, NC Brieanna Singletary Matthew Stiglbauer Katherine Trotter Caroline Waugh John Wright Clayton, NC Charlotte, NC Nashville, TN Mooresville, NC Frederick, MD Ashley Skaff Elisabeth Stone Joseph Turner Karen Wellington Logan Wyont Durham, NC Harlan, KY Mebane, NC Wilson, NC Wilmington, NC Jonathan Slager Jessica Stone-Erdman Walter Tuttle Michael Wheaton James Yandle Columbia, SC Chapel Hill, NC Raleigh, NC Charlotte, NC Charlotte, NC Paul Sloderbeck Samuel Sue Laquanda Tysinger Alexa Whiteside Elizabeth Young Oxford, NC Greensboro, NC Burlington, NC Los Angeles, CA Gaithersburg, MD Brittany Smiley Carolyn Suhocki Stephen Valentine Liling Wilford Xenia Zeballos Parra Topsail Beach, NC Charleston, SC Durham, NC Greenville, NC Indian Land, SC Bradley Smith Laurie Suitt Samantha Varney Michelle Willauer Leighton Zhong Charlotte, NC Durham, NC Lexington, NC Washington, DC Orlando, FL Hannah Smith Melissa Sumner Benjamin Venable Destiny Williams Winston-Salem, NC Greensboro, NC Charlotte, NC Garner, NC Rachel Smith Jeffrey Swing Alexandra Viele Kendell Williams Durham, NC High Point, NC Greensboro, NC Henderson, NC

State Bar Annual Reports (cont.) address these issues. experiences of lawyers in practice. We have Members of the LAP Steering Committee received overwhelmingly positive feedback. a drug overdose created a unique opportunity have been building relationships with the LAP staff and volunteers gave 84 CLE pre- for LAP. The article was widely circulated deans of students at each of our NC law sentations and LAP opened 167 files this year. throughout North Carolina’s largest law schools for several years. As a result, and with Attendance at our Minority Outreach firms, resulting in the first-ever LAP presenta- the stewardship of LAP volunteer Tom Conference soared. By moving to a new tion at a Risk Management Roundtable with Roman, LAP is scheduled to hold office hours venue, we are now able to abandon the wait- managing partners and general counsel of a this fall at UNC Chapel Hill, Wake Forest list. We had just over 600 attorneys register dozen large firms. The presentation, held in University, NC Central University, and Elon this year, with 538 in attendance. September 2017, focused on strategies and University. LAP volunteers will be visiting I will end on a note of thanks to each and policies firms can implement to catch issues schools and interfacing directly with stu- every LAP volunteer who contributed to our before they blossom into malpractice claims, dents—also a first for LAP. We are all curious success this year. Whether by writing an arti- ethical violations, client harm, or reputational and excited to see the results of this engage- cle, speaking at a CLE, mentoring a lawyer, damage. LAP was well received and has been ment and, based upon what we learn, explore visiting a lawyer in distress, or any other con- invited into these firms to begin training part- how we might improve and modify our tribution, both large and small, your com- ners, lawyers, and staff on recognizing and approach for the spring of 2019. bined and cumulative activities made a huge addressing these issues. Lawyers Weekly fea- This year LAP partnered with Laura Mahr impact in the efficacy and visibility of our tured an article about the roundtable, leading of Conscious Legal Minds. Beginning in program. A special note of thanks to LAP vol- Lawyers Mutual Insurance to request that February 2018, LAP began sponsoring mind- unteer Tom Roman, who has been assisting us LAP provide a similar presentation at a fulness-based stress reduction CLEs across the in the office during the prolonged vacancy we Managing Partners Summit hosted for their state with Ms. Mahr as the CLE speaker. We have experienced while trying to find a suit- insureds in May 2018. LAP is now scheduled worked with CLE sponsors such as local dis- able replacement for Towanda Garner. Our for in-house trainings with some of those trict bars and legal organizations who were ability to hold office hours in the law schools firms as well. Given reports from LAP pro- seeking innovative programming. The theme this fall is owed in no small measure to Tom’s grams nationally, NC law firms are leading for the year was “Beginning a Conversation” considerable passion, focus, and coordination. the nation in proactively adopting programs about stress reduction and mindfulness tech- For a detailed annual report, please visit and instituting training to identify and niques to improve the real-world, day-to-day nclap.org/annual-report. n

THE NORTH CAROLINA STATE BAR JOURNAL 53 The North Carolina State Bar and Affiliated Entities Selected Financial Data

Operating expenses (3,266,308) (8,146,807) Revenues and Expenses The North Carolina State Bar Non-operating revenues 125,103 85,964 Operating revenues- 2017 2016 Net income (loss) $(1,234,499) $5,978,944 specialization fees $184,535 $179,300 Assets Operating expenses (206,060) (183,034) Cash and cash Board of Client Security Fund Non-operating revenue - 2 equivalents $7,858,566 $6,221,785 2017 2016 Net income $(21,525) $(3,732) Property and Assets equipment, net 15,460,710 16,239,757 Cash and cash The Chief Justice's Commission on Other assets 1,056,065 1,009,676 equivalents $1,448,612 $602,022 Professionalism $24,375,341 $23,471,218 Other assets 4,850 - 2017 2016 Liabilities and Fund Equity $1,453,462 $602,022 Assets Current liabilities $6,477,580 $4,789,288 Liabilities and Fund Equity Cash and cash Long-term debt 9,701,118 10,185,530 Current liabilities $48,653 $59,649 equivalents $450,226 $434,902 16,178,698 14,974,818 Fund equity- Other assets - - Fund equity- retained earnings 1,404,809 542,373 $450,226 $434,902 retained earnings 8,196,643 8,496,400 $1,453,462 $602,022 Liabilities and Fund Equity $24,375,341 $23,471,218 Revenues and Expenses Current liabilities - 525 Revenues and Expenses Operating revenues $1,726,154 $730,556 Fund equity- Dues $8,449,799 $8,239,550 Operating expenses (863,855) (1,319,154) retained earnings 450,226 434,377 Other operating Non-operating revenues 137 286 $450,226 $434,902 revenues 1,030,945 996,582 Net loss $862,436 $(588,312) Revenues and Expenses Total operating Operating revenues- revenues 9,480,744 9,236,132 Board of Continuing Legal Education fees $360,753 $386,825 Operating expenses (9,407,056) (9,122,891) 2017 2016 Operating expenses (344,904) (329,544) Non-operating Assets Non-operating revenues - - expenses (373,445) (375,371) Cash and cash Net income $15,849 $57,281 Net income $(299,757) $(262,130) equivalents $519,848 $607,976 Other assets 3,732 9,393 Board of Paralegal Certification The NC State Bar Plan for Interest on $523,580 $617,369 2017 2016 Lawyers' Trust Accounts (IOLTA) Liabilities and Fund Equity Assets 2017 2016 Current liabilities 206,910 272,230 Cash and cash Assets Fund equity- equivalents $424,871 $458,134 Cash and cash retained earnings 316,670 345,139 Other assets 3,754 6,683 equivalents $1,723,201 $1,774,393 $523,580 $617,369 $428,625 $464,817 Interest receivable 216,852 204,793 Revenues and Expenses Liabilities and Fund Equity Other assets 9,397,027 11,637,546 Operating revenues $708,094 $709,948 Current liabilities - $11,337,080$13,616,732 Operating expenses (736,563) (697,249) accounts payable 65,893 72,847 Liabilities and Fund Equity Non-operating revenues - 4 Fund equity- Grants approved Net (loss) income $(28,469) $12,703 retained earnings 362,732 391,970 but unpaid $4,597,745 $2,032,335 $428,625 $464,817 Other liabilities 1,209,834 4,820,397 Board of Legal Specialization Revenues and Expenses 5,807,579 6,852,732 2017 2016 Operating revenues- Fund equity- Assets fees $256,660 $256,780 retained earnings 5,529,501 6,764,000 Cash and cash Operating expenses (285,898) (265,815) $11,337,080$13,616,732 equivalents 164,785 180,694 Non-operating revenues - 13 Revenues and Expenses Other assets 3,502 6,835 Net income $(29,238) $(9,022) Interest from IOLTA $168,287 $187,529 participants, net $1,818,133 $1,767,287 Liabilities and Fund Equity Other operating Current liabilities 12,154 9,871 revenues 88,573 12,272.500 Fund equity- Total operating retained earnings 156,133 177,658 revenues 1,906,706 14,039,787 $168,287 $187,529

54 WINTER 2018 WE MADE HISTORY WHEN WE STARTED.

WE’VE BEEN DOING IT EVER SINCE.

919.677.8900 800.662.8843 www.lawyersmutualnc.comwww.lawyersmutualnc.com

LAWYERSLAAWWYERS CCONNECTONNECT MUTUALMUTUUAAL WWITHITH UUSS The North Carolina State Bar PO Box 25908 Raleigh, NC 27611

Winter 2018