THE NORTH CAROLINA STATE BAR

SUMMER JOURNAL2017

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LAWYERS LIABILITY INSURANCE COMPANY OF MUTUAL NORTH CAROLINA THE NORTH CAROLINA STATE BAR JOURNAL FEATURES Summer 2017 Volume 22, Number 2 6 LegalZoom Litigation and Editor Legislation: Progress or Problem? Jennifer R. Duncan By John N. Fountain 10 Questioning Prospective Jurors about Possible Racial or Ethnic Bias: Lessons © Copyright 2017 by the North Carolina from Pena-Rodriguez v. Colorado State Bar. All rights reserved. Periodicals By Alyson A. Grine postage paid at Raleigh, NC, and additional offices. Opinions expressed by contributors 14 New North Carolina Law Allows are not necessarily those of the North Fiduciaries Access to Digital Assets Carolina State Bar. POSTMASTER: Send address changes to the North Carolina State (But Only If...) Bar, PO Box 25908, Raleigh, NC 27611. By Jean Gordon Carter The North Carolina Bar Journal invites the 16 Juvenile Defenders Reflect on Their submission of unsolicited, original articles, essays, and book reviews. Submissions may Careers and 50 Years Since be made by mail or e-mail (ncbar@bell- By Eric J. Zogry south.net) to the editor. Publishing and edi- torial decisions are based on the Publications 19 Lawyers in the Legislature Committee’s and the editor’s judgment of By N. Leo Daughtry the quality of the writing, the timeliness of 20 Honesty is the Only Policy the article, and the potential interest to the readers of the Journal. The Journal reserves By G. Gray Wilson the right to edit all manuscripts. The North 22 Trial by Nature—Courtroom Lessons Carolina State Bar Journal (ISSN 10928626) is published four times per year in March, to Live By June, September, and December under the By Tricia M. Derr direction and supervision of the council of the North Carolina State Bar, PO Box 25908, Raleigh, NC 27611. Member rate of $6.00 per year is included in dues. Nonmember rates $10.73 per year. Single copies $5.36. The Lawyer’s Handbook $16.09. Advertising rates available upon request. Direct inquiries to Director of Communications, the North Carolina State Bar, PO Box 25908, Raleigh, North Carolina 27611, tel. (919) 828-4620.

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THE NORTH CAROLINA STATE BAR JOURNAL 3 DEPARTMENTS 30 The Disciplinary Department BAR UPDATES 32 Lawyer Assistance Program 5 President’s Message 34 IOLTA Update 31 In Memoriam 25 Trust Accounting 35 Proposed Ethics Opinions 51 Client Security Fund 26 Profile in Specialization 35 BOLE Amendments 52 Law School Briefs 28 Legal Ethics 38 Rule Amendments 53 July Bar Exam Applicants

Officers 12: Lonnie M. Player Jr., Fayetteville 27B: Rebecca J. Pomeroy, Lincolnton 13: Michael R. Ramos, Shallotte 28: Anna Hamrick, Asheville Mark W. Merritt, Charlotte/Chapel Hill 14: Dorothy Hairston Mitchell, 29A: H. Russell Neighbors, Marion President 2016-2017 Durham 29B: Christopher S. Stepp, John M. Silverstein, Raleigh William S. Mills, Durham Hendersonville President-Elect 2016-2017 15A: Charles E. Davis, Mebane 30: Gerald R. Collins Jr., Murphy G. Gray Wilson, Winston-Salem 15B: Charles Gordon Brown, Chapel Hill Vice President 2016-2017 16A: Terry R. Garner, Laurinburg Public Members L. Thomas Lunsford II, Raleigh 16B: David F. Branch Jr., Lumberton Patricia R. Head, Raleigh Secretary-Treasurer 16C: Richard Buckner, Rockingham Robert C. Sinclair, Raleigh Margaret M. Hunt, Brevard 17A: Matthew W. Smith, Eden Emmanuel Wilder, Morrisville Past-President 2016-2017 17B: Thomas W. Anderson, Pilot Mountain Executive Director Councilors 18: Barbara R. Christy, Greensboro L. Thomas Lunsford II Stephen E. Robertson, Greensboro By Judicial District 18H: Richard S. Towers, High Point Assistant Executive Director 1: C. Everett Thompson II, Elizabeth 19A: Herbert White, Concord Alice Neece Mine City 19B: Clark R. Bell, Asheboro 2: G. Thomas Davis Jr., Swan 19C: Darrin D. Jordan, Salisbury Counsel Quarter 19D: Richard Costanza, Southern Pines Katherine Jean 3A: Charles R. Hardee, Greenville 20A: John Webster, Albemarle 3B: Debra L. Massie, Beaufort 20B: H. Ligon Bundy, Monroe Editor 4: Robert W. Detwiler, Jacksonville 21: Michael L. Robinson, Winston- Jennifer R. Duncan 5: W. Allen Cobb Jr., Wilmington Salem 6: W. Rob Lewis II, Ahoskie Kevin G. Williams, Winston- Publications Committee 7: Randall B. Pridgen, Rocky Mount Salem Nancy Black Norelli, Chair 8: C. Branson Vickory III, Goldsboro 22A: Kimberly S. Taylor, Taylorsville Andrea Capua, Vice Chair 9: Paul J. Stainback, Henderson 22B: Roger S. Tripp, Lexington Phillip Bantz (Advisory Member) 9A: Alan S. Hicks, Roxboro 23: John S. Willardson, Wilkesboro Richard G. Buckner 10: Heidi C. Bloom, Raleigh 24: Andrea N. Capua, Boone Thomas P. Davis (Advisory Member) Walter E. Brock Jr., Raleigh 25: M. Alan LeCroy, Morganton Margaret Dickson (Advisory Member) Nicholas J. Dombalis II, Raleigh 26: David N. Allen, Charlotte John Gehring (Advisory Member) Theodore C. Edwards II, Raleigh Robert C. Bowers, Charlotte Darrin D. Jordan Katherine Ann Frye, Raleigh A. Todd Brown, Charlotte Ashley London (Advisory Member) Donna R. Rascoe, Raleigh Mark P. Henriques, Charlotte Sonya C. McGraw Warren Savage, Raleigh Dewitt McCarley, Charlotte Stephen E. Robertson C. Colon Willoughby Jr., Raleigh Nancy Black Norelli, Charlotte Christopher S. Stepp 11A: Eddie S. Winstead III, Sanford Eben T. Rawls, Charlotte 11B: Marcia H. Armstrong, Smithfield 27A: Sonya Campbell McGraw, Gastonia THE PRESIDENT’S MESSAGE

NCCALJ Issues Final Report to the Chief Justice

B Y M ARK W. M ERRITT

On March 15, 2017, the North Carolina after its chair, John Medlin. The Futures the Legal Professional Committee, and State Commission on the Administration of Law Commission recommended sweeping Bar Councilor Darrin Jordan served on the and Justice presented its final report to Chief changes to the court system, such as eliminat- Criminal Investigation and Adjudication Justice Mark Martin. The report is entitled ing jurisdictional distinctions between district Committee. The State Bar staff presented to “Recommendations for Strengthening the and superior court, the appointment of the Legal Professionalism Committee on Unified Court System of North Carolina.” judges and clerks, the creation of statewide issues related to the regulation of the legal The report is an important document that family courts, and the merging of judicial dis- profession and provided statistics on the represents a comprehensive overview of the tricts into wider administrative units. The rec- growth of the Bar and the distribution of court system and how we can improve it. The ommendations of the Futures Commission, lawyers around the State. State Bar staff State Bar monitored the which were released in 1996, members and representatives attended and work of the commission, par- were not implemented, but monitored the work of the various commit- ticipated in the work of its did lead to pilot programs for tees. Based on our collective, first-hand committees and presenters, family courts and greater knowledge, I am confident in stating that the and provided two of its emphasis on mediation as a depth of examination that the commission members. In this article I will way to resolve disputes. brought to bear was impressive and the review the history of the Chief Justice Martin con- resources available for the commission mem- commission, its work, and its vened the commission in bers were extensive. recommendations. September 2015 as an inde- pendent, multi-disciplinary The Methodology of the Commission The History of the study group. The commission It is challenging in a single article to cap- Commission was charged with undertaking ture how the commission came to its recom- The commission’s work a comprehensive evaluation of mendations when its report is a comprehen- does not represent the first the judicial system and mak- sive document of close to 300 pages. The key time that there has been a comprehensive ing recommendations on how the courts could point is that the process was driven by data. review of the court system in North Carolina. be strengthened within the existing adminis- At our very first meeting we explored the In the late 1950s, the North Carolina Bar trative framework. The commission had 65 demographic forces that are profoundly Association took on the task of creating a uni- members, eight reporters, and numerous ex affecting our state. Some portions of North form system of state courts in North Carolina. officio members. It was truly multidisciplinary Carolina are among the fastest growing in That work was undertaken by what came to with members who were judges, lawyers, busi- the country, but other parts are depopulat- be known as the Bell Commission, which was ness leaders, legal educators, public servants, ing. We examined the reality of pro se liti- named after its chair, Judge Spencer Bell. The and politicians. The work of the commission gants who are appearing in our courts in work of the Bell Commission led to the estab- was accomplished in its five committees: the increasing if not alarming numbers. We lishment of the current structure of magis- Legal Professional Committee, the Technology looked at case filings and workloads and the trate, district, and superior courts, and elimi- Committee, the Civil Justice Committee, the growing demands placed on all facets of our nated a hodgepodge of local and municipal Criminal Investigation and Adjudication court system. We learned that the 31 million courts. The Bell Commission also led to the Committee, and the Public Trust and pieces of paper we filed with our clerks of creation of the North Carolina Court of Confidence Committee. For the better part of court in 2016 took up 4.3 miles of shelving. Appeals and the Administrative Office of the a year, the committees collectively met 62 We reviewed surveys on the public’s percep- Courts. The implementation of its recom- times and heard 102 presenters. During the tion of the court system and its fairness. We mendations occurred over a 15-year period, summer of 2016, the committees issued inter- heard from national experts and thoughtful but the Bell Commission’s work transformed im reports and gathered citizen input both leaders as to how our court system and pro- our court system. online and at public forums. At public forums fessional regulation may need to change to The next comprehensive review occurred held in Jamestown, Wilmington, Asheville, meet the challenges of this rapidly evolving in the 1990s by the Commission on the and Charlotte, commission members heard legal landscape. Future of Justice and the Courts in North comments from 238 citizens. Simply stated, this commission did not Carolina, and it was commonly known as the The State Bar was active in the work of the Futures Commission or Medlin Commission, commission. I had the privilege of serving on CONTINUED ON PAGE 50 LegalZoom Litigation and Legislation: Progress or Problem?

B Y J OHN N. FOUNTAIN

ver the

last sev-

eral years

there has

Obeen much discussion in the legal commu-

nity regarding the issues among the State

Bar, LegalZoom, and segments of the attorney community. Sometimes such discussion has generated more heat than light. This article

will outline the enforcement structures of the State Bar, the efforts of LegalZoom within those structures, subsequent litigation, and

recently adopted legislation. Finally, a few issues related to the broader context will be flagged.

It is helpful to put these issues into per- 1,000 more routine grievance matters The Authorized Practice Committee process- spective in relation to the enforcement struc- between meetings. The more serious of the es about 35 cases each quarter. Some are tures of the State Bar. First, the two principal matters are routed to the Disciplinary resolved with warnings, some are concluded enforcement committees of the State Bar are Hearing Commission for hearing. Most by dismissal, and a few result in court actions the Grievance Committee—for lawyers— lawyers are aware of the Grievance seeking to enjoin the unauthorized practice. and the Authorized Practice Committee— Committee and the grievance process mostly Evidence of violation, evidence of harm, the for nonlawyers. The Bar councilors who are from looking to see if their name is men- credibility and availability of witnesses, and members of the Grievance Committee tioned in this publication. the availability of resources all play into such process about 90 matters each quarter, On the other hand, the Authorized decisions. The number of complaints is rising which may involve attorney malfeasance, Practice Committee deals with complaints steadily, and they involve unlicensed and avarice, or untreated substance abuse, regarding persons or firms who are not sometimes well-meaning Notarios doing among other issues. The chair and vice chairs licensed North Carolina lawyers, but are harm to the Hispanic community, debt settle- of the Grievance Committee process about alleged to be practicing law without a license. ment operations (illegal in NC), peddlers of

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ineffective or harmful trust documents, and take the do-it-yourself route. Sale of such tained in the product. The process was out-of-state lawyers or firms seeking to prac- forms is perfectly lawful. The distinctive fea- thought to be more akin to the information a tice in North Carolina without licenses, some ture, for purposes of the Authorized Practice lawyer would glean in an interview with a through the use of unwitting young lawyers Committee, is whether such forms are made client, following which a document would be as pawns. Thus, LegalZoom is only one of available without legal advice or consulta- prepared. The risk in the online system is the many matters of concern to the Authorized tion. As will be mentioned later in this arti- absence of follow-up questions or discussion Practice Committee and the State Bar. cle, much of the discussion about internet as to whether the client might sustain unin- The Authorized Practice Committee also providers is the effort to compare a particu- tended consequences with this mode of receives quarterly reports regarding the regis- lar online process to sellers of paper legal advice, while placing too much faith in the tration of prepaid legal service plans. In 1991, forms. “fit” of the form or content thereof. Soon at the State Bar’s request, the legislature after the complaints began arriving, the amended the statute to remove any reference LegalZoom and Proceedings within Authorized Practice Committee began to “approval” of prepaid legal services, and to the State Bar reviewing the results of investigations and replace it with a requirement that the State LegalZoom advises that it was formed in issuing progressively firmer warning letters. Bar “register” plans. Thereafter, the State Bar the year 2000. Around 2008 the State Bar LegalZoom steadfastly responded that its Council amended the administrative rules to began receiving complaints that LegalZoom online questionnaire and document creation revoke the approval of any existing plans, and was engaged in the unauthorized practice of system did not constitute the practice of law. to provide that the State Bar would no longer law. The concern was whether these were approve—would instead only register—pre- forms purchased by the consumer without LegalZoom’s Lawsuits paid legal services plans. Thus, for many years legal advice or consultation as to the form In September 2011, despite the absence the role of the State Bar Council and staff has used or the clauses included therein. It of any direct enforcement action by the State been to determine whether a proposed plan appeared to some that the computer pro- Bar, LegalZoom filed suit alleging that the was a “prepaid plan” and whether the services grams or algorithms employed by State Bar was violating the anti-monopoly proposed were “legal services.” LegalZoom—or others dealing in online doc- and equal protection clauses of the North The Authorized Practice Committee has ument preparation—were designed to pro- Carolina Constitution, and sought declara- been aware that bookstores, office supply vide documents based on answers to a series tory judgments that LegalZoom was not establishments, and others sell legal forms, of questions. Then the answers were used by engaged in the unauthorized practice of law and that consumers of legal services may the computer to select the clauses to be con- and that in saying otherwise the State Bar

THE NORTH CAROLINA STATE BAR JOURNAL 7 disparaged LegalZoom and exceeded its cessful. The effort resumed in the 2015 long a. the consumer can see the blank docu- authority. The State Bar responded with session, by which time the court cases had ment or a final completed document claims seeking to enjoin the unauthorized been resolved, contingent on passage of a bill before purchase; practice of law by LegalZoom. The case lan- by the general assembly. By this time the Real b. a licensed NC attorney has reviewed guished for years, principally because the Estate Lawyer Association of North Carolina each potential part of a completed docu- court declined to allow the parties to pursue (RELANC), backed by some title insurance ment; discovery and because the court repeatedly companies, became active at the general c. the provider communicates that the opined that all parties would be better served assembly, thus placing the State Bar in the form and templates are not a substitute for by a legislative rather than a judicial solution middle between LegalZoom on the one hand advice or services of an attorney; to the issues. and RELANC on the other. LegalZoom con- d. the provider discloses its name and LegalZoom submitted an application to tended that the State Bar was intent on pro- physical location; register a prepaid plan in North Carolina. tecting turf for lawyers, while RELANC con- e. warranties are not disclaimed and liabil- LegalZoom’s application was not accepted tended that the State Bar was bent on ity is not limited; for registration. Issues of concern included destroying the livelihood of lawyers involved f. no consumer is required to submit to whether the services were actually “prepaid in real estate matters and will drafting, simul- any jurisdiction or venue other than services” (i.e. akin to insurance where pay- taneously harming the public. The State Bar North Carolina for resolution of disputes; ment is made in advance of any immediate was dismayed that it had succeeded in mak- g. the provider must have a consumer sat- need or use), and whether the services were ing persons and entities of all stripes extreme- isfaction process; legal services or not. There was also concern ly unhappy despite strenuous efforts in the h. the jurisdiction of the State Bar to pro- about a forum selection clause which federal court, the business court, and the gen- ceed with its enforcement activity is not excluded North Carolina. Inasmuch as it eral assembly either to enforce the law as it impacted by any exercise of a private cause appeared the services proposed or made existed or to obtain appropriate moderniza- of action under G.S. 84-10.1. available as part of a bundle would be deliv- tion by the general assembly. Session Law 2016-60, outlined above, ered via the online system about which com- Draft legislation put together by the State mandates further review of the legislation in plaints had been made, and inasmuch as Bar was alternately supported and opposed the general assembly by June 30, 2018. Time LegalZoom said that its document system by LegalZoom. Proposed legislation support- will tell if complaints surface and if con- did not constitute the delivery of legal serv- ed by LegalZoom was opposed by RELANC, sumers suffer harm. ices, it appeared LegalZoom was contradict- and vice-versa. The State Bar Bill became one ing itself. LegalZoom contended that the of the final matters at the end of the long ses- Final Thoughts State Bar was confusing several different sion in September 2015. Ultimately there was All the foregoing should be considered in contractual arrangements it might have with not sufficient unanimity among the lawyer the context of several ongoing realities: a customer. members of the state house and senate to get 1) A significant percentage of the people A hearing was held before the Authorized the bill passed. Lawyers in both political par- in North Carolina continue to be unable to Practice Committee in April 2015. Counsel ties were divided. access basic legal services due to financial or for the State Bar and counsel for LegalZoom A great deal of additional work was carried other reasons; engaged in oral argument. The committee out in the short session of 2016. Changes 2) efforts of the organized bar over decades declined to register the purported prepaid were made to address some of RELANC’s to produce pro bono involvement continue to legal plans for the reasons cited by staff. A few concerns and to require numerous consumer fall short of the need; weeks later, LegalZoom filed suit against the protection assurances. The urgency of efforts 3) the internet is not going away and State Bar and certain individuals in the in the 2016 short session were underscored online document providers may have a role to United States District Court for the Middle by the fact that the litigation was settled con- play; District of North Carolina seeking a determi- tingent on passage of an appropriate bill. 4) there is an ongoing effort, under lead- nation that the actions of the State Bar, the ership of the chief justice, to modernize the named individuals, or the “unnamed cocon- Where Are We Now delivery of legal services so as to reach more spirators” (other members of the State Bar Ultimately, House Bill 436 from the 2015 persons, utilize more technology, and accom- Council) were antitrust violations. session passed in 2016 and became Session modate pro se litigants; Thus, by June 2015 the State Bar and Law 2016-60. Briefly stated, the bill: 5) part of our heritage as attorneys is the LegalZoom had litigation pending in both 1) Codifies the ability of a real estate bro- obligation to make the legal system, both in the North Carolina Business Court and the ker to prepare offers to purchase and certain and out of the courthouse, meet the needs of US District Court for the Middle District of lease agreements; all our citizens. North Carolina. Neither was moving rapidly. 2) Codifies the ability of a motor vehicle Remember that change is the norm, not dealer to complete documents related to the the exception. n Legislative Involvement sale or lease of a motor vehicle; In June 2014 LegalZoom commenced 3) Exempts from the definition of “the The author has years of service on the legislative endeavors to allow their services in practice of law” the operator of websites uti- Grievance, Authorized Practice, and Legislative North Carolina. The surprise effort by lizing interactive software to generate a legal Committees of the State Bar. He practices with LegalZoom in the short session was unsuc- document, but only if: Young Moore and Henderson, PA, in Raleigh.

8 SUMMER 2017

Questioning Prospective Jurors about Possible Racial or Ethnic Bias: Lessons from Pena-Rodriguez v. Colorado

B Y A LYSON A. GRINE

rial lawyers are familiar with the

test set out in Batson v. Kentucky to

prevent another party from seeking

to exclude a prospective juror on ©iStockphoto.com

Tthe basis of race.1 However, an attorney may be less clear about when he or she has a legal right or obligation to ask prospective jurors questions about race during voir dire. Do attorneys have a duty to explore racial bias in an effort to protect the Sixth Amendment guarantee of an impartial jury? Is asking about racial bias an effective tactic? Is it likely to expose biased views; or might it backfire, inflam- ing juror bias and increasing the odds that the verdict will be influenced by prejudice?

In a recent opinion, the United States senting opinions in Pena-Rodriguez. Part III addressed a situation in which a juror report- Supreme Court discussed this issue, but the provides a review of case law to help attor- edly stated during deliberations that he was justices did not all see eye to eye. Part I of this neys identify the circumstances that give rise relying on stereotypes about Latinos in vot- article discusses the groundbreaking opinion to a right, and possibly an obligation, to ask ing to convict the defendant. The facts were from the United States Supreme Court, about racial bias during voir dire. as follows. Petitioner Pena-Rodriguez was Pena-Rodriguez v. Colorado, decided March found guilty of unlawful sexual contact and 6, 2017.2 Part II addresses the role of voir A Juror is Motivated by Ethnic Bias in harassment. After the jury was discharged, dire in revealing bias and protecting defen- Voting to Convict petitioner’s lawyer approached the jurors to dants’ constitutional rights, and includes In the recent case of Pena-Rodriguez v. see if they would be willing to discuss the opposing views from the majority and dis- Colorado, the United States Supreme Court case. Two jurors revealed that during deliber-

10 SUMMER 2017 ations, another juror with the initials H.C. or her vote to convict.6 If a trial court deter- had made a number of disparaging state- mines that a defendant was denied his Sixth COURTHOUSE RESEARCHER: ments about petitioner and his alibi witness. Amendment right, the court may set aside This is a part time position with great For example, according to the two jurors, the verdict and grant a motion for a new potential. Perfect for a paralegal or any- H.C. said, “‘I think [petitioner] did it trial. The holding was required, in the major- one who visits one or more county because he’s Mexican and Mexican men take ity’s view, because allowing a conviction courthouses in North Carolina on a reg- whatever they want.”3 Defense counsel pre- based on racial bias to stand would violate ular basis. We need information from sented affidavits from the two jurors to the the defendant’s constitutional rights and probate files. Should take about fifteen trial judge, and moved for a new trial. “risk systemic injury to the administration of minutes if done once a week. Monthly However, the judge denied the motion on justice.”7 fee plus possible commissions. Reply to the ground that “deliberations that occur [email protected] among the jurors are protected from inquiry The Role of Voir Dire in Revealing under [Colorado Rule of Evidence] Racial Bias 606(b).”4 While the principle holding of Pena- nounced where racial bias is at play and voir Colorado’s Rule of Evidence 606(b), like Rodriguez establishes an exception to the no- dire and the other safeguards identified in its federal counterpart, is a “no-impeach- impeachment rule in situations where a juror Tanner might not suffice in such cases. ment” rule. Every state has a version of the makes a statement indicating that racial ani- According to the majority, exploring racial rule; for example, North Carolina Rule mus was a significant motivating factor in his bias during voir dire may not prove effective 606(b) provides: or her finding of guilt, discussions of voir dire in that broad questions regarding attitudes Inquiry into validity of verdict or indict- in both the majority opinion and the dissent about race might not expose biases, while ment. – Upon an inquiry into the validi- remind practitioners that voir dire provides “more pointed questions could well exacer- ty of a verdict or indictment, a juror may an important opportunity to explore bate whatever prejudice might exist without not testify as to any matter or statement whether potential jurors harbor racial biases. substantially aiding in exposing it.”10 occurring during the course of the jury’s Courts have recognized voir dire as an Nevertheless, the Court recognized voir dire deliberations or to the effect of anything important mechanism for protecting defen- as an “important mechanism[ ] for discover- upon his or any other juror’s mind or dants’ trial rights. “[Voir dire] serves the dual ing bias.”11 emotions as influencing him to assent to purposes of enabling the court to select an In a dissenting opinion, Justice Alito, or dissent from the verdict or indictment impartial jury and assisting counsel in exer- joined by Chief Justice Roberts and Justice or concerning his mental processes in cising peremptory challenges.”8 The attor- Thomas, expressed a different view as to the connection therewith, except that a juror neys’ opportunity to question prospective effectiveness of voir dire in exposing biases. may testify on the question whether jurors has been cited in support of closing Justice Alito argued that the safeguards set extraneous prejudicial information was the door to the jury room and refusing to out in Tanner are adequate to protect a improperly brought to the jury’s atten- allow post-verdict challenges to delibera- defendant’s Sixth Amendment rights, includ- tion or whether any outside influence tions. Prior to the holding in Pena-Rodriguez, ing when a juror is motivated by racial bias. was improperly brought to bear upon the Supreme Court declined to make excep- Specifically, voir dire serves as an effective any juror. Nor may his affidavit or evi- tions to Rule 606(b), indicating that voir dire mechanism for revealing racial prejudice. dence of any statement by him concern- and other safeguards were adequate to pro- The suggestion that voir dire is ineffective ing a matter about which he would be tect defendants’ trial rights. For example, in in unearthing bias runs counter to deci- precluded from testifying be received for Tanner v. US, the Court refused to allow sions of this Court holding that voir dire these purposes.5 post-verdict inquiry where two jurors on the subject of race is constitutionally Generally speaking, the function of no- revealed after the trial that other jurors were required in some cases, mandated as a impeachment rules is to prevent attorneys intoxicated during the trial, identifying four matter of federal supervisory authority in from trying to overturn the jury’s verdict by existing safeguards that were in place to pro- others, and typically advisable in any case offering testimony from jurors about what tect a defendant’s Sixth Amendment rights: if a defendant requests it....Thus, while was said during deliberations. Such rules pro- 1) jurors can be examined during voir dire, 2) voir dire is not a magic cure, there are tect the finality of jury verdicts and insulate jurors can be observed during trial by court good reasons to think that it is a valuable jurors from questions about who said what actors, 3) jurors can observe each other and tool.12 in the jury room. report inappropriate behavior to the judge In contrast to the majority’s concern that In Pena-Rodriguez, however, the Court before they render a verdict, and 4) after the all approaches to race during jury selection created an exception to the no-impeachment trial, counsel may offer evidence of miscon- are necessarily problematic, Justice Alito rule. The Court held that the Sixth duct by jurors, other than through testimony recognized social science research suggest- Amendment right to a fair trial by an impar- of jurors.9 ing that, rather than reinforcing prejudice, tial jury requires that the trial judge be For purposes of considering whether an making race salient may cause bias to allowed to consider, post-verdict, a juror’s exception to the no-impeachment rule was recede.13 Justice Alito observed that not testimony that another juror made clear and required, the Court distinguished Pena- only do attorneys have tools such as ques- explicit statements indicating that racial ani- Rodriguez on the grounds that Sixth tionnaires and individual questioning, but mus was a significant motivating factor in his Amendment interests are especially pro- they can also avail themselves of practice

THE NORTH CAROLINA STATE BAR JOURNAL 11 guides “replete with advice on conducting in a plurality opinion in Turner v. Murray, bias constitutes ineffectiveness of counsel. effective voir dire on the subject of the Court found that defendants in capital Such a determination would require a race[,]”including a manual specific to cases involving interracial crime have a con- showing that a different result would have North Carolina, Raising Issues of Race in stitutional right to voir dire jurors about occurred at trial had counsel inquired into North Carolina Criminal Cases.14 racial biases.23 Broadly speaking, courts bias, a high hurdle.29 Additionally, courts In sum, though there was some disagree- have stated that a trial judge must allow a have been deferential to trial attorneys in ment about the effectiveness and strategic defendant’s request to examine jurors light of the strategy judgments they must desirability of addressing racial issues with regarding bias “when there is a showing of a make in the heat of trial.30 In particular, potential jurors, both the majority and the ‘likelihood’ that racial or ethnic prejudice courts have been reluctant to find that dissent in Pena-Rodriguez recognize that may affect the jurors.”24 counsel was deficient where the evidence racial bias is an appropriate area of inquiry The North Carolina Supreme Court has did not explicitly pertain to racial issues.31 during voir dire and an important safeguard recognized that voir dire questions aimed at However, ineffectiveness claims based on of the right to a fair trial.15 ensuring that “racially biased jurors [will] the failure to guard against a violation of a not be seated on the jury” are proper.25 As client’s Sixth Amendment right when coun- When Can, Should, or Must Lawyers early as 1870, the North Carolina Supreme sel fails to inquire into racial bias may be an Discuss Racial Bias with Potential Court found error where the court refused emerging area of law.32 In Pena-Rodriguez, Jurors During Voir Dire? to allow a preliminary question regarding the court’s description of jury selection sug- As a general matter, criminal defendants racial bias: “Suppose the question had been gests that defense counsel failed to thor- have a constitutional right to voir dire jurors allowed, and the juror had answered, that oughly explore issues of racial bias during adequately. “[P]art of the guarantee of a the state of his feelings towards [African voir dire. Instead, the defense attorney relied defendant’s right to an impartial jury is an American people] was such that he could on general questions about potential jurors’ adequate voir dire to identify unqualified not show equal and impartial justice ability to be fair. Justice Alito’s dissent sug- jurors.”16 Further, undue restriction of the between the State and the prisoner, espe- gests that attorneys should probe more right to voir dire is error.17 In certain cir- cially in charges of this character: it is at deeply to guard against the influence of cumstances, a defendant has a constitution- once seen that he would have been grossly bias, and identifies resources that may al right to ask questions about race on voir unfit to sit in the jury box.”26 However, the enable attorneys to do so capably.33 dire. In Pena-Rodriguez, the Court stated: North Carolina Supreme Court held in “In an effort to ensure that individuals who another case that whether to allow ques- Conclusion sit on juries are free of racial bias, [the US tions about racial and ethnic attitudes and Precedent from the US Supreme Court Supreme] Court has held that the biases is within the discretion of the trial supports that there is a constitutional right Constitution at times demands that defen- judge.27 In State v. Robinson, the North to inquire into racial bias during voir dire dants be permitted to ask questions about Carolina Supreme Court held that where where the defendant has been charged with racial bias during voir dire.”18 the trial judge allowed the defendant to an interracial crime of violence or is raising The US Supreme Court has found the question prospective jurors about whether a claim that he or she was subjected to selec- refusal to permit inquiry into racial atti- racial prejudice would affect their ability to tive enforcement or selective prosecution on tudes a reversible error in a few different be fair and impartial and to ask questions of account of his or her race or ethnicity. The contexts.19 In Ham v. South Carolina, the prospective white jurors about their associ- right may also exist where racial issues are Court held that a black defendant, who was ations with black people, the trial judge did “inextricably bound up with the conduct of a civil rights activist and whose defense was not abuse his discretion in sustaining pros- the trial[,]”34 as where the theory of defense that he was selectively prosecuted for mari- ecutor’s objection to other questions, such involves consideration of racial issues such juana possession because of his civil rights as “Do you belong to any social club or as cross-racial misidentification, use of activity, was entitled to voir dire jurors political organization or church in which racial epithets, or racial biases of a witness. about racial bias.20 In Ristaino v. Ross, the there are no black members?” and “Do you States may choose to offer greater protec- Court held that the Due Process Clause feel like the presence of blacks in your tions than those recognized by the US does not create a general right in non-capi- neighborhood has lowered the value of Supreme Court. tal cases to voir dire jurors about racial prej- your property...?”28 To date, courts have been reluctant to udice, but such questions are constitution- Typically, in cases in which the courts find that failure to explore issues of racial ally protected when cases involve “special have found that inquiry into racial bias was bias during voir dire constitutes ineffective- factors,” such as those presented in Ham.21 mandated, the issue was whether the trial ness of counsel. However, this may be an In a plurality opinion in Rosales-Lopez v. judge erred in allowing or disallowing such emerging area of law. Support exists for the United States, some members of the Court questions. Does it follow that trial attorneys proposition that inquiry into bias during suggested that trial courts must allow voir who are conducting voir dire have an affir- voir dire is a best practice. For example, dire questions concerning possible racial mative duty to inquire into racial bias in Justice Alito noted in Pena-Rodriguez that prejudice against a defendant when the order to protect their client’s right to an voir dire on race is “typically advisable in defendant is charged with a violent crime impartial jury? Is failure to do so constitu- any case if a defendant requests it,”35 and and the defendant and victim are of differ- tionally deficient? Courts have been reluc- the US Supreme Court observed in Ristaino ent racial or ethnic groups.22 Additionally, tant to find that failure to inquire into racial that “the wiser course generally is to pro-

12 SUMMER 2017 pound appropriate questions designed to an impartial jury can still be protected via Tanner safe- identify racial prejudice if requested by the guards 3) and 4)). defendant.”36 10. Pena-Rodriguez, slip op. at 16 (internal citations and quotation marks omitted). Juror bias may be present even in a case 11. Id., slip op. at 16. in which it is not readily apparent that race 12. Id., Alito, J., dissenting, slip op. at 13-14. is at issue, and it may be both appropriate 13. Id., Alito, J., dissenting, slip op. at 13 n.9 (citing and advisable for attorneys to inquire into authorities). such issues during voir dire. In fact, experts 14. Id., Alito, J., dissenting, slip op. at 12 (In footnote 8, have suggested that “juror racial bias is Justice Alito identifies Raising Issues of Race in North most likely to occur in run-of-the-mill trials Carolina Criminal Cases as an example of a manual that provides voir dire strategies and sample questions; without blatantly racial issues,” as jurors are he cites the manual and quotes from it as follows: A. less likely to guard against the influence of Grine & E. Coward, Raising Issues of Race in North prejudice in such cases.37 As Justice Alito Carolina Criminal Cases, p. 8–14 (2014) (suggesting observed in Pena-Rodriguez, by raising race that attorneys “share a brief example about a judgment shaped by a racial stereotype” to make it easier for during voir dire, attorneys bring concerns jurors to share their own biased views), about bias to the jurors’ awareness, which unc.live/2nLgqNl (as last visited Mar. 3, 2017); id., at may cause them to correct for implicit 8–15 to 8–17 (suggesting additional strategies and racial biases.38 Fortunately, a number of providing sample questions)). resources are available to assist attorneys in Additional resources include: Jeff Robinson, Jury Selection and Race: Discovering the Good, the Bad, and addressing the sensitive topic of racial bias the Ugly (unpublished materials from a joint presenta- 39 during jury selection. Pena-Rodriguez and tion on race and jury selection) (on file with author), scholarship cited therein indicate that in bit.ly/2oJOMkR; Cynthia Lee, A New Approach to order to insulate jury deliberations from Voir Dire on Racial Bias, 5 UC IRVINE L. REV. 843, 847 (2015) (In this article, Law Professor Cynthia Lee racial bias, it is advisable for attorneys to argues “that in light of the social science research on become proficient in exploring racial atti- implicit bias and race salience, it is best for an attorney tudes during voir dire.40 n concerned about racial bias to confront the issue of race head on during jury selection.”), bit.ly/2oE3YTq; Jeff Adachi, Motion to Allow Reasonable & Effective Alyson A. Grine is an assistant professor at Voir Dire on Issues of Race, Implicit Bias & Attitudes, WWee add value to your North Carolina Central University School of Experiences and Biases Concerning African Americans practice by extending your Law. Previously, Grine served as the defender (sample motion), bit.ly/2nc5E6z. educator at the UNC School of Government 15. Pena-Rodriguez, Alito, J., dissenting, slip op. at 13-14. expertise and helping your from 2006 until August 2016 focusing on 16. Morgan v. Illinois, 504 US 719, 729–30 (1992) clients reachreach their criminal law and procedure and indigent (holding that capital defendant constitutionally enti- tled to ask specific “life qualifying” questions to the philanthrphilanthropicopic goals. defense education. She continues to work for jury); see also Rosales-Lopez v. United States, 451 US the School of Government on the Racial 182, 188 (1981) (plurality opinion) (“Without an Equity Network, a training program for indi- adequate voir dire the trial judge’s responsibility to CALL 800.532.1349800.532.1349 gent defense lawyers on issues of race and crim- remove prospective jurors who will not be able impar- NCCONCCOMMUNITYFOUNDATION.ORGMMUNITYFOUNDAATTTION.ORGION tially to follow the court’s instructions and evaluate inal justice. the evidence cannot be fulfilled.”). But cf. Mu’Min v. Virginia, 500 US 415, 425 (1991) (emphasizing 19. These cases are discussed at greater length in Cynthia extent of trial judge’s discretion in controlling voir dire Endnotes Lee, A New Approach to Voir Dire on Racial Bias, 5 UC and holding that voir dire questions about the content 1. Batson v. Kentucky, 476 US 79, 89 (1986). Irvine L. Rev. 843, 852-59 (2015), bit.ly/2p2cfgl. of pretrial publicity to which jurors might have been 2. Pena-Rodriguez v. Colorado, 580 US ___, 2017 WL exposed are not constitutionally required). North 20. 409 US 524 (1973). 855760 (2017). Carolina statutes likewise give the parties the right to 21. 424 US 589 (1976). 3. Id., slip op. at 4. “personally question prospective jurors individually 22. 451 US 182 (1981). See also Aldridge v. United States, 4. Id. concerning their fitness and competency to serve as 283 US 308 (1931) (reversing black defendant’s con- 5. NC Gen. Stat. § 8C-1, Rule 606(b). jurors in the case to determine whether there is a basis viction for murder of a white policeman where trial for a challenge for cause or whether to exercise a court refused to ask prospective jurors whether they 6. Pena-Rodriguez, slip. op. at 2. peremptory challenge.” G.S. 15A-1214(c); see also held racial prejudices). 7. Id., slip op. at 15-16. G.S. 15A-1212(9) (recognizing right to challenge for 23. 476 US 28 (1986). 8. Mu’Min v. Virginia, 500 US 415, 431, (1991). See also cause an individual juror who is unable to render a 24. Turner, 476 US at 40 (Brennan, J., concurring in part State v. Conner, 335 NC 618, 629 (1994) (stating that fair and impartial verdict). For a further discussion of and dissenting in part) (stating that the court had the purpose of voir dire examination “is to eliminate voir dire, see 2 Julie Ramseur Lewis & John Rubin, declared this principle in Rosales-Lopez, 451 US at extremes of partiality and to assure both the defendant North Carolina Defender Manual § 25.3 (Voir Dire) 190). and the State that the persons chosen to decide the guilt (2d ed. 2012). 25. State v. Williams, 339 NC 1, 18 (1994) (holding there or innocence of the accused will reach that decision 17. See State v. Conner, 335 NC 618, 629 (1994) (holding was no error in a capital case involving a black defen- solely upon the evidence produced at trial.” (internal that pretrial order limiting right to voir dire to questions dant and a white victim, when, during jury selection, quotation marks omitted)). not asked by court was error). 9. Tanner v. US, 483 US 107 (1987). See also Warger v. 18. Pena-Rodriguez, slip op. at 14 (citing Ham v. South Shauers, 574 US ___ , 135 S. Ct. 521 (2014) (finding Carolina, 409 US 524 (1973); Rosales-Lopez v. US, 451 that even where jurors lie during voir dire, the right to US 182 (1981); Turner v. Murray, 476 US 28 (1986)). CONTINUED ON PAGE 27

THE NORTH CAROLINA STATE BAR JOURNAL 13 New North Carolina Law Allows Fiduciaries Access to Digital Assets (But Only If...)

B Y J EAN G ORDON C ARTER

f someone dies or becomes incompetent, what happens to their digital assets? Who can legally access their email and handle it properly? Do their social media accounts remain forever open accepting content and sending cheery messages about the dece- dent?I How does an executor identify digital assets, value them, pay taxes on them, and ultimately distribute them to the rightful heirs? Until recently there were no easy or practi- cal answers to these questions. Digital assets ©iStockphoto.com are controlled by their terms of service—the original contracts created when someone set up their digital accounts—the contracts they seldom read, but simply clicked, “I accept.” Those contracts generally protect privacy by not allowing legal access to others, and not dealing with death or other life events prevent- (RUFADAA) allowing North Carolinians to recipient. Under the new law, those online ing an individual from controlling his own determine who can, or cannot, access their tools actually take precedence over instruc- digital assets. Let’s face it, when Facebook was digital assets. Based on the individual’s deci- tions in a will, power of attorney, or other such originally set up, it is unlikely anyone focused sions, fiduciaries can now access digital assets legal document or record. on the users eventually dying. to handle them appropriately. Those fiduciar- If an individual has not specifically con- For years the fate of digital assets has ies include executors, agents, trustees, and sented to allow his fiduciaries to access his dig- remained in limbo. First no one recognized guardians. ital assets, then his fiduciaries may still be able the problem. Next there were a few inade- Specifically, North Carolinians can provide to access the catalogue for them—for example quate laws. Eventually life took over—people directions in their wills, powers of attorney, the “to/from” lines on emails, though this died—and many people recognized the prob- trusts, or other records telling digital asset cus- access may require additional information, lem, but reaching a way to deal with the issues, todians to disclose (or not disclose) their digi- and even court findings. Access to the content considering both the providers and legal rep- tal assets to their fiduciaries. Importantly, indi- (substance) of digital assets is more difficult resentatives, took time. Finally in 2015 all par- viduals can use online tools for each of their and is allowed only if the individual consented ties at the table agreed on a compromise. digital assets, where available, to direct their in an online tool, will, or other legal docu- In 2016 North Carolina joined the major- digital asset custodians on handling their dig- ment. Even then the custodian may require ity of the states considering this problem and ital assets under various circumstances, such as further evidence and court findings before enacted the Revised Uniform Fiduciary Access death, or designating who has various powers granting access. With proper evidence, fiduci- to Digital Assets Act (Session Law 2016-53) over their digital assets, known as a designated aries can also terminate digital accounts.

14 SUMMER 2017 Once the fiduciary provides the required any communication that is in electronic If this stand-alone consent is used it might information, the custodian has 60 days to storage by that service or that is carried or be complemented by language in the will, give access, can provide access in various maintained on that service; (3) any record power of attorney, etc.—or at least a short ver- ways—actual access or a “data dump”—and or other information pertaining to me sion of it, such as the following: may charge for this service. Custodians do with respect to that service; (4) any digital If at the time of my death I am a user of an not need to disclose digital assets deleted by asset of mine; (5) any user account of account or otherwise have digital assets, the actual user. And this law does not apply mine; (6) any electronic communication then pursuant to the North Carolina to “employee” digital assets. of mine; (7) any computing device of Revised Uniform Fiduciary Access to This new law puts the burden on individ- mine; (8) any data storage device or medi- Digital Assets Act, I hereby expressly con- uals to direct who can access their digital um of mine; (9) any record or other infor- sent to the disclosure to my executor of any assets, either using an online tool or in their mation pertaining to me with respect to or all of my digital assets, including their legal documents. As a compromise between such items; and (10) any assets similar to content and catalogue. Such disclosure estate planners who wanted automatic access the preceding as currently exist or may shall be presumed to be reasonably neces- to all digital assets and the digital providers exist as technology develops, including sary for the administration of my estate. requiring more privacy safeguards (and both the catalogue and content of each of My executor may exercise all powers that arguably protection for themselves), the law the preceding items. an absolute owner would have and any is not a complete cure for the problems with The term “fiduciaries” includes an attor- other powers appropriate to access, man- digital assets. Still, this new law greatly ney-in-fact or agent acting under a power age, control, value, distribute, and delete improves the situation surrounding digital of attorney document signed by me, a the items referenced above, including assets and fiduciaries needing access to them. guardian appointed for me, a trustee of my employing any consultants or agents to The most important point of this new law revocable trust, and a personal representa- assist in accessing, decrypting and han- is that people need to use online tools, which tive (executor or administrator) of my dling them. digital custodians are increasingly providing, estate. Other terms used in this authoriza- Whether or not an individual has used to give directions on how they want their dig- tion are as defined in Chapter 36F of the online tools, or provided for digital assets in ital assets handled, overcoming those original General Statutes of North Carolina. The his documents, the time will come for some terms of service no one reads. Further, people terms used in this authorization are to be fiduciary to handle those assets. A fiduciary should consider complementing those online construed as broadly as possible. facing that situation needs to do as fiduciaries tools with instructions in legal documents, This authorization is to be construed to be have always done—look for clues on what including their wills, powers of attorney, and my lawful consent under all applicable digital assets the individual has, and act to other documents saying how to handle digital laws, including but not limited to, Chapter handle them. This work is easier if the dece- assets after death or incompetency, including 36F of the General Statutes of North dent has provided for digital assets up front— designating who receives those digital assets Carolina; the Electronic Communications including an inventory of digital assets—but and can handle them. Privacy Act of 1986, as amended; the in any event, the fiduciary has to act in a pru- Many practitioners are now using a Computer Fraud and Abuse Act of 1986, dent manner to protect the value of the digital stand-alone form for digital asset consent as amended; and any other applicable fed- assets, report them as required by law, and much like the HIPAA Consent many estate eral or state data privacy law or criminal convey them to the rightful heirs. Also, the planners use. An example of language for a law. This authorization is effective imme- fiduciary might want to terminate accounts to stand-alone consent follows. The original of diately. Unless this authorization is revoked avoid embarrassment or even identity theft. A this language began with a form prepared by by me in writing while I am competent, fiduciary cannot hide behind a lack of knowl- James D. Lamm, an attorney in Minnesota, this authorization continues to be effective edge of digital assets, and should get appropri- who has been very active in digital asset law during any period that I am incapacitated ate professional help as needed. development. It is used/adapted with his and continues to be effective after my Unfortunately, RUFADAA will not help consent. death. Unless a custodian, individual, or fiduciaries handle digital assets in all cases, but entity has received actual notice that this it will help in some cases, particularly if the Digital Assets—Authorization and authorization has been validly revoked by person provided for his own digital assets. Consent for Release me, that custodian, individual, or entity Digital assets live forever. People don’t. I hereby specifically authorize and direct receiving this authorization may act on the This new North Carolina law helps solve this any custodian, person, or entity that pos- presumption that it is valid and unre- problem, but only if people take advantage sesses, custodies, or controls any electron- voked. A custodian, person, or entity may of it. n ically stored information or digital assets accept a copy or facsimile of this original of mine (including jointly owed with me) authorization as though it were an original Jean Gordon Carter is a partner in the or that provides to me an electronic com- document. Raleigh office of McGuireWoods LLP. munication service or remote computing This _____ day of ______, This article originally appeared in the service, whether public or private, to 20____. February 2017 edition of “The Will & The divulge to my then-acting fiduciaries at ______Way,” the newsletter of the North Carolina Bar any time: (1) any electronically stored ______Association’s Estate Planning & Fiduciary Law information of mine; (2) the contents of [NOTARY FORM] Section.

THE NORTH CAROLINA STATE BAR JOURNAL 15 Juvenile Defenders Reflect on Their Careers and 50 Years Since

B Y E RIC J. ZOGRY

his year marks the 50th anniversary

of the United States Supreme Court

decision In re Gault. Gerald Gault

was a 16-year-old adjudicated and ©iStockphoto.com

Tconfined for making an illicit phone call to an elderly neighbor.

Gerald was given no notice of the charges, no attorney, no oppor- tunity to cross examine witnesses, and not informed of his right to remain silent when speaking to authorities. The Supreme Court deter- mined these rights apply in juvenile delinquency court, firmly establishing the rule of law and due process.

To commemorate this anniversary, the ilege that animates our systems was an early a guardian ad litem lawyer to protect kids. I Office of the Juvenile Defender interviewed source of motivation for me. Once I went to ended up in the district attorney’s office for several juvenile defense counsel from around law school, I took a clinic with Randy Hertz ten years working on family crimes (domestic the state to tell their story of how they became and was hooked—here was an opportunity violence, child abuse, sex crimes, etc.) and in defenders, what inspires their practice, and to work for racial justice and also be a litiga- juvenile court. So I naturally jumped at the their reflections on the 50th anniversary of the tor. I love criminal procedure and love being opportunity to do nothing but juvenile Gault decision. an advocate. defense. I believe my whole life has prepared Q: How did you first become involved in Mary Stansell, juvenile chief, Wake me for this job. the practice of delinquency law? County Public Defender Office: I have Sabrina Leshore, attorney at Leshore Law Barbara Fedders, assistant professor at always worked with at-risk kids. With a BA in Firm, PLLC, and executive director of UNC School of Law, director of Youth psychology, I spent my first life as a youth CROSSED, Lumberton: My initial involve- Justice Clinic: I was aware from my early 20s counselor at a Boys & Girls Club and the ment with the practice of juvenile law was that my younger brother, but for his race Iowa State Training School, and then I was a during my first year of law school. I interned (white), class (middle), and location of our child protective service investigator/social with NC Child, formerly known as Action for birth (suburban) would have been involved worker for Lee County Department of Social Children, NC. During the internship I in the juvenile and likely criminal systems. Services. That drove me to law school in my learned about the different policies and short- The galling inequality of class and race priv- 30s with intentions of hanging out a shingle as comings involved in juvenile law.

16 SUMMER 2017 Starr Ward, juvenile defender in Guilford helped with the 2011 grassroots NC Raise the son. This interaction provides them with the County: I have practiced criminal law for over Age campaign. Following my interactions ability to see past their dismal situations and 12 years as both a public defender and as a pri- with Brandy, I interned with Mary Stansell at look towards a brighter future. I also enjoy vate attorney on the court-appointed list. the Wake County Public Defenders’ Office, advocating for them in open court to illustrate Over the years I have handled every type of Juvenile Unit, where I learned how to use legal that someone is fighting for their rights. criminal case ranging from speeding tickets to strategy and passion to effectively represent What I like least about practicing in juve- first-degree murder. After leaving the public youth. Finally, I interned at the NC Office of nile court is the stigma that other stakeholders defender’s office six years ago, I was approved the Juvenile Defender with Eric Zogry who place on the juveniles. Instead of promoting to be on the juvenile appointed list. helped me to feel comfortable and confident hope and a second chance, juvenile court Mitchell Feld, director of Children’s in my skills and ability to effectively act as a seems to sometimes promote hopelessness and Defense at the Council for Children’s Rights, juvenile justice leader in North Carolina. a disregard for rehabilitation. Charlotte: I interned with the council in the Starr Ward: I really look up to my parents. Yolanda Fair, assistant public defender, summer of 2007. It was an amazing experi- They have been a tremendous influence in my Buncombe County: I like to see when clients ence working with and learning from a group life and they continue to support me daily. are successful on probation and are “publically of experienced attorneys that had a passion for During my formative years, my parents con- celebrated” in the courtroom. One of the working with children. I was able to handle stantly pushed me to succeed academically biggest challenges is the concept of “reason- cases in court, develop rapport with children and provided opportunities for me that able doubt” and that one is “innocent until that I saw multiple times during the summer, shaped me into the person I am today. In the proven guilty.” This is especially difficult and learn a tremendous amount about crimi- juvenile court system, some families need when, during the intake process, information nal and juvenile law. After that summer I additional support and I try to find resources gets revealed when it wouldn’t be in the adult made it my mission to return to practicing in that can help fill gaps in the child’s life. I am criminal process. this area after passing the bar exam. hopeful that, with the support of the juvenile Mitchell Feld: The children who I repre- Q: Is there anyone who has influenced court system, these children can have some- sent every day are the most rewarding part of your practice? If so, how? one advocating for them like my parents have practicing in juvenile court. They make it fun, Barbara Fedders: Randy Hertz and done and continue to do so for me. worthwhile, and provide so much meaning to Bernardine Dohrn—amazing mentors, bril- Q: What do you find most rewarding doing this work every day. liant lawyers. Bryan Stevenson because of his about practicing in juvenile court? What do The part I like least about practicing in passion and commitment. James Bell because you like least about practicing in juvenile juvenile court is that while we have made of his insistence on speaking truth about white court? progress on a number of issues to improve supremacy and the juvenile court. Barbara Fedders: I like forming relation- outcomes, we still have a long way to go. Mary Stansell: A defense attorney in ships with kids. The lawyer-client relationship Q: How has the Gault decision impacted Harnett County when I was prosecuting was is unique and special. What I like least is how your daily practice or philosophy of practice? a wonderful mentor in the law practice. He little impact court involvement has on a kid, Barbara Fedders: Gault made clear that taught me to “ALWAYS do the right thing” how meaningless the court proceedings typi- parents and probation officers, no matter how (then you don’t have to worry about your Bar cally are to kids. well intentioned, cannot protect a child’s legal license). I believe that it helped me to see just Mary Stansell: Definitely the most interests. That part of the holding is critical how powerful the prosecutor’s position is and rewarding part of my practice is the kids that because it belies the misguided notion that the to not abuse my power as an ADA. He also I am actually able to connect with and counsel juvenile court’s supposedly rehabilitative mis- taught me the importance of being more into a better life. sion means that adversarial proceedings with compassionate with our clients (whatever side Scott Dennis: Most rewarding? I generally zealous defense counsel are not essential. you work on, people in court are in crisis), and just enjoy working with children. Each client Mary Stansell: It gives legal mandate to not to get so complacent in what, to me, is just has a tremendous capacity for good, and they my plea to make children’s rights actually another day in court, but to whomever I am need you to believe in them. I generally matter, to insist that judges do their job and representing is a rare, crisis situation. believe that people become what they are told weigh legal issues (rather than find them I have too many mentors to name, because they are. It is your job to advocate for that guilty simply because “we are just here to get I believe that when we quit learning, we start child and to let them know how important he them help”). to die. or she is. Sabrina Leshore: The Gault decision Scott Dennis, associate at Bringewatt & Like least about practicing? I’ll keep this helped to solidify the notion that juveniles fac- Snover, PLLC, Lexington: Jerry Stainback, simple. All clients can be frustrating from time ing an adjudication of delinquency and incar- who approaches a case with the tenacity and to time. ceration are entitled to certain procedural safe- stamina of a boxer, has an ability to tap into Sabrina Leshore: The most rewarding guards under the Due Process Clause of the the reasonableness of a community, and has component of practicing in juvenile court is Fourteenth Amendment. Because of this deci- class towards the other side. having the privilege to speak with the youth sion, I make sure that I zealously advocate for Sabrina Leshore: There are many people and deposit seeds of hope into them. When I my juvenile clients through preparation and who have influenced me to practice juvenile interact with the juveniles, I am afforded the communication with each one of the juveniles law. First, Brandy Bynum inspired me to pur- opportunity to share the similarities that I I represent. sue a career as a juvenile justice advocate as I observe between myself and the young per- Starr Ward: The Gault decision gave juve-

THE NORTH CAROLINA STATE BAR JOURNAL 17 niles the right to the assistance of counsel in all time with your client. Use the performance understand where they came from, and help court proceedings. The ability to have quality guidelines in the Juvenile Defender Manual them get to where they want to be. legal representation without regard to finan- and educate them about the process and the Q: What would you tell the next genera- cial ability is the cornerstone of my practice consequences. Tell them what you are going to tion of defenders? and why I do public defense work. Juvenile tell them, tell them again, and then tell them Mary Stansell: Being a part of saving a kid defendants are real people and their cases have what you told them. Have them repeat some contributes to all of humanity because they real consequences on their lives. It is essential of the information back. Know also that many are our future. It can be very emotionally that they have an advocate to lead them of our children have learning disabilities. 4) empowering work (when you get through to a through the system, explain their rights, and Learn about the resources that your commu- kid), but it can also be VERY depressing on a counsel them on the impacts of their deci- nity offers. This will help scale back over-the- day-to-day basis having to watch “the system” sions. The right to effective legal representa- top proposals by district attorneys and court grind kids up and destroy their hope and tion is not limited to the elite few with large counselors, and, if your client admits or is futures. But I would also stress the importance disposable incomes. The children we see in adjudicated, you will be able to propose some- of keeping your perspective and balance in juvenile court are the future, and our society thing positive that your client can reasonably life. You can’t save every starfish in the sea. Put bears a collective responsibility to reach these accomplish. in the long hours, go the extra mile, but also children and to attempt rehabilitation so these Sabrina Leshore: I cannot allow the opin- go home and appreciate your own family. kids can avoid becoming part of the adult ions of others in the courtroom sway how I Scott Dennis: You are the bridge between prison system. make legal decisions for my client. Although your clients’ worst moments and their way Mitchell Feld: The Gault decision has others may look at my strategies as overly zeal- out. They need you to believe in them, and increased my passion to tell others that chil- ous or overly ambitious, I must continue to they need to know that they are worth fight- dren have the same rights as adults do. People have the courage to stand up against adversity ing for, no matter how many hard-headed tend to be very quick to say “well, it’s just a in the courtroom because my job is to help my comments they make, and no matter how child” or “they’re a child so they won’t know client fight through the chatter of the adverse many barriers of trust exist. what to decide.” Minimizing children and parties and advocate on their behalf. Sabrina Leshore: Don’t be surprised if a treating them like second-class citizens causes Starr Ward: Patience. Because the juvenile juvenile recidivates. Use each interaction as an me to fight even harder for them to be treated system closely monitors the children on pro- opportunity to sow another seed of hope. like anyone else. bation, juveniles who have serious issues at Continue to fight just as hard as you did the Q: What is the most important lesson home and school are likely to violate their pro- first time you were retained or appointed to that you learned while practicing in juvenile bation. As anyone with children of their own represent them. court? will understand, juveniles do not always get it Starr Ward: I would tell the next genera- Barbara Fedders: “I am only one, But still right on the first try. tion of public defenders that while this job is I am one. I cannot do everything, But still I It is important to keep looking for stressful, it is all worth it. I think often of the can do something; And because I cannot do resources and additional ways to help your parable where a boy walks along the shoreline everything, I will not refuse to do the some- juvenile client. Unlike adult work, even when and tosses a starfish back into the ocean after thing that I can do.” (Edward Everett Hale) one charge is disposed of, generally the same it has been washed ashore. A man asks the Mary Stansell: The resiliency of children’s attorney is appointed for violations or new boy why does he bother as there are many hearts. That I must keep a hopeful and charges. It is imperative to get to know your beached starfish and he cannot possibly help encouraging attitude with each and every juvenile client on a personal level and to build them all. The boy replies, but for that one child I work with because I never know which a relationship with their guardians and sup- starfish, I made a difference. While every case ones will “make it” and which ones won’t. And port system. I strive to never give up on my may not go the way you want it to go, and it’s not for me to decide that by giving up on kids and to always look for additional options. not every juvenile client becomes a success any one of them. Yolanda Fair: I learned that you can’t make story, doing this type of work allows you the Scott Dennis: There are so many. 1) Get assumptions about the child’s ability to man- opportunity to truly change the course of a your client on your side early and often. There age probation. Different things motivate dif- young child’s life. are layers of distrust within the system: of pub- ferent kids. And you can’t predict success— Yolanda Fair: Don’t be afraid to challenge licly appointed lawyers, of court counselors, those clients that you think will struggle often the status quo. Don’t accept when the court and through cultural disconnects. This starts succeed, and those who seem destined for suc- treats different clients with the same condi- in the secured custody hearings. They need to cess struggle. tions—make sure to advocate for your client’s see you fighting as soon as you have enough Mitchell Feld: Be grateful. Be humble. Be specific needs. This court is not “kiddie court” information to be competent to do so. 2) If simple. The children we help every day have or “criminal court lite”; the penalties and pun- you are able, get your client out of secured cus- lived difficult lives, experienced situations ishments can have real consequences and tody as fast as you can. The more exposed they none of us can imagine, and try to make the impacts. are to children in crises, the more negative les- most out of any situation. It is very easy in our Mitchell Feld: Be creative. We will only sons they learn. Also, I generally believe that technology-driven world to have unreasonable raise the bar on juvenile court if we continue the longer children become accustomed to expectations of others, forget the meaning of to push the limits. It will be easier to raise the secured custody, the more comfortable they personal interaction, and always want more. become with the idea of returning. 3) Take We need to meet our clients where they are, CONTINUED ON PAGE 25

18 SUMMER 2017 Lawyers in the Legislature

B Y N. LEO D AUGHTRY

rom the beginning of our tisanship in the judiciary by educating non- makes them acutely aware of the ways in state, lawyers have played a lawyers on the best way to make the judiciary which a law impacts the lives of all citizens. critical role in the North function as it should—as independent and as Lawyers have an understanding deeper than Carolina General Assembly. free of politics as it can be. that provided by the news media or those Citizens have depended on When our government was formed, the who have the loudest voices. A good example lawyers to take on the respon- judicial branch was the weakest of the three. of this is the strong desire for tort reform. sibility to lead the legislative The legislative branch controlled the purse Most members of the general assembly branch of government. The statistics bear out strings and the executive branch controlled believe there are too many lawsuits, too many Fhow lawyers have served. Currently there are the sword. The judiciary was left with the runaway juries, and too many trial lawyers 21 attorneys in the house (17.5% of the mem- responsibility of its courageous judges making that manipulate the system for their own per- bers) and 11 in the senate (22% of the mem- difficult decisions. That is why our wise fore- sonal gain. We need lawyers in the general bers). Over the years, the numbers have cer- fathers made sure judges—at least on the fed- assembly to explain that our courts must be tainly declined. In 1971 there were 46 lawyers eral level—were appointed for life. able to redress the wrongful acts and the indi- in the house (38%) and 22 in the senate It is up to the lawyers in the legislature to viduals who commit them. The high profile (44%). Even though there has been a marked ensure that the judiciary has enough funding cases generally have facts that support their decrease in the number of attorneys serving, to remain a strong and viable third branch of results—facts that are not explained or under- the predominance of lawyers in the state legis- government. Furthermore, lawyers are stood. Lawyers help educate other members lature remains; and lawyers therefore assume a uniquely advantaged to understand the judi- of the general assembly. major responsibility for both the successes and cial system and to craft and advocate for laws Governing ourselves is a high calling, but failures of the legislative branch. to protect its independence. Lawyers play a most difficult. Lawyers have been taught to There was a time when North Carolina vital role with skills and knowledge only they vigorously advocate for their position, but to was essentially a one-party state. Once a can- can offer. do so in a manner that is respectful and cor- didate was selected by the party, he or she had We need lawyers in the general assembly dial. Lawyers have been trained to look at all essentially no opposition. Judicial candidates who can spot subtle issues that may, in the sides of an issue, understanding that there can were basically selected by the bar in their long run, adversely affect our citizens. Lawyers exist two competing, good reasons for a deci- respective judicial districts. The judges then are taught to identify issues. Lawyers are sion. Because of this training, they can more ran statewide, generally unopposed, enabling trained to be skeptics, to look at all sides of an easily respect an opposing argument—even them to be independent. issue, and, in order to protect clients, identify while disagreeing with it. We need this in the In recent years we have increasingly the worst possible construction and outcome general assembly. We need lawyers who know become a two-party state. Although this is a of any proposal. Lawyers have a unique skill how to mediate, how to compromise, and positive development, it has had serious reper- that allows them to see the unexpected conse- how to come up with a negotiated solution cussions for the judicial branch. Judicial can- quences of a well-intentioned bill. Those who that may not be their ideal but nonetheless is didates must mount vigorous campaigns for practice law understand how a few word workable and prevents stalemate. If we are to election and have gotten caught up in partisan choices can lead to results never intended. In effectively govern ourselves, we need lawyers politics, which creates a great danger for the addition, we need lawyers in the general in the general assembly now more than ever. judicial branch. A good example is Stephenson assembly who have practiced law and under- We need you. n v. Bartlett, the redistricting case that ended up stand the intricacies of family law, corpora- in the Supreme Court. The decision was 5-4, tions, criminal law, taxation, and many other In 1969 Leo Daughtry founded Daughtry, a split right down party lines. Because of this areas that may benefit special interest groups Woodard, Lawrence, & Starling in Smithfield, decision, funding to the Courts was sharply who often work through their lobbyists to North Carolina, as a sole practitioner. He curtailed. Since then things have not gotten influence legislation to suit their needs. And, became active in politics in 1976 and was elected any better with the emphasis remaining on their needs may not be the best for the state. to the NC Senate in 1989. His political career controversial social issues. We need lawyers in Lawyers interact with all segments of soci- has expanded to both the NC Senate and the NC the legislature to prevent the infection of par- ety while providing legal services. Their work House of Representatives.

THE NORTH CAROLINA STATE BAR JOURNAL 19 Honesty is the Only Policy

B Y G. GRAY W ILSON

hile caught in the throes

of a nine-week jury trial

last year, I read with inter-

est the latest “vanishing jury” op-ed in the Texas Bar Journal (March 2016) entitled

W ©iStockphoto.com

“Honesty is the Best Policy.” As with other professional lamenta- tions over the alleged “near extinction of the jury trial,” this piece proposes, “It’s time to disclose lack of jury trial experience.” The authors (one a law school professor, the other an AUSA) opine that a litigator can hardly evaluate or settle, much less try, a case without the gold standard of courtroom experience with a venire. They appropriately recommend that an attorney has an ethical obligation to inform a client of a lack of jury trial competency (“Honesty is a virtue easy to extol, easy to rationalize, and hard to practice.”), but candor in the attorney-client relationship makes eminent good sense, and last time I checked, the North Carolina State

Bar Rules of Professional Conduct require that lawyers not undertake matters they are not qualified to handle.1

But while seconding the laudable posi- oppose me in court when the clerk starts front of a jury with no earthly idea about tion that an attorney must own up to the seating jurors in the box. No trial lawyer how to try a case. If that sounds familiar, client when the skill set is simply lacking, I worth his or her salt has not experienced the then the Texas authors have a very good have to exude just a little schadenfreude by relief of facing an arrogant opponent, who point. As “Dirty Harry” Callahan expressed noting that nothing pleases me more than to has wreaked havoc in pleadings, pretrial in the movie Magnum Force, “A man’s got to have a litigator (as opposed to a trial lawyer) motions, and discovery, only to show up in know his limitations.”

20 SUMMER 2017 But even before getting to the courtroom ter), it means that one side or the other has ty). As I wrote back in 1989: for trial, the litigator is at a disadvantage miscalculated (i.e., usually the attorney of The decision to opt for a jury trial must against a seasoned trial attorney. Without record). That may be true, but juries also be made during the pleading stage of a jury experience, a litigator is at a loss to know make mistakes, and to that extent remain case. The skilled practitioner must con- what discovery to pursue and how, for the unpredictable even to the most intuitive of sider a variety of factors, including the purpose of marshalling the evidence for a counsel, not to mention the jury consultants nature of the suit, the complexity of the jury. Similarly, a litigator may lack the ability hired to do the background work. The recent legal and factual issues involved, the to assess a case objectively for settlement prime-time drama Bull may offer great enter- demographics of the forum county, and value for the same reason. The Texas article tainment in this regard, but as the title sug- the tenor of the local judiciary. Judges are makes both of these points more eloquently, gests, the premise of the series is equal parts often reluctant fact finders, and many do but the bottom line is, why would anyone psychobabble and fiction. And yes, psy- not relish the role of trier of fact that is ever settle a case with an opponent who can- chopaths can end up on juries also, not to sometimes thrust upon them. The lay not sell it to a jury? mention the more harmless but otherwise notion that a bench trial lacks the unfair- The specter of lawyers bungling jury trials emotionally unstable (I mean, there are only ness, unpredictability, and confusion of a is hardly a recent phenomenon. The more so many challenges in this world), and trials jury trial is not borne out by experience. intriguing question is whether the premise of can be sheer sport for the mentally deranged History teaches that a jury can best settle the Texas article is sound. The opinion opens: or just plain malevolent personalities. My factual controversies, and a jury should “The days of the trial lawyer are essentially nine-weeker ended with a hung jury, 11-1 in therefore not be dispensed with lightly. gone...Trials themselves are essentially gone as my favor, hardly something to write home When any doubt exists, the better prac- well.” Pointing to a number of factors that about, but I will take a mistrial over a clean kill tice is to demand a jury.5 have contributed to the demise of this institu- any day. The holdout was a sleeper, a rogue The only remaining unanswered question tion and its legal cowboys, the authors posit juror no combination of technology and is, of course, how one develops the skill to be alternative dispute resolution as the wave of empirical savvy could divine before both sides a trial lawyer in this age of diminishing oppor- the future. They may well be correct, but trial passed on that one. Who can really say that tunity. Many law schools offer trial advocacy lawyers are not quite dead yet in North one juror dines on cornbread and buttermilk, courses with mock jury trials, often pulling Carolina, and I suspect that is the case in while the other prefers a diet of Lorazepam practitioners from the local bar to serve as many other pockets of resistance around the and Zoloft? adjunct professors in this regard. I have also country where high-stakes disputes are still So juries can go off half-cocked on matters participated in some of the national programs settled the old-fashioned way. no one ever contemplated for reasons unrelat- that offer instruction in trial advocacy. I con- For example, in this jurisdiction, a jury ed to the evidence (e.g., the color of the socks fess that these can be poor substitutes for the trial is still mandatory in certain instances. or tie a male attorney sports, stiletto heels on a real deal, but they may be a good start. I was Will caveats require that a jury pass on the woman attorney, whether the judge twirls his thrown into the fray early on when fender validity of certain testamentary instruments, hair while listening to the case, how the bailiff benders could be tried to a jury in a day, and and the caveat procedure (if not the decedent) interacts with jurors outside the immediate the stakes were often under five figures. But I is alive and well here.2 The clerk of court may courtroom, what anyone had for lunch, an also did a lot of second-chair work watching also require that 12 citizens pass on whether or uncomfortable chair, etc.), but that is part of some of the legendary trial lawyers in this state not to send Uncle Ernie to the funny farm in the package. A mediated settlement confer- strut their stuff in the courtroom. Great men- incompetency proceedings.3 And until recent- ence can end with both sides unhappy over tors make great trial attorneys, and I am ly, all felony cases in the criminal arena had to the result, avoiding jury roulette, but not all indebted to those who took the time to teach be tried to a jury. Predictably, since that statute cases are designed for such Solomonic resolu- me their craft. I may never be their equal, but was amended in 2014 to permit such trials to tion. Sometimes corporate fraud, government I will always be up for the challenge. n occur before the bench (except where a death corruption, and individual skullduggery need sentence may be sought),4 there have not been to be addressed by more than a brokered pay- G. Gray Wilson is a senior partner with the many takers from the ranks of the accused. off, i.e., justice should be more than just the law firm of Wilson & Helms LLP in Winston- Motor vehicle personal injury and medical price of doing business. Juries can demon- Salem, and is currently the vice president of the malpractice cases still command the bulk of strate amazing collective wisdom and human North Carolina State Bar. the jury docket in civil court, with the stakes decency on occasion; not all of them board a This article originally appeared in the ranging from $25,000 to $25 million. runaway train. Spring 2017 edition of the Journal of the Certainly the number of jury trials has shrunk So, they usually get it right, if the lawyers American College of Trial Lawyers. dramatically over the past generation, but in are competent and play it straight and the response so has the roster of trial attorneys. judge is capable and fair. Having tried close to Hence, I occasionally get asked to go try a case 300 cases in my career, I have seen only a Endnotes before a jury on as little as two to six weeks’ handful of genuine miscarriages, perhaps one 1. NC Rules Prof’l. Conduct Rule 1.1 (2003). notice by some law firms that lack trial lawyers or two rivalling the Stalin show trials of the 2. N.C.G.S. § 31-33(a). in their own ranks. 30s. This database is a testament to the value 3. N.C.G.S. § 35A-1110. It has been said that when a case is tried to of a trial by one’s peers (or at least a sampling 4. See N.C.G.S. § 15A-1201 (2014). a jury (or any other fact-finder for that mat- of humanity drawn from the local communi- 5. G. Wilson, NC Civ. Proc. (1st ed. 1989).

THE NORTH CAROLINA STATE BAR JOURNAL 21 Trial by Nature—Courtroom Lessons to Live By

B Y T RICIA M. DERR

avid Attenborough’s voice is more distin- guishable than his name or appearance. Writer and narrator of wildlife documen- taries such as The Blue Planet and Planet Earth, Attenborough is Dconsidered the “father of the modern nature documentary.” Attenborough films display and explain the natural behavior patterns of the animal kingdom. Breathtaking scenes are interposed ©iStockphoto.com with Attenborough’s buttery-sage British com- mentary. The prosaic message is larger than life. Existentially, you realize “survival of the fittest” does not only apply in the wild. After all, humans are animals too. The courtroom is simply another iteration of habitat. The laws the courtroom while trying a case against a yet, if our expert was actually his witness. Either of Mother Nature supersede the laws of man. highly reputable attorney (“Famous Lawyer”). way, Famous Lawyer scored points that day, Mother Nature doesn’t care if you are on the Knowing who we were up against, we worked and I learned a valuable lesson. African plain or in Courtroom #6150. tirelessly to prepare our star expert for what Smart trial lawyers are well-versed in the would certainly be a brutal cross-examination. Lesson #9: Display Matters laws of man. Brilliance in the courtroom, At trial, our expert killed it. He was incred- The phrase “odd bird” doesn’t come close however, demands appreciation of the laws of ible. He handled Famous Lawyer beautifully. to describing the bird-of-paradise. It looks like man and the rules of Mother Nature. Over It took every bit of restraint not to stand up a little black bird most of the time. However, the years, I’ve collected a few examples of and holler, “BOO-yah!” during mating season, the male bird puts on a Mother Nature’s lessons worthy of courtroom Glancing away from our expert over to the dazzling display of color, sound, and dance in consideration. Here are my top ten. jury box, I realized the jurors didn’t share my his effort to find a mate. enthusiasm. We thought our expert was awe- He prepares his stage with diligence. Lesson #10: When Danger Calls, Face some, but the jury didn’t look the least bit “Everything must be spic and span,” It with an Attitude entertained. They just sat there looking not at Attenborough recounts. The bird clears debris The frilled-neck lizard of Australia appears our expert, but at Famous Lawyer! and meticulously places foliage for maximum to be ordinary—until you scare it. When It was the “frilled lizard technique.” Famous effect. threatened, this lizard raises up on its hind legs Lawyer knew he was getting crushed. Yet, in- When a female nears, the performance and fans a bright red frill around its neck, stead of retreating, he puffed his chest and begins. He bobs and clicks. He serenades and velociraptor style. The display is spectacular raised his bright frill. Smiling and nodding struts, displaying abundant color and personal enough to frighten a wild dog into a tail- along with the expert, he acted like he was style. She observes, deciding if she is “in the tucked retreat. It has no venom or sharp teeth; winning. His confidence was palpable. I hon- mood” or not. The show means everything for it just acts like it does. estly don’t know whether the jury thought Fa- his legacy. I first saw the “frilled lizard technique” in mous Lawyer annihilated our expert or, worse As trial lawyers, we know exhibits are

22 SUMMER 2017 important, but what about the rest? Your stage competition, never ever assume your oppo- catch the bigger fish. and your stage presence are as important as nent won’t be good in the courtroom because the display. of your own biased viewpoint. Don’t assume a Lesson #6: Pin ‘em Down Carefully The superb bird-of-paradise gives us solid young lawyer won’t be a worthy opponent, or Humpback whales circle schools of krill, pointers on theatrics: a senior lawyer won’t have the stamina for a blowing giant bubbles. The krill will not swim • Keep your area crisp and clean. Counsel long case. Never prejudge the man as the through bubbles, so the “bubble wall” conve- tables are “on stage” too. Clutter sends a mes- attorney and the woman as the secretary, or niently cages the krill and the whales expend sage of disorganization. expect the minority attorney to be defending minimal energy for their meal. • Know your setup. Sit in the juror seats in the criminal case rather than prosecuting it. Like the krill, your adverse witness must be advance to view your exhibits to be sure they Prejudging risks underestimation. Being “caged” in his or her testimony before you are readable. Don’t forget the judge. underestimated provides a potent advantage. impeach. Too many lawyers head in for “the • The bigger the better. Tiny highlighted Adept counsel focus on the facts and not the kill” without eliminating all exit routes. words on an overhead projector are not as opposition. Exceptional lawyers expect I once saw a perfect Perry Mason moment compelling as graphic illustrations with large Famous Lawyer to show up every time. ruined in a medical malpractice case because font callouts. Undoubtedly, you have heard “elephants the plaintiff’s counsel failed to create his “bub- • Color matters. Bright colors are easier to never forget.” Along those lines, lawyers ble wall.” The case involved failure to diagnose read and can convey the importance of key should never forget that elephants can swim, and treat stroke. At deposition, the defendant wording and images. even if they don’t look much like fish. In liti- admitted the standard of care was governed by • Practice, preparation, and presence are gation, preconceived notions are often illusory a professional organization. The organization essential. and generally destructive. maintained extensive publications on stroke. • Honest drama works. Believe in your Plaintiff’s counsel identified guidelines com- case and be genuine. Fake tears are a turnoff. Lesson #7: Save Your Bait and Invest pletely contrary to the treatment the defen- • Being different captures attention. Wisely dant provided. The attorney planned to use Innovative presentations are rarely forgettable. Green herons have been observed collect- those guidelines as the “gotcha” moment. • Integrate sound, body language, and ing and saving “bait” such as small scraps of However, because the plaintiff’s attorney visuals. A great graphic is no good if the nar- bread. Rather than eating it themselves, the failed to pin the defendant down on the appli- rator mumbles. A concise explanation is less heron sprinkles the bread into the water to cation of the guidelines to the particular type impactful when presented with reclusive body attract fish. It waits patiently while fish assem- of stroke involved, the defendant had an easy language. ble, then chooses the fattest one for dinner out. “Those guidelines,” the defendant The survival of the superb bird-of-paradise because a big fresh fish is a larger, more satis- smirked, “apply to ischemic stroke and this relies on the success of the male bird’s display. fying meal than a crumb. was embolic.” The defendant then proceeded Don’t get me wrong, facts matter. However, I’ve seen many attorneys who cannot resist to give the jury an impressive lecture on never underestimate the importance of the- the scrap. They cannot wait for the big fish. embolic stroke while the plaintiff’s counsel atrics. Your legacy might depend on it. However, for those who wait, the reward is wilted with embarrassment. often worth the investment. Concede the facts When developing impeachment, don’t for- Lesson #8: Stereotypes Are that do not matter and focus on the significant get your “bubble wall.” Wall off all exit points Dangerous elements of your theory. and secure them well in advance, or you might Elephants can swim—even the really big I once cross-examined an expert witness be the one getting “schooled.” ones. Weighing up to 24,000 pounds, these with an established, peer-reviewed journal magnificent animals are impressive in the article contradicting her opinions. Rather Lesson #5: It Isn’t About You water. The trunk becomes a snorkel. Huge than conceding differences of opinion and Dingoes are dogs with serious organiza- feet transform into diving fins. While they focusing on her own, she wasted precious time tional talent that employ strategic teamwork lumber awkwardly on land, they glide effort- attacking the methodology of the opposing to catch prey. In one hunting technique, some lessly in water. study. All she had to do was agree to the sub- serve as “chasers.” The chasers startle prey to I’ve been lucky enough to meet and to stance of the article and explain the inapplica- incite widespread panic. They drive the herd observe many fantastic trial lawyers. Some bility based on the unique facts of this case. towards other team members who serve as have big personalities and extroverted style. Instead, her combative responses were defen- “hiders.” Hiders conceal themselves in the Others can barely carry on a social conversa- sive and unrealistic. In the end nobody cared brush, waiting for the prey. Surprising the tion (or prefer not to). what she said. prey, the hiders initiate the debilitating bite, Great trial lawyers do not have defined Likewise, think twice before cross-examin- and the pack swoops in to support the kill. characteristics or specific traits. You don’t have ing a witness over inconsequential issues. The entire team shares the feast. to look a certain way or have a certain person- Beating up an adverse (but objective) These pups have some good trial ality to be effective. You don’t even have to bystander witness over a DUI conviction nine reminders. For one, “the kill” isn’t possible have good grades in law school or graduate years ago can make you look desperate. without a team. Planning and organization in from a specific program. You have to be hon- As a general rule, you should pick a hand- advance contribute to the success of the team. est, genuine, deliberate, and prepared. ful of facts and objectives to accomplish with Each member is cognizant of their role and On the other side, when sizing up your each witness—save the breadcrumbs and mindful of the big picture.

THE NORTH CAROLINA STATE BAR JOURNAL 23 Like the Dingo, great trial teams identify, others, righteous indignation might be appro- The attendant risks of build-up include cultivate, and potentiate individual talent. priate. How do you want your client to both overdevelopment and underdevelop- Each member is aware of, and accountable for, appear? The texture of each case will be differ- ment. Swing the pendulum either way and their own responsibilities. Strategy is well- ent. The clever octopus must be versatile your timing is off. Like the chameleon, you planned and practiced. These elements are enough to change course in an instant. are left looking for the next meal with deplet- undeniable predicates to long-term success. ed energy and wasted time. The most critical component of the sus- Lesson #3: Know When to Play If you spend too much time qualifying tained prosperity of the Dingo pack is every Possum your witness, your jury is bored and tuned team member participates in the reward of a Hognose snakes cannot be beat at “playing out. Too little time, and you risk losing the productive hunt—not just the pack leader. possum.” This reptile is so theatrical, it will lit- chance to solidify your expert and your key Recognition of each team member generates erally stage its own murder by spewing blood points. The same is true with exhibits. incentive, pride in the team, and a feeling of and smelly fluid from its mouth and anus Overselling the “bloody knife” when it is just personal achievement. while writhing in feigned painful last breaths. a butter knife with a red speck can destroy You may be the pack leader in your firm. Apparently, its predators are often more inter- trust. Underselling crime scene photos can You might be the most talented lawyer ever. ested in killing it than eating it. leave an opportunity on the table. Finding a I’m sure you are really great. Whatever. Like it To the point, my recommendation relating perfect balance can be difficult. Here are a few or not, here’s the real truth—no matter how to the hognose snake is “playing possum” isn’t suggestions. essential you are, I promise you didn’t get always a bad idea. It bleeds (no pun intended) • What are the three to five most impor- there alone. In fact, I swear it. over into the camouflage octopus and swim- tant facts in your case? Identify and cultivate There is little more valuable in the court- ming elephant theories. If you aren’t seen, them. Resist the temptation to throw it all out room than an energetic, motivated team sup- respected, or appreciated as a contender, you there at one time. Some authorities advocate porting your client’s cause. Never forget to rec- may be holding a distinct advantage. unveiling your entire case in opening. Having ognize all involved in a good result. When it is In some cases, it may be productive to let sprung a few traps too early, I tend to be more always about the “pack leader” and not the your opponent speculate over your intentions. cautious. Keep in mind your best evidence pack itself, the prophecy is self-fulfilling—the Never be dishonest, of course, but do be con- might be contingent on your opponent’s case- “pack leader” becomes a lone wolf. scientious in your communication with the in-chief. Anything purely intended for other side. Is opposing counsel convinced you impeachment or rebuttal should be held until Lesson #4: Sometimes It’s Better to will settle at the courthouse? Are you being foundation is established. Don’t strike too Stay in the Background underestimated? Are there essential facts the early! Camouflage is an art as much as it is a form other side missed? If so, perhaps you play dead • Relaxed flies are easier to catch. Induce of survival in the wild. It is a skill equally uti- for now and spit blood later. relaxation. Does your opponent really think lized by predator and prey. she “got away with murder” during jury selec- The octopus is a master manipulator of Lesson #2: Timing is Everything tion by going a little too far into the facts of camouflage. It can change color and texture in A study conducted by a postdoctoral stu- the case? Perhaps you are better off sitting less than a second. They have advanced eye- dent at Brown University documented accel- tight and waiting for your turn (and equal lat- sight. They are limber enough to fit into the eration of the chameleon tongue at speeds of itude). Besides, unnecessary objections are smallest crevices. Best of all, they are super 0 to 60 mph in 1/100th of a second. The tiresome and irritating. Make your record if smart and keenly intuitive. chameleon expends tremendous energy to necessary, but do keep timing in mind when Unlike the wily octopus, trial lawyers often strike. Missing a strike means the chameleon making objections. Use them judiciously. have the instinct to be seen. We often fail to has less energy for the next try. In other words, • When considering witness foundation, analyze the power of subterfuge or selective missing can be costly. the jury is only interested in the basis of the presence. This is a mistake. At times, listening In the courtroom, timing is everything. testimony. Nothing more, nothing less. Who can be more valuable than being heard. Being Any “miss” is a costly one. Timing requires is this? What relevant knowledge do they pos- seen can attract unwarranted attention. While cadence. Execution of timing is one trial skill sess? How did they obtain this information? If “the squeaky wheel gets the oil,” sometimes firmly rooted in pure experience. Perfect tim- your biomedical engineer was an eagle scout “the nail that sticks out gets hammered.” ing combines build-up, precision, and inti- 38 years ago, trust me, nobody cares. If you are counsel for one of several defen- mate familiarity with the Rules of Evidence. dants, contemplate your role. Is your client The build-up is the equivalent of eviden- Lesson #1: Guard Your Egg the target? Would it be better to blend into tiary foundation. Build-up is selectively work- Male emperor penguins are “stay-at-home- the background? Will blending in help your ing through your expert’s stellar CV before dads.” Once the female lays the couple’s single case or hurt it? What is the likelihood the delving into opinion testimony. It is highlight- egg, she goes off on a “girls weekend” for two other side intends to lure you into compla- ing the credibility of a fact witness by display- months. While she stuffs her belly full of fish, cency? Measured visibility can be an appre- ing measures of objectivity and personal the male penguin braves temperatures of up to ciable asset. knowledge. It’s identifying the bloody knife -76° F, keeping the egg warm by holding it on Consider texture. How do you want to slowly and methodically so the jurors sit on top of his feet. The males huddle together for “show up” in the case? In some cases, an the edge of their seats waiting for the big empathetic style might be more persuasive. In reveal. CONTINUED ON PAGE 29

24 SUMMER 2017 TRUST ACCOUNTING

The New Reconciliation Report Form

B Y A NNE P ARKIN, FIELD A UDITOR

I never thought I could be so excited about This form could be used for both monthly It is easier to read, more concise in its format, revising an audit form, but I am—and I think and quarterly reconciliations; however, it guides you through performing both types of you will be, too. didn’t address important requirements in the reconciliations, and lists exactly the docu- The new Reconciliation Report can be rule amendments. In view of this, the State Bar ments needed to complete a reconciliation. used for both the monthly and quarterly rec- developed an additional reconciliation form, The Reconciliation Report is not a manda- onciliations. Yes, there are TWO reconcilia- the Monthly Trust Account Report. The lan- tory form under the recordkeeping require- tion requirements (Rule 1.15-3(d)). A guage in this form addressed the requirements ments, but is highly recommended, and its use monthly reconciliation is done to verify that missing from the other form, and provided a is requested whenever there is follow-up to a the balance shown in your check register/gen- way for lawyers and nonlawyers who perform random audit. If the form is used correctly eral ledger agrees with the ending balance the monthly reconciliation to document and and in its entirety, there is little room left for shown on your bank statement (after making attest that the reconciliation is in compliance. error and non-compliance. It gives you one adjustments for any outstanding items). A But this form alone could not be used when a less thing to worry about if you are selected for quarterly reconciliation is done to additionally quarterly reconciliation was performed. a trust account random audit. Who doesn’t verify that the total positive client ledger bal- When I began auditing in July last year, I want that? The new form is available to down- ances agree with the check register/general found that many lawyers/firms were not using load now on the State Bar’s website: ledger balance and ending balance on the the forms correctly; most were only using the ncbar.org/for-lawyers/forms. bank statement. Note: it is crucial to balance Monthly Trust Account Report form. As a I’ll end with one of my top tips: perform these amounts at the same time and as of the result, documentation of the quarterly recon- both reconciliations each month (complete all ending date on the bank statement. ciliation was not in compliance, or (gasp) the of the steps shown on the form)—don’t wait Prior to the approval of amendments to quarterly reconciliation was not being done at 90 days to verify that your client balances Rule 1.15 last June, the State Bar provided all. I soon realized the benefits of combining agree with your check register/general ledger only the Trust Account Reconciliation Sheet. the two forms, and the new form was created. balance and bank balance. n

Juvenile Defenders (cont.) court feeling defeated, I remind myself that juvenile court. You may not always get the practicing delinquency law is a calling placed outcome that you want and your clients do bar the more creative we are with court recom- on my life. I am encouraged by the reaffirm- not always listen to your advice (or at least, mendations that are based on a researched ing thought that I have been privileged to be not at first). However, you need to give it understanding of our clients. able to stand in the gap and help advocate for your all, keep fighting, and relish the success Q: On the hard days—on the days when juveniles. stories. These stories do not happen in as you’re not able to achieve the outcomes that Starr Ward: I know that I fought for my great of numbers as we hope. However, when you know your client needs—what sustains client and exhausted every possible resource they do happen, they make you realize that you about the practice? What keeps you available to help them become a productive juvenile court does work. n coming back? member of society. I treat my clients as if they Barbara Fedders: At a visceral level, I like were my own children as I am always advocat- Eric J. Zogry has been the North Carolina fighting for the underdog. I like holding the ing for them. While I cannot always fix every- state juvenile defender since 2005. The Office state to its burden. I like insisting that court thing, I try to always listen and serve as an of the Juvenile Defender provides services and officials see the humanity in my clients. effective advocate for their needs. support to defense attorneys, evaluates the cur- Mary Stansell: The simple fact that I love Yolanda Fair: I really enjoy seeing former rent system of representation and makes recom- what I do. clients in the community and how far they’ve mendations as needed, elevates the stature of Scott Dennis: I continue to educate myself come since their time in court. I also feel sup- juvenile delinquency representation, and works and know that I can always improve. I search ported by those judges who understand my with other juvenile justice actors to promote for positive people who can help me renew my role and are complimentary and encouraging. positive change in the juvenile justice system. sense of self. Mitchell Feld: The success stories keep For more information, see ncjuveniledefender. Sabrina Leshore: On the days I leave you coming back. Every day is not easy in wordpress.com.

THE NORTH CAROLINA STATE BAR JOURNAL 25 LEGAL SPECIALIZATION

Profiles in Specialization

E DITED BY D ENISE M ULLEN, ASSISTANT D IRECTOR OF L EGAL S PECIALIZATION

In this article, Triangle area board certified you’re doing. Finally, repeat all steps as many balancing the cost against the risk. trademark specialists share tips for North Car- times as necessary to arrive at a solution that The good news is, if something goes olina lawyers who encounter trademark-re- will distinguish you in the marketplace and be wrong, a name change may be accomplished lated questions or concerns from their clients. a good candidate for registration. more easily in the software industry than in other industries. The goods and their mar- Trademarks: an Introduction – Software Trademarks - Pamela S. keting are just code, so the change can be Edward L. Timberlake Jr., Forest Chestek, Chestek Legal, Raleigh effected fairly quickly. Firm, Chapel Hill In the technology sector, the internet has Trademarks are all about being different— changed the approach to picking and clear- Pharmaceutical Trademarks – Maury they help you stand out in a crowd. While it’s ing trademarks for software. Back in pre- M. Tepper III, Tepper & Eyster, Raleigh not necessary to internet days, naming software and clearing In the pharmaceutical sector, trademarks apply to register the names was like any other industry. At play an important trademarks in order the time of its adoption, “Windows” was role and also face to use and benefit arguably a generic name (it referred to the unique challenges. from them, a regis- windows in a graphic interface, as compared By their nature, tration from the to text-based software that previously exist- trademarks serve as [US Patent &] ed). Now, though, everyone wants a domain unique and recogniz- Trademark Office name that matches the name of the soft- able brand identifiers affords significant ware, so the internet has accomplished what that support the con- Timberlake advantages. The key trademark lawyers have been trying to con- sumer’s selection of to getting the vince people to do from time immemorial— the correct product. Tepper III Trademark Office to make something up. Time will tell: with all This role is critical register your trademark is to make it different, the new top level domain names (.cloud, when it comes to unusual, or distinctive. Assessing whether a .computer, etc.), the pendulum may be receiving a prescription medication, as the trademark is different requires an awareness of swinging back. consequences of taking the wrong drug can what other trademarks are out there. Of Trademark lawyers used to be satisfied be significant. For this reason, a pharmaceu- course, you won’t know what’s out there until with searching the trademark registers and tical trademark needs to be as distinctive and you look. As the overriding concern with other databases, like phone listings, to clear a as easy to identify as possible. At the same trademarks is differentiation, it’s never too trademark. Nowadays, every good trademark time, the environment in which prescription soon to start strategizing how to use trade- clearance will include scouring the internet medications are prescribed and dispensed marks to distinguish yourself from competi- for other similar presents its own challenges for trademarks. tors—to stand out in the marketplace. Ideally, unregistered uses. So Unlike the selection of a product in tradi- efforts to distinguish yourself from competi- the internet is a bless- tional channels, the choice of a prescription tors should begin before purchasing a domain ing and a curse for medication is not made by the patient, but name, setting up social media accounts, trademark lawyers instead by the prescribing physician. The designing signs, etc. Similarly, it’s never too working in the soft- order for the medication is then sent to a soon to start researching what other trade- ware industry. pharmacist, often by a handwritten prescrip- marks are used (as well as those that have been Another way the tion, to be dispensed to the patient. Most registered) in a particular commercial context. internet has changed patients accept whatever the pharmacist Here’s one way to think about the process: trademark practice in hands them without question, meaning that Chestek First, try to come up with something that will software is that the the prescribing physician and the pharma- set you apart. Second, research what other product is often cist will often pay more attention to the trademarks are used in your space. Third, immediately available around the world. trademark than the ultimate consumer. repeat step one in light of what you discover in This means that clearing a new proposed Because the pharmacist interprets the writ- step two. Fourth, endeavor to create some- name has to be international in scope from ten prescription, a pharmaceutical trade- thing that will both be different than other the beginning. But international clearance mark must be recognizable even when pre- trademarks, and also will fit you and what can be expensive, so it becomes a matter of sented in handwriting. Anyone who has

26 SUMMER 2017 viewed the “chicken scratch” penmanship of time a trademark attorney has considered ers. Because of that, and because customers his doctor will appreciate the difficulty of all of these issues, many candidates are elim- and fans of such products often feel a strong predicting the different ways that a drug inated. In a typical name creation exercise, a affinity with those brands, the owners of name might be interpreted. This, however, is drug company might go through 350 – 500 such marks must protect them. precisely what pharmaceutical trademark candidates in order to arrive at five to ten Brand owners must protect their marks attorneys must do. potentially acceptable trademarks for a new from those who seek to unlawfully divert In addition to assessing “traditional” medicine. customers by falsely representing that prod- trademark similarity, a pharmaceutical In addition to the Patent & Trademark ucts or services emanate from, or have been trademark attorney must consider potential Office, any pharmaceutical trademark must approved by, the brand owner. Protecting handwriting similarity. For example, not be reviewed and approved by the FDA prior trademark rights from this sort of infringe- many people would consider the trade- to being used in the US. Regulatory author- ment is often called “policing.” But brand marks AVANDIA and COUMADIN to be ities in other territories, including the EU owners also need to protect their marks and similar to one another, but take a look at the and Canada, also conduct reviews of any goodwill from misguided policing efforts following prescription for AVANDIA (a proposed pharmaceutical trademark, and (sometimes the result of over-zealous trade- medication for diabetes) and see if you can typically reject 30–50% of the candidates mark enforcement) that can do more dam- understand why the pharmacist incorrectly they review. The next time you wonder age than good to the brand in the eyes of the gave the patient COUMADIN (a blood where the name of that new medication public. This is especially true now that the thinner). came from, be sure to thank the trademark recipient of an inelegant demand letter may attorney. publish it to the world using social media. Savvy brand owners and their trademark Consumer Entertainment Product lawyers understand this. Trademarks – Christopher S. Thomas, Trademark practice involves assisting Parker Poe, Raleigh clients with the creation, clearance, adop- Developing a strong brand can be very tion, and registration of brands. That part of The challenges to a pharmaceutical expensive. A trademark, more than anything the practice can be immensely rewarding and trademark do not end with handwriting. else, represents the fun, especially seeing a new mark in use on a The trademark attorney must also consider goodwill—both as successful product. After a mark is registered, phonetic similarity (for telephone orders), that term is used col- much of the work is in protecting the mark. and must be aware of medical abbreviations loquially and as an It is in formulating a measured enforcement that should not appear in a trademark. For accounting term of strategy—one that is consistent with the val- example, when a doctor intends for the art—of the mark ues of the brand owner and what the brand patient to take a medication twice a day, the owner. It follows that symbolizes—where a trademark lawyer can doctor will write the abbreviation “BID” on trademarks for con- provide the most value to his or her client the prescription, as a short-hand way of sumer entertainment and their brands. n telling the pharmacist how the medication products, especially Thomas should be taken. Therefore, the name of a those that are sold For more information on trademark law drug should not end in “BID” in order to under well-known specialists or to learn how to become certified, avoid potential misunderstanding. By the brands, are extremely valuable to their own- visit our website at: nclawspecialists.gov.

Questioning Prospective Jurors Supp. 568 (D. Del. 1975) (holding that defense coun- 32. Cf. Padilla v. Kentucky, 559 US 356 (2010) (recogniz- sel’s refusal, despite a request by the black defendant, to ing for the first time that the Sixth Amendment guar- (cont.) ask voir dire questions of the jury panel concerning antee of effective assistance of counsel requires attor- racial prejudice was not ineffective where counsel justi- neys to inform clients whether a plea carries a risk of fied his refusal on the partial ground that prejudice was deportation in light of the seriousness of potential con- the prosecutor asked whether the jurors could “put the not involved in the case because two of the state’s three sequences). issue of race completely out of [their minds].” key witnesses were black). See also State v. Sanders, 750 33. Pena-Rodriguez, Alito, J., dissenting, slip op. at 11-14. N.E.2d 90 (Ohio 2001) (holding defense attorneys’ 26. State v. McAffee, 64 NC 339, 340 (1870). 34. Ristaino, 424 US at 597. 27. See State v. Robinson, 330 NC 1, 12–13 (1991). failure to inquire into racial and religious attitudes at voir dire was not ineffective assistance of counsel, 35. Pena-Rodriguez, Alito, J., dissenting, slip op. at 13-14. 28. State v. Robinson, 330 NC 1, 12–13 (1991). although defendant was an African American Muslim 36. Ristaino, 424 US at 597 n.9. 29. Catlin v. Henry, 76 Fed. Appx. 818 (9th Cir. 2003) charged with murdering a white person, as trial lawyers 37. Samuel R. Sommers, On Racial Diversity and Group (unpublished) (holding that defense counsel did not were in the best position to determine whether such Decision Making: Identifying Multiple Effects of Racial render ineffective assistance of counsel in failing to voir voir dire was needed). Composition on Jury Deliberations, 90 J. Personality & dire potential jurors about racial bias where there was 31. See, e.g., State v. Hale, 892 N.E.2d 864 (Ohio 2008) Soc. Psychol. 597, 601 (2006). no showing of actual bias by jury and no showing that (holding defense counsel did not perform deficiently in 38. Pena-Rodriguez, Alito, J., dissenting, slip op. at 13 n.9. different result would have occurred if counsel would failing to voir dire prospective jurors on racial prejudice 39. See supra note xiv. have questioned jury about bias). where case did not involve an interracial murder and 40. Id. 30. United States ex rel. Preston v. Ellingsworth, 408 F. evidence did not raise any racial issues).

THE NORTH CAROLINA STATE BAR JOURNAL 27 LEGAL ETHICS

Breaking Up Is Hard to Do

B Y S UZANNE L EVER

In today’s competitive legal market, it imagine that the lawyer’s withdrawal will not be given “reasonable warning that the lawyer seems counterintuitive for a lawyer to want to have some adverse effect on the client, even if will withdraw unless the obligation is fulfilled.” drop a client. However, circumstances may the lawyer does not consider it material. Also, Also, a lawyer may not withhold services to arise that make disengagement necessary, or comment [1] to Rule 1.16 emphasizes that a coerce payment in this scenario. at least preferable, for the lawyer or the client. lawyer “should not accept representation in a Rule 1.16(b)(9) is a “catchall” that permits The client has a right to discharge the lawyer matter unless it can be performed competent- withdrawal for “other good cause.” For at any time, with or without cause, subject to ly, promptly, without improper conflict of instance, if a client files a grievance against a liability for payment for the lawyer’s services. interest, and to completion.” That being said, lawyer during ongoing representation, the However, the lawyer’s right to terminate the if the representation is fairly new and there are lawyer may file a motion to withdraw under attorney-client relationship is restricted by no upcoming deadlines, the lawyer may prob- Rule 1.16(b)(9). However, withdrawal is not Rule 1.16 of the Rules of Professional ably withdraw without any material adverse mandatory. The lawyer should consider Conduct. effect on the client. A quick consult with a whether she reasonably believes she can con- Rule 1.16(a) addresses mandatory with- lawyer for a malpractice insurance company tinue to provide competent and diligent rep- drawal. Under Rule 1.16(a), a lawyer must provided this response: resentation to the client despite the grievance withdraw from a representation when the The main issue we emphasize is that any and whether the client wants the lawyer to lawyer is discharged or the lawyer’s physical or termination by the attorney should be continue the representation. If the answer to mental condition materially impairs the done sooner rather than later. It is a fool’s both of these questions is “yes,” the lawyer lawyer’s ability to represent the client. In addi- errand to wait and hope that some unrea- should ask the client to confirm his consent to tion, the lawyer must withdraw if continued sonably difficult client situation will the continued representation in writing. representation will result in a violation of the resolve itself or get better with time. The (Note that if the probity of the lawyer’s own law or the Rules of Professional Conduct. For longer you wait to terminate, the more conduct in the matter is in serious question, example, Rule 1.16(a) is triggered when a likely it is that the client will be prejudiced the lawyer may have a conflict under Rule 1.7 client requests a lawyer to take an action that by the withdrawal. that would necessitate withdrawal.) would violate Rule 3.3 (Candor Toward the The remaining scenarios listed under Rule It is important to note that all of the sub- Tribunal). A lawyer is also required to with- 1.16(b) permit the lawyer to withdraw even if sections in Rule 1.16(a) and (b) are subject to draw if continued representation would vio- there will be a material adverse effect on the the requirements of Rule 1.16(c) and (d). In late Rule 1.7 (Conflict of Interest) or Rule 3.7 client. For example, Rule 1.16(b)(3) and (5) matters pending before a tribunal, Rule (Lawyer as Witness). allow a lawyer to withdraw when the client 1.16(c) requires a lawyer to obtain the court’s Rule 1.16(b) lists nine scenarios where a pursues an action that the lawyer believes is permission to withdraw from the representa- lawyer has the discretion—but is not criminal or fraudulent, or when the client has tion. The court has the discretion to deny a required—to withdraw from representing a used the lawyer’s services to perpetrate a crime request to withdraw, regardless of the grounds client. The first scenario set out in Rule 1.16(b) or fraud. Rule 1.16(b)(4) permits withdrawal for the withdrawal motion. If withdrawal is is interesting. Under 1.16(b)(1) a lawyer does when the client insists on conduct that is denied, the lawyer must continue the repre- not have to give a specific reason for terminat- repugnant to the lawyer or action that is con- sentation with no reduction in responsibilities ing the representation, but may withdraw so trary to the advice and judgment of the lawyer. to the client. This scenario may, unfortunately, long as the “withdrawal can be accomplished Rule 1.16(b)(6) and (7) pertain to contrac- require a lawyer to perform legal services with- without material adverse effect on the interests tual issues relative to the attorney-client rela- out expectation of payment. Rule 1.16(c) also of the client.” The comments to Rule 1.16 tionship. Rule 1.16(b)(6) permits withdrawal provides that, “[w]hen ordered to do so by a provide little guidance on this provision, stat- if the client refuses to fulfill his obligations re- tribunal, a lawyer shall continue representa- ing only that, “[f]orfeiture by the client of a garding the lawyer’s services. Rule 1.16(b)(7) tion notwithstanding good cause for terminat- substantial financial investment in the repre- permits withdrawal if the representation im- ing the representation.” The denial of a sentation may have such effect on the client’s poses an unreasonable financial burden on the motion to withdraw can result in some diffi- interests.” This subsection seems to permit a lawyer. The most common basis for withdrawal cult situations for the lawyer and the client. lawyer to withdraw from representation of a under these subsections is the client’s failure to The lawyer should have the motion to with- client for any reason or even no reason at all. pay legal fees. It is important to note that before draw and the court’s denial memorialized in However, a lawyer should proceed under a lawyer may withdraw due to a client’s failure the court record. Other than that, the lawyer Rule 1.16(b)(1) with caution. It is hard to to pay, Rule 1.16(b)(6) requires that the client will have to continue the representation to the

28 SUMMER 2017 best of her ability under the circumstances. (Emphasis added). December 2011), provides that where a Rule 1.16(d) requires that the withdrawing I recommend that the lawyer cite the lawyer has not heard from his client in over a lawyer take steps to protect the client’s interest, applicable subsection of Rule 1.16, without year, the client’s failure to contact the lawyer is including giving reasonable notice, allowing including the text of the particular provision. considered a “constructive discharge,” and the time for the client to engage other counsel, A lawyer may want to contact the risk man- lawyer must file a motion to withdraw pur- surrendering papers and property to which agement department of her insurance carrier suant to Rule 1.16(a)(3). (But you really the client is entitled, and refunding any for advice in how to draft the motion. should read the whole awesome article.) unearned fees. When the lawyer files a motion Although a lawyer should be wary of includ- Once the motion to withdraw is granted, to withdraw and there are impending discov- ing too much detail in the motion, the lawyer the lawyer should follow up with a letter of ery deadlines, deposition notices, or hearing should be prepared to provide more informa- disengagement to the client. The letter should and trial dates, the lawyer should file a motion tion upon the judge’s request. affirm the current status of the case and to continue in conjunction with the motion There are certain special considerations a remind the client of any pending deadlines. to withdraw. lawyer may need to take into account when However, the lawyer should be careful with What should the lawyer include in the considering withdrawal. Comment [6] to statements about exact dates or deadlines motion to withdraw? Lawyers should craft Rule 1.16 addresses clients with diminished because a misstatement can expose the lawyer withdrawal motions carefully to avoid disclos- capacity and provides: to a malpractice claim. The letter should also ing confidential client information or dis- If the client has severely diminished capac- summarize the status of any fees and costs col- paraging the client. The motion needs to be ity, the client may lack the legal capacity to lected and outstanding, explain any remaining vague, but effective. Comment [3] to Rule discharge the lawyer, and in any event the charges for legal fees, and include arrange- 1.16 provides: discharge may be seriously adverse to the ments for the transfer of any unearned funds Difficulty may be encountered if with- client’s interests. The lawyer should make remaining in the lawyer’s trust account. drawal is based on the client’s demand that special effort to help the client consider the Finally, the letter should include arrangements the lawyer engage in unprofessional con- consequences and may take reasonably for transfer of the client’s file. duct. The court may request an explana- necessary protective action as provided in Just remember before you agree to take on tion for the withdrawal, while the lawyer Rule 1.14. any representation: may be bound to keep confidential the The better course of action may be for the Comma, comma, down dooby doo down facts that would constitute such an expla- lawyer to continue the representation and seek down nation. The lawyer’s statement that profes- protective action. Breaking up is hard to do. sional considerations require termination of What about missing clients? There is an —Neil Sedaka “Breaking Up is Hard to Do” the representation ordinarily should be excellent article on this particular issue written (RCA Records 1962 & Rocket Records 1975) n accepted as sufficient. Lawyers should be by a noted legal scholar (okay, it was written mindful of their obligations to both clients by me) located on the State Bar’s website. The Suzanne Lever is assistant ethics counsel for and the court under Rules 1.6 and 3.3. article, “Where’s Waldo? (Journal 16,4 - the North Carolina State Bar.

Trial by Nature (cont.) fession rather than a mere occupation. Stick together through difficult times, and We are responsible for ensuring the sur- never forget to guard your egg, lest it crack. warmth. If an egg is dropped or inadequately vival of our young lawyers. I cannot name one warmed, it will quickly perish. successful trial lawyer who did not receive Conclusion When mom returns, she cares for the chick coaching and mentoring from a more sea- Mother Nature teaches us survival skills. while dad goes hunting. When he returns, soned veteran. If you are one of the successful Anthropologists, biologists, and naturalists they switch off again. Emperor penguins con- attorneys, by all means, “pay it forward.” like David Attenborough have studied ani- tinue to co-parent until the chick is ready to Professional courtesy, courtroom decorum, mals in their natural environments for many go out on its own. Family bonds are strong and ethical behavior are contagious among years. There is vast knowledge in their work, and the flock works together to protect the lawyers. Spread it freely. worthy of application in the courtroom. young from the elements and predators. Don’t forget about your flock at home. Hunting skills, survival tactics, and pure logic Penguin culture is robust and supportive. Trial lawyers display profound passion for prevail in Mother Nature’s kingdom. The As a Bar, we need to look after our flock. their clients. Being engrossed in measured courtroom is no different. Trial by nature per- Like the penguins taking turns standing on the bursts can be an asset. However, being consis- sists and endures. We stand to learn a lot by cold perimeter of the flock, we must all con- tently consumed is neither sustainable nor studying natural animal behavior patterns. tribute to the greater good of our community. healthy. You might be the best lawyer in the After all, lawyers are animals too. n Dedication to pro bono work, Bar programs, whole wide world, but if you are not mentally teaching opportunities, and professionalism is and physically fit, you will never be your per- Tricia Derr received her undergraduate and a shared responsibility. This collaboration en- sonal best. Your clients deserve nothing less. law degree from UNC-Chapel Hill, and prac- sures the practice of law will persevere as a pro- Take care of yourselves and your family. tices with Lincoln Derr PLLC in Charlotte.

THE NORTH CAROLINA STATE BAR JOURNAL 29 THE DISCIPLINARY DEPARTMENT

Grievance Committee and DHC Actions

stayed for three years upon his compliance was censured by the Grievance Committee. Disbarments with numerous conditions. Kinnaman engaged in an intimate romantic Adam Loren Baker of Raleigh surrendered Stephanie L. Villaver of Jacksonville did relationship with a domestic client in an his license and was disbarred by the Wake not supervise assistants, one to whom she del- attempt to have sexual relations with her. County Superior Court. He acknowledged egated trust account management and recon- that he misappropriated entrusted funds ciliation duties and one to whom she delegat- Reprimands exceeding $27,000 and that he concealed ed client communication and case negotiation The Grievance Committee reprimanded from his employer law firm more than duties. She thus enabled her assistants to mis- Bernell Daniel-Weeks of Durham. Weeks $66,000 he collected from clients for legal fees appropriate entrusted funds over several years, undertook to represent a client in a personal and for the payment of costs and fines and settle cases without client consent, and engage injury case but did not communicate with appropriated those funds to his own benefit. in the unauthorized practice of law. She was the client’s insurance company, did not Paul Blake of Wilson misappropriated suspended by the DHC for five years. The respond to the client’s requests for informa- estate funds in excess of $400,000. He was suspension is stayed for five years upon her tion, did not deliver the file to the client’s disbarred by the Disciplinary Hearing compliance with numerous conditions. new attorney, and did not respond to the Commission. While dealing with a series of tragic cir- State Bar. William E. Brown of Fayetteville was con- cumstances in her personal life, Marjorie The Grievance Committee reprimanded victed of failing to file a federal income tax Mann of Asheville forged signatures on a real Lawrence S. Maitin of Raleigh. In a real return. At the time of his disciplinary hearing, estate deed and directed her paralegal to nota- estate closing, Maitin did not inform his Brown was already serving two active discipli- rize them. She was suspended by the DHC for client about an outstanding judgment nary suspensions imposed by the DHC in four years. The suspension is stayed for four because he concluded that the judgment did prior cases. He was disbarred by the DHC. years upon her compliance with numerous not attach to the property. The client learned Gregory Perry of Roanoke Rapids tried to conditions. about the judgment when the judgment acquire drugs from a client he was represent- Lawrence D’Amelio of Greensboro aided creditor sought to sell the property. Maitin ing on drug-related charges, falsely represent- multiple out-of-state businesses in the unau- entered into an agreement to pay the judg- ed to jail authorities that he represented his thorized practice of law. He was suspended by ment creditor. Maitin did not advise the girlfriend in order to gain access to her in jail, the DHC for three years. The suspension is client of the desirability of seeking independ- and was convicted of two counts of contempt stayed for three years upon his compliance ent legal counsel before entering into an of court for failing to appear on behalf of with numerous conditions. agreement to resolve the issue of his potential clients. He was disbarred by the DHC. Ronald Tyson Ferrell of Wilkesboro was liability. Lennard D. Tucker of Winston-Salem suspended by the Wilkes County Superior The Grievance Committee reprimanded misappropriated entrusted funds in an Court. Ferrell did not supervise his employees, Greensboro lawyer Eddie Lamar Meeks for amount exceeding $12,000. He was disbarred enabling them to steal over $100,000 in his conduct in three cases. In one case, Meeks by the DHC. entrusted funds. Ferrell also neglected his accidentally filed a motion to withdraw after practice and did not file tax returns. The court assuring the client he would be available to Suspensions & Stayed Suspensions suspended Ferrell for five years. Ferrell will be handle the client’s case. He did not handle the Greensboro lawyer Alvaro De La Calle eligible to apply for a stay of the final three case and did not refund the unearned fee. failed to supervise a paralegal in his office, col- years upon demonstrating compliance with Meeks did not explain to a second client that lected a fee for legal services that were not pro- numerous conditions. he was withdrawing and did not respond to vided by an attorney, aided another in the further inquiries from the client. When a third unauthorized practice of law, and made false Interim Suspension client’s case was postponed, Meeks made no representations to the Grievance Committee. In February 2017, Concord lawyer effort to determine the client’s next court date, He was suspended by the DHC for five years. Fletcher Hartsell pled guilty to the federal did not tell the client he was withdrawing Cornelius lawyer Derek Fletcher took fees felony offenses of mail fraud and filing false from the representation, and did not refund for work he did not perform, received one of tax returns. The Chair of the DHC suspended the unearned fee. the fees while he was administratively sus- his license pending disposition of disciplinary Pamela Newell of Dallas, Texas was repri- pended, did not participate in mandatory fee proceedings. manded by the Grievance Committee. Newell dispute resolution, and did not respond to the continued to hold herself out as an active Grievance Committee. He was suspended by Censures member of the North Carolina State Bar on the DHC for one year. The suspension is Bruce E. Kinnaman of Hillsville, Virginia, her website and engaged in the unauthorized

30 SUMMER 2017 practice of law after she was administratively was reinstated by the Secretary on March 30, Superior Court). The Wake County Superior suspended for failing to comply with manda- 2017. Court commenced a disciplinary action tory CLE requirements. Robert J. Burford of Raleigh falsely inflat- against former Wake County assistant district William Vasquez of Smithfield was repri- ed his litigation expenses for multiple clients attorney Colleen Janssen. The court conclud- manded by the Grievance Committee. in Vioxx class action litigation. The DHC ed that, while prosecuting an alleged home Vasquez did not promptly turn over client files imposed a two year stayed suspension in invasion case, Janssen did not conduct a rea- to the new lawyer for three former clients. January 2012. The stay was subsequently lift- sonably diligent investigation into all infor- Vasquez’s fee agreement contained improper ed, and the suspension activated, effective mation in the possession of the government provisions about his obligations to retain or November 23, 2012. He was reinstated by the relating to drug activities by the alleged vic- dispose of client files and purported to assert a DHC on February 10, 2017. tim, Smith, and did not timely and fully dis- lien against future recovery. close such information to the defendants. Stays of Existing Suspensions The Grievance Committee reprimanded The defendants contended that the alleged Rufus Lytch of Dunn. Lytch neglected his In February 2016, Michelle Hickerson home invasion was actually a drug transac- client’s case, misrepresented the status of the Caron Gay of Chapel Hill was suspended by tion between them and Smith. Janssen asked case to the client, did not respond to the the DHC for five years. The DHC concluded law enforcement officers not to bring crimi- client’s inquiries, did not give the complete file that Hickerson gave false testimony in a dep- nal charges against Smith, who was the sub- to the client and did not fully respond to the osition and made false representations in a ject of an ongoing investigation and was Grievance Committee. The Grievance pleading filed in court. After serving one year believed by law enforcement officers to be a Committee found as a mitigating factor that of the suspension, Hickerson was eligible to major drug dealer, until after the home inva- Lytch experienced significant personal and petition for a stay of the balance. The DHC sion case was completed. She did not permit health issues during the representation. granted her petition for a stay on March 20, the federal prosecutor to inform her of the Japheth Matemu, an immigration lawyer 2017. status of the Smith investigation and provid- licensed in New York but not in North ed her supervisor inaccurate and incomplete Carolina, was reprimanded by the Grievance Other Committee. Matemu’s fee contract purported In re: Colleen Janssen (Wake County CONTINUED ON PAGE 34 to assert an attorney’s lien, purported to require the client to pay for reproduction of the client file, and purported to obligate In Memoriam North Carolina clients to submit to arbitra- tion in New York and to participate in a New J. Allen Adams Lois Josephs Ely York fee dispute program. Raleigh, NC Charlotte, NC The Grievance Committee reprimanded Brandi Jones Bullock of Durham. Bullock Wallace Ashley Jr. Edmund Louis Gaines provided legal services to North Carolina resi- Smithfield, NC Statesville, NC dents as a local associate attorney of William Ashe Bason Edward R. Green “Brownstone, P.A.,” an out-of-state law firm Raleigh, NC Winston-Salem, NC not authorized to provide legal services in North Carolina. Bullock assisted others in the Claudia Watkins Belk Charles Kenyon Hubbard unauthorized practice of law and made false or Charlotte, NC Gastonia, NC misleading statements about her services. Marilyn R. Bissell Isham Barney Hudson Jr. Charlotte, NC Raleigh, NC Transfers to Disability Inactive Status Dee W. Bray, Jr. of Fayetteville was trans- Porter B. Byrum Noland Randolph Mattocks Jr. ferred to disability inactive status by the Charlotte, NC Advance, NC Cumberland County Superior Court. Robert Leland Cecil Judith Ann Minnes McLeod H. Monroe Whitesides, Jr. of Charlotte High Point, NC Matthews, NC was transferred to disability inactive status by John Bernard Clayton Thomas Walter Moore Jr. the Chair of the Grievance Committee. Mr. Pinehurst, NC Roaring Gap, NC Whitesides died on April 11, 2017. Robert C. Cone James R. Rogers III Reinstatements Greensboro, NC Raleigh, NC William I. Belk, a former district court Russell W. DeMent Jr. Elizabeth Meachum Stanaland judge from Charlotte, was removed from Knightdale, NC Greensboro, NC office by the Supreme Court for giving false testimony in proceedings before the Judicial Daniel Alan Devay Henry Monroe Whitesides Jr. Standards Commission. The DHC suspend- Raleigh, NC Charlotte, NC ed him for three years in December 2013. He

THE NORTH CAROLINA STATE BAR JOURNAL 31 LAWYER ASSISTANCE PROGRAM

What’s Mindfulness Got to Do with It?

B Y L AURA M AHR

After six weeks of Mindfulness Meditation for Building Resilience to Stress, lawyers from the 28th Judicial District Bar have the answer...

There are few things we lawyers love more about how participants were integrating the than our brains. Which is why, when our tools into their legal practice. brains tell us we are tired, most of us lawyers Margie Huggins, a consumer lawyer and tell our brains to keep going. The last thing avid pro bono attorney, was a frequent we give ourselves permission to do is to slow contributor to these in-class discussions. down and meditate. The latest neuroscience Margie signed up for the course because she research, however, tells us that the very best was curious about how mindfulness relates to thing to do to refuel our brains is to slow the practice of law. Margie said what she down, be mindful of what we are experienc- loved most about the CLE was that she ing, and take a few minutes to reset the brain “learned the science behind how our minds through meditation. For six weeks, lawyers work, and learned very useful skills for how techniques into the work day.” from the 28th Judicial District Bar got the to keep our lawyer brains from running An unexpected benefit of the course was chance to do just that. wild.” Margie did not have a meditation the sense of community that was fostered. In order to support local attorneys in practice before the course started, but found One attorney shared what he enjoyed most reducing their levels of stress, the 28th that after just six weeks of classes the new about the course was “connecting in a new Judicial District Bar decided to try something tools “honestly greatly improved the quality and better way with colleagues.” Another never before done in the state: offer a of my life in all areas—professional and participant, immigration attorney Dr. George Mindfulness Meditation for Building otherwise.” D. Pappas, expressed, “Finally, a space where Resilience to Stress course in partnership with Margie wasn’t the only one whose life my mind could embrace positive thoughts, my business, Conscious Legal Minds. When changed for the better as a result of the course. positive people, and positive results. I can’t registration opened for the six weeks of CLE Based on the results from a comparative pre- express in words just how much my life has classes, we didn’t know how many—or if and post-test, approximately 85% of the already changed using the methods Laura any—lawyers would sign up. However, lawyers who attended the classes reported a introduced in the mindfulness CLE. Even within a few weeks not only were all of the reduction in their stress level at work or better, I was not alone in this experience—I spaces filled, there was a waiting list. The class outside of work when the course was was in a group that truly was in sync with was diverse, filled with newer and more complete. At the end of the course, 100% of positive energy. I look forward to using the experienced attorneys, men and women, the attorneys reported that they were tools I learned to maintain a healthy mind those who had never meditated and those practicing mindfulness tools during their and body.” who had meditated for years. work day at least 5-10 times a week, and I was inspired to create the Mindfulness While some might envision a mindfulness many as often as 20-40 times a week. These Meditation to Build Resilience to Stress meditation CLE to be a group of lawyers are very impressive results for six hours of curriculum for lawyers after using sitting in a yoga pose chanting “ohhhmmm,” class, especially given how challenging it is to mindfulness and neuroscience tools to bring this course took a different approach. The move the dial on practicing lawyers’ stress myself back from the edge of professional classes were offered every Friday at noon in a levels. Margie explained how she personalized burnout. In 2015, after almost ten years of boardroom provided by Robert & Stevens, the tools she learned and used them to practicing law as a sexual violence attorney, I PA. We sat in comfortable chairs around the improve her work day. “The course offered so sensed that I needed a break. At the time, I boardroom table. Each class covered many different meditation and mindfulness was baffled why—despite all of the neuroscience, mindfulness theory, and techniques,” she said. “I discovered several meditation, yoga, eating well, and exercising practical tools that lawyers can use at work or techniques that worked for me. It’s not about I did—I felt chronically tired. After addressing home to train their brains to stay relaxed and sitting in a yoga pose for an hour. I now my internal resistance to taking a sabbatical be less reactive to stress. My favorite part of meditate 20 or 30 times a day for just a from practicing law—including grappling the course was each week’s rich discussion minute to two. It’s so easy to weave these with fears that I would lose my professional

32 SUMMER 2017 identity and value in the world—I decided to allowing us to do things like think better on hope it will be available, somehow, to every take a year off. I used the year to research and our feet or process information quickly, and lawyer.” I wholeheartedly support Margie’s practice the most cutting edge tools for a host of other cognitive functioning we vision and am grateful to the pioneering building resilience, including experimenting lawyers rely on. lawyers who made the first mindfulness with the practical applications of modern For example, by paying attention to your meditation CLE series in the state a success. neuroscience research. Neuroscience focuses body, mind, or emotions, you may notice you I look forward to sharing this curriculum on the brain and nervous system and how are feeling anxious, frustrated, or stuck, or with many, many others. they impact our behavior and cognitive that you are holding your breath, having heart functioning. Discovering the practical palpitations, or have sweaty palms. These are Interested in Having This Program in applications of neuroscience was like finding all cues that you are likely in reactive mode. Your District? the missing piece of a puzzle. Delving into Once you notice these cues, you can use The Lawyer Assistance Program will be neuroscience opened my eyes to mindful breathing or focus on feeling safe to working with local district bars across the state understanding that how our brains are wired calm your brain and coax yourself back into to bring this program to as many lawyers as impacts the way we experience the world, responsive mode. Once our bodies and brains possible. If you are interested in offering this AND that we have control over the way our experience and take in what it feels like to be program to lawyers in your district, please brains are wired. in responsive mode (a practice Dr. Hanson contact Robynn Moraites, director of the The work of neuropsychologist Dr. Rick calls Taking in the Good), we are more apt to Lawyer Assistance Program. n Hanson captured my attention immediately. stay in this “flow state,” even when In his book, Hardwiring Your Brain for encountering stressful situations. In this way, Laura Mahr is a is a contract attorney at the Happiness: The New Brain Science of we literally rewire our brains to live life from Victim Rights Law Center, and a resilience coach Contentment, Calm and Confidence, Hanson a responsive vs. reactive state, resulting in and workplace consultant at her business, explains that our brains have two different feeling more calm and having a greater ability Conscious Legal Minds. She works with operating modes: reactive and responsive. to enjoy life. individual clients and workplaces around the When our brains are in reactive mode, they One of the most satisfying things to hear country to build resilience to stress, address are less effective—we think less clearly and from lawyers in class was how the course secondary trauma, foster work-life balance, and our cognitive functioning is diminished. supported them in their daily lives. Barbara prevent professional burnout. Contact Laura at When our brains are in responsive mode, we Davis, a mediator and collaborative law [email protected]; find out more feel “in the flow,” resulting in greater lawyer, said that she used the meditation about her practice at consciouslegalminds.com. productivity and increased satisfaction in our techniques she learned in class to slow her The North Carolina Lawyer Assistance lives. While evolution has thus far wired our heart rate. “This week,” she shared, “my heart Program is a confidential program of assistance brains to experience the world in reactive was racing. I measured my heart rate at 114 for all North Carolina lawyers, judges, and law mode, we have the ability to rewire our brains beats per minute (BPM). After ten minutes students, which helps address problems of stress, and experience life “in flow.” of meditation, my rate was 90 BPM!” Margie depression, alcoholism, addiction, or other When I began experimenting with shared, “I use my new tools to go to sleep or problems that may impair a lawyer’s ability to neuroscience tools, I found that mindfulness get back to sleep if I wake up in the middle of practice. If you would like more information, go and mindfulness meditation supported the the night.” Another attorney shared how to nclap.org or call: Cathy Killian (for Charlotte rewiring of my brain. Mindfulness is the mindful listening helped him to better handle and areas west) at 704-910-2310, Towanda practice of paying attention to whatever is a distressed client. Yet another lawyer shared Garner (in the Piedmont area) at 919-719- happening in the present moment. For how she used the tools to help calm herself in 9290, or Nicole Ellington (for Raleigh and lawyers, there is often an overwhelming a tense courtroom. down east) at 919-719-9267. amount occurring in any given moment. Having the tools to better enjoy our While we are dealing with copious external profession and our lives while improving our pressures, multitasking on every front, we effectiveness as lawyers is what the rarely pay attention to what is going on mindfulness course is all about. I often internally, such as how we are breathing, or wonder if I had learned neuroscience-specific Thank You to Our how we are feeling emotionally or physically. skills in law school or earlier in my legal career Mindfulness helps us to practice having dual if I would have needed to take a break from Meeting Sponsors awareness: doing what we are doing while at practicing law. And yet, to “take in the good” the same time tracking what is going on inside of my experience, I feel more energized and Thank you to these companies for our bodies and minds. Once we are aware of have greater meaning in my life as I’ve sponsoring the State Bar’s quarterly meeting. what is going on inside, neuroscience tools— recently returned to working at the Victim such as focusing on and enhancing the feeling Rights Law Center as a contract attorney and, Lawyers Mutual Liability of being safe or satisfied—can be used to through Conscious Legal Minds, am helping Insurance Company bring into balance anything that feels out of other attorneys build resilience to stress. It balance in our internal world. Moment by brings me great joy to hear Margie say, “For Old Republic Title Co. moment, we can switch the brain out of all of the CLEs we are required to take year reactive mode and into responsive mode, after year, this one ranks at the very top; I

THE NORTH CAROLINA STATE BAR JOURNAL 33 IOLTA UPDATE

NC IOLTA Maintains Grant Making

Income ily on cy pres and other court awards desig- granted over a number of years. All IOLTA income earned in 2016 has nated for the provision of civil legal aid to now been received, and income from IOLTA the poor. State Funds accounts totaled $1.7 million. We can report Receiving our portion of the first funding In addition to its own funds, NC IOLTA that IOLTA income appears fairly flat. distribution for IOLTA programs included administers the state funding for legal aid on Though 2016 showed a slight decrease (4%) in the settlement with Bank of America behalf of the NC State Bar. Total state fund- from 2015, it was not as significant as those ($842,896) was crucial to our ability to make ing distributed for the 2013-14 fiscal year posted since the 2008 downturn that have grants for both 2016 and 2017. The IOLTA was $3.5 million. The state budget adjust- brought annual income to less than 50% of trustees decided to use half of the Bank of ments beginning in 2014-15 eliminated the our highest income of over $5 million America settlement funds for 2016 grants, appropriation for legal aid work ($671,250 recorded in 2008. leaving half to remain invested to use in at that time). Total state funding distributed We remain hopeful that raised interest 2017, as otherwise our reserve was just under for the 2014-15 fiscal year from filing fees rates and perhaps further funds from other $250,000. We were able to make just over a alone was just under $2.8 million for that sources will bring income levels from 3% increase in the individual grants and to year and just over $2.7 million for 2015-16. accounts back to normal levels. We will be bring total grants back to $2 million for For 2016-17, the General Assembly did working with banks more proactively as the 2016. In 2017, grantees will receive at least a make a non-recurring appropriation of interest rate climate changes. 4% increase in funding. $100,000 to Pisgah Legal Services in These funds are in addition to the funds Asheville to support civil legal representation Grants granted in a separate grant cycle (October of veterans. The Equal Access to Justice As previously reported, the IOLTA 2016-September 2017) using some of the Commission and the NC Bar Association trustees dramatically reduced the number of funds from the second distribution of Bank continue to work to sustain and improve the grants beginning in 2010 as we dealt with a of America settlement funds ($12 million) funding for legal aid. n significantly changed income environment received in 2016. Total grants of ~$5.7 mil- due to the economic downturn, which has lion over three years were made. That total seen unprecedented low interest rates being includes a grant award of $750,000 made to paid on lower principal balances in the the legal aid collaborative working on fore- Disciplinary Department (cont.) accounts. The trustees decided to focus closure prevention for 2016-17, and just grant-making on organizations providing under $5 million in funds allocated for new information about the Smith investigation. core legal aid services. Even with that and creative multi-year community re-devel- The court concluded that the results of the change, IOLTA grants have dramatically opment projects. Given the large amount of Smith investigation were imputed to Janssen, decreased by over 50% from their highest funds received in the second BoA settlement including the fact that a search of Smith’s level of just over $4 million in 2008 and distribution and the time required for some stash house yielded 150 pounds of marijuana. 2009. During this downturn in income community redevelopment projects, it is Janssen did not correct Smith’s false testimo- from IOLTA accounts, we have relied heav- expected that these restricted funds will be ny that he had not sold drugs since 2005. After the home invasion case was completed, Smith was convicted in federal court of con- spiracy to possess and distribute marijuana. The court concluded that Janssen’s conduct was prejudicial to the administration of jus- tice. The court found multiple mitigating fac- tors, including the mental trauma, anxiety and stress Janssen experienced as the result of the kidnapping and torture of her father on instructions from a gang member she had prosecuted. The court ordered that, for two years, Janssen cannot practice law as a prose- cutor or in any position in which she would provide legal advice or assistance to law enforcement officers or agencies. n

34 SUMMER 2017 PROPOSED OPINIONS

Committee Provides Guidance on Maintaining Fiduciary Accounts

Council Actions the rule as amended. At its meeting on April 21, 2017, the State Bar Council adopted the ethics opinion sum- Inquiry #1: Public Information marized below: A’s will names Lawyer as executor. After A 2017 Formal Ethics Opinion 1 dies, Lawyer opens a client file for the estate in The Ethics Committee’s meetings are Text Message Advertising his law office and begins serving as the person- public, and materials submitted for con- Opinion rules that lawyers may advertise al representative for the estate. Lawyer intends sideration are generally NOT held in through a text message service that allows the to seek compensation for his services. Lawyer confidence. Persons submitting requests user to initiate live telephone communication. opens a checking account for the estate, makes for advice are cautioned that inquiries himself the signatory on the account, and should not disclose client confidences or Ethics Committee Actions manages the checking account throughout the sensitive information that is not neces- At its meeting on April 20, 2017, the administration of the estate. What are sary to the resolution of the ethical ques- Ethics Committee voted to continue to table Lawyer’s management obligations for the tions presented. Proposed 2016 Formal Ethics Opinion 1, account under Rule 1.15? Contesting Opposing Counsel’s Fee Request to Industrial Commission, pending the con- Opinion #1: lawyer solely for the deposit of fiduciary funds clusion of appellate action on cases relevant to The checking account must be established or other entrusted property of a particular per- the proposed opinion. The committee also as a lawyer’s fiduciary account and managed in son or entity.” Rule 1.15-1(f). voted to publish the three new proposed opin- accordance with the provisions of Rule 1.15 Any property belonging to the estate ions that appear below. and its subparts. received by or placed under the control of the The comments of readers on proposed As the personal representative for the lawyer in connection with the lawyer’s fur- opinions are welcomed. Comments received estate, Lawyer will serve in the role of a fidu- nishing of legal services or professional fidu- by July 14, 2017, will be considered at the ciary and provide professional fiduciary serv- ciary services must be handled and main- next meeting of the Ethics Committee. ices. The phrase “professional fiduciary servic- tained in accordance with all of the applica- Comments may be emailed to es” is defined and explained in Rule 1.15-1(l) ble provisions of Rule 1.15, including but [email protected]. and cmt. [6] as service by a lawyer in any one not limited to: of the various fiduciary roles undertaken by a • Rule 1.15-2: General Rules Proposed 2017 Formal Ethics lawyer that is not, of itself, the practice of law, • Rule 1.15-3(a): Check Format Opinion 2 but is frequently undertaken in conjunction • Rule 1.15-3(b) or (c)(as appropriate): Maintaining Fiduciary Account in with the practice of law. This includes service Minimum Records Accordance with Rule 1.15 as a trustee, guardian, personal representative • Rule 1.15-3(f): Accountings for April 20, 2017 of an estate, attorney-in-fact, and escrow Fiduciary Property Proposed opinion rules that a lawyer repre- agent, as well as service in other fiduciary • Rule 1.15-3(g): Minimum Record senting an estate must maintain the checking roles “customary to the practice of law.” Rule Keeping Period account for the estate in accordance with Rule 1.15, cmt. [6]. • Rule 1.15-3(i): Reviews 1.15 if the lawyer has control over the account. The funds Lawyer receives for the benefit See Rule 1.15, cmts. [2], [6]-[9]. of the estate are fiduciary funds and must be These duties include promptly depositing Background: deposited in a fiduciary account. Fiduciary all fiduciary funds received by or placed under On June 9, 2016, the North Carolina funds, another term defined in Rule 1.15-1, the control of the lawyer in a fiduciary Supreme Court approved amendments to denotes funds belonging to someone other account. Rule 1.15-2(c). They also include (1) Rule 1.15, Safekeeping Property, and its sub- than the lawyer that are received by or placed review of the monthly bank statements and parts (frequently referred to as the “trust under the control of the lawyer in connection canceled checks for the account each month accounting rules”). The following opinion with the performance of professional fiduciary (the “monthly review”); (2) for each quarter, concerns a lawyer’s obligations with respect services. Rule 1.15-1(g). A “fiduciary review of the statement of costs and receipts, to a fiduciary account, such as an estate account,” also defined in Rule 1.15-1, is “an client ledger, and cancelled checks of a ran- account. Inquiries are answered based upon account, designated as such, maintained by a dom sample of representative transactions

THE NORTH CAROLINA STATE BAR JOURNAL 35 completed during the quarter (the “quarterly manages the account, including the prepara- periodically review underlying bank records, review”); (3) resolution within 10 days of any tion of checks at Lawyer’s direction. What are independently of any records prepared or pro- discrepancies found during the monthly or Lawyer’s obligations for the account under vided by the assistant, to ensure that the non- quarterly reviews; and (4) preparation of a Rule 1.15? lawyer’s conduct is compatible with the pro- signed and dated report on each monthly and fessional obligations of the lawyer. As quarterly review. Rule 1.15-3(i). This list is Opinion #3: explained in comment [23] to Rule 1.15: not exhaustive and Lawyer is obligated to Lawyer is not obligated to follow Rule The mandatory monthly and quarterly review Rules 1.15-2 and 1.15-3 to ensure 1.15. See Opinion #2. reviews and oversight measures in Rule compliance with the rules. 1.15-3(i) facilitate early detection of inter- Inquiry #4: nal theft and early detection and correction Inquiry #2: Lawyer represents Estate of C and the per- of errors. They are minimum fraud pre- Lawyer represents Estate of B and the per- sonal representative of Estate of C in her offi- vention measures necessary for the protec- sonal representative of Estate of B in her offi- cial capacity. The personal representative tion of funds on deposit in a firm trust or cial capacity. See RPC 137. Lawyer opens a opens a checking account for the estate and fiduciary account from theft by any person checking account for the estate and designates manages the account, including receipt of the with access to the account. Internal theft the personal representative as the signatory on bank statements and the preparation of from trust accounts by insiders at a law the account. Lawyer intends to manage the checks. The personal representative, however, firm can only be timely detected if the estate account and retain possession of the asks Lawyer’s paralegal to take possession of records of the firm’s trust accounts are rou- checkbook, preparing checks for the personal the checkbook. Each month, the personal rep- tinely reviewed. For this reason, Rule 1.15- representative’s signature as needed and resentative goes to Lawyer’s law firm, writes 3(i)(1) requires monthly reviews of the depositing estate funds into the account when checks, and gives the bills and the checks to bank statements and cancelled checks for obtained. What are Lawyer’s obligations for paralegal. Paralegal then mails out the checks. all general, dedicated, and fiduciary the account under Rule 1.15? What are Lawyer’s obligations to the estate accounts. account under these circumstances? Although Lawyer may delegate day-to-day Opinion #2: management of the account to a nonlawyer The requirements of Rule 1.15-2 and Opinion #4: assistant, Lawyer remains professionally 1.15-3 apply when a lawyer has control over See Opinion #2. responsible for compliance with the require- the estate account. A lawyer has control over ments of Rule 1.15 and its subparts. an estate account when he has signatory Inquiry #5: Therefore, the assistant must be appropriately authority for the checking account. In the Did the June 2016 amendments to Rule instructed, trained, and supervised concerning instant inquiry, Lawyer has possession of the 1.15 change or add to the obligations of a the requirements of the rule. Rule 5.3. checkbook, but does not have signatory lawyer with respect to a fiduciary account, or authority. Therefore, Lawyer does not have otherwise change the answers to Inquiries #1 Inquiry #7: control over the estate account and is not obli- and #2 above? If Lawyer delegates the day-to-day man- gated to follow the requirements of Rule 1.15 agement of a fiduciary account to a nonlawyer and its subparts. Opinion #5: assistant, may that assistant be a signatory on Nevertheless, Lawyer represents the estate Yes. The 2016 amendments found in Rule the account? and the personal representative in her official 1.15-3(i) now require monthly and quarterly capacity. Therefore, Lawyer has a duty to pro- reviews for fiduciary accounts as well as gener- Opinion #7: vide competent and diligent representation. al trust accounts. The trust accounting rules do not prohibit Rule 1.1 and Rule 1.3. Competent and dili- this. However, the practice increases the risk of gent representation requires Lawyer to advise Inquiry #6: internal fraud. See, e.g., Rule 1.15-2(s) (pro- the personal representative of her fiduciary In the representations described in hibiting an assistant responsible for reconcil- responsibilities relative to the safekeeping of Inquiries #1 and #2 above, may Lawyer dele- ing a trust account from being a signatory on the funds of the estate and her duty to admin- gate the management of the fiduciary account the account). A lawyer should not permit an ister the estate in compliance with the law. See to a nonlawyer assistant? assistant to be a signatory on a fiduciary generally 2002 FEO 3 (lawyer for estate may account unless the lawyer or law firm has seek removal of personal representative if the Opinion #6: established fraud prevention procedures that personal representative’s breach of fiduciary Day-to-day management of the account will protect the fiduciary funds from internal duties constitutes grounds for removal under may be delegated to a nonlawyer assistant. theft. See Rule 1.15, cmt. [25]. the law). However, the responsibility for conducting the monthly and quarterly reviews required by Proposed 2017 Formal Ethics Inquiry #3: Rule 1.15-3(i) may not be delegated. The rule Opinion 3 Lawyer represents Estate of C and the per- specifies that “the lawyer” shall review the Advertisement with URL and No Other sonal representative of Estate of C in her offi- records. To fulfill the intended purpose of this Identifying Information cial capacity. The personal representative provision, the lawyer, rather than an assistant, April 20, 2017 opens the checking account for the estate and must conduct these reviews. Lawyer must Proposed opinion rules that a billboard

36 SUMMER 2017 advertisement need not contain the lawyer’s 1 holds that a text message advertisement that the proposal to Client for approval. name, firm name, or the firm’s office address if does not include the lawyer’s office address but Client disapproves of the proposed dis- the URL address on the advertisement lands on does include the lawyer’s website address, bursement, explaining that she does not want the lawyer’s website where such information can where the office address can be found, satisfies one particular medical provider (Provider A) be easily found. the requirements of Rule 7.2(c). to receive any funds from the settlement. Editor’s Note: The opinion is not limited to A law firm’s website will generally contain Lawyer advises Client of Provider A’s perfected billboard advertisements; it applies to all forms more than enough information to satisfy the lien, but Client instructs Lawyer not to pay of legal advertisement. requirements of Rule 7.2(c) and avoid mis- Provider A. leading the public. Utilizing a website address May Lawyer disburse Client’s settlement Inquiry: in an advertisement actually provides a con- proceeds in accordance with Client’s instruc- Law Firm owns numerous Uniform sumer with the ability to access more informa- tions not to pay Provider A such that the Resource Locators (URLs) such as tion about the lawyer or law firm than an funds designated for Provider A are disbursed www.ABCtowndwi.com. Each of the URLs is advertisement that contains only the lawyer’s to Client instead? a “landing page” for Law Firm’s website. Law or the firm’s name and office address. Firm’s website includes Law Firm’s full name, Therefore, an advertisement that includes a Opinion: the names of the individual lawyers in Law URL for a law firm’s website complies with No, if the lien is perfected. Generally, a Firm, and Law Firm’s office address. Rule 7.2(c) so long as the law firm’s website lawyer must follow a client’s directives as to Law Firm would like to start a billboard contains the law firm’s official name or trade the disbursement of settlement proceeds. Rule advertising campaign. Law firm does not want name, or the name of a responsible lawyer, 1.15-2(n) provides that a lawyer “shall to include Law Firm’s full name, the names of and the firm’s office address. The firm name, promptly pay or deliver to the client, or to the individual lawyers in Law Firm, or Law trade name, or the name of the lawyer must third persons as directed by the client, any Firm’s office address in the advertisement, but appear on the website homepage. The firm’s entrusted property belonging to the client and does intend to include one of the URLs. office address need not appear on the home- to which the client is currently entitled.” Is the proposed billboard campaign per- page provided it can be easily found on the However, Provider A has perfected a lien missible under the Rules of Professional website. against the settlement proceeds pursuant to Conduct? N.C Gen. Stat. § 44-49. The perfected lien Proposed 2017 Formal Ethics creates a question as to whether Client is “cur- Opinion: Opinion 4 rently entitled” to the share of the settlement Yes. Rule 7.1 requires all communications Settlement Funds Subject to Statutory proceeds designated for Provider A. about a lawyer and the lawyer’s services to be Lien Comment [15] to Rule 1.15 recognizes truthful and not misleading. Rule 7.2(c) April 20, 2017 that a third party may have a lawful claim requires any communication about a lawyer Proposed opinion rules that a lawyer is pro- (such as a medical provider lien) against spe- or a lawyer’s services to include the name and hibited from disbursing settlement funds pur- cific funds in a lawyer’s custody, and a lawyer office address of at least one lawyer or law firm suant to the client’s directive if the funds are sub- “may have a duty under applicable law to pro- responsible for its content. ject to a perfected lien. tect such third-party claims against wrongful Traditionally, Rule 7.2(c) has been applied interference by the client.” so as to require all forms of print and media Inquiry: The applicable law provides that a lien legal advertising to include the listed informa- Client was injured in a vehicular collision. exists upon any sums recovered as damages for tion to avoid misleading the public about the Client was not at fault for the collision. Client personal injury in any civil action. N.C. Gen. identity of the responsible lawyer or firm and incurred various medical expenses as a result Stat. § 44-49(a). The lien is in favor of any the location of the firm. However, the Rules of of the collision. Lawyer represents Client in provider to whom the injured person may be Professional Conduct are rules of reason to be her personal injury case against the driver indebted for any medical attention rendered applied in a reasonable manner under the cir- who caused the collision. All medical in connection with the injury. Id. The lien cumstances. See Rule 0.2, Scope, cmt. [1]. For providers perfected liens on Client’s anticipat- attaches to all funds paid to a lawyer in com- example, in 2012 FEO 6, the Ethics ed recovery pursuant to the requirements for pensation for or settlement of the personal Committee determined that a law firm may perfection of a medical lien on a personal injury claim. To perfect the lien, the medical use a leased time-shared office address or a injury settlement set forth in N.C. Gen. Stat. provider must furnish an itemized statement, post office address to satisfy the address disclo- § 44-49. With Client’s consent, Lawyer set- hospital record or medical report, without sure requirement for advertising communica- tled the matter. Lawyer received and deposit- charge, for the lawyer to use in the resolution tions in Rule 7.2(c). In 2005 FEO 14, the ed Client’s settlement proceeds in his trust of the personal injury claim and give written Ethics Committee concluded that, “as long as account. The settlement proceeds do not notice to the lawyer of the lien claim. N.C. a URL of a law firm is not otherwise mislead- cover the entirety of Client’s medical expens- Gen. Stat. § 44-49(b). ing or false and the homepage of the website es, so Lawyer prepared a proposed pro rata Before disbursing settlement proceeds sub- identifies the sponsoring law firm or lawyer, disbursement plan, consistent with N.C. ject to a perfected lien, N.C. Gen. Stat. § 44- the URL does not have to contain language Gen. Stat. §44-50 (lien “shall in no case, 50 provides that the lawyer “shall retain out of specifically identifying the website as one exclusive of attorney’s fees, exceed 50% of the belonging to a law firm.” Similarly, 2017 FEO amount of damages recovered”), and submits CONTINUED ON PAGE 47

THE NORTH CAROLINA STATE BAR JOURNAL 37 RULE AMENDMENTS

Board of Law Examiners Proposes Amendments to Enable the Administration of the Uniform Bar Exam

The North Carolina Board of Law Examiners (the Board) has proposed revisions Board of Law Examiners of to the Rules Governing Admission to the Practice of Law in the State of North The State of North Carolina Carolina, for approval by the Council of the North Carolina State Bar. The revisions WHEREAS, the Board of Law Examiners of the State of North Carolina held a meet- would adopt the Uniform Bar Exam (UBE), ing in Charleston, South Carolina, on March 20, 2017; and developed by the National Conference of Bar WHEREAS, at this meeting, the board considered the amendment of the Rules Examiners (NCBE), in place of the current Governing Admission to the Practice of Law in the State of North Carolina (Rules); and North Carolina bar exam. WHEREAS, on motion duly made and seconded, it was RESOLVED that the Rules A key feature of the UBE is its “portabili- be amended as reflected on the attached document and that these amendments be pre- ty:” applicants who take the UBE in North sented to the council for the North Carolina State Bar for approval; and Carolina would be able to use their UBE NOW, THEREFORE, BE IT RESOLVED by vote of the Board of Law Examiners score to secure admission in another UBE of the State of North Carolina that the Rules Governing Admission to the Practice of Law state without having to take another bar in the State of North Carolina be amended as reflected on the attached document; and exam. Likewise, applicants who have taken that the action of this Board be certified to the council of the North Carolina State Bar the UBE elsewhere would be able to use that and North Carolina Supreme Court for approval. score to gain admission in North Carolina Adopted at meeting of the Board of Law Examiners of the State of North Carolina on (assuming the score satisfies our cut score). March 20, 2017. The UBE has been adopted in 27 jurisdic- Given over my hand and seal of the Board of Law Examiners on this 20th day of tions1 and is reportedly being considered in at March, 2017. least two other states. Jaye P. Meyer, Chair The UBE consists of three components: 1. The Multistate Bar Examination (MBE), the multiple-choice standardized test board would continue to require all applicants NCBE, rather than by the local jurisdictions. currently used as the first day of the North to take separately the Multistate Professional Second, the NCBE’s rules allow, but do not Carolina bar exam and graded by the NCBE. Responsibility Examination (MPRE), anoth- require, participating states to add a State (Under the UBE, the MBE would count for er standardized test developed and graded by Specific Component (SSC) aimed at insuring 50% of the applicant’s grade, rather than the the NCBE. a level of competence in state-specific law. current 40% weight it has been assigned in 3. The half-day Multistate Performance SCCs can range from a formal “mini-exam” North Carolina.) Test (MPT), counting for 20% of the grade. to required attendance at a course in state-spe- 2. The half-day Multistate Essay The MPT requires the applicant to perform cific law. The board has decided on a version Examination (MEE), counting for 30% of two practical exercises: It presents the applicant of the latter. It would consist of a series of the applicant’s grade. The MEE resembles the with a hypothetical “file” containing pertinent online video presentations that applicants current essay portion of the North Carolina facts and law, and assigns tasks that might be would view at their convenience. The presen- exam, but tests the ability to apply “general” expected of starting attorneys—e.g., preparing tations would focus on topics where North principles of state law in the US. The MEE a demand letter, an advisory, or an argumenta- Carolina law differs from the “general” law consists of six essay questions drawn from 12 tive memorandum, or drafting a pleading. tested on the MEE, and would be inter- subject areas. Each question may pose issues There are two other significant aspects to spersed with “hurdle questions” designed to from more than one of the subject areas, 11 of the proposed changeover to the UBE. First, confirm that the applicant paid attention to which are the same as subjects tested on the while the board would be responsible for the presentation. The board believes the State current North Carolina essay portion of the grading the MEE and MPT, it would be rely- Specific Component would compensate for exam. Unlike the current North Carolina ing on resources developed by the NCBE to the loss of one benefit of the current testing essay exam, the MEE subjects include “con- insure a level of consistency between UBE regime, which is the incentive it has given flicts of law,” but do not include professional jurisdictions. These include special training applicants to study—through a bar review responsibility. Under the UBE, however, the and grading materials developed by the course or otherwise—specific topics in North

38 SUMMER 2017 Carolina law. By Randel E. Phillips is a member of the an exam). Otherwise, adoption of the UBE would Board of Law Examiners who practices with • To put existing provisions in more logical leave the existing bar admission process intact. Moore and Van Allen in Charlotte. order (e.g., moving the “Definitions” section The board would still be responsible for eval- from .0202 to .0101, so defined terms can be uating the character and fitness of all appli- Endnote used in Section .0100; moving the provision cants for admission, applying the same stan- 1. Alabama, Alaska, Arizona, Colorado, Connecticut, on judicial review venue from .1404 to .1401; dards as at present. The board would still set District of Columbia, Idaho, Iowa, Kansas, Maine, and relocating a requirement for familiarity the passing score for the exam. The board Massachusetts, Minnesota, Missouri, Montana, with the state’s Rules of Professional Conduct Nebraska, New Hampshire, New Jersey, New Mexico, would still administer the exam in the Raleigh New York, North Dakota, Oregon, South Carolina, from .0502(1)(a) to (3)). area, on the same two dates in February and Utah, Vermont, Washington, West Virginia, and • To correct obvious oversights (e.g., July. The first day of the exam will still consist Wyoming. changing the heading to .1301 so it doesn’t of the MBE, graded, as now, by the National appear that the board only issues licenses to Conference of Bar Examiners; and board Executive Summary General Applicants; deleting “and received members would still be responsible for grad- This is a summary of proposed changes to by” from .0403(1), so as not to contradict the ing the second day of the exam. the Rules Governing Admission to the purpose behind the exception in .0101 (4), A number of factors weighed in favor of Practice of Law in the State of North which treats an application as “filed” so long the board’s unanimous decision to recom- Carolina approved for submission to the as it is postmarked by the filing date; refer- mend adopting the UBE: council by the board at its March 20, 2017, ences to the “Military Spouse Comity” cate- • First and foremost, the UBE’s “portabil- meeting. The main purpose of the revisions is gory that should have been inserted in .0202 ity” feature. Lawyer mobility is an increasing to enable the board to begin administering and .0802 when that category was added sev- reality. Lowering unnecessary barriers to the Uniform Bar Exam (UBE) in time for the eral years ago). mobility is in line with the chief justice’s cur- February 2019 bar exam. In the course of • To state certain provisions more clearly rent initiative to expand the availability of drafting the changes needed to make the (e.g., .0402(2), .0404, .0502). legal services. In today’s harsh job market, it UBE a reality in North Carolina, the board Revisions in the “Other” category are not also lessens the plight of new law school grad- noted that other changes in the Rules intended as material changes to the existing uates who must choose a particular bar to appeared advisable. Rules or in the practices of the board under apply for without necessarily having a job in those Rules, except: that state. It may also relieve some applicants UBE-Related Revisions • Revised .0502(5) would require a gener- from the need to take multiple bar review The principal changes appear in Sections al applicant who fails to complete all other courses at what may be the most cash- .0902 to .0904, which expressly adopt the requirements for licensure within three years strapped time of their lives. UBE as the official “bar exam” for “General after getting a passing score on the UBE to • Superior questions and grading materi- Applicants” in North Carolina, and Section retake the bar exam. (Similar to the three-year als. The NCBE’s capacity to develop and vet .0504, recognizing a new applicant category, limit on portability of a passing UBE score questions and grading materials for the MEE “Transfer Applicants,” for those who seek for Transfer Applicants.) and the MPT (including practice testing) far admission here based on a UBE score in • Revised .0203 would expand the list of exceeds the board’s resources. This should another jurisdiction. Other UBE-related bar exam applicants published in the State minimize the incidence of questions that changes appear in .0202, 0203, and .0802, Bar Journal to include pending applications “test” poorly or produce anomalous grades. (rules of general application revised to note for admission by comity, military spouse • Enhanced emphasis on assuring appli- the new Transfer Applicant category); .0300 comity, or transfer. cants’ readiness to begin practice. The board (effective date); .0404(1) (increasing fees for has long considered the essay portion of the General Applicants in response to the cost Proposed Amendments exam as much more than a test of memory or increase associated with the UBE); .0501(8) ability to regurgitate black-letter law. The (requiring General Applicants, like Transfer Section .0100 – Organization board has strived to evaluate essay answers Applicants, to complete the State Specific .0101 Website for what they show about an applicant’s abil- Component in North Carolina Law, as per- The Board of Law Examiners of the State ity to reason and to articulate his or her rea- mitted under the UBE); and .1001 to .1003 of North Carolina shall maintain a public web- soning in a way consistent with the ability to (conforming review procedure to UBE site that shall publish the location of its offices, practice law. However, the board believes requirements). its mailing address, office hours, telephone making the Multistate Performance Test part number, fax number, e-mail address and such of North Carolina’s exam would better Other Revisions other information as the Board may direct. achieve this goal. The reasons for the changes will hopefully • The apparent accelerating trend towards be obvious from the text. Among others, .0102 Purpose the UBE across the United States. these include: The Board of Law Examiners of the State • By addressing real problems at the state • Replacement or deletion of obsolete or of North Carolina was created for the pur- level, adoption of the UBE would relieve archaic language (e.g., “executive director” pose of examining applicants and providing what might otherwise be pressure toward a instead of “secretary,” “chair” instead of rules and regulations for admission to the bar, national bar admission process. “chairman,” and to “take” instead of “stand” including the issuance of licenses therefor.

THE NORTH CAROLINA STATE BAR JOURNAL 39 .0103 Membership properly executed Authorization and .0501 of this Chapter. To be classified as a The Board of Law Examiners of the State Release forms; or which are illegible; or “comity applicant” and certified as such for of North Carolina consists of eleven mem- which with incomplete answers to the ques- admission to practice law, a person shall an bers of the N.C. Bar elected by the council tions are not complete will not be consid- applicant must satisfy the requirements of of the North Carolina State Bar. One mem- ered filed and will be returned. Rule .0502 of this Chapter. To be classified ber of said Board is elected by the Board to (5) Any reference to a “state” shall mean as a “military spouse comity applicant” and serve as chairman for such period as the one of the United States, and any reference certified as such for admission to practice Board may determine. The Board also to a “territory” shall mean a United States law, an applicant must satisfy the require- employs an executive director to enable the territory. ments of Rule .0503 of this Chapter. To be Board to perform its duties promptly and (6) “Panel” means one or more members classified as a “transfer applicant” and cer- properly. The executive director, in addition of the Board specially designated to conduct tified as such for admission to practice law, to performing the administrative functions hearings provided for in these Rules. an applicant must satisfy the requirements of the positions, may act as attorney for the of Rule .0504 of this Chapter. Board. .0102 Website The Board shall maintain a public web- .0204 .0203 List Section .0200 - General Provisions site that shall publish the location of its As soon as possible after each filing late- .0201 Compliance offices, its mailing address, office hours, filing deadline for general applications, the No person shall be admitted to the prac- telephone number, fax number, e-mail Executive Director shall prepare and main- tice of law in North Carolina unless that address and such other information as the tain a list of general applicants for the ensu- person has complied with these rules and Board may direct. ing examination, and all comity, military the laws of the state. spouse comity, and transfer applicants .0103 Purpose whose applications are then pending, for .0202 .0101 Definitions The Board was created for the purpose publication in the North Carolina State Bar For purposes of this Chapter, the follow- of examining applicants and providing Journal. ing shall apply: rules and regulations for admission to the (1) “Chapter” or “Rules” refers to the bar, including the issuance of licenses .0205 .0204 Hearings “Rules Governing Admission to the Practice therefor. Every applicant may be required to of Law in the State of North Carolina.” appear before the Board to be examined (2) “Board” refers to the “Board of Law .0104 Membership about any matters pertaining to the appli- Examiners of the State of North Carolina.” The Board consists of eleven members cant’s moral character and general fitness, A majority of the members of the Board of the North Carolina State Bar elected by educational background or any other mat- shall constitute a quorum, and the action of the council of the North Carolina State ters set out in Section .0500 of this Chapter. a majority of a quorum, present and voting, Bar. One member of the Board is elected shall constitute the action of the Board. by the Board to serve as its Chair for such .0206 .0205 Nonpayment of Fees (3) “Executive Director” refers to the period as the Board may determine. The Failure to pay the No application will be “Executive Director of the Board of Law Board also employs an Executive Director deemed to have been filed until the appli- Examiners of the State of North Carolina.” to enable the Board to perform its duties cant has paid the fees required by these rules (4) “Filing” or “filed” shall mean received promptly and properly. The Executive shall cause the application not to be deemed in the office of the Board of Law Examiners. Director, in addition to performing the filed. If the check payable for the application Except that applications placed in the administrative functions of the position, fee is not honored upon presentment for any United States mail properly addressed to the may act as the Board’s attorney. reason other than error of the bank, the Board of Law Examiners and bearing suffi- application will be deemed not timely to cient first class postage and postmarked by Section .0200 - General Provisions have been filed and will have to be refiled. the United States Postal Service or date- .0201 Compliance All such checks payable to the Board for any stamped by any recognized delivery service No person shall be admitted to the prac- fees which are not honored upon present- on or before a deadline date will be consid- tice of law in North Carolina unless that ment shall be returned to the applicant, who ered as having been timely filed if all person has complied with these Rules. shall pay to the Board in cash, cashier’s required fees are included in the mailing. check, certified check or money order any Mailings which are postmarked after a dead- .0203 .0202 Applicants fees payable to the Board including a fee for line or which, if postmarked on or before a For the purpose of these rules purposes processing that check. deadline and, do not include required fees or of this Chapter, applicants are classified which include a check in payment of either as “general applicants,” or as “comity Section .0300 - Effective Date required fees which is not honored due to applicants, “military spouse comity appli- These Revised Rules shall apply to all dishonored because of insufficient funds cants,” or “transfer applicants.” To be classi- applications for admission to practice law will not be considered as timely filed. fied as a “general applicant” and certified as in North Carolina submitted on or after Applications which are not properly signed such for admission to practice law, an appli- June 30, 2018. and notarized; or which do not include the cant must satisfy the requirements of Rule

40 SUMMER 2017 Section .0400 - Applications of particular the February or July bar examina- (a) If the applicant aptly filed a General General Applicants tion may, after failing or withdrawing from Application for the , or a previous Supple- .0401 How to Apply that particular examination, file a mental Application, for the February bar Applications for admission must be made Supplemental Application on forms supplied examination, the Supplemental Application upon forms supplied by the Board and must by the board, along, with the applicable fee, for the following July bar examination must be complete in every detail. Every supporting for the next subsequent bar examination. An be filed on or before the first Tuesday in document required by the application form applicant who has filed , on forms supplied May immediately preceding the July ex- must be submitted with each application. The by the Board, and may continue to file a amination; and application form may be obtained by submit- Supplemental Application as provided by this (b) If the applicant aptly filed a General ting a written request to the Board or by rule immediately preceding the filing deadline Application, or a previous Supplemental accessing the application via the Board’s web- specified in Rule .0403 of this chapter may Application, for the July bar examination, site: www.ncble.org. file a subsequent Supplemental Application the Supplemental Application for the fol- along, with the applicable fees for the next fee, lowing February bar examination must be .0402 Application Form for each subsequent examination. The until filed on or before the first Tuesday in (1) The Application for Admission to Take successful. Each Supplemental Application October immediately preceding the the North Carolina Bar Examination form will must update the any information previ- February examination. requires an applicant to supply full and com- ously submitted to the Board by the appli- plete information relating to the applicant’s cant. Said SUPPLEMENTAL APPLICA- .0404 Fees for General Applicants background, including family history, past TION Each Supplemental Application must Every application by an applicant who: and current residences, education, military be filed by the deadline set out in Rule .0403 (1) is not a licensed attorney in any other service, past and present employment, credit of this Chapter. An applicant who withdraws jurisdiction shall be accompanied by a fee of status, involvement in disciplinary, civil or from or fails any particular administration of $700.00. criminal proceedings, substance abuse, cur- the bar examination and does not file a (2) is or has been a licensed attorney in any rent mental and emotional impairment, and Supplemental Application for the next bar other jurisdiction shall be accompanied by a bar admission and discipline history. examination will be required to file a new fee of $1,500.00. Applicants must list references and submit as general application before taking the written (3) is filing to take the North Carolina Bar part of the application: examination again. Examination using a Supplemental - Certificates of Moral Character from Application shall be accompanied by a fee of four (4) individuals who know the appli- .0403 Filing Deadlines $400.00. cant; (1) Applications shall be filed and received (4) (1) The application specified in .0402 - A recent photograph; by with the Executive Director at the offices (1) shall be accompanied by a fee of - Two (2) sets of clear fingerprints; of the Board on or before the first Tuesday in $850.00, if the applicant is not, and has not - Two executed informational Authorization January immediately preceding the date of been, a licensed attorney in any other juris- and Release forms; the July written bar examination and on or diction, or by a fee of $1,650.00, if the appli- - A birth certificate; before the first Tuesday in October immedi- cant is or has been a licensed attorney in any - Transcripts from the applicant’s under- ately preceding the date of the February writ- other jurisdiction; provided that if the appli- graduate and graduate schools; ten bar examination. cant is filing after the deadline set out in Rule - A copy of all applications for admission (2) Upon payment of a late filing fee of .0403(1), but before the deadline set forth in to the practice of law that the applicant has $250 (in addition to all other fees required Rule .0403(2), the application shall also be filed with any state, territory, or the by these rules), an applicant may file a late accompanied by a late fee of $250.00 in addi- District of Columbia; application with the Board on or before the tion to all other fees required by these rules. - A certificate from the proper court or first Tuesday in March immediately preced- (2) A Supplemental Application shall be agency of every jurisdiction in which the ing the July written bar examination and on accompanied by a fee of $400.00. applicant is or has been licensed, that the or before the first Tuesday in November applicant is in good standing, or the appli- immediately preceding the February written .0405 Refund of Fees cant must otherwise satisfy the Board that bar examination. Except as herein provided, no part of the the applicant falls within the exception (3) Applicants who fail to timely file their fee required by Rule .0404(1), or (2), or (3) of provided in Rule .0501(7)(b), and is not application will not be allowed to take the Bar this Chapter shall be refunded to the appli- under pending charge of misconduct; Examination designated on the application. cant unless the applicant shall file with the - Copies of any legal proceedings in which (4) Any applicant who has aptly filed a Executive Director a written request to with- the applicant has been a party. General Application for the February or July draw as an applicant, not later than the 15th The application must be filed in duplicate. written bar examination may make applica- day of June preceding the July written bar The duplicate may be a photocopy of the tion to take the next immediately following examination and not later than the 15th day original. bar examination by filing General Applicants of January preceding the February written bar (2) An applicant who has aptly filed a may file a Supplemental Application with the examination, in which event not more than complete Application for Admission to Take Executive Director of the Board at the offices one-half of the applicable fee may be refunded the North Carolina Bar Examination for a of the Board on or before the following dates: to the applicant at the discretion of the Board.

THE NORTH CAROLINA STATE BAR JOURNAL 41 No portion of any late fee will be refunded. shall take and pass the Multistate Professional North Carolina without written examination, However, when an application for admis- Responsibility Examination within the twelve other than the Multistate Professional sion by examination is received from an appli- (12) month period thereafter; the time limits Responsibility Examination; provided that cant who, in the opinion of the Executive are tolled for a period not exceeding four (4) such attorney’s jurisdiction of licensure qual- Director after consultation with the Board years for any applicant who is a servicemem- ifies as a jurisdiction in comity with North Chair, is not eligible for consideration under ber service member as defined in the Carolina, in that the conditions required by the Rules, the applicant shall be so advised by Servicemembers Service Members Civil the such state, or territory of the United States written notice. Upon receipt of such notice, Relief Act, 50 U.S.C. Appx. § 511, while or the District of Columbia, for North the applicant may elect in writing to with- engaged in active service as defined in 10 Carolina attorneys to be licensed to practice draw the application; and, provided the writ- U.S.C. § 101, and who provides a letter or law in that jurisdiction without written exam- ten election is received by the Board within other communication from the servicemem- ination are not considered by the Board to be twenty (20) days from the date of the Board’s ber’s service member’s commanding officer unduly or materially greater than the condi- written notice to the applicant, receive a stating that the servicemember’s service mem- tions required by the State of North Carolina refund of all fees paid. ber’s current military duty prevents atten- for licensure to practice law without written dance for the examination, stating that mili- examination in this State. A list of “approved Section .0500 - Requirements for tary leave is not authorized for the service- jurisdictions,” as determined by the Board Applicants member service member at the time of the pursuant to this rule, shall be available upon .0501 Requirements for General letter, and stating when the servicemember request. Applicants service member would be authorized military Any attorney at law duly admitted to As a prerequisite to being licensed by the leave to take the examination. practice in another state, or territory of the Board to practice law in the State of North (7) if the applicant is or has been a licensed United States, or the District of Columbia, Carolina, a general applicant shall: attorney then, that the applicant be in good upon written application may, in the discre- (1) possess the qualifications of character standing in every jurisdiction within each tion of the Board, be licensed to practice law and general fitness requisite for an attorney state, territory of the United Sates, or the in the State of North Carolina without writ- and counselor-at-law, and be of good moral District of Columbia, in which the applicant ten examination provided each such appli- character and entitled to the high regard and is or has been licensed to practice law and not cant shall: confidence of the public and have satisfied the under any charges of misconduct while the (1) File with the Executive Director, upon requirements of Section .0600 of this Chapter application is pending before the Board. such forms as may be supplied by the Board, both at the time the license is issued and at the (a) For purposes of this rule, an applicant a typed application in duplicate which will be time of standing and passing a written bar is “in good standing” in a jurisdiction if: considered by the Board after at least six (6) examination as prescribed in Section .0900 of (i) the applicant is an active member of months from the date of filing; the. Such this Chapter; the bar of the jurisdiction and the juris- application requires shall require: (2) possess the legal educational qualifica- diction issues a certificate attesting to the (a) That an applicant supply full and com- tions as prescribed in Section .0700 of this applicant’s good standing therein; or plete information in regard to his back- Chapter; (ii) the applicant was formerly a member ground, including family, past residences, (3) be of the age of at least eighteen (18) of the jurisdiction and the jurisdiction education, military, employment, credit years of age; certifies the applicant was in good stand- status, whether he has been a party to any (4) have filed formal application as a gen- ing at the time that the applicant ceased disciplinary or legal proceedings, whether eral applicant in accordance with Section to be a member; and currently mentally or emotionally .0400 of this Chapter; (b) if the jurisdiction in which the applicant impaired, references, and the nature of the (5) stand and pass a the written bar exam- is inactive or was formerly a member will applicant’s practice of law, and familiarity ination as prescribed in Section .0900 of this not certify the applicant’s good standing with the code of Professional Chapter;, provided that an applicant who solely because of the non-payment of dues, Responsibility as promulgated by the has failed to achieve licensure for any reason the Board, in its discretion, may waive such North Carolina State Bar. within three years after the date of the writ- certification from that jurisdiction. (b) That the applicant furnishes the fol- ten bar examination in which the applicant (8) have successfully completed the State lowing documentation: received a passing score will be required to Specific Component, consisting of the (i) Certificates of Moral Character from take and pass the examination again before course in North Carolina law prescribed by four (4) individuals who know the appli- being admitted as a general applicant; the Board. cant; (6) have stood taken and passed the (ii) A recent photograph; Multistate Professional Responsibility .0502 Requirements for Comity (iii) Two (2) sets of clear fingerprints; Examination approved by the Board within Applicants (iv) A certification of the Court of Last the twenty-four (24) month period next pre- The Board in its discretion shall determine Resort from the jurisdiction from which ceding the beginning day of the written bar whether attorneys an attorney duly licensed the applicant is applying; that: examination which applicant passes as pre- to practice law in any state, or territory of the -the applicant is currently licensed in scribed by Section .0900 of this Chapter United States, or the District of Columbia, the jurisdiction; which the applicant applies to take above, or may be licensed to practice law in the State of -the date of the applicant’s licensure

42 SUMMER 2017 in the jurisdiction; “approved jurisdictions,” or should be on duct while the application is pending before -the applicant was of good moral such list, as a comity jurisdiction within the the Board. character when licensed by the juris- language of the first paragraph of this Rule (a) For purposes of this rule, an applicant diction; and .0502; that the applicant has been, for at least is “in good standing” in a jurisdiction if: -the jurisdiction allows North four out of the last six years, immediately pre- (i) the applicant is an active member of Carolina attorneys to be admitted ceding the filing of this application with the the bar of the jurisdiction and the juris- without examination; Executive Director, actively and substantially diction issues a certificate attesting to the (v) Transcripts from the applicant’s engaged in the full-time practice of law pur- applicant’s good standing therein; or undergraduate and graduate schools; suant to the license to practice law from one (ii) the applicant was formerly a member (vi) A copy of all applications for admis- or more jurisdictions relied upon by the appli- of the bar of the jurisdiction and the sion to the practice of law that the appli- cant; and that the applicant has read the jurisdiction certifies the applicant was in cant has filed with any state, territory, or Rules of Professional Conduct promulgated good standing at the time that the appli- the District of Columbia; by the North Carolina State Bar. Practice of cant ceased to be a member; and (vii) A certificate of admission to the bar law for the purposes of this rule when con- (b) if the jurisdiction in which the appli- of any state, territory, or the District of ducted pursuant to a license granted by cant is inactive or was formerly a member Columbia; another jurisdiction shall include the follow- will not certify the applicant’s good stand- (viii) A certificate from the proper court ing activities, if performed in a jurisdiction in ing solely because of the non-payment of of every jurisdiction in which the appli- which the applicant is admitted to practice dues, the Board, in its discretion, may cant is licensed therein that he is in good law, or if performed in a jurisdiction that per- waive such certification from that jurisdic- standing, or that the applicant otherwise mits such activity by a licensed attorney not tion; however, the applicant must not only satisfy the Board that the applicant falls admitted to practice in that jurisdiction: be in good standing, but also must be an within the exception provided in Rule (a) The practice of law as defined by G.S. active member of each jurisdiction upon .0501(7)(b), and not under pending 84-2.1; or which the applicant relies for admission charges of misconduct; (b) Activities which would constitute the by comity. (2) Pay to the Board with each typewritten practice of law if done for the general pub- (5) Be of good moral character and have application, a fee of $2,000.00, no part of lic; or satisfied the requirements of Section .0600 of which may be refunded to: (c) Legal service as house counsel for a per- this Chapter; (a) an applicant whose application is son or other entity engaged in business; or (6) Meet the educational requirements of denied; or (b) an applicant who with- (d) Judicial service, service as a judicial law Section .0700 of this Chapter as hereinafter draws, unless the withdrawing applicant clerk, or other legal service in a court of set out if first licensed to practice law after has filed with the Board a written request record or other legal service with any local August, 1971; to withdraw, in which event, the Board in or state government or with the federal (7) Not have taken and failed the written its discretion may refund no more than government; or North Carolina Bar Examination within five one-half of the fee to the withdrawing (e) Legal Service service with the United (5) years prior to the date of filing the appli- applicant. However, when an application States, a state or federal territory, or any cant’s comity application; for admission by comity is received from local governmental bodies or agencies, (8) Have stood and passed the Multistate an applicant who, in the opinion of the including military service; or Professional Responsibility Examination Executive Director after consideration (f) A full time faculty member in a law approved by the Board. with the Board Chair, is not eligible for school approved by the Council of the consideration under the Rules, the appli- North Carolina State Bar. .0503 Requirements for Military Spouse cant shall be so advised by written notice. For purposes of this rule, the active prac- Comity Applicants Upon receipt of such notice, the applicant tice of law shall not include (a) work that, as A Military Spouse Comity Applicant, may elect in writing to withdraw the appli- undertaken, constituted the unauthorized upon written application may, in the discre- cation, and, provided the written election practice of law in the jurisdiction in which it tion of the Board, be granted a license to prac- is received by the Board within twenty was performed or in the jurisdiction in which tice law in the State of North Carolina with- (20) days from the date of the Board’s any person receiving the unauthorized service out written examination provided that: written notice to the applicant, receive a was located, or (b) the practice of law in any (1) The Applicant fulfills all of the require- refund of all fees paid. additional jurisdiction, pursuant to a license ments of Rule .0502, except that: (3) Prove to the satisfaction of the Board to practice law in that additional jurisdiction, (a) in lieu of the requirements of para- that the applicant is duly licensed to practice and that additional jurisdiction is not an graph (3) of Rule .0502, a Military Spouse law in one or more jurisdictions relied upon “approved jurisdiction” as determined by the Comity Applicant shall certify that said by the applicant for admission to practice law Board pursuant to this rule. applicant has read the Rules of in North Carolina, that each jurisdiction (4) Be in good standing in every jurisdic- Professional Conduct promulgated by relied upon by the applicant has been or tion within each State, territory of the United the North Carolina State Bar and shall should be approved by the Board, pursuant to States, or the District of Columbia, in which prove to the satisfaction of the Board that this rule, for admission to practice law in the applicant is or has been licensed to prac- the Military Spouse Comity Applicant is North Carolina, and which are on the list of tice law and not under any charges of miscon- duly licensed to practice law in a state, or

THE NORTH CAROLINA STATE BAR JOURNAL 43 territory of the United States, or the and general fitness requisite for an attorney while the application is pending before the District of Columbia, and that the and counselor-at-law, and be of good moral Board. Military Spouse Comity Applicant has character and entitled to the high regard and (a) For purposes of this rule, an applicant been for at least four out of the last eight confidence of the public and have satisfied is “in good standing” in a jurisdiction if: years immediately preceding the filing of the requirements of Section .0600 of this (i) the applicant is an active member of this application with the Executive Chapter; the bar of the jurisdiction and the juris- Director, actively and substantially (2) possess the legal educational qualifica- diction issues a certificate attesting to engaged in the full-time practice of law. tions as prescribed in Section .0700 of this the applicant’s good standing therein; Practice of law for the purposes of this rule Chapter; or shall be defined as it would be defined for (3) be at least eighteen (18) years of age; (ii) the applicant was formerly a mem- any other comity applicant; and (4) have filed with the Executive Director, ber of the jurisdiction and the jurisdic- (b) Paragraph (4) of Rule .0502 shall not upon such forms as may be supplied by the tion certifies the applicant was in good apply to a Military Spouse Comity Board, a typed application in duplicate, con- standing at the time that the applicant Applicant. taining the same information and documen- ceased to be a member; and (2) Military Spouse Comity Applicant tation required of general applicants under (b) if the jurisdiction in which the appli- defined Defined. A Military Spouse Comity Rule .0402(1); cant is inactive or was formerly a member Applicant is any person who is (5) have paid with the application an will not certify the applicant’s good (a) An attorney at law duly admitted to application fee of $1,500.00, if the applicant standing solely because of the non-pay- practice in another state or territory of the is licensed in any other jurisdiction, or ment of dues, the Board, in its discretion, United States, or the District of Columbia; $1,275.00 if the applicant is not licensed in may waive such certification from that and any other jurisdiction, no part of which may jurisdiction; and (b) Identified by the Department of be refunded to an applicant whose applica- (9) have successfully completed the Defense (or, for the coast Coast Guard tion is denied or to an applicant who with- State-Specific Component, consisting when it is not operating as a service in the draws, unless the withdrawing applicant of the course in North Carolina law pre- Navy, by the Department of Homeland filed with the Board a written request to scribed by the Board. Security) as the spouse of a servicemember withdraw, in which event, the Board in its service member of the United States discretion may refund no more than one- Section .0600 - Moral Character and Uniformed Services; and half of the fee to the withdrawing applicant. General Fitness (c) Is residing, or intends within the next However, when an application for admission .0601 Burden of Proof six months, to be residing, in North by transfer is received from an applicant Every applicant shall have the burden of Carolina due to the servicemember’s serv- who, in the opinion of the Executive proving that the applicant possesses the qual- ice member’s military orders for a perma- Director, after consultation with the Board ifications of character and general fitness req- nent change of station to the State of Chair, is not eligible for consideration under uisite for an attorney and counselor-at-law North Carolina. the Rules, the applicant shall be so advised and is possessed of good moral character and (3) Procedure. In addition to the docu- by written notice. Upon receipt of such is entitled to the high regard and confidence mentation required by paragraph (1) of Rule notice, the applicant may elect in writing to of the public. .0502, a Military Spouse Comity Applicant withdraw the application, and, provided the must file with the Board the following: written election is received by the Board .0602 Permanent Record (a) A copy of the servicemember’s service within twenty (20) days from the date of the All information furnished to the Board by member’s military orders reflecting a per- Board’s written notice to the applicant, an applicant shall be deemed material, and all manent change of station to a military receive a refund of all fees paid. such information shall be and become a per- installation in North Carolina; and (6) have, within the three-year period manent record of the Board. (b) A military identification card which preceding the filing date of the application, lists the Military Spouse Applicant as the taken the Uniform Bar Examination and .0603 Failure to Disclose spouse of the servicemember service achieved a scaled score on such exam that is No one shall be licensed to practice law by member. equal to or greater than the passing score examination or comity or be allowed to take (4) Fee. A Military Spouse Comity established by the Board for the UBE as of the bar examination in this state: Applicant shall pay a fee of $1,500.00 in lieu the administration of the exam immediately (1) who fails to disclose fully to the Board, of the fee required in paragraph (2) of Rule preceding the filing date; whether requested to do so or not, the facts .0502. This fee shall be non-refundable. (7) have passed the Multistate relating to any disciplinary proceedings or Professional Responsibility Examination. charges as to the applicant’s professional con- .0504 Requirements for Transfer (8) if the applicant is or has been a duct, whether same have been terminated or Applicants licensed attorney, be in good standing in not, in this or any other state, or any federal As a prerequisite to being licensed by the each state, territory of the United Sates, or court or other jurisdiction, or Board to practice law in the State of North the District of Columbia, in which the appli- (2) who fails to disclose fully to the Carolina, a transfer applicant shall: cant is or has been licensed to practice law Board, whether requested to do so or not, (1) possess the qualifications of character and not under any charges of misconduct any and all facts relating to any civil or crim-

44 SUMMER 2017 inal proceedings, charges or investigations .0702 Legal Education .0805 Refusal to License involving the applicant, (unless expunged Every applicant applying for admission to Nothing herein contained shall prevent under applicable state law), whether the practice law in the State of North Carolina, the Board on its own motion from refusing same have been terminated or not in this or before being granted a license to practice law, to issue a license to practice law until the any other state or in any of the federal courts shall prove to the satisfaction of the Board Board has been fully satisfied as to the moral or other jurisdictions. that said applicant has graduated from a law character and general fitness of the applicant school approved by the Council of The as provided by Section .0600 of this Chapter. .0604 Bar Candidate Committee North Carolina State Bar or that said appli- Every applicant shall appear before a bar cant will graduate within thirty (30) days Section .0900 - Examinations candidate committee, appointed by the after the date of the written bar examination .0901 Written Examination Chairman of the Board Chair, in the judicial from a law school approved by the Council Two written bar examinations shall be district in which the applicant resides, or in of the North Carolina State Bar. There shall held each year for those applying to be admit- such other judicial districts as the Board in its be filed with the Executive Director a certifi- ted to the practice of law in North Carolina sole discretion may designate to the applicant, cate of the dean, or other proper official of general applicants. to be examined about any matter pertaining said law school, certifying the date of the to the applicant’s moral character and general applicant’s graduation. A list of the approved .0902 Dates fitness to practice law. An applicant who has law schools is available in the office of the The written bar examinations shall be appeared before a hearing Panel may, in the Executive Director. held in the City of Raleigh, Wake County or Board’s discretion, be excused from making a adjoining counties in the months of February subsequent appearance before a bar candidate Section .0800 - Protest and July on such the dates as the Board may committee. The Board Chair may delegate to .0801 Nature of Protest set from year to year prescribed by the the Executive Director the authority to exer- Any person may protest the application National Conference of Bar Examiners. cise such discretion. The applicant shall give of any applicant to be admitted to the prac- such information as may be required on such tice of law either by examination or by .0903 Subject Matter forms provided by the Board. A bar candidate comity. The examination may deal with the fol- committee may require the applicant to make lowing subjects: Business Association more than one appearance before the com- .0802 Format (including agency, corporations, and part- mittee and to furnish to the committee the A protest shall be made in writing, signed nerships), Civil Procedure, Constitutional such information and documents as it may by the person making the protest and bear- Law, Contracts, Criminal Law and reasonably require pertaining to the moral ing the person’s home and business address, Procedure, Evidence, Family Law, Legal character and general fitness of the applicant and shall be filed with the Executive Director Ethics, Real Property, Secured Transactions to be licensed to practice law in North (a) if a general applicant, before the date including The Uniform Commercial Code, Carolina. Each applicant will be advised when the applicant is scheduled to be examined; or Taxation, Torts, Trusts, Wills, Decedents’ to appear before the bar candidate committee. (b) if a comity, military spouse comity, Estates and Equity. There can be no changes once the initial or transfer applicant, before the date of the The examination shall be the Uniform assignment is made. applicant’s final appearance before a Panel. Bar Examination (UBE) prepared by the National Conference of Bar Examiners and .0605 Denial; Re-Application .0803 Notification; Right to Withdraw comprising six (6) Multistate Essay No new application or petition for recon- The Executive Director shall notify Examination (MEE) questions, two (2) sideration of a previous application from an immediately the applicant of the protest and Multistate Performance Test (MPT) items, applicant who has either been denied permis- of the charges therein made; and the appli- and the Multistate Bar Examination sion to take the bar examination or has been cant thereupon may file with the Executive (MBE). Applicants may be tested on any denied a license to practice law on the Director a written withdrawal as a candidate subject matter listed by the National grounds set forth in Section .0600 shall be for admission. Conference of Bar Examiners as areas of law considered by the Board within a period of to be tested on the UBE. Questions will be three (3) years next after the date of such .0804 Hearing unlabeled and not necessarily limited to one denial unless, for good cause shown, permis- In case the applicant does not withdraw subject matter. sion for re-application or petition for a recon- as a candidate for admission to the practice sideration is granted by the Board. of law, the person or persons making the .0904 Grading and Scoring. protest and the applicant in question shall Grading of the MEE and MPT answers Section .0700 - Educational appear before a Panel or the Board at a time shall be strictly anonymous. The MEE and Requirements and place to be designated by the Board MPT raw scores shall be combined and .0701 General Education Chair. If the applicant is an applicant for converted to the MBE scale to calculate Each applicant must have satisfactorily admission by examination and a hearing on written scaled scores according to the completed the academic work required for the protest is not held before the written method used by the National Conference of admission to a law school approved by the examination, the applicant may take the Bar Examiners for jurisdictions that admin- Council of the North Carolina State Bar. written examination. ister the UBE.

THE NORTH CAROLINA STATE BAR JOURNAL 45 .0904 .0905 Passing Score following information about the applicant’s Members (as that term is defined by the Policy The Board shall determine what shall con- score to the applicant: the applicant’s raw of the North Carolina recommended by the stitute the passing of an examination UBE scores on the MEE questions and MPT Board and approved by the State Bar Council score for admission in North Carolina. The items; the applicant’s scaled combined MEE creating Emeritus Members to ) to serve as a UBE passing score shall only be increased on and MPT score; the applicant’s scaled MBE Panel to conduct the hearings. one year’s public notice. score; and the applicant’s scaled UBE score. (2) The Panel will make a determination (2)(4) Upon written request of an applicant, as to the applicant’s eligibility for admission to Section .1000 - Review of Written Bar the Board will furnish the Multistate Bar Ex- practice law in North Carolina. The Panel may Examination amination score of said applicant to another grant the application, deny the application, or .1001 Review jurisdiction’s board of bar examiners, or like refer it to the Board for a de novo hearing. An applicant for admission by After release organization that administers the admission of The applicant will be notified in writing of of the results of the written bar examination, attorneys into for that jurisdiction. the Panel’s determination. In the event of an a general applicant who has failed the written adverse determination by the Panel, the appli- examination may, in the Board’s offices, ex- .1005 .1004 Board Representative cant may request a hearing de novo before the amine review the MEE questions and MPT The Executive Director of the Board serves Board by giving written notice to the Executive items on the written examination and the ap- as the Board’s representative of the Board dur- Director at the offices of the Board within ten plicant’s answers to the essay portion of the ing this for purposes of any review of the writ- (10) days following receipt of the hearing examination and such other thereto, along ten bar examination by an unsuccessful appli- Panel’s determination. Failure to file such notice with selected answers as by other applicants cant. The Secretary Executive Director is not in the manner and within the time stated shall which the Board determines will be of assis- authorized to discuss any specific questions operate as a waiver of the right of the applicant tance to the applicant. may be useful to un- and answers on the bar examination. to request a hearing de novo before the Board. successful applicants. (3) The Board or a Panel may require an .1005 Re-Grading applicant to make more than one appearance .1002 Fees Examination answers cannot be re-graded before the Board or a hearing Panel, to furnish The Board will also furnish an unsuccessful once UBE scores have been released. information and documents as it may reason- applicant a copy of the applicant’s essay exam- ably require, and to submit to reasonable phys- ination at a cost to be determined by the Ex- Section .1100 - Reserved for Future ical or mental examinations, pertaining to the ecutive Director, not to exceed an amount de- Use moral character or general fitness of the appli- termined by hard copies of any or all of these cant to be licensed to practice law in North materials, upon payment of the reasonable Section .1200 - Board Hearings Carolina. cost of such copies, as determined by the .1201 Nature of Hearings (4) The Board or a Panel of the Board may Board. No copies of the Board’s grading guide (1) All general applicants may be required allow an applicant to take the bar examination will be made or furnished to the applicant. to appear before the Board or a hearing Panel while the Board or a Panel makes a final deter- MEE or MPT grading materials prepared by at a hearing to answer inquiry about any matter mination that the applicant possesses the qual- the National Conference of Bar Examiners under these rules. In the event a hearing for an ifications and general fitness requisite for an will be shown or provided to the applicant applicant for admission by examination is not attorney and counselor at law, is possessed of unless authorized by the National Conference held before the written examination, the ap- good moral character, and is entitled to the of Bar Examiners. plicant shall be permitted to take the written confidence of the public. examination. .1003 .1002 Multistate Bar Examination (2) Each comity, military spouse comity, .1204 Continuances; Motions for Such There is no provision for review of the Mul- or transfer applicant shall appear before the Continuances will be granted to a party tistate Bar Examination. Applicants may, how- Board or Panel to satisfy the Board that he or only in compelling circumstances, especially ever, request the National Conference of Bar she has met all the requirements of Rule .0502, when one such disposition has been previously Examiners to hand score their MBE answers. Rule .0503 or Rule .0504. requested by and granted to that party. Motions for continuances should be made to the Exec- .1004 .1003 Release of Scores .1202 Notice of Hearing utive Director and will be granted or denied (1) Upon written request, the The Board The Chairman Board Chair will schedule by the Board Chair or by a Panel designated will not release to an unsuccessful applicant the hearings before the Board or Panel, and for the applicant’s hearing. the applicant’s UBE scores on to the bar ex- such hearings will be scheduled by the issuance amination public. of a notice of hearing mailed to the applicant .1205 Subpoenas (2) The Board will inform each applicant or the applicant’s attorney within a reasonable (1) The Board Chair, or the Board Chair’s in writing of the applicant’s scaled score on time before the date of the hearing. designee, shall have the power to subpoena the UBE. Scores will be shared with the ap- and to summon and examine witnesses under plicant’s law school only with the applicant’s .1203 Conduct of Hearings oath and to compel their attendance and the consent. (1) All hearings shall be heard by the Board production of books, papers and other docu- (3) Upon written request of an unsuc- except that the Chairman Board Chair may ments and writings deemed by it to be neces- cessful applicant, the Board will furnish the designate two or more members or Emeritus sary or material to the hearing as set forth in

46 SUMMER 2017 G.S. 84-24. writing, within twenty (20) days after notice court reverses or remands for further proceed- (2) The Executive Director is delegated the of such ruling or determination. This Notice ings the decision of the Board, the judge shall power to issue subpoenas in the Board’s name. shall contain written exceptions to the ruling set out in writing, which writing shall become or determination and shall be filed with the a part of the record, the reasons for such rever- .1206 Depositions and Discovery Evi- Superior Court for Wake County, North sal or remand. dence That May Be Received By the Board Carolina. A filed copy of said Notice shall be (1) A In addition to live testimony, a dep- given to the Executive Director. Failure to file .1405 North Carolina Supreme Court osition may be used in evidence when taken such notice of appeal in the manner and with- Further Appeal in compliance with the N.C. Rules of Civil in the time stated shall operate as a waiver of Any party to the review proceeding, Procedure, G.S. 1A-1. the right to appeal and shall result in the deci- including the Board, may appeal to the (2) A Panel or the Board may consider sion of the Board becoming final. Supreme Court from the decision of the sworn affidavits as evidence in a hearing. The Superior Court. No appeal bond shall be Board will take under consideration sworn af- .1403 Record to be Filed required of the Board. n fidavits presented to the Board by persons de- Within sixty (60) days after receipt of the siring to protest an applicant’s admission to notice of appeal, and after the applicant has the North Carolina Bar. paid the cost of preparing the record, the (3) The Board may receive other evidence Executive Director shall prepare, certify, and in its discretion. file with the Clerk of the Superior Court of Proposed Opinions (cont.) Wake County the record of the case, compris- .1207 Reopening of a Case ing;: any recovery or any compensation so received After a final decision has been reached by (1) the application and supporting docu- a sufficient amount to pay the just and bona the Board in any matter, a party may petition ments or papers filed by the applicant with fide claims.” Section 44-50 further states that the Board to reopen or reconsider a case. Peti- the Board; a client’s instructions for the disbursement of tions will not be granted except when petitioner (2) a complete transcription of the testi- settlement proceeds are “not binding on the can show that the reasons for reopening or re- mony when taken at the any hearing; disbursing attorney” to the extent that the considering the case are to introduce newly (3) copies of all pertinent documents and instructions conflict with the requirements of discovered evidence which was not presented other written evidence introduced at the hear- the medical lien statutes. However, when the at the initial hearing because of some justifiable, ing; client disputes the amount of the claim, N.C. excusable or unavoidable circumstances and (4) a copy of the decision of the Board; Gen. Stat. § 44-51 provides that payment of that fairness and justice require reopening or and the claim is not compelled until the claim is reconsidering the case. The Petition must be (5) a copy of the notice of appeal contain- “fully established and determined, in the man- made within a reasonable time and not more ing the exceptions filed to the decision. ner provided by law.” Comment [15] to Rule than ninety days after the decision of the Board With the permission of the court, the 1.15 provides that when a third-party claim has been entered. record may be shortened by stipulation of all “is not frivolous under applicable law, the parties to the review proceedings. Any party lawyer must refuse to surrender the property to Section .1300 - Licenses unreasonably refusing to stipulate to limit the the client until the claim is resolved” (empha- .1302 Licenses for General Applicants record may be taxed by the court for such sis added). Therefore, when a statute requires .1301 Issuance additional costs as may be occasioned by the a lawyer not to disburse settlement funds to a Upon compliance with the rules of the refusal. The court may require or permit sub- client, the lawyer must comply with the law Board, and all orders of the Board, the sequent corrections or additions to the record regardless of any instructions by the client to Executive Director, upon order of the Board, when deemed desirable. the contrary. shall issue a license to practice law in North Lawyer must determine whether Provider Carolina to each applicant as may be desig- .1404 Proceedings on Review in Wake A’s lien is perfected. If so, Lawyer must segre- nated by the Board in the form and manner County Superior Court gate and retain the funds in question in as may be prescribed by the Board, and at Such The appeal shall lie to the Superior Lawyer’s trust account and inform Client that, such times as prescribed by the Board. Court of Wake County and shall be heard by absent a prompt resolution of Provider A’s the presiding judge or resident judge, without claim that is satisfactory to both parties, Section .1400 - Judicial Review a jury, who may hear oral arguments and Lawyer will eventually be obligated to deposit .1401 Appeals receive written briefs, but no evidence not the funds into the court for disposition. In the An applicant may appeal from an adverse offered at the hearing shall be taken, except interim, if a final judgment is entered on ruling or determination by the Board as to the that in cases of alleged omissions or errors in Provider A’s claim such that the claim is no applicant’s eligibility for admission to practice the record, testimony thereon may be taken longer in dispute, pursuant to N.C. Gen. Stat. law in North Carolina. Such appeal shall lie by the court. The findings of fact by the § 44-50, Lawyer must pay Provider A over the to the Superior Court of Wake County. Board, when supported by competent evi- client’s objections. dence, shall be conclusive and binding upon To the extent that RPC 69 and RPC .1402 Notice of Appeal the court. The court may affirm, reverse, or 125 conflict with this opinion, they are Notice of Appeal shall be provided, in remand the case for further proceedings. If the overruled. n

THE NORTH CAROLINA STATE BAR JOURNAL 47 RULE AMENDMENTS

Amendments Approved by the Supreme Court

On March 16, 2017, the North Carolina media coverage of DHC hearings. Supreme Court approved the following amendments to the rules of the North Amendment to the Certification Highlights Carolina State Bar (for the complete text see Standards for the Criminal Law the Fall and Winter 2016 editions of the Specialty · NC Supreme Court approves amend- Journal or visit the State Bar website): 27 N.C.A.C. 1D, Section .2500, ments to the Rules of Professional Certification Standards for the Criminal Law Conduct specifying a lawyer’s duties Amendments to the Rule on Judicial Specialty when in receipt of information about a District Bar Dues This amendment to the standards for wrongful conviction. 27 N.C.A.C. 1A, Section .0900, board certification in criminal law changes Organization of the Judicial District Bars the requirements relative to peer review from The amendments shorten the time that opposing counsel and judges in cases recently district bars have to report delinquent district tried by the applicant. bar dues from 12 months to six months after The Process the delinquency date. Amendments to the Regulations for PCs and PLLCs Proposed amendments to the Rules Amendments to the Rule on Formal 27 N.C.A.C. 1E, Section .0100, of the North Carolina State Bar are pub- Hearings Before the Disciplinary Regulations for Organizations Practicing Law lished for comment in the Journal. They Hearing Commission (DHC) The amendments eliminate the require- are considered for adoption by the coun- 27 N.C.A.C. 1B, Section .0100, ment that a notice to show cause be issued to cil at the succeeding quarterly meeting. Discipline and Disability of Attorneys a professional corporation (PC) or profes- If adopted, they are submitted to the These amendments allow media coverage sional limited liability company (PLLC) for North Carolina Supreme Court for of DHC hearings subject to the following failure to apply for renewal of a certificate of approval. Amendments become effective conditions: absent a showing of good cause, registration. upon approval by the Court. Unless the media are permitted to broadcast and otherwise noted, proposed additions to photograph formal DHC hearings; the chair Amendments to the Rules of rules are printed in bold and under- of a hearing panel who denies a request for Professional Conduct lined; deletions are interlined. such access must make findings of fact sup- 27 N.C.A.C. 2, Rules of Professional porting that decision; a request for media Conduct access must be filed no less than 48 hours Amendments to the Rules of Professional information or evidence creating a reasonable before the hearing is scheduled to begin; the Conduct require a prosecutor or a lawyer to likelihood that a defendant was wrongfully chair of the hearing panel must rule on such disclose post-conviction information or evi- convicted. New Rule 8.6, Information About motion no less than 24 hours before the dence that may exonerate a convicted defen- a Possible Wrongful Conviction, sets forth hearing is scheduled to begin; and, except as dant. The amendments to Rule 3.8, Special comparable requirements for all other mem- set forth in the rule, Rule 15 of the General Responsibilities of a Prosecutor, set forth spe- bers of the Bar. In addition, the comment to Rules of practice for the Superior and cific disclosure requirements for a prosecutor Rule 1.6, Confidentiality, was amended to District Courts will apply to electronic who comes into possession of new, credible add a cross-reference to new Rule 8.6.

Amendments Pending Approval by the Supreme Court

At its meeting on April 21, 2017, the State Journal or visit the State Bar website): Discipline and Disability of Attorneys Bar Council voted to adopt the following rule The proposed amendments require a set- amendments for transmission to the North Proposed Amendments to the Rule tlement conference with the parties before a Carolina Supreme Court for approval (for the on Prehearing Procedure in DHC panel may reject a proposed settle- complete text of the proposed rule amend- Proceedings Before the DHC ment agreement. ments see the Spring 2017 edition of the 27 N.C.A.C. 1B, Section .0100,

48 SUMMER 2017 Proposed Amendment to IOLTA’s placed on inactive status for a period of time Fiscal Responsibility Rule and to regain their status as certified special- 27 N.C.A.C. 1D, Section .1300, Rules ists upon satisfying certain conditions. Comments Governing the Administration of the Plan for Interest on Lawyers’ Trust Accounts Proposed Standards for New The State Bar welcomes your com- (IOLTA) Specialty in Privacy and Information ments regarding proposed amendments The proposed amendment clarifies that Security Law to the rules. Please send your written the funds of IOLTA may only be used for the 27 N.C.A.C. 1D, Section .3300, comments to L. Thomas Lunsford II, purposes specified in the IOLTA rules. Certification Standards for the Privacy and The North Carolina State Bar, PO Box Information Security Law Specialty 25908, Raleigh, NC 27611. Proposed Amendment to the Rule on The proposed new section of the special- Uses of the Client Security Fund ization rules creates a specialty in privacy and 27 N.C.A.C. 1D, Section .1400, Rules information security law and establishes the Conduct Governing the Administration of the Client standards for certification in that specialty. Proposed amendments to Rule 1.3, Security Fund of the North Carolina State Diligence, and Rule 8.4, Misconduct, of the Bar Proposed New Retired Status Rule in Rules of Professional Conduct clarify the The proposed amendment clarifies that The Plan for Certification of standards for imposition of professional dis- the Client Security Fund may only be used Paralegals cipline under each rule. The proposed for the purposes specified in the Client 27 N.C.A.C. 1G, Section .0100, The amendments to Rule 7.2, Advertising, and Security Fund rules. Plan for Certification of Paralegals Rule 7.3, Direct Contact with Potential The proposed new rule creates a retired Clients, explain the terms “electronic com- Proposed New Inactive Status Rule in status for certified paralegals subject to cer- munication(s)” and “real-time electronic The Plan of Legal Specialization tain conditions. contact” as used in the rules and alert lawyers 27 N.C.A.C. 1D, Section .1700, The to state and federal regulations on electronic Plan of Legal Specialization Proposed Amendments to the Rules communications. The proposed new rule enables certified of Professional Conduct specialists with special circumstances to be 27 N.C.A.C. 2, The Rules of Professional

Proposed Amendments

At its meeting on April 21, 2017, the current practice. The proposed amendments reduce the council voted to publish proposed amend- number of quarterly reviews of fiduciary ments to the North Carolina Board of Law .1714 Meetings accounts that must be performed by lawyers Examiners’ Rules Governing Admission to The annual meeting of the board shall be who manage more than ten fiduciary the Practice of Law. The amendments were held in the spring October of each year in accounts on the assumption that all proposed by the board to enable the adop- connection with the annual meeting of the accounts are managed in the same manner tion of the Uniform Bar Exam (UBE). The North Carolina State Bar. The board by res- and reviews of a random sample of the proposed amendments, together with an olution may set the annual meeting date accounts are sufficient to facilitate the early executive summary of the amendments and and regular meeting dates and places. Special detection of internal theft and correction of an article explaining the board’s actions, meetings of the board may be called at any errors. appear on page 38 of this Journal. time upon notice given by the chairperson, At the April 21, 2017, meeting, the coun- the vice-chairperson or any two members of Rule 1.15-3 Records and Accountings cil also voted to publish the following pro- the board. Notice of meeting shall be given at (a) Check Format. posed amendments to the governing rules of least two days prior to the meeting by mail, ... the State Bar for comment from the mem- telegram, facsimile transmission, or tele- (i) Reviews. bers of the Bar: phone. A quorum of the board for conduct- (1) Each month, for each general trust ing its official business shall be four or more account, and dedicated trust account, Proposed Amendments to The Plan of the members serving at the time of the and fiduciary account, the lawyer shall of Legal Specialization meeting. review the bank statement and cancelled 27 N.C.A.C. 1D, Section .1700, The checks for the month covered by the bank Plan of Legal Specialization Proposed Amendments to the Rules statement. The proposed amendments change the of Professional Conduct (2) Each quarter, for each general trust date for the annual meeting of the board to 27 N.C.A.C. 2, The Rules of Professional account, and dedicated trust account, the date of the board’s spring retreat to reflect Conduct and fiduciary account, the lawyer shall

THE NORTH CAROLINA STATE BAR JOURNAL 49 review the statement of costs and receipts, tions shall satisfy this requirement, but a steps to investigate, identify, and resolve client ledger, and cancelled checks of a larger sample may be advisable. within ten days any discrepancies discov- random sample of representative transac- (3) Each quarter, for each fiduciary ered during the monthly and quarterly tions completed during the quarter to account, the lawyer shall engage in a reviews. verify that the disbursements were prop- review as described in Rule 1.15-3(i)(2); (4) (5) A report of each monthly and erly made. The transactions reviewed however, if the lawyer manages more quarterly review, including a description must involve multiple disbursements than ten fiduciary accounts, the lawyer of the review, the transactions sampled, unless no such transactions are processed may perform reviews on a random sam- and any remedial action taken, shall be through the account, in which case a sin- ple of at least ten fiduciary accounts in prepared. The lawyer shall sign, date, and gle disbursement is considered a transac- lieu of performing reviews on all such retain a copy of the report and associated tion for the purpose of this paragraph. A accounts. documentation for a period of six years in sample of three representative transac- (3) (4) The lawyer shall take the necessary accordance with Rule 1.15-3(g). n

President’s Message (cont.) age of 18. The research and data that the sion also emphasizes the need to have metrics Criminal Investigation and Adjudication for how the system is performing and to com- work from preconceptions, it worked from a Committee examined on crime statistics, mit to constant reexamination on how the wealth of information and with the benefit of brain development, and economic effects all system is performing. diverse viewpoints. Its recommendations, showed the wisdom of raising the age of when although each makes sense in isolation, form someone is treated as an adult in our criminal Conclusion a framework that shows how the administra- justice system to 18. The only exception to Article 1, Section 35 of the North tion of justice can be improved in North the recommendation was for traffic offenses Carolina Constitution provides that, “A fre- Carolina. and serious felonies that involve violence. If quent recurrence to fundamental principles is the General Assembly adopts the “raise the absolutely necessary to preserve the blessings Core Values and Recommendations age” proposal, North Carolina will no longer of liberty.” The Commission’s Report allows The work of the commission focused on be the only state that imposes the life-long lawyers to examine how our court system is improving operations within the existing stigma of being convicted as an adult offender performing with respect to certain “funda- administrative framework, not on measures on its 16- and 17-year olds. mental principles.” But the preservation of that would require constitutional or major Another recommendation that cut across the “blessings of liberty” envisioned in the structural changes for the courts. The work the work of the committees was better uti- Constitution requires that these recommen- did focus on several core values that are iden- lization of technology. There was an abun- dations be put into action with appropriate tified in the Commission Report: that the dance of evidence that our court system has financial support by our General Assembly. In court system should have the trust and confi- labored under the burden of outdated tech- their role as “public citizens,” lawyers are dence of the people that it serves; that the nology. The commission recognized that bet- advised to “seek improvement of the law, courts exist solely to uphold the rule of law for ter technology is an integral part of better access to the legal system, the administration the people that the courts serve; and that case management, more efficient deploy- of justice and the quality of service rendered court proceedings should be fair, accessible, ment of resources, and better access to the by the profession.” RPC 0.1, A Lawyer’s and effectively managed. Commission courts. The commission recommends the Professional Responsibility. The Commission’s Report, P. 4. The recommendations of the implementation of statewide, mandatory Report and recommendations provide the commission align with the work of its com- electronic filing of court documents as an substance of how we can go about making mittees. I will not summarize all of those rec- important step to improve court efficiency those improvements. I would encourage all ommendations here, but will highlight rec- and to provide data that will allow the move- lawyers to read the report in its entirety and to ommendations that rose to the top of list ment to an integrated case management sys- make their views on its recommendations from the work of the committees. tem and higher level enterprise management known to their legislators. This is a good The Criminal Investigation and systems. The Commission’s Report has a opportunity to meet a constitutional impera- Adjudication Committee focused on the fact detailed blueprint for the technological inno- tive and an ethical obligation. The report is that North Carolina was one of two states that vation that is needed. available online at NCCALJ.org. n treats 16- and 17-year olds as adult criminal Other recommendations include the need offenders and not as juveniles. It is notewor- to move back to a uniform court system with Mark W. Merritt began serving as vice chan- thy that since the Commission’s Report was respect to our forms, rules, and processes. cellor and general counsel at UNC-Chapel Hill issued, North Carolina became the only state With the increase in pro se litigants, it is diffi- in September 2016. Prior to that time, he prac- that treats 16- and 17-year olds as adult cult to provide them guidance on websites, in ticed law in Charlotte as a litigator at Robinson offenders given that the only other state that forms, or at courthouse kiosks when processes Bradshaw. He is an alumnus of UNC-Chapel did so—New York—has since raised the age vary among judicial districts or even among Hill and the University of Virginia School of of when someone is treated as an adult to the judges within judicial districts. The commis- Law.

50 SUMMER 2017 BAR UPDATES

Client Security Fund Reimburses Victims

At its April 20, 2017, meeting, the client of Michael S. Eldredge. The board ond $5,000 payment under false pretenses North Carolina State Bar Client Security determined that a client and her daughter’s as he knew or should have known that his Fund Board of Trustees approved payments personal injury claims were referred to license was administratively suspended. of $175,344.11 to 12 applicants who suf- Eldredge from a SC attorney because the 9. An award of $2,684.46 to a former fered financial losses due to the misconduct incident occurred in NC rather than SC. client of Gary S. Leigh of Hickory. The of North Carolina lawyers. Eldredge settled the claims against two board determined that Leigh was retained The payments authorized were: insurance companies and received the set- to handle a client’s personal injury claim for 1. An award of $66,027.18 to an appli- tlement proceeds, which he deposited into injuries sustained in an auto accident. Leigh cant who suffered a financial loss due to the his trust account. Eldredge took a fee from settled the claim, but failed to make all of conduct of Paul N. Blake III of Wilson. The both settlements, paid the client a portion the proper disbursements prior to his trust board determined that Blake was appointed of the proceeds, and retained funds to pay account being garnished by the IRS for his co-executor of an estate. Blake violated his medical providers. Eldredge failed to pay failure to pay his taxes owed. fiduciary duty to the estate in the nature of any medical providers and, due to misap- 10. An award of $3,014.91 to a former embezzlement by taking funds from it with- propriation, Eldredge’s trust account bal- client of Gary S. Leigh. The board deter- out being able to document any valid pur- ance is insufficient to pay all of his client mined that Leigh was retained to handle a pose for the amounts disbursed. Blake was obligations. client’s personal injury claim for injuries disbarred on April 7, 2017. 5. An award of $7,900 to a former client sustained in an auto accident. Leigh settled 2. An award of $3,220.22 to a former of Clifton J. Gray III of Lucama. The board the claim but failed to make all the proper client of Robert M. Chandler Jr. of Rocky determined that Gray was retained to repre- disbursements prior to his trust account Mount. The board determined that sent a client on criminal charges. Gray being garnished by the IRS for his failure to Chandler was retained to handle both the failed to provide any valuable legal services pay his taxes owed. client’s and her daughter’s personal injury for the fee paid. Gray was suspended on 11. An award of $7,054 to a former claims stemming from a traffic accident. December 15, 2016. The board previously client of R. Alfred Patrick of Winterville. Chandler handled the client’s daughter’s reimbursed four other Gray clients a total of The board determined that Patrick was claim properly, but after settling the client’s $25,300. retained to handle a client’s personal injury claim, Chandler failed to make all the prop- 6. An award of $2,500 to a former client claim for injuries sustained in an auto acci- er disbursements from the settlement pro- of Steven Troy Harris of Durham. The dent. Patrick settled the matter, but failed to ceeds. Due to misappropriation, Chandler’s board determined that Harris was retained make all of the proper disbursements from trust account balance is insufficient to pay to handle a client’s domestic matter. the settlement proceeds. Due to misappro- all of his client obligations. Chandler was Although he provided some legal services priation, Patrick’s trust account balance is disbarred on July 11, 2016. The board pre- for the initial retainer paid by the client, insufficient to pay all of his client obliga- viously reimbursed another Chandler client Harris knew or should have known that his tions. Patrick was disbarred on January 28, $810.39. license was administratively suspended 2017. The board previously reimbursed two 3. An award of $40,000 to a former prior to accepting the fee to handle a sepa- other Patrick clients a total of $58,717.21. client of Michael S. Eldredge of Lexington. rate matter for the client. Harris was sus- 12. An award of $10,533.34 to a former The board determined that a client’s per- pended on November 12, 2015. client of Devin F. Thomas of Winston- sonal injury claim was referred to Eldredge 7. An award of $1,500 to a former client Salem. The board determined that Thomas from a SC attorney because the incident of Steven Troy Harris. The board deter- was retained to handle a client’s personal occurred in NC rather than SC. The client mined Harris was retained to prepare wills injury claim for injuries sustained in an rejected a settlement offer, but Eldredge for a client and his wife. Harris never pre- accident. Thomas settled the matter, but went ahead and settled the client’s claim pared the wills, and took the client’s funds failed to pay all of the client’s medical without the client’s consent. Eldredge after he knew or should have known that providers from the settlement proceeds. embezzled the funds for his own use with- his license was suspended. When his trust account was frozen by the out making any disbursement to the client 8. An award of $5,000 to a former client State Bar due to misappropriation, Thomas’ or any medical providers. Due to misap- of Steven Troy Harris. The board deter- trust account balance was insufficient to propriation, Eldredge’s trust account bal- mined that Harris was retained to handle a cover all of his client obligations. Thomas ance is insufficient to pay all of his client civil suit filed against his client. The client was disbarred on April 20, 2016. The board obligations. paid Harris’ $10,000 fee in two installments previously reimbursed five other Thomas 4. An award of $26,910 to a former of $5,000. Harris accepted the client’s sec- clients a total of $92,805.17. n

THE NORTH CAROLINA STATE BAR JOURNAL 51 BAR UPDATES

Law School Briefs

Association (ABA) Regional Client Marrakesh Treaty: Facilitating Access to Books Campbell University School of Law Counseling Competition, an annual event for Print Disabled Individuals, (Oxford Advocacy program named 21st-best by US sponsored by the ABA Law Student Division, University Press, 2017), a comprehensive News—US News & World Report has high on February 11, 2017. Twelve teams from framework for interpreting a watershed inter- praise for Campbell Law School’s advocacy schools in North Carolina, South Carolina, national agreement situated at the intersection program, tapping it as tied for 21st-best in the and Tennessee attended. The topic for this of intellectual property and human rights law, country. Not only is Campbell Law the lone year’s competition was Privacy Law. The win- by Duke Law Professors Laurence Helfer and North Carolina law school on the list, it’s the ning team hailed from UNC-Chapel Hill Jerome Reichman, with Molly Land and Ruth only law school located in the mid-South School of Law. Okediji; region. Professor Mindy Sanchez took a group of School Vouchers in North Carolina: The First Campbell Law, Nottingham (UK) CharlotteLaw students once again to compete Three Years, a report authored by Clinical announce LLM degree partnership— in the fifth annual Estrella Trial Advocacy Professor Jane Wettach, director of the Campbell Law School and Nottingham Law Competition (ETAC) in San Juan, Puerto Children’s Law Clinic, finds that the program’s School in the United Kingdom have Rico, on April 1-2, 2017. The competition, accountability measures are among the weakest announced a joint partnership to offer an sponsored by the law firm of Estrella LLC and in the country, with no need for schools to be LLM degree in legal practice to American law The George Washington University Law accredited, adhere to state curricular or gradu- students. Students enrolled in the program will School, is capped at 14 teams and is the only ation standards, employ licensed teachers, or complete a dissertation under the guidance of federal civil mock trial competition in Puerto administer state end-of-grade tests; and a Nottingham professor, have the ability to uti- Rico. Last year, newcomer CharlotteLaw was Tightening the Purse Strings: What lize Nottingham’s robust online resources, and victorious and won the competition following Countering Terrorism Financing Costs Gender travel abroad and meet face-to-face with facul- in the footsteps of American University, the Equality and Security, a report analyzing how ty and fellow students. inaugural winner in 2013, followed by UCLA countering terrorism financing rules intro- Campbell Law, NC State Poole College in 2014, and UC Berkeley in 2015. The com- duced in the aftermath of 9/11 impact launch JD/MAC dual degree program— petition uses a complex civil case as the basis women’s rights organizing, women’s rights Campbell Law School and the NC State for its problem. While this year’s trial team did organizations, and gender equality in conflict University Poole College of Management have not advance to the final round, Chelsea Bauer, areas, co-authored by the International announced the formation of a second dual Angela Avent, and William Myers represented Human Rights Clinic at Duke Law and the degree program between the two institutions. CharlotteLaw well. Women’s Peacemakers Program in the Hague, The new program, which will begin with the the Netherlands. fall 2017 semester, allows students to pursue Duke Law School and obtain a juris doctor at Campbell Law and Duke Law scholars and clinics have released Elon University School of Law a master of accounting at NC State Poole several new books and reports. These are: Pro Bono Board honored for Country College simultaneously. The JD/MAC marks Theft! A History of Music (Center for the Conditions Project—The North Carolina Bar Campbell Law’s seventh dual degree offering. Study of the Public Domain, 2017), by Association has honored Elon Law with an NC Attorney General Stein gives com- Professor James Boyle and Clinical Professor annual award that recognizes student pro bono mencement address—NC Attorney General Jennifer Jenkins, a graphic novel laying out a projects benefiting low-income residents Josh Stein delivered the commencement 2,000 year long history of music borrowing throughout the state. The school’s Pro Bono address at Campbell Law School’s 39th annual from Plato to rap, and an examination of the Board, in coordination with Elon Law’s hooding and graduation ceremony on Friday, effect of copyright’s current “permissions cul- Humanitarian Immigration Law Clinic, May 12. The celebration took place at ture” on creativity in music; received the bar association’s 2017 Law Memorial Auditorium at the Duke Energy Free Speech Beyond Words: The Surprising Student Group Pro Bono Award for a program Center for the Performing Arts in downtown Reach of the First Amendment (New York to help lawyers representing clients seeking Raleigh. In prior years Stein has served as an University Press, 2017), by Professor Joseph asylum before the US Department of adjunct faculty member at Campbell Law, Blocher, with Mark Tushnet and Alan Chen, Homeland Security. Their reports aid attor- teaching courses in election law, consumer pro- which probes the legal justifications for extend- neys and organizations seeking to secure the tection, and state legislative policymaking. ing First Amendment coverage to speech with- protection of asylum for clients who would out words or clear meaning, such as abstract otherwise be harmed or killed if required to Charlotte School of Law art, instrumental music, and nonsense; return to their home countries. CharlotteLaw hosted the American Bar The World Blind Union Guide to the Joining forces with Family Justice

52 SUMMER 2017 Centers—A prominent Greensboro attorney NCCU law student and member of the goals, ensuring that Carolina Law secures the who specializes in family law has joined the NCCU School of Law Civil Rights Society. funding needed to support the people and Elon Law staff to coordinate legal services for The second panel, “Human Rights programs necessary to train the next genera- crime victims seeking help from local govern- Challenges in 2017,” featured Janaye Ingram, tion of lawyers. ment agencies. Margaret A. Dudley is the first executive director of the National Action Speakers of note—Judge Reena Raggi, cir- supervising attorney for the Emergency Legal Network; Professor James Steele, North cuit judge of the US Court of Appeals for the Services Program that Elon Law is managing Carolina Agricultural and Technical State Second Circuit, delivered the 2017 William P. in conjunction with the Family Justice University; Professor Emmanuel Oritsejafor, Murphy Distinguished Lecture on “Free Centers of Guilford and Alamance counties. chair of the Public Administration Program at Speech and Offensive Expression on The program is funded by a $1.3 million NCCU; and moderator Aviance Brown, University Campuses” in March. Vice Admiral grant from the North Carolina Governor’s NCCU law student and member of the James W. Crawford III (Class of 1983), judge Crime Commission. NCCU School of Law Civil Rights Society. advocate general of the US Navy, delivered the Elon Law’s 10th anniversary— The keynote speaker was Professor Kimberlé 2017 commencement address in May. Supporters of Elon Law gathered March 17 Crenshaw, civil rights advocate and professor for a special luncheon to recognize the collec- at the University of California Los Angeles Wake Forest University School of Law tive efforts of community, civic, and philan- and Columbia School of Law. Wake Forest Law’s moot court and trial thropic leaders who helped launch “a law The NCCU Law Review sponsored its teams are celebrating their best collective year school with a difference” when Elon Law annual symposium on April 7, 2017. The ever starting with the 1L Trial Team— first opened in 2006. Hosted at the symposium panels focused on President Virginia Stanton, Tim Day, Ashley Collette, Proximity Hotel in Greensboro, the program Donald Trump’s impact on constitutional Stephanie Johnson, and Ashley DiMuzio, included a moment of silence for three mem- rights, including voting rights, women’s who, for the first time, beat out 33 other bers of the Elon Law community who have rights, LGBT rights, and Second teams from North Carolina law schools to win died over the past year: Eugenia Leggett- Amendment rights. Featured panelists and the University of North Carolina at Chapel Frank, founding associate dean of develop- speakers included attorneys John Burris and Hill’s (UNC) 2017 Kilpatrick Townsend 1L ment; Michael L. Rich, associate professor of Chris Brooks, and Professors Irving Joyner Mock Trial Competition in January. The next law and Elon Law’s Jennings Emerging and Barbara Arnwine. month, the Wake Forest Law National Moot Scholar; and Juma Jackson, a member of the Court Team made up of 3Ls Matt Cloutier, Class of December 2017. University of North Carolina School Mia Falzarano, and Blake Stafford won the of Law National Moot Court Competition, one of North Carolina Central School of Law Rachel High Jennings 3L and Joelle Portzer the oldest, most prestigious law school compe- On March 31, 2017, The Biotechnology 3L chosen for international ethics program— titions, in New York City following a and Pharmaceutical Law Review hosted its Jennings and Portzer are among 12 law stu- November sweep at regionals. Professor John 10th Annual Symposium at the North dents selected from around the country by the Korzen, director of the law school’s Appellate Carolina Biotech Center. The theme was eth- Fellowships at Auschwitz for the Study of Advocacy Clinic, is the team’s coach. After ical issues affecting the biotechnology and Professional Ethics (FASPE) to participate in a winning regionals year after year under pharmaceutical industries. The topics were: two-week program in Germany and Poland Professor Korzen’s coaching, this year marks Biomedical Research Involving Healthy this summer, which uses the conduct of the first time in 36 years that Wake Forest Law Volunteers, featuring Dr. David Resnik, a lawyers and judges in Nazi-occupied Europe as has held the title. Wake Forest Law’s BLSA bioethicist at the National Institute of a way to reflect on ethics in the legal profession Mock Trial Team, National Trial Team, and Environmental Services; Ethical Issues today. The duo joined a group of 63 FASPE AAJ Trial Teams all advanced to nationals after Involving Personalized Medical Approaches, fellows across five areas of study in May. winning their respective regional competi- featuring David Bradin, attorney with Brittany Brattain 3L receives UNC Robert tions. It was the third consecutive year that the Andrews, Kurth, Kenyon, LLP; and The State E. Bryan Public Service Award for Pro Bono National Trial Team won the regional TYLA of Opioids in North Carolina, featuring Tessie Cancer Project work—Brattain received the National Trial Competition thanks in no Castillo, advocacy and communication coor- graduate and professional student award for small part to Coaches Mark Boynton and dinator, North Carolina Harm Reduction her work with the UNC Cancer Pro Bono Stephanie Reese and team members 3Ls Coalition. Project. In her role as special projects coordina- Daniel Stratton and Sophia Vazquez and 2L The 2017 Charles Hamilton Houston tor, Brattain recruited student and attorney Joe Karam. And for the third time in as many (CHH) Civil and Human Rights Issues volunteers to serve at clinics, developed train- years, the AAJ Trial Team won the regional Forum took place on April 7, 2017. The first ing protocol for student volunteers, created championship. What made this particular panel, “Advancing Voting Rights in an Era of client files for clinics, and developed an institu- competition unusual is that for the second Repression,” featured Professor Barbara tionalized and automated system that will year in a row, it was an all Wake Forest final Arnwine, NCCU School of Law’s 2016-2017 ensure the longevity of the project. round. Coach Matt Breeding led the winning CHH endowed chair; Professor Melissa Carolina Law names Deirdre Gordon as team of 3Ls, Drew Culler, Mia Falzarano, Harris-Perry, Wake Forest University; associate dean for advancement—Gordon Cheslie Kryst, and Ethan White, on to win Professor Irving L. Joyner, NCCU School of will manage a team of ten and be responsible the 2017 AAJ National Championship— Law; and moderator Jasmine Brunson, for meeting the school’s annual and campaign another first for Wake Forest Law. n

THE NORTH CAROLINA STATE BAR JOURNAL 53 BOARD OF LAW EXAMINERS

July 2017 Bar Exam Applicants

The July 2017 Bar Examination will be held in Raleigh on July 25 and 26, 2017. Published below are the names of the applicants whose applications were received on or before April 28, 2017. 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.

Hannah Abernethy Fairmont, NC Lia Bies Goldsboro, NC Pardis Camarda Carrboro, NC Daniel Ball Elkhorn, NE Ashley Brisbon Wurtsboro, NY Ragini Acharya Raleigh, NC Peter Bigelow Charlotte, NC Rachel Cane Denver, CO Meredith Ballard Falls Church, VA Leah Britt Durham, NC Courtney Achee Raleigh, NC Anthony Biraglia Lumberton, NC Natashia Cannedy Chapel Hill, NC Christina Banfield Winston-Salem, NC Hailey Brock Kings Mountain, NC Chavez Adams Winston-Salem, NC Michael Birney Durham, NC Habekah Cannon Silver Spring, MD Chelsea Banister Chapel Hill, NC Laura Browder Dudley, NC Hunter Adams Chapel Hill, NC Leland Black Winston-Salem, NC Sarah Cansler Washington, DC Katherine Barkley Chapel Hill, NC Alesha Brown Durham, NC Paul Adams Winston-Salem, NC Alycia Blackwell Pittman Durham, NC James Capps Virginia Beach, VA Jackson Barnes Chapel Hill, NC Andrew Brown Greensboro, NC Samuel Adams Greensboro, NC Arthur Blanton Mooresville, NC Charles Carpenter Tuscaloosa, AL Jenny Barnes Virginia Beach, VA Angele Brown Charlotte, NC Kelvin Allen Durham, NC Ethan Bloodworth Charlotte, NC Caroline Casello Durham, NC Sontina Barnes Burnsville, NC Carmen Brown McLeansville, NC Markea Allen Raleigh, NC Jeffrey Bloomfield Hickory, NC Claudine Chalfant Charlotte, NC Sarah Barnett Winston-Salem, NC Christopher Brown Concord, NC Paul Allen Richmond, VA Danielle Boaz Raleigh, NC Kent Chalmers Apex, NC Haley Bastian Charlotte, NC Christopher Brown Rock Hill, SC Kendra Alleyne Columbia, SC Parris Booker Chapel Hill, NC Jacob Charles Raleigh, NC Chelsea Bauer Winston-Salem, NC Maya Brown Morrisville, NC Toya Allison Lake Wylie, SC Bethany Boring Winston-Salem, NC Yeama Charley Fayetteville, NC Taylor Beamon Chapel Hill, NC Michael Brown Charlotte, NC Zachary Allred Raleigh, NC Kevin Boston Lexington, NC Gary Chavis Greensboro, NC Nanette Becerra Durham, NC Shelia Brown Durham, NC Jonathan Altstadter Apex, NC Carlton Bowers Raleigh, NC Benjamin Chernow Bellmore, NY Brenton Begley Mount Pleasant, SC Jennifer Bryan Nashville, TN Maggie Amos Greensboro, NC Sarah Bowman Bladenboro, NC Jason Chestnut Charlotte, NC Suad Bektic Lillington, NC Elitsa Bryant Raleigh, NC Riley Andrews Richmond, VA Charles Bowyer Cambridge, MA Jocelyn Chidsey Raleigh, NC Latasha Bembury Durham, NC Brianna Buchanan Franklinton, NC Allain Andry Durham, NC Kathryn Boyd Durham, NC Naomy Chimenge Davidson, NC Marcus Benning Durham, NC Rachel Buck Durham, NC Douglas Arborio Durham, NC Philip Boyers Overland Park, KS Daniel Choyce Charlotte, NC Daniela Benton High Point, NC Bret Buckler Winston-Salem, NC John Armour Raleigh, NC Dorothy Brackett Chapel Hill, NC Jongwoo Chung Raleigh, NC Michael Berry Pittsboro, NC Brian Buckley Rockville, MD Ryan Arnold Durham, NC Justin Bradley Durham, NC Kayla Churchill Mebane, NC Monica Berry Erwin, NC Alejandro BuenRostro Charlotte, NC Juan Arreola Winston-Salem, NC Kelyn Brame Rocky Mount, NC Ethan Clark Durham, NC Jessica Bertovich Charlotte, NC Tiffany Burba Winston-Salem, NC Christopher Ashley Wilmington, NC Joshua Brasch Nashville, TN Nicholas Clark Durham, NC Andre Best Charlotte, NC Kathleen Bure Virginia Beach, VA Julia Atchison Houston, TX Daniel Braswell Columbia, SC Ronnie Clark Grundy, VA Daniel Bethea Durham, NC Matthew Burke Whitakers, NC Kristin Athens Chapel Hill, NC Brittany Brattain Carrboro, NC Joshua Clarkson Apex, NC Morgan Bethea Chapel Hill, NC Jonathan Burns Lexington, NC Reagan Bailey Charlotte, NC Jonathan Braverman Durham, NC Megan Clemency Pfafftown, NC Madison Beveridge Durham, NC David Busch Columbia, SC Elizabeth Bakale-Wise Chapel Hill, NC Joseph Brennan Charlotte, NC Cassidy Cloninger Pittsboro, NC Kimberley Beyer Marvin, NC Donald Butler Raleigh, NC Carly Baker Glenville, NC Brittany Bridges Monroe, NC Monica Cloud Jacksonville, NC Konark Bhasin Raleigh, NC Dominique Caldwell Silver Spring, MD Tameka Baldwin Annandale, VA Aries Brinson Lewisville, NC Matthew Cloutier

54 SUMMER 2017 Winston-Salem, NC Garrett Davis Cary, NC Lauren Freedman Winston-Salem, NC Raemi Cobb Durham, NC Chet Effler Greensboro, NC James Halstead Durham, NC Matthew Davis Old Fort, NC Montre Freeman Charlotte, NC Joshua Coffey Charlotte, NC Paul Ehlinger Roanoke Rapids, NC Minard Halverson Raleigh, NC Nicole Davis Austin, TX Alexander French Fayetteville, NC Jennifer Coleman Carrboro, NC Samuel Ehrlich Chapel Hill, NC Amir Hamdoun Charlotte, NC Rachel Davis Columbia, SC Katherine French Belmont, MA Michael Coleman Charlotte, NC Andrew Eichen Apex, NC Nathaniel Hamilton Kernersville, NC Robert Davis Chapel Hill, NC Kyle Frizzelle Greensboro, NC Phoenix Coleman Greensboro, NC Alexandra Elbeery Raleigh, NC Chenae Hammond Raleigh, NC Jarryd de Boer Chapel Hill, NC Heather Fuller Pennsauken, NJ Adam College Hickory, NC Maria Eldidy Charlotte, NC Jonathan Hammond Raleigh, NC Benjamin DeCelle Charlotte, NC Agnes Gambill Charlotte, NC Margaret Collins Concord, NC Casey Elliott Wilkesboro, NC Racheal Hammond Wake Forest, NC Marcus Deel Saratoga, NC Kirstin Gardner Durham, NC Maria Collins Cary, NC Benjamin Ellis Chapel Hill, NC Charles Hands Winston-Salem, NC Elizabeth DeFrance Wilson, NC Danielle Garon Durham, NC Lisa Colon Asheboro, NC Caitlin Emmons Charlotte, NC Molly Hanes Youngsville, NC Conor Degnan Richlands, NC Noah Garrett Raleigh, NC Daniel Colston Winston-Salem, NC Amanda Ennis Greenville, SC Alia Haque Chapel Hill, NC Michael DeLuca Four Oaks, NC Josiah Garton Mint Hill, NC Hannah Combs Chicago, IL Austin Entwistle Decatur, GA Kaitlyn Haran Chapel Hill, NC Christopher Dempsey Raleigh, NC Denisha Gatling Raleigh, NC Roger Condrey Washington, DC Jennifer Eppick Durham, NC Andrew Hardee Concord, NC Jessica Dentzer Columbus, OH Shaquansia Gay Charlotte, NC Cynthia Cook Charlotte, NC Annemarie Ernst Durham, NC Michelle Hardin Mint Hill, NC Andrew Deschler Chapel Hill, NC Matthew Geiger Miami, FL Nathaniel Cook Raleigh, NC Zachary Ernst Raleigh, NC Mallory Harper Greensboro, NC Taylor Dewberry Cocoa Beach, FL Alexandra Giordanella Opelika, AL William Cooke Winston-Salem, NC Raymond Escobar Greensboro, NC Matthew Harris Greensboro, NC Iris DeWitt Lexington, VA Jacob Glass Greenville, MS Katashia Cooper Charlotte, NC James Eubanks Athens, GA Phillip Harris Rocky Mount, NC Candice Diah Chapel Hill, NC Jerrod Godwin Chapel Hill, NC Lindsey Cooper Winston-Salem, NC Jonathan Eure Dunn, NC Shontay Harris Raleigh, NC Andrew Dickerhoff Raleigh, NC Abigail Golden Charlotte, NC Elizabeth Corbett Raleigh, NC Sarah Eyssen Charlottesville, VA Steven Harris Raleigh, NC Brenna Dickson Charlotte, NC Michelle Gonzalez Winston-Salem, NC Adam Coto Winston-Salem, NC Christopher Faircloth Durham, NC Weston Harty Vale, NC Rylee Dillard Raleigh, NC Tara Gore Winston-Salem, NC William Cox Columbia, SC Phillip Fajgenbaum Whiteville, NC Jacob Harwood Chapel Hill, NC Sarah Dillard Raleigh, NC Austin Grabowski Marshall, NC Allie Craver Raleigh, NC Amanda Fannin Raleigh, NC Robert Hash Mebane, NC Elizabeth Dils Durham, NC Christopher Graham Chapel Hill, NC Brooke Crump Raleigh, NC Alexia Faraguna Knoxville, TN Patrick Haynes Mount Gilead, NC Garrett Dimond Southampton, NY Mark Gray Columbia, SC Trisha Crutchfield Raleigh, NC Robert Farias Summerfield, NC Katelyn Heath Chapel Hill, NC Matar Diouf Newport, NC LeShon Grayson Salisbury, NC Drew Culler Charlotte, NC Joshua Farkas Charlotte, NC Edward Hedrick Winston-Salem, NC Bertha Dixon Davie, FL Kirstin Greene Carrboro, NC Reko Currie Browns Summit, NC Caitlin Farmer Charlotte, NC Shilpa Hegde Greensboro, NC Adam Doane Raleigh, NC Shalondra Greenlee Raleigh, NC Rebecca Daddino Charlotte, NC John Feasel Durham, NC Holly Hege Winston-Salem, NC James Doermann Raleigh, NC John Gregg Raleigh, NC Kristy D’Ambrosio Charlotte, NC Kyleigh Feehs La Canada, CA Samuel Helton Summerfield, NC Ryan Donovan Winston-Salem, NC Adam Gregory Cary, NC Clifton Dandison Winston-Salem, NC Casey Fidler Angier, NC Steven Hemric Baton Rouge, LA Christopher Dorsey Huntersville, NC Grace Gregson Winston-Salem, NC Jason Dangler Lynchburg, VA Joshua Finney Chapel Hill, NC Abigail Henderson Charlotte, NC Melvin Dove Huntersville, NC Maxwell Gregson Chapel Hill, NC Rebecca Darchuk Raleigh, NC Nicholas Fisher Chapel Hill, NC Lauren Henderson Asheville, NC Matthew Doyle Raleigh, NC Whitney Griffin Winston-Salem, NC Monica DaSilva Charlotte, NC Alexa Flores Durham, NC Nicole Henderson Raleigh, NC Lisbeth Driskill Columbia, SC Sara Guerra Mooresville, NC Skylar Davenport Charlotte, NC George Flowers Raleigh, NC Shiekel Hendricks Raleigh, NC Jennifer Dumont Raleigh, NC Emily Gunner Durham, NC Christopher Davidson Raleigh, NC Shenna Fortner Raleigh, NC Edward Hennelly Goldsboro, NC Casey Duncan Blountville, TN Khalil Haddad Charlotte, NC Shane Davidson Raleigh, NC Ashley Foster Wake Forest, NC Alexander Hentschel Cary, NC Samatha Duncan Durham, NC Emma Haddock Garner, NC Clinton Davis Raleigh, NC Daniel Fox Winston-Salem, NC Kylie Herring Raleigh, NC Kevin Edwards Surfside, FL Bethel Hailu Raleigh, NC Emily Davis Gainesville, FL Jacob Franchek Washington, DC Kathryn Hesman Pittsburgh, PA Kimberly Edwards Arnold, MO Jessica Hajjar Chapel Hill, NC

THE NORTH CAROLINA STATE BAR JOURNAL 55 Erica Hicks Raleigh, NC James King Greensboro, NC Philip Mayer Nashville, TN Dondrea Jackson Chapel Hill, NC Erica Long-Ellis Chapel Hill, NC Kimberly Hicks Durham, NC Melody King Raleigh, NC Rhian Mayhew Seaboard, NC Jennifer Jackson DeLeon Springs, FL Stephanie Lopez Raleigh, NC Brooklyn Hildebrandt Raleigh, NC William King Durham, NC Richard McAuliffe Hampton, VA Jonathan Jakubowski Wilson, NC Maria Lopez Delgado Raleigh, NC Alexandra Hilditch Pittsboro, NC Emily Kingston Elizabeth, NJ Rebecca McBurney Raleigh, NC Matthew James Lillington, NC Laura Love Durham, NC Brittany Hill Littleton, CO Andrew Kirby Raleigh, NC Patrick McConnell Greensboro, NC Laura Janke Sacramento, CA Destiny Lowder Charlottesville, VA Caitlin Hill Winston-Salem, NC Andrew Kite Greensboro, NC Christian McCullen Athens, GA Kyle Jensen Athens, GA Jamey Lowdermilk Clayton, NC Jordan Hilton Vermillion, SD Natalie Klemann Carrboro, NC Ian McDonald Durham, NC Emily Jeske Apex, NC Amelia Lowe Durham, NC Samuel Hipps Clemmons, NC Samuel Knisley Charlotte, NC Paige McElravy Chapel Hill, NC Josue Jimenez Siler City, NC Rashanda Lowery Hartsville, SC Michael Hirsch Charlotte, NC Margaret Kocaj Greensboro, NC Wallis McElroy Fort Mill, SC Eunji Jo Charlotte, NC Leo Lucisano Saint Louis, MO Dexter Hobbs Tuscaloosa, AL Brandon Konecny Cary, NC Vanessa McGalliard Chapel Hill, NC Cameron Joe Knightdale, NC Jeanette Lueftner Raleigh, NC Ann Marie Holder Bloomington, IN Christina Koscianski Concord, NC Cory McInnis Greenville, NC Ashley Johnson Raleigh, NC Benjamin Lumpkins Charlotte, NC Alisha Holland Charlotte, NC Alison Kralick Oxford, NC Ian McIntyre Midland, NC Charlene Johnson Fuquay-Varina, NC Christopher Lusby Rock Hill, SC Aranda Holley Clayton, NC Spencer Krantz Kenly, NC Cory McKenna Durham, NC Erika Johnson Winston-Salem, NC James Lynch Chapel Hill, NC Miranda Holley Roxboro, NC Cheslie Kryst New York, NY Stephanie McKeon Durham, NC Ivy Johnson Winston-Salem, NC Kathleen Lynch Murphy, NC Nicholas Holloman Carrboro, NC Brian Kuppelweiser Greensboro, NC Paula McKissick Staley Roxboro, NC Jeffrey Johnson Greensboro, NC Alexandra Maccioli Rutherfordton, NC Darrion Holloway Essex, MD Travis LaFay Raleigh, NC Dorian McKoy Durham, NC Ellison Johnstone Raleigh, NC Steven Maddox Raleigh, NC Jonathan Holt Greenville, SC Kelly LaForge Arlington, VA Lauren McKoy Clemmons, NC April Jones Louisville, KY Uzoamaka Maduabuchukwu Broadway, NC Craig Horsman Charlotte, NC Elizabeth Lamb Zebulon, NC Molly McLawhorn Mooresville, NC Brian Jones High Point, NC Quisha Mallette Raleigh, NC Daniel Horwitz Midland, MI Patrick Lambert Chapel Hill, NC British McLean Chapel Hill, NC Dax Jones Cherokee, NC Emily Maloney Winston-Salem, NC Dorwin Howard Greensboro, NC Charles Langhorne McLean, VA Sean McLeod Oxford, NC Eric Jones Mount Pleasant, SC Christopher Manchik Greensboro, NC Peter Hronis Greensboro, NC Tara Lay Charlotte, NC Joseph McManus Easton, PA Henry Jones Charlotte, NC Michael Marcela Archdale, NC Hugh Hudson Raleigh, NC Ryan Layton Vilas, NC Jon-Michael McNew Durham, NC Keren Jones Mebane, NC Chanda Marlowe Orangeburg, SC Karlie Hudson Greensboro, NC Olivia League Chapel Hill, NC Alfred McQueen Newton Grove, NC Sa’Metria Jones Columbia, SC Jeremy Marlowe Winston-Salem, NC Jenica Hughes Duham, NC Wayne Lear Denver, NC Blake Meadows Chapel Hill, NC Tiffany Jones Harrisburg, NC Carson Martin Peachtree City, GA Lauren Hunstad Durham, NC Ian Leavengood Durham, NC Maryam Mehrabani Chapel Hill, NC Travis Joyce St. Petersburg, FL Jestyne Martin Raleigh, NC Alexandra Hunt Winston-Salem, NC Evan Lee Sanford, NC Jessica Melton Raleigh, NC Michael Justice Raleigh, NC Kyle Martin Gainesville, FL Eric Hunt Jacksonville, NC Parker Lee Winston-Salem, NC Emily Mennel Madison, WI Whitney Kamerzel Raleigh, NC Madeline Martin Charlotte, NC Jasmine Hunt Marathon, FL Preston Lesley Raleigh, NC Aria Merle Durham, NC Elizabeth Kapopoulos Mount Olive, NC Randall Martin-Franks Raleigh, NC Christopher Hurley Chapel Hill, NC Michelle Liguori Roanoke Rapids, NC Michael Mestre Hyattsville, MD Marko Karadzic Raleigh, NC Joshua Martinkovic St. Petersburg, FL Emily Hurtt Bethesda, MD Rashawn Linton Chapel Hill, NC Russell Michalec Cold Spring, KY Kyle Karnes Charlotte, NC Emily Massey Salisbury, NC Elizabeth Hutchens Bakersfield, CA Michael Litrenta Raleigh, NC Sara Middleton Cary, NC Laronda Kelley Belmont, NC Clint Mast Columbia, SC John Hutchens Charlotte, NC Nicole Little Mocksville, NC Laura Milloway Raleigh, NC Stacy Kelly Durham, NC Sara Matecun Greensboro, NC Lex-Jordan Ibegbu Chapel Hill, NC Zishuang Liu Chapel Hill, NC James Mills Raleigh, NC Aaron Kennedy Decatur, GA Mary Matney Chapel Hill, NC Zachary Infinger Nashville, TN Lydia Locklear Raleigh, NC Claudia Minoiu Raleigh, NC Correll Kennedy Lumberton, NC Rachel Matthews Durham, NC Michael Ingersoll Winston-Salem, NC Andrew Loge Raleigh, NC Ruthanne Minoru Charlotte, NC Kenneth Kennedy Columbus, OH Todd Maultsby New York, NY Max Isaacson Los Angeles, CA Michael Loiacono Mount Holly, NC Angelica Mitchell Raleigh, NC Sara Kidd Lake Lure, NC LaTasha May Durham, NC Volha Ivanushko Raleigh, NC Justin Long Walkertown, NC Catherine Mitchell

56 SUMMER 2017 Durham, NC Barbara Nelson Morrisville, NC Hailey Reall Cornelius, NC Whitney Mitchell Goldsboro, NC Brian Payne Jacksonville, NC Daniel Rufty Durham, NC Mark Nesdill Coatesville, PA William Reaves Charlotte, NC Brittany Mixon Saint Louis, MO Casey Peaden Raleigh, NC Sarah Saint Durham, NC Mary Newton Williamston, NC Dillon Redding Winston-Salem, NC Golnar Mohajerdoost Raeford, NC Molly Pearce Fuquay-Varina, NC Mihai Salagean Charlotte, NC Jamie Nichols Winston-Salem, NC Sarah Reddy Jamestown, NC Kayla Mohr E. Lansing, MI Melodie Pellot-Hernandez Charlotte, NC Kaylyn Sands Greensboro, NC Annelise Nininger-Finch Durham, NC Mark Regan Fort Wayne, IN Jessica Molina Long Island City, NY Nathaniel Pencook Charlotte, NC John Sauve Gainesville, FL Danielle Nix Cary, NC Tara Regimand Tryon, NC Brian Momeyer Madeira Beach, FL Kathleen Perkins Raleigh, NC Lauren Saville-Amtower San Diego, CA William Norrell Durham, NC Nicole Regna Weaverville, NC Amber Monroe Elizabeth City, NC Margaret Petersen Winston-Salem, NC Jordan Sawyer Durham, NC Stephanie Northcott Chapel Hill, NC Cecilia Reyna New Bern, NC Sondra Monroe Raleigh, NC Benjamin Petitto Fuquay Varina, NC Sarah Sawyer Huntersville, NC Robert Northington Nashville, TN Tyler Rhoades Chapel Hill, NC Amelia Montgomery Greensboro, NC Stephanie Petrich Charlotte, NC David Sayers Nashville, TN Melissa O’Daine Pfafftown, NC Emily Rhodes Huntersville, NC Shana Moore Durham, NC Andreu Phillip Winston-Salem, NC Nicole Scallon Raleigh, NC Laura O’Grady Charlotte, NC Morgan Rich Greensboro, NC Tirrill Moore Winston-Salem, NC Anderson Phillips Linden, NC Tara Scanlon Washington, DC Ebunoluwa Olaleye Durham, NC Amanda Richardson Greensboro, NC Elizabeth Moose Wake Forest, NC Carrie Pickett Wilkesboro, NC Trisha Schell Florence, SC Molly O’Neil Raleigh, NC Zachary Richardson Williamsburg, VA Brittnay Morgan Carrboro, NC James Pierce Fayetteville, NC Sheldon Schenck Carrboro, NC Shannon O’Neil Rock Hill, SC George Ricks Chapel Hill, NC Ashley Morris Chapel Hill, NC James Piland Charlotte, NC Zachary Schilawski Durham, NC Yoko Onishi Raleigh, NC Erin Riddick Carrboro, NC Glenn Morrison Yokohama, Japan Suzanne Plunket Raleigh, NC Frederic Schilling Raleigh, NC Rachel Oplinger Cary, NC Ragan Riddle Ponte Vedra Beach, FL JaNa Morrison Winston-Salem, NC Louise Pocock Burlington, NC Mollie Schrull Charlotte, NC Alexander Ortiz Rock Hill, SC Alyssa Riggins Greensboro, NC Rebekah Morrison Chapel Hill, NC Emily Poindexter Raleigh, NC Amanda Scott Chapel Hill, NC Amanda Owens Raleigh, NC Jessica Rigsbee Columbia, SC Jacob Morse New Bern, NC Emily Polanco-Barahona Virginia Beach, VA William Sefcik Mooresville, NC Mark Owens Durham, NC Radhika Rivera Dunedin, FL Tempestt Morton Greenville, NC Elizabeth Ponder Burlington, NC Matthew Sellers Morrisville, NC Sarah Owens Attleboro, MA Ana Rivero-Alexander Chapel Hill, NC Keir Morton Manley Decatur, GA Jillian Pope Chapel Hill, NC Gregory Seraydarian Raleigh, NC Tyler Owens Gastonia, NC Lisa Roach Bloomfield Hills, MI Timberley Motsinger Carrboro, NC Alexandra Portaro Charlotte, NC Jillian Sewell Greensboro, NC Meredith Pace Chapel Hill, NC Adam Roberts Wilmington, NC Abby Moua Winston-Salem, NC James Porter Greensboro, NC Deondra Sexton Durham, NC Emily Page Raleigh, NC Peter Robinson Charlotte, NC Jeremy Mozingo Durham, NC Joelle Portzer Durham, NC John Sexton Goldsboro, NC Whitney Pakalka Durham, NC Tracey Robinson Tripoli, IA Claudia Mundy Winston-Salem, NC James Powers Charlotte, NC Abigail Seymour Raleigh, NC Dylan Paradis Charlotte, NC William Robinson Greensboro, NC Hannah Munn Raleigh, NC Michelle Prendergast Durham, NC Zainah Shafi Durham, NC Chelsea Parish Williamsburg, VA James Rodgers Raleigh, NC Meredith Murchison Chapel Hill, NC Nicholas Presentato Tuscaloosa, AL Sara Shariff Raleigh, NC Jane Park Winston-Salem, NC Justin Rogers Charlotte, NC Hannah Murphy Raleigh, NC Jessica Price Durham, NC India Shaw Raleigh, NC Ryan Park Knightdale, NC Preston Rollero Morrisville, NC Sean Murphy Arlington, VA Samuel Price Winston-Salem, NC Angela Sheets Durham, NC Julie Parker Warrensville, NC Melissa Roque Winston-Salem, NC Caroline Muse Kinston, NC Ashley Prince Miami, FL Jared Simmons Charlotte, NC Meredith Parker Raleigh, NC Kiara Ross Raleigh, NC Seth Muse Garner, NC Michael Provencher Durham, NC Michael Simmons Charlotte, NC William Parra Henrico, VA Kevin Rothenberg Fayetteville, NC Zachary Musick Durham, NC William Pruden Winston-Salem, NC Micah Simonsen Charlotte, NC Alexander Paschall Raleigh, NC Marquitta Rouse Raleigh, NC William Myers Garner, NC Jason Pruett Hope Mills, NC Kevin Sisson Charlotte, NC David Pasley Whitsett, NC Joshua Rowland Raleigh, NC Tagreed Nafisi Carrboro, NC Joseph Quinn Durham, NC David Sloan Washington, DC Kathleen Pasquarella Raleigh, NC Heather Rubinstein South Royalton, VT Johnathon Naylor Statesville, NC Jennifer Quirk Raleigh, NC John Sloan Raleigh, NC Khusbu Patel Lansing, MI Kayla Rudisel Fayetteville, NC Talicia Neal Monroe, NC Michael Rafetto Matthews, NC Cordon Smart Raleigh, NC Kushal Patel Raleigh, NC Regina Rudisill Chapel Hill, NC Tenika Neely Concord, NC Cedric Rainey Baton Rouge, LA Andrea Smaxwell Winston-Salem, NC Jakeana Paul Winston-Salem, NC Ricky Ruffin Greensboro, NC

THE NORTH CAROLINA STATE BAR JOURNAL 57 Brittany Smiley Winston-Salem, NC Heather Tabor Sergey Vdovin Linder Willeford Holly Ridge, NC Malaika Staten Taylorsville, NC Mooresville, NC Durham, NC Charles Smith Charlotte, NC James Taylor Jenney Villalobos William Willett Chapel Hill, NC Christopher Stella Charlotte, NC Fayetteville, NC Knoxville, TN David Smith Greensboro, NC Olivia Taylor Gabriell Vires Benjamin Williams Davidson, NC Holly Stephens Washington, NC Durham, NC Durham, NC Jenna Smith Raleigh, NC Rebecca Taylor-Parker Alex Visser Marion Williams Raleigh, NC Deirdre Stephenson Athens, GA Williamsburg, VA Greensboro, NC Meghan Smith Sanford, NC Samuel Thomas Elspeth Visser Matthew Williams Greensboro, NC Christopher Stevens Raleigh, NC Williamsburg, VA N. Wilkesboro, NC Nicholas Smith Chapel Hill, NC Jovon Thompson Karen Wahle Tatjana Williams Columbia, SC Rashida Stevens Cary, NC Raleigh, NC Aberdeen, NC Shelby Smith Raleigh, NC Shemik Thompson Kasi Wahlers Mackenzie Willow-Johnson Arlington, VA Christopher Stipes Chrarlotte, NC Hillsborough, NC Chapel Hill, NC Shelby Smith Sacramento, CA Russell Thornton Caroline Wahoff Kristen Wills Memphis, TN Stratton Stokes Benson, NC Raleigh, NC Elizabeth City, NC William Smith Magnolia, NC Elizabeth Thueme Ashley Waid Jessica Willson Raleigh, NC Caitlin Stone Raleigh, NC Durham, NC Durham, NC Willis Smith Winston-Salem, NC Kaitlyn Tickle Jerrika Walker Yvette Wiltshire Raleigh, NC Jessica Story Louisburg, NC New Bern, NC Charlotte, NC Emily Smith Peacock Cartersville, GA Aaron Tierney Kelly Walker Joshua Winks Raleigh, NC Lauren Stovall Concord, NC Greensboro, NC Winston-Salem, NC George Smith III Jekyll Island, GA Jessica Timmons Brandon Wallace Miranda Wodarski Raleigh, NC Joseph Strader Durham, NC Memphis, TN Chapel Hill, NC Gabriel Snyder Chapel Hill, NC James Todd Grace Wallace John Wolf Greensboro, NC Daniel Stratton Cary, NC Durham, NC Chapel Hill, NC Sallie Snyder Winston-Salem, NC Brittany Tomkies Kyrstin Wallach Kaitlin Wolf Mount Pleasant, SC James Strickland Chicago, IL Washington, DC Chapel Hill, NC Alexandra Southerland Raleigh, NC Elliott Tomlinson Brianna Walther Beth Wolfe Raleigh, NC Demetria Stuart Raleigh, NC Raleigh, NC Raleigh, NC Candace Speller Winston-Salem, NC Matthew Tomsic Ashwini Kumar Wankhede Thomas Wolff Chapel Hill, NC Jordan Styles Chapel Hill, NC Greensboro, NC Morrisville, NC Jasmine Spence Charlotte, NC Katherine Torrance Rachael Warden Morgan Woods Durham, NC David Swenton Greensboro, NC Chapel Hill, NC Waxhaw, NC Sheila Spence Winston-Salem, NC Kai Toshumba Lindsey Ware Brian Wooten Lillington, NC Khadija Swims Charlotte, NC Washington, DC Pfafftown, NC Frank Spencer Lansing, MI Amy Totten Scott Warnick Ashley Wright Charlotte, NC Nadira Swinton Snoqualmie, WA Charlotte, NC Whitsett, NC Alton Stainback Charlotte, NC Erin Trabookis Spencer Warren Charles Wright Henderson, NC Jesse Swords Charlotte, NC Greensboro, NC Whispering Pines, NC Amber Staples Asheville, NC Daphne Trevathan Candace Washington Gabriel Wright Durham, NC Grace Sykes Rocky Mount, NC Hope Mils, NC Durham, NC Kendra Stark Durham, NC Robert Trimble Erica Washington John Wright Greensboro, NC New York, NY Philadelphia, PA Caitlin Truelove Tamikiyo Watters Laura Wright Greensboro, NC Durham, NC Stafford, VA Po Yun Tung Peter Webb David Wyatt Chapel Hill, NC Raleigh, NC Greenville, NC Classified Advertising Joshua Twitty Nathan Weeks Doaw Xiong Charlotte, NC Charlotte, NC Durham, NC LaQuanda Tysinger Karen Wellington Farrah Yaghi Practice Purchase or Merger—Established Georgia law Burlington, NC Wilson, NC Durham, NC firm is seeking to acquire or merge with a practice in Crystal Uhlenhake John Wheatley James Yandle the areas of Corporate/Business Law, Healthcare, Fletcher, NC Charlotte, NC Charlotte, NC Samantha Unmann Sarah Wheaton Chi Yang Employment and Estate Planning. 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Summer 2017