THE NORTH CAROLINA STATE BAR

SUMMER JOURNAL2014

IN THIS ISSUE Life on the Front Line of Budget Cuts page 10 Saving Students from Drowning in Debt—NC LEAF page 15 A Life Recognized—Judge Hiram Ward page 20 Hanging on by a thread?

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Western Region Piedmont Region Eastern Region Cathy Killian 704.910.2310 Towanda Garner 919.719.9290 919.719.9267 THE NORTH CAROLINA STATE BAR JOURNAL

Summer 2014 Volume 19, Number 2 FEATURES Editor Jennifer R. Duncan 10 Life on the Front Lines of Budget Cuts Publications Committee G. Gray Wilson, Chair By Tom Maher and Robynn Moraites Dorothy Bernholz, Vice-Chair Harry B. Crow 12 How to Tell a Story Margaret H. Dickson By Wade M. Smith Rebecca Eggers-Gryder Forrest A. Ferrell 15 Saving Students from Douglas R. Gill James W. Hall Drowning in Debt—NC LEAF Anna Hamrick By Evelyn Pursley Charles Hardee Darrin D. Jordan 18Innocent after Proven Guilty— Sonya C. McGraw Robert Montgomery Incident at Donnaha Nancy Black Norelli By G. Gray Wilson Harold (Butch) Pope Barbara B. Weyher 20 A Life Recognized—Judge Alan D. Woodlief Jr. Hiran Ward © Copyright 2014 by the North Carolina State Bar. All By Evelyn Pursley rights reserved. Periodicals postage paid at Raleigh, NC, and additional offices. Opinions expressed by contributors are not necessarily those of the North Carolina State Bar. 26 Book Review - Midnight Assassin: POSTMASTER: Send address changes to the North A Murder in America’s Heartland Carolina State Bar, PO Box 25908, Raleigh, NC 27611. By Margaret Dickson The North Carolina Bar Journal invites the submission of unsolicited, original articles, essays, and book reviews. Submissions may be made by mail or e-mail (ncbar@bell- south.net) to the editor. Publishing and editorial decisions are based on the Publications Committee’s and the editor’s judgment of the quality of the writing, the timeliness of the article, and the potential interest to the readers of the Journal. The Journal reserves the right to edit all manu- scripts. The North Carolina State Bar Journal (ISSN 10928626) is published four times per year in March, June, September, and December under the direction and supervision of the council of the North Carolina State Bar, PO Box 25908, Raleigh, NC 27611. Member rate of $6.00 per year is included in dues. Nonmember rates $10.78 per year. Single copies $3.21. The Lawyer’s Handbook $10.78. Advertising rates available upon request. Direct inquiries to Director of Communications, Update Membership Information: Members who need to update their membership the North Carolina State Bar, PO Box 25908, Raleigh, information must do so by contacting the Membership Department via one of the four North Carolina 27611, tel. (919) 828-4620. following methods: (1) log on to the Member Access section of the State Bar’s website (www.ncbar.gov); (2) mail changes to: NC State Bar, Membership Dept., PO Box 26088, www.ncbar.gov Raleigh, NC 27611-5908; (3) call (919) 828-4620; or (4) send an e-mail to amaner@ ncbar.gov. In deciding what address to list with the State Bar, be advised that this address will be used for all official correspondence from the State Bar and that mem- bership information is a public record pursuant to the NC Public Records Act.

THE NORTH CAROLINA STATE BAR JOURNAL 3 DEPARTMENTS 32 Profile in Specialization BAR UPDATES 33 IOLTA Update 44 5 President’s Message 34 Trust Accounting In Memoriam 45 7 State Bar Outlook 35 Rule Amendments Law School Briefs 47 27 The Disciplinary Department 38 Proposed Ethics Opinions Distinguished Service Award 28 Lawyer Assistance Program 48 Client Security Fund 30 Legal Ethics 48 July 2014 Bar Exam Applicants

Officers Ronald G. Baker Sr., Kitty Hawk - President 2013-2014 24: Rebecca Eggers-Gryder, Boone Katherine Jean, Counsel and Assistant Executive Dir. Ronald L. Gibson, Charlotte - President-Elect 2013-2014 25: Forrest A. Ferrell, Hickory David R. Johnson, Deputy Counsel Margaret M. Hunt, Brevard - Vice-President 2013-2014 26: Robert J. Bernhardt, Charlotte Sharon Kelly, Events Manager L. Thomas Lunsford II, Raleigh - Secretary-Treasurer A. Todd Brown, Charlotte Barbara Kerr, Archivist M. Keith Kapp, Raleigh - Past-President 2013-2014 Mark Henriques, Charlotte Cathy D. Killian, Clinical Director, LAP F. Fincher Jarrell, Charlotte Melanie Kincaid, Paralegal Councilors Dewitt McCarley, Charlotte Suzanne Lever, Asst. Ethics Counsel Mark W. Merritt, Charlotte L. Thomas Lunsford II, Executive Director By Judicial District Nancy Black Norelli, Charlotte Adam Maner, Professional Organization Coordinator 1: C. Everett Thompson, Elizabeth City 27A: Sonya Campbell McGraw, Gastonia Beth McIntire, IT Manager 2: G. Thomas Davis Jr., Swan Quarter 27B: Ralph W. Meekins, Lincolnton Beth McLamb, Payment Coordinator, Membership 3A: Charles R. Hardee, Greenville 28: Howard L. Gum, Asheville Nichole P. McLaughlin, Asst. Ethics Counsel 3B: Debra L. Massie, Beaufort 29A: Marvin R. Sparrow, Rutherfordton Barry S. McNeill, Deputy Counsel 4: Robert W. Detwiler, Jacksonville 29B: Christopher S. Stepp, Hendersonville Diane Melching, Admin. Asst., ACAP 5: Harold L. Pollock, Burgaw 30: Gerald R. Collins Jr., Murphy Dottie K. Miani, Deputy Clerk of DHC/Asst. Facilities Manager 6A: Gilbert W. Chichester, Roanoke Rapids Claire U. Mills, Accounts Manager, IOLTA 6B: Lloyd C. Smith Jr., Windsor Alice Neece Mine, Asst. Executive Dir., Dir. of CLE, 7: Randall B. Pridgen, Rocky Mount Public Members Specialization, & Paralegal Certification 8: Shelby D. Benton, Goldsboro Margaret H. Dickson, Fayetteville Robynn E. Moraites, LAP Director 9: Paul J. Stainback, Henderson Paul L. Fulton, Winston-Salem George Muench, Investigator 9A: Alan S. Hicks, Roxboro James W. Hall, Ahoskie Denise Mullen, Asst. Director of Specialization 10: Heidi C. Bloom, Raleigh Pat Murphy, Deputy Counsel Nicholas J. Dombalis II, Raleigh Loriann Nicolicchia, Accreditation Coordinator, CLE Theodore C. Edwards II, Raleigh Staff Emily Oakes, Attendance/Compliance Coordinator, CLE John N. (Nick) Fountain, Raleigh Roger Allen, Investigator Brian Oten, Deputy Counsel Donna R. Rascoe, Raleigh Carmen H. Bannon, Deputy Counsel Lisanne Palacios, Accounting Manager John M. Silverstein, Raleigh Betsy C. Barham, Receptionist Anne M. Parkin, Field Auditor C. Colon Willoughby Jr., Raleigh Tim Batchelor, Investigator Heather Pattle, Administrator, Office of Counsel Cynthia L. Wittmer, Raleigh Kelly Beck, Compliance Coordinator, Membership/CLE C. Fred Patton Jr., Investigator 11A: Donald E. Harrop Jr., Dunn Joy C. Belk, Asst. Dir. Paralegal Certification Wondella Payne, Paralegal 11B: Marcia H. Armstrong, Smithfield Krista Bennett, Fee Dispute Facilitator, ACAP Aaliyah Pierce, Acct. Data Asst., IOLTA 12: Lonnie M. Player Jr., Fayetteville Michael D. Blan, Systems Analyst/Programmer Angel Pitts, Mail/Copy/Accounting Clerk 13: Harold G. Pope, Whiteville Peter Bolac, District Bar Liaison/Trust Account Compliance Jennifer Porter, Deputy Counsel 14: John A. Bowman, Durham Counsel Evelyn Pursley, Executive Dir., IOLTA William S. Mills, Durham Elizabeth E. Bolton, Receptionist Sonja B. Puryear, Admin. Asst., Investigations 15A: Charles E. Davis, Mebane Lori Brooks, Admin. Asst., Office of Counsel Joan Renken, Admin. Asst., Office of Counsel 15B: Dorothy Bernholz, Chapel Hill Krista E. Carlson, Investigator Randall C. Ross, Investigator 16A: William R. Purcell II, Laurinburg Becky B. Carroll, Paralegal Whit Ruark, Investigator 16B: David F. Branch Jr., Lumberton Joseph D. Cerone, Office Manager Sandra L. Saxton, Public Liaison, ACAP 17A: Matthew W. Smith, Eden Alyssa M. Chen, Deputy Counsel Fern Gunn Simeon, Deputy Counsel 17B: Thomas W. Anderson, Pilot Mountain Margaret Cloutier, Senior Deputy Counsel Jaya Singh, Accounting Asst. 18: Barbara R. Christy, Greensboro Joseph J. Commisso, Director of Investigations Jennifer Slattery, Paralegal Robert C. Cone, Greensboro Susannah B. Cox, Deputy Counsel Susie Taylor, Admin. Asst./Special Projects Manager, LAP 18H: Richard S. Towers, High Point Luella C. Crane, Director of ACAP Judith Treadwell, Public Liaison, ACAP 19A: James D. Foster, Concord Jennifer R. Duncan, Director of Communications Kristina M. Troskey, Paralegal 19B: W. Edward Bunch, Asheboro A. Root Edmonson, Deputy Counsel Wayne C. Truax, Investigator 19C: Darrin D. Jordan, Salisbury Julie A. Ferrer, CLE Clerk Joshua T. Walthall, Deputy Counsel 19D: Douglas R. Gill, Southern Pines Martha Fletcher, Payroll and Benefits Administrator A. Dawn Whaley, Admin. Asst., Investigations 20A: Frederick D. Poisson Jr., Wadesboro Towanda Garner, Piedmont LAP Coordinator Edward R. White, Investigator 20B: Harry B. Crow Jr., Monroe Lanice Heidbrink, Exec. Asst., Administration Mary D. Winstead, Deputy Counsel 21: Michael L Robinson, Winston-Salem Jeffery Hill, Computer Systems Administrator Christiane Woods, Admin Asst., Investigations G. Gray Wilson, Winston-Salem Leanor Hodge, Deputy Counsel 22: Kimberly S. Taylor, Taylorsville Debra P. Holland, Asst. Director, CLE 22B: Roger S. Tripp, Lexington Mary L. Irvine, Access to Justice Coordinator 23: John S. Willardson, Wilkesboro Tammy Jackson, Membership Director

4 SUMMER 2014 THE PRESIDENT’S MESSAGE

The Discipline Process Unwrapped

B Y R ONALD G. BAKER S R .

hen I first became a State Bar Councilor some 12 years ago supporting documentation that might be nec- essary or appropriate. Now, if you remember nothing else from this article, remember this: I was, of course, aware that the State Bar had something DO NOT IGNORE A LETTER OF NOTICE! The fastest way I know to turn nothing into something is to ignore a letter of to do with disciplining lawyers. That, however, was about notice. Failing to respond to the Bar is an eth- ical violation in and of itself that will always result in discipline, even if the extent of my knowledge concerning there was absolutely nothing to the original complaint. That should be enough said howW the State Bar went about handling grievances. I suspect that many, if on that point. Once the attorney’s response is in, the matter is not most, of the lawyers in this state are in the same boat as I was back then. again reviewed by deputy counsel to determine whether there is probable cause to Now, after serving on the Grievance Committee for nine years, including believe a violation has occurred. If probable cause does not exist, deputy counsel two years as chair of a subcommittee and two years as chair of the full com- recommends to the chair of the Grievance Committee that the matter be dismissed. If the chair and a vice-chair of the mittee, my knowledge of the process is much greater. In the hope that knowing how the committee agree, the matter is dismissed at that point with no further action. Dismissal by either the chair or the chair and a vice-chair is system works might alleviate the fear that many lawyers seem to have when responding to the disposition of most grievances. Sometimes, after reviewing the response to the letter of notice, deputy counsel determines that further grievances, I will give you a general description of the process. investigation is necessary. That may consist of requesting more information from the attor- ney or assigning the matter to an investigator Grievances that come to the State Bar are and it is assigned to a deputy counsel for han- to interview witnesses or the involved attorney, handled by the Office of Counsel. That office dling. The first thing that is done is a review to obtain and examine records, and things of that is made up of the counsel to the State Bar, a determine whether, if everything alleged is sort. Once the file is as complete as possible, a number of deputy counsel, several investiga- true, the attorney’s actions violate the Rules of Report of Counsel (ROC) is prepared by the tors, plus support staff including paralegals Professional Conduct. If not, the deputy deputy counsel and the matter goes to the and administrative personnel. Grievances counsel recommends to the chair of the Grievance Committee. come from many sources including judges, Grievance Committee that the grievance be Every councilor of the State Bar serves on clients, opposing party, opposing counsel, or dismissed. If the chair concurs, the grievance is either the Grievance Committee or the Ethics an officious intermeddler who saw you in dismissed at that point. If the allegations, if Committee. In addition to councilors, there court and did not like the way you did things. true, might show a violation, a letter of notice are advisory members on the Grievance In addition, sometimes matters come to the is sent to the involved attorney. The letter of Committee who are appointed by the presi- Bar’s attention as a result of newspaper cover- notice advises the attorney of the nature of the dent for one-year terms. Those individuals are age or criminal charges that are publicized. allegations and requests the attorney’s response full voting members of the committee. The Once a matter comes in, a file is opened or explanation of the matter along with any committee meets four times a year at the quar-

THE NORTH CAROLINA STATE BAR JOURNAL 5 terly meetings of the State Bar Council. Since attend the meeting on the part of the involved The Rules of Civil Procedure to a trial before the volume of grievances handled at each quar- attorney. After hearing from deputy counsel the DHC using the Rules of Evidence and, terly meeting is so substantial, it is impractical and asking any desired questions, the subcom- with few exceptions, the procedure that would for the Grievance Committee to sit as a whole mittee votes either to dismiss the grievance in be used in superior court. The DHC has avail- to consider them. Instead, the committee is one of the three ways described above, or to able to it all of the levels of discipline available divided into three subcommittees, each hold a preliminary hearing. Once all griev- to the Grievance Committee, plus suspension chaired by a vice-chair of the Grievance ances have been considered, deputy counsel is and disbarment. Those disciplines are reserved Committee. The subcommittees consider the excused from the room and the preliminary for the most serious cases. Appeal is to the grievances assigned to them, following which hearings begin. The preliminary hearing is court of appeals as in other civil actions. The the full committee meets to review and actually a hearing on the written record for DHC has both lawyers and lay people on it, approve the actions of the subcommittees. It is each grievance referred for preliminary hear- and the hearings are before three-person pan- important to note that the meetings are closed ing. After debating the matter, the subcom- els, of whom two are always lawyers and one is and the actions of the full committee are not mittee votes to impose one of the results num- always a lay person. Once a complaint has reviewed by the full State Bar Council. The bered one through six above, or to refer the been filed, the matter is public and may be proceedings are confidential to the point that matter to the Disciplinary Hearing viewed on the State Bar website. even Bar councilors who are not members of Commission (DHC). Referral to the DHC is The foregoing is a bird’s eye view of the the Grievance Committee are not permitted reserved for those cases wherein the commit- grievance process from beginning to end. to sit in on the meetings, nor even know the tee feels that suspension or disbarment may be Most lawyers probably go through their identities of the lawyers who have grievances appropriate. The Grievance Committee can- careers without ever having a grievance filed before the committee. not suspend or disbar a lawyer—only the against them. Many others have grievances or The possible outcomes for grievances are: DHC can do that. More on that below. Once complaints made against them and never 1. dismissal all three subcommittees have completed their know it because the complaints are dismissed 2. dismissal with a letter of caution business, the full committee meets to review as without merit. Unfortunately, other lawyers 3. dismissal with a letter of warning their actions. At the full committee meeting become what we call “frequent flyers” and 4. admonition the subcommittee actions may be either seem to always have an open grievance file 5. reprimand approved, or a matter may be reconsidered de going. Simple ways to avoid contact with the 6. censure novo, with the same disposition options avail- grievance process are to communicate with 7. referral to the Disciplinary Hearing able to the full committee as were available to your clients, show up in court when you are Commission. the subcommittee. As noted above, the action supposed to, treat opposing counsel and par- Dismissals through admonition are private of the Grievance Committee is final and not ties with dignity and respect, and reconcile and are communicated only to the involved subject to review or approval of the full State your trust account as you are required. When attorney. Reprimands and censures are public Bar Council. a grievance does occur, however, don’t assume and are docketed on the official docket of the In the weeks following the quarterly meet- that the State Bar is out to get you or that the State Bar, published in the State Bar Journal, ing, involved lawyers are notified in writing of deck is stacked against you. That is not the and posted on the State Bar website. A censure the committee’s action with respect to the case. Committee members have both huge is also entered on the judgment docket in each grievances filed against them. No attorney is amounts of material to review before each county where the lawyer maintains a law office bound to accept the decision of the Grievance quarterly meeting and a heavy responsibility in and filed with the NC Court of Appeals, the Committee. Other than an outright dismissal judging the conduct of other lawyers. My NC Supreme Court, the US District Courts or a dismissal with letter of caution, an attor- experience is that the councilors take this in North Carolina, the Fourth Circuit Court ney can reject any disposition made by the responsibility very seriously. of Appeals, and the US Supreme Court. Also, committee. With respect to a dismissal with One must always keep in mind, however, all public discipline is sent to a newspaper of letter of warning through a reprimand, a that the responsibility of the North Carolina general circulation where the lawyer maintains lawyer is deemed to have accepted the disposi- State Bar, in regulating the profession, is to a law office. tion if he or she does not reject it, in writing, protect the public. We will retain the power of Prior to the quarterly meeting, each sub- within 30 days of receipt of written notice of self-regulation only so long as we wield it with committee member is provided with the the disposition. With respect to a censure, it is the public interest in mind. ROC prepared by deputy counsel along with deemed to have been rejected if he or she does CORRECTION: It has been called to my all documentation developed during the not accept it in writing within 30 days of noti- attention that in my last column I erroneously investigation. The ROC contains a recom- fication. The effect of rejection of committee stated that Legal Zoom removed the litigation mendation from the deputy counsel as well as imposed discipline is simple—the matter goes with the State Bar to the business court. In the lawyer’s discipline history and the range of to the DHC just as if it had been referred there fact, the State Bar removed the original Legal discipline that has been administered in the by the committee. Zoom case to the business court. My apologies past for similar conduct by other attorneys. At Once a matter has been referred to the for the error. n the quarterly subcommittee meetings, each DHC, the Office of Counsel prepares a com- grievance is considered and a report is heard plaint, just as in a civil case, and files it with the Ronald G Baker Sr. is a partner with the from deputy counsel. Presentation of witness- DHC. The complaint is served, answer is Kitty Hawk firm of Sharp, Michael, Graham & es is not allowed, and there is no right to filed, and the matter proceeds according to Baker LLP.

6 SUMMER 2014 STATE BAR OUTLOOK

Gone on Walkabout

B Y L. THOMAS L UNSFORD II

“The State Bar is the appropriate entity to ini- swept the crowds out of the theatres and into began to intrude in large numbers, however, tiate action to wind down the practices of lawyers the Outback Steakhouses? It was a watershed life became more complicated and who appear unable to continue to serve and pro- cultural event, inducing millions of people like walkingabout got to be more difficult. The tect the interests of their clients, and for whom no me to avoid billabongs and, ultimately, to send imposition of western inventions like schools, law partner can act. Under such circumstances, their college-aged children on breathtakingly guilt, property, and disease made it increasingly the State Bar, by and through its staff, will when expensive semesters abroad in the southern hard for the average guy to drop everything necessary and appropriate, seek the appointment hemisphere. and take a hike. Ironically though, those were of qualified members of the Bar as trustees pur- For me, the most interesting Aussie custom the very things that seemed to increase the suant to G.S. 84-28 (j) and 27 N.C. A.C. 1B, was dramatized in the final reel when the hero need and the desire of many native people to .0122, and support their efforts abruptly decamped from a “get away,” as it were. in winding down the practices luxury hotel in New York City Be that as it may, it should not surprise any of the subject lawyers. Support and went on a “walkabout.” serious student of history to learn that cultural shall consist of consultation and Although the term was unde- imperialism in Australia was, as in most other direction, as well as compensa- fined for the American audi- colonial settings, a two-way street. In return for tion in the event no other source ence, the cinematic context such gifts as cursive writing and smallpox, the of funds is available. suggested a sort of spiritual settlers were introduced to strange things like Compensation shall be deter- journey characterized by spon- boomerangs and walkabouts. Inevitably, such mined and paid by the executive taneous departure for “parts items and notions were conveyed back to director in his or her discretion. unknown” by means unspeci- England and the rest of the British Empire, The executive director is also fied for no particular reason including North Carolina. Wherever they authorized to reimburse such and for an indefinite period of came to rest, they were adapted by the local expenses of the trusteeship as he time. Now, to be fair, savvy populace and repurposed. Unfortunately, the or she deems reasonable and moviegoers like myself had an boomerang never caught on as a weapon in the appropriate. The executive director shall report to inkling that the journey in question was New World. Hostile American Indians were the president, or to any committee he or she may intended to mend a broken heart. After all, adept at dodging the crooked devices which, designate, at least annually regarding the trustee- there’s nothing like random perambulation in having failed to kill, maim, or stun their ships that have been concluded since the last a snakeskin vest to take one’s mind off unre- intended victims, generally failed to fly back to report, the trusteeships that remain active, and the quited love. But whatever the impetus, the hand, as advertised. expenditures that have been made or are contem- essence of the exercise was unmistakable. To go Walkabouts, on the other hand, became plated. It is hereby recognized that the primary walkabout is to disconnect, at least temporari- quite common in certain circles. During the purpose of each trusteeship will be to protect the ly, and to wander unfettered until the time for American Civil War, for example, thousands of interests of the subject lawyer’s clients, and that wandering is understood to be up. There is soldiers disconnected from their units on both trusteeships will generally be administered to dis- then the possibility of reconnection—if there is sides of the conflict for reasons that appear to continue, rather than conserve or perpetuate, the anything left with which to reconnect. have had little to do with spiritualism or practices involved.” My research indicates that the practice may romantic love. The practice became unfashion- Policy adopted by the council of the North have originated with Australia’s Aboriginal able, however, once the military concluded Carolina State Bar, April 25, 2014. people. As I understand it, those folks were that disconnection was indistinguishable from mostly hunters and gatherers—deeply spiritual desertion, and equally deserving of capital Most of what I know about Australia I people who lived quite simply and close to the punishment. A century later, as another war learned from watching “Crocodile Dundee.” land from the very beginning of time. For raged, the concept again found expression— The film, which premiered in 1986, provided them, occasional disconnection from the tribal this time on college campuses. In Chapel Hill, my generation with a treasure trove of infor- group must have been relatively easy to man- as I recall, lots of young people—but not mation about the mysterious land down under age. Deadlines, court dates, and statutes of lim- me—turned on and tuned out, briefly but and spawned a cult of mateship, marsupials, itations were unknown until the arrival of effectively disconnecting from the turmoil in and melgibsonia that persists in America even European settlers in the 18th century, and Southeast Asia. Others went walkingabout in unto the present day. Who among us of a cer- mandatory continuing legal education wasn’t Canada, presumably for the climate. tain age can forget the feelings of euphoria that imported until much later. Once emigrants Although lawyers have probably always

THE NORTH CAROLINA STATE BAR JOURNAL 7 walkedabout, the State Bar took little notice the recent growth of the profession and the with notifying clients and courts of the subject until the last quarter of the twentieth century. concentration of practitioners in our cities has lawyer’s unavailability, and with making sure In North Carolina up until that time, the dis- greatly changed the way in which we deal with that client property—principally files and appearance of a practitioner and the confusion lawyers who are here today and gone tomor- money held in trust—is identified, protected, engendered thereby, was generally a local mat- row, perhaps never to return. The fact is that in and distributed. What is different, mainly, is ter—something to be addressed by the Bar in many legal communities we no longer know the formality of the exercise. These days, the community on an informal basis. This was each other as fellow attorneys. Professional trustees almost never act without a specific true whether the “departure” of the subject encounters are much more sporadic and grant of judicial authority. Typically, someone attorney was a function of decision, death, dis- impersonal than they used to be, and are regu- at the State Bar gets a call about a sole practi- barment, or disability. Of course, when the lated more by rules and circumstantial advan- tioner who has died or become incapacitated missing lawyer had partners, his practice could tage than by trust and routine accommoda- or can’t be found. After verifying that a prob- be easily discontinued—or continued for that tion. In the absence of relationship, we have lem exists that warrants the appointment of a matter—in the bosom of the firm. However, passing acquaintance. Where once we felt per- trustee, our lawyers try to identify a logical can- in those cases involving sole practitioners, it sonally responsible for each other as individu- didate—someone with a law license who is usually fell to the local Bar as a whole to als, we now feel at most a sense of collective related to the subject lawyer or is familiar with assume responsibility for tidying things up on responsibility—an obligation that is increas- his or her practice. If such a person is apparent behalf of the missing friend and colleague. ingly professional and corporate. and available and can be persuaded to act as a Typically, someone would, on his own motion It should not be all that surprising then that trustee, the senior resident superior court judge or at the behest of the resident judge, volunteer the State Bar currently has so much to do with is advised of the situation and of the lawyer’s to “take over” and, depending on the circum- lawyers who suddenly become unavailable. We willingness to serve. The court then makes the stances, either hold the fort or fold the tent. In are, after all, the embodiment of our 27,000 suggested appointment or conscripts someone the process, the volunteer would, with the members, so many of whom are now, unfortu- else. In any event, the trustee invariably acts on cooperation of the rest of the Bar, do what was nately, strangers to one another. And it does the authority of a court order. This greatly reasonably necessary to protect the absent appear that we at the State Bar are presently in facilitates his or her dealings with third parties lawyer’s clients and make sure that everyone the best position to “initiate action to wind such as banks and landlords. It eliminates con- got what was coming to them in the way of down the practices of lawyers who appear cern about confidentiality. And the involve- files and funds. Apparently not much attention unable to continue to serve and protect the ment of the court also allows for accountability was paid to the question of whether the de facto interests of their clients, and for whom no law and discharge once the proceedings are effec- trustee ought to be exposed to the confidential partner may act.” The quoted language was tively concluded. information that existed in the absent lawyer’s taken from the policy statement set forth at the As our policy clearly recognizes, the primary office. He (regrettably, there really weren’t beginning of this article. The policy was purpose of a trusteeship is to protect the inter- many female lawyers around in those days) recently adopted by the State Bar Council, ests of the missing lawyer’s clients. The trustee simply walked in and did what needed to be essentially to bless the status quo. It references steps into the shoes of the departed lawyer to done free of charge. The volunteer’s services statutory authority that has been in place for avoid prejudice to the clients, if reasonably pos- were almost always donated as a favor to the many years and administrative practice that sible, and to facilitate the employment of suc- missing lawyer or his survivors, or as a contri- has been ongoing as a cottage industry cessor counsel, if necessary. Although the bution to the profession. Even so, opportunity throughout my tenure as executive director. statute speaks in terms of administering or con- for compensation sometimes presented itself. The impetus for drafting the policy was, serving the law practice of the missing attorney, If the missing lawyer’s practice was a going frankly, our sense that the number of missing the trustee in virtually all cases is responsible for concern at the time it was interrupted, it would lawyers for whom trustees must be appointed the orderly discontinuation of the enterprise. not have been all that unusual for the volunteer is steadily growing along with the expenses of The trustee is not in place to represent the to have had the opportunity to gently solicit the resulting trusteeships. At the moment, departed lawyer’s clients, except to the extent of and “step into” pending cases that were likely there are dozens of trusteeships ongoing. Over obtaining continuances or extensions of time to to generate fees. As far as I can tell, it was just the past five years, we have spent on average take procedural actions. Nor is the trustee there part of the deal and not regarded as an ethical about $26,000 a year to compensate trustees to keep anyone’s seat warm. We’re folding tents, problem. And the system seemed to work pret- and pay expenses. This year, the State Bar’s not holding forts. ty well. operational budget contains an appropriation Another significant difference between the But then the world changed. I was admit- of $25,000 to defray such costs. Given the old ways and the new is that the State Bar and, ted to the Bar in 1978, triggering an enormous increasing size of the undertaking, there need- by extension, each of you, is now committed expansion in the population of lawyers in our ed to be a declaration as to legitimacy of our to paying the freight. As noted above, it was state that has persisted over the past three spending and its proper purposes. Hence, the formerly the case that de facto trustees were decades. Why so many of you decided to fol- policy. inclined and expected to contribute their serv- low my lead and get law licenses is an inexpli- The way we do business now in regard to ices. Nowadays, it seems unfair to require such cable phenomenon that continues to intrigue missing lawyers is not unlike the old model. a thing, particularly in cases where there is no and baffle economists. Happily enough, its We still rely for the most part on volunteers, antecedent personal relationship between the analysis is beyond the scope of this essay. What and their duties haven’t changed all that much. missing lawyer and the trustee. The council’s can be said without fear of contradiction is that Our trustees are still primarily concerned policy recognizes that the profession as a whole

8 SUMMER 2014 1hio c rio2jc rif c

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has an obligation to step up financially in cases a law practice. It can cost even more to hold on Unfortunately, in many cases it then becomes where no other source of funds is available and to records while you figure out what to do with a forensic accounting problem for a local CPA pay the trustee. Of course, no one is getting them. It is not unusual for a trustee to have to or the investigator who staffs the State Bar’s rich in the trustee business. We have heretofore continue renting the missing lawyer’s office for Client Security Fund. In any case, untangling keyed our payments to the rates paid to months at a time while things get sorted out. the accounts left behind by someone who has appointed counsel in felony cases. This keeps That is, of course, unless the landlord needs committed suicide, or become senile, or got the trustee from going broke, but provides no the property, in which case other storage disbarred, or just went on walkabout can be incentive to belabor things. options come into play—like the trustee’s own mighty expensive. The more interesting financial aspect of the law office or, heaven forbid, my law office. And No one seems to dispute that the State Bar situation relates to the incidental cost of wind- then there’s the matter of returning the files to ought to take responsibility for seeing that ing down a law practice. To be sure, every case their rightful owners—the clients and former these situations are resolved expeditiously with is unique, but there are definitely some repeat- clients. Reasonable efforts must be made to minimal harm to the public. The rationale is ing themes. There are always files to be mar- personally contact everyone whose file is active. pretty much the same as for the Client Security shaled, classified, and distributed. While this At a minimum, notices must be published to Fund. We, as a self-regulating profession, might seem to be a fairly routine undertaking, constructively notify those whose whereabouts license our members and invite the public to it can be a very expensive and time consuming cannot be ascertained. And what about the deal with them exclusively, trusting that they headache for the trustee. This is particularly wills and the other valuable documents that are are fit, competent, and trustworthy. When a true if the missing lawyer left things in disarray, or may be in those old “closed” files? lawyer goes missing, it is incumbent upon us as as quite often happens. In such cases, it is fre- Similar complications and expenses can a profession to ameliorate—if not completely quently necessary for the trustee to retain per- arise in regard to the trust account. Those salvage—the situation. That’s the collective sonnel from the old law firm to try to bring records, if they exist at all, are frequently hard responsibility that the council has accepted on some order to thousands of files in dozens of to find and are usually incomplete and disor- your behalf. file cabinets. Needless to say, there is usually a ganized when they are found. What’s worse is As you might suppose, the council is not digital aspect to the problem as well. Passwords that upon analysis, they sometimes prove or only concerned with damage control. It has a aren’t always available and computerized filing strongly suggest malfeasance. It falls to the lively interest in preventing harm to the public systems can be impenetrable without profes- trustee—in the first instance at least—to figure sional assistance. It costs money to deconstruct out whose money is or should be on deposit. CONTINUED ON PAGE 47

THE NORTH CAROLINA STATE BAR JOURNAL 9 Life on the Front Lines of Budget Cuts

B Y T OM M AHER AND R OBYNN M ORAITES

state employees. Unlike other Budget Cuts at the Office of Indigent state agencies, which rely pri- Services marily on state employees to BY TOM MAHER provide services, IDS relies on private counsel to provide rep- I became the executive director of the resentation in approximately Office of Indigent Defense Services (IDS) two-thirds of the cases in on January 1, 2009. This was not an auspi- which there is a right to cious time to become responsible for the appointed counsel. These budget of a state agency, particularly for an lawyers, and others who play a agency tasked with providing constitutional- necessary role in helping IDS ly effective legal representation to those who meet its constitutional obliga- cannot afford to hire their own counsel. tions, have borne the brunt of People who find themselves facing a crimi- the cuts to the budget. Most nal charge without the ability to hire a pri- devastating to the private vate lawyer are entitled to a lawyer who has lawyers were the reductions in the experience, skill, and time to provide the rates paid for work on indi- Dave Cutler/Illustration Source effective representation, and this constitu- gent cases. When I began as tional right cannot be suspended in times of IDS director, North Carolina budget crisis. While a state may choose to had an indigent defense system reduce the number of criminal prosecutions that was a model for other it brings in the face of a reduced budget, it jurisdictions, and this was in may not meet a smaller budget by reducing large part due to the quality of the quality of representation provided below the lawyers who took on this that required by the constitution. IDS has work. We were able to com- struggled to provide effective representation pensate lawyers at the rate of with significantly reduced resources, and has $75 per hour for non-capital done so largely by reducing the compensa- cases, and $95 per hour for capital cases. lost $10 per hour. tion to those who are on the front lines of While this is significantly lower than the In examining the impact of these cuts, it the criminal justice system—the defense compensation for lawyers appearing in fed- is crucial to remember that IDS does not lawyers, investigators, paralegals, and others eral courts in North Carolina, who are now provide these lawyers with offices, support who turn the abstract right to an effective paid $126 per hour for non-capital cases and staff, insurance, telephones, access to a law defense into a reality. $180 per hour for capital cases, it was suffi- library, or any of the tools needed to practice Those who work in the public defender cient to allow good attorneys to provide law. All of the overhead costs of running a system have borne some of the impact of the quality representation. In May 2011, acting small law firm must be paid out of the budget cuts, from relatively minor reduc- at the direction of the General Assembly and hourly pay before the attorneys earn any- tions, such as training and travel restrictions, under tremendous budgetary pressure, IDS thing. These reductions, then, came directly to more serious reductions, such as the loss reduced those rates—attorneys in district out of the modest net earnings that attor- of earning power as increases in compensa- court cases lost $20 per hour in income, neys providing indigent defense made under tion became increasingly rare. These bur- while attorneys in superior court lost $15 to the higher rates. In addition, despite these dens, of course, are shared by others in the $5 per hour depending on the felony significant cuts, IDS has continued to be court system, as well as by teachers and other charged, and those handling capital cases underfunded. This underfunding means

10 SUMMER 2014 that, at the end of each fiscal year, IDS business-related decisions and subsequent exhausts the money available to pay the pri- mental health consequences that are largely Law to the vate lawyers and is forced to stop making invisible and silent to the majority of the payments until a new budget is approved for legal community—that is, until a lawyer is People, LLC the next fiscal year. Then IDS uses a signifi- in real peril. cant portion of the new budget to pay The nature of the legal work covered by amounts owed for work done in the prior IDS takes a heavy toll on lawyers’ mental Providing cost‐ year. For the private lawyers, it means that, health to begin with. Burnout, compassion come May, IDS will stop making payments, fatigue, and secondary trauma are common- efficient and and those payments may not begin again place. Now add to that unrelenting financial until July, assuming a new budget is enacted pressure. Perpetual economic insecurity practical CLE and by then. The injury of reduced payments for leads to periods of intense anxiety and loss of CPE programs the same work is compounded by the insult sleep. Prolonged anxiety and the accompa- of months of delay. nying fight, flight, or freeze response, along The impact of these cuts and payment with the disruptions in sleep, leads many Courses are generally delays on those who work in the private sec- lawyers into major depressive episodes. In tor to provide effective representation is very order to make a living and to relieve some of available in‐person or as real. Reduced pay does not reduce office the anxiety, lawyers often give up office rent or other bills, and delays in payment space and lay off support staff. Lack of sup- live webinars will not allow the lawyers to delay paying port staff, in turn, leads to an increase in their bills. While $55 per hour may seem to stress levels and anxiety from keeping too some like a good rate of pay, by the time many plates spinning. Lawyers feel the need Professionalism for overhead is subtracted there is little left. to keep a certain number of cases going in New Admittees Since I have been director, I have taken calls order to make a living, but the practical real- from lawyers who face personal financial ity is that there are only so many hours in a Program pressure, lawyers who face foreclosure on day and only so many cases one lawyer can their homes, who cannot get through the handle administratively with no support October 17‐18, 2014 months of delay and pay their bills, who staff. Inevitably what follows is a lawyer’s Durham, NC have to close their office and practice from a desperate attempt to keep up. And the first residence, and one memorable call from a thing to get pushed to the back burner is any spouse who wanted me to know that I was form of administrative paperwork to ensure responsible for the fact that she and her hus- the lawyer is paid for his or her work. Call (919) 633‐7529 band could not afford to have a child. Everyone seems to hear about the capital While the right to effective representa- case that cost the state millions of dollars in Join our mailing list! tion belongs to the client and IDS does not defense costs over several years. The General exist to provide employment for lawyers, Assembly often uses these costs as justifica- unless the lawyers who do this work are tion for further cuts in hourly rates. But lawtothepeople.com treated fairly, the right to counsel will what no one sees or hears about are the hun- become meaningless. North Carolina is for- dreds of hours (dare I say thousands of tunate to have a significant number of hours) that go completely uncompensated this description may seem far-fetched. It is lawyers who are willing to work in indigent for each fiscal year. all too common. Often, the very first task defense, and who do so at rates far below the In my first few months at the Lawyer we undertake at the LAP is to ask our volun- market rates paid by private clients. These Assistance Program, when talking with any teers to assist the lawyer with billing private lawyers have largely been willing to continue lawyer who handled court appointed work clients and filing fee applications that are this work despite the reduced pay, but it is and who was suffering from major depres- not past the filing deadline so that at least unrealistic to expect the private bar to con- sion, I learned very quickly to ask the imme- some revenue is coming in. tinue to work at the current rates on a long- diate follow up question, “When was the The Lawyer Assistance Program is seeing term basis. last time you filed a fee app?” Invariably, more lawyers who technically can be classi- responses range from, “I cannot remember fied as indigent themselves. We are seeing Lawyers as Collateral Damage the last time,” to, “A year ago or so…maybe lawyers who have no health insurance, BY ROBYNN RORAITES longer.” When lawyers are suffering from whose homes are in foreclosure, and who are depression, all of his or her energy goes into completely bankrupt. By the time these The Lawyer Assistance Program has handling cases and showing up in court— lawyers reach our door, they have been recently seen a disproportionate number of and wearing the mask that everything is working for free for over a year, on average, attorneys who work within the IDS system. OK. There is no energy left for things like and have burned through whatever financial The cuts in hourly wages and delayed pay- filing fee applications or billing private ment cycles trigger a progression of practical clients. To one who has not experienced it, CONTINUED ON PAGE 14

THE NORTH CAROLINA STATE BAR JOURNAL 11 How to Tell a Story

B Y W ADE M. SMITH

nce upon a time I was in a jury trial,

poised to make my closing argument. As

I sat waiting for the judge to signal go,

my client leaned over and asked if he could make a suggestion.O Slightly irritated at this interruption of my communication with the jury gods, but recognizing that the Rules of Professional Conduct would hold me steadfastly ©iStockphoto.com to the duty to hear from my client, I said that I would be thrilled to have him make a sugges- tion. He said, “Mr. Smith, do you know how it is when you bite into a firm, ripe apple and there is a popping noise and some juice flies out and gets all over your shirt? Well, that is how I want you to argue my case.” I realized that in this little story, which took two sentences, he had hit the nail squarely on the head. A law professor, given a full semester in a course on trial practice could not have created a more effective description of what a jury argument should be. It took my client 30 seconds to tell me a story.

It was clean and crisp. It lit the landscape like a bolt of lightning, and that is what storytelling is all about.

Somewhere along the way in my life as a remarkable advantage. This is an astounding ries each day to friends and in speeches and trial lawyer, I understood that every case con- thing to consider. If we can get command of presentations. There is much satisfaction in tains a story. It may be a traffic case. Or it the facts and tell the story, so that the apple telling a story well, which explodes, causing may be a complex case in which the facts are pops and we get juice all over our shirts, we peals of laughter, great weeping, or moves nearly impossible to gather and understand. have a much better chance of winning. our audience precisely in the direction we But all cases come to us containing a story. However, most stories we tell do not find wish to take them. The person who tells the story best enjoys a their way into a jury argument. We tell sto- Each story, well told, is a celebration of

12 SUMMER 2014 the power of language. There are more than ticed, because it can’t be 500,000 words in our language. Each word is too long or it will dis- a tool. There are wrenches and screwdrivers tract from the tale, and and hammers and saws. When we construct it can’t be so short that sentences, we choose from 500,000 words. it is ineffective. There is What a stunning idea. If we choose the right a wonderful dramatic words, there is thunder and lightning. If we pause in The Golden choose the wrong words the whole thing falls Arm by Mark Twain. on its face. Words come with colors attached. My favorite story to It is like painting a picture. We can choose illustrate this idea is cool colors or warm colors. about a man who was How many times have we heard people terrified that he would say that they just can’t remember jokes or sto- be called upon to pray ries? These people never get to tell a story or in church. Finally, he joke. We know that good storytellers are not was elected to the born knowing how to tell a story, and they Board of Deacons and certainly are not born with stories to tell. he then knew he would Good storytelling requires that one have an be called upon to pray. appreciation for stories and be a collector of He bought a hat and stories. This means that one must try to wrote out a prayer, remember stories. I recommend the creation which he placed in the of a story file. My story file is 30 years old. crown of his hat. Then, When I hear a good story, I write it down. if called upon, he could My file includes sections for dog stories, bar- rise, look down into his ber shop stories, and stories about mules, hat, and there would be horses, judges, lawyers, doctors, preachers, the prayer. One Sunday courtrooms, and on and on. I often ask a morning he was called person to repeat a story for me. You never upon to pray. He rose hear a good storyteller say, “I’ve already heard majestically and in a that one.” I am never concerned that some- resolute voice said, “Our Heavenly Father— constantly telling stories. If you even get near one is telling me a story I have heard before. long pause—I have brought the wrong hat.” this person, you are going to have to endure a I want to hear it again and I want to see how If the pause is just right the audience joke. So, you avoid him if you can. Be known this storyteller has changed parts of the story. explodes with surprise and laughter. for telling only winners and for telling them I always hope to improve it. I will insert my sparingly. The line between a welcomed sto- own spin and alter the tale in any way I can Context ryteller and a nuisance is narrow. Leave your to improve it. Nothing is more important than context audience hoping for another. It always adds to the enjoyment of a story in storytelling. A story must be appropriate if the teller relishes the telling. A great story- for the setting in which it is told. It must Lawyers as Storytellers teller develops a unique style. This happens relate to the people who are hearing it and Lawyers are natural storytellers and so are over time. A great storyteller finds his own the circumstances in which it is told. judges. We attend conventions and share sto- voice. Storytellers must be sensitive to their sur- ries there. We tell stories of our trials and of Some people just can’t tell a story. They roundings. Who are these people who will waiting for juries. We tell stories of cross mess up every time they try. Usually they hear the story? The teller must think about examinations and great jury moments. One fumble the punchline. While they stand race, gender, religion, sexual orientation, and of my favorite storytellers is Bobby Lee thunderstruck, as they try to retrieve the the reason people have gathered. Is this a Cook, a lawyer who practices in punchline from a cluttered brain, the audi- political rally? Are these people members of Summerville, Georgia. His stories are about ence drifts away thinking, “He can’t tell a one political party? Will they be easily real events from his trials. If you see Bobby joke.” There is only one way to avoid this offended? Your brain is constantly offering Lee Cook at a convention or seminar, there is embarrassing spectacle. Practice, practice, up stories to tell. You must mentally sort always a crowd around him. People want to practice. That is the rule. You must go over them out and have the good sense to can hear what he has to say. My own mentor, and over the story, and memorize the punch- most of them. Only the most appropriate Carlisle Higgins, North Carolina Supreme line. You have to tell it the same way every and best should be told. If you have any Court justice, was a wonderful storyteller. He time. The punchline must flow flawlessly. doubt, don’t tell the story. told true stories about his boyhood in the mountains of North Carolina. His stories The Pause Husband Your Credibility were filled with everyday experiences: his Some stories cry out for a well placed Manage your credibility as a storyteller dog, his school days in a one room school, pause. The pause must be thoroughly prac- carefully. We all know people who go around and his failure to stay in school because of his

THE NORTH CAROLINA STATE BAR JOURNAL 13 mischievous nature. He was surrounded by a know the answer to a question: host of judges and lawyers who loved to tell A census taker was working the deep back stories and loved to hear his stories. Each day woods of North Carolina and came to a Budget Cuts (cont.) at The North Carolina Supreme Court, at cabin with a yard full of children with runny coffee time, the court gathered to listen to his noses and ragged clothes. He knocked on the resources they might have had in reserve. stories and to tell their own. I learned from door of the cabin and a haggard looking They have no money for therapy or for anti- observing these sessions that ours is a profes- woman came to the door. The gentleman depressant medication. We have had to refer sion filled with the greatest storytellers in this said, “Ma’am, I am here to take the census.” more lawyers to county crises assistance serv- land. Lawyers are naturally good at telling The woman said, “What the heck is that?” ices than ever before in our history. tales of their adventures. The census taker said, “Well, every ten years Because lawyers are so adept at “never let the government sends people like me to find ‘em see you sweat,” what amounts to a pub- The Commandments of the Storyteller how many people are living in our country.” lic health crisis in our profession flies under I offer now my own ten commandments “Well,” she said, “you have come to the everyone’s radar. Many assume that what I of the storyteller art: wrong place.” “Why is that?” he said. “We am describing occurs with new, inexperi- 1. The story must be appropriate in tone don’t know the answer” she said. enced lawyers. Quite the opposite. We are and appropriate for the context within which 2. When you need to illustrate the pas- seeing this occur with seasoned lawyers who it is shared. Nothing is worse than telling a sage of time: have been practicing for 20 or more years— story and having an immediate feeling that it A man went out with friends to a sports fine lawyers with superior legal skills. was inappropriate. It contained a word that bar to watch a ball game and by accident he The hope with this article is to illuminate did not fit the occasion. It hurt feelings. It fell into a barrel of beer and drowned. His an often invisible process—to provide a was insensitive. Some storytellers go around friends went to tell his wife. She said, upon “behind the scenes” glimpse at some of the with the faint taste of shoe leather in their learning what happened, “Oh my, I do hope very real effects the prolonged economic mouths. Stories can hurt ethnic groups. They he went fast.” “Oh no, ma’am,” they said, downturn and attending budget cuts have can hurt someone who has recently sustained “he got out three times to pee.” had on our brethren. The criminal justice a loss. Utmost care must be used in choosing 3. When you need to put arrogance in its system rightly focuses on ensuring that the a story. place: parties receive a fair hearing and resolution 2. If possible, the story should relate to A minister was having breakfast one of their case. However, a criminal justice sys- the conversation. Stories don’t fall out of the morning with his wife. As they finished, she tem cannot operate effectively and sustain- sky. Usually something triggers them. said, “Dear, I am going to run into town for ably when the lawyers called upon to pro- 3. If you have a story ready and the a few minutes, and while I am gone don’t vide representation in these cases are so appropriate moment passes, let it go. look under the bed.” The minute she left the poorly paid that their finances threaten their Another moment will come. driveway, he dove under the bed to see what emotional and mental health. n 4. Be especially careful of loaded words. in the world was under there and he found a Racial words or words relating to sex or sex- shoe box with three eggs and $10,000 cash. Tom Maher is the executive director of ual orientation are dangerous. Insensitive As soon as his wife came home he said to her, North Carolina Indigent Defense Services and stories about politics are usually inappropri- “Dear, I am so sorry, but I had to look under Robynn Moraites is the executive director of the ate. the bed and what I found was a shoe box North Carolina Lawyer Assistance Program. 5. Let your stories be a treat. Tell only a with three eggs and $10,000 in cash. What few. Leave your audience asking for more. in the world is that all about?” “Well,” she 6. Don’t tell a story until you have it per- said, “when we were first married 25 years fect. Tell it the same way every time. Never ago, I vowed that every time you preached a find yourself groping for the punchline. bad sermon, I would put an egg in that box.” 7. Avoid stories that go on and on. If the “Wow,” said the preacher, “25 years, three Download audience becomes restless, the story is eggs, that’s not bad. But what about the doomed. $10,000?” “Oh,” she said, “well, when I’d get the 2014 8. There is nothing funny about the bath- a dozen, I’d sell ‘em.” room. Lawyer’s 9. Profanity in stories is dangerous and it Conclusion should be used only when there is no doubt Storytellers are not born, they are created Handbook that it is appropriate. one story at a time. They collect stories and 10. Wherever you go, always have one they appreciate and celebrate good story- The digital version of the 2014 good story ready, just in case you are called tellers and the art of telling great stories. Lawyer’s Handbook is now available upon. You are a storyteller and this is expected. Today is a good day to begin to cultivate the for download and is free of charge. art of telling great stories. n Visit the State Bar’s website at Three of My Favorite Stories and When ncbar.gov/handbook.asp. to Tell Them Wade Smith is a lawyer at Tharrington 1. When you need to say that you don’t Smith in Raleigh.

14 SUMMER 2014 Saving Students from Downing in Debt—NC LEAF

B Y E VELYN P URSLEY

any law gradu-

ates finish law

school owing

in excess of

$100,000 in education loans (the average law school stu- M ©iStockphoto.com dent debt in NC is around $109,610). Since 1990, the average tuition law school students pay has increased by over 200%. Graduates who want to take public service jobs are, therefore, faced with a serious challenge as they must meet their monthly edu- cation loan obligations (often the size of a mortgage payment) while earning traditionally lower salaries. Many find that they cannot make ends meet on a public service salary and are forced to forgo the opportunity to use their legal skills in service to their communities. Many who do accept public service legal jobs find they must leave after two to three years of service for higher-paying employment, leaving the public service employer with the cost of rehiring and retraining.

When it was started by students—with lawyers in the nation. Luke Largess of Tin 1988. We convened a meeting of interested support from the deans of the state’s then five Fulton Walker & Owen in Charlotte and law students that fall. We went to our respec- law schools—in 1989, the NC Legal current president of NC LEAF was one of tive deans with the idea of forming a non- Education Assistance Foundation (NC those students. “Students who worked in profit to run a state-wide program for gradu- LEAF) was the first non-profit organization public interest fellowships sparked the idea at ates who took public service positions in dedicated to loan repayment assistance for an end of internship retreat in the summer of North Carolina after law school. NC IOLTA

THE NORTH CAROLINA STATE BAR JOURNAL 15 and Z. Smith Reynolds gave us the initial needed work but for the help of NC LEAF. link to courtroom efficiency and timely reso- seed money, and we stumbled forward a bit As the elected district attorney for Johnston lution of cases. Due to the financial assis- blindly. It took awhile to get good traction, County, I have witnessed firsthand the differ- tance of NC LEAF, North Carolina Public but we were on to something that gathered ence NC LEAF can make in helping assistant Defender Offices have been able to retain lots of support.” district attorneys fulfill their passion of prose- some extremely hardworking, dedicated, and As NC IOLTA executive director, I have cution, even while their salary is not enough underpaid attorneys who would otherwise be always loved knowing that this organization to pay back enormous law school debt.” compelled to leave public service.” that has accomplished so much good for our The program has continued to receive NC LEAF is also pleased to administer state was started by a small group of law stu- annual grant funding from IOLTA for oper- the Legal Aid of North Carolina (LANC) dents. It reminds me of that great admoni- ating support. Since 1990, IOLTA has grant- loan repayment assistance program for its tion that we should “never doubt that a small ed $1.1 million to NC LEAF, almost all of staff attorneys since 2007. LANC is the group of thoughtful, committed citizens can which has been allocated to operating sup- largest legal aid program in North Carolina change the world.” port so NC LEAF could use other fund- and receives the federal funding from the Since that time, principally through leg- ing—particularly state funding—for loan Legal Services Corporation. After six months islative funding and IOLTA support, NC repayment assistance. Understanding its of employment at LANC, attorneys can LEAF has provided debt repayment assis- importance to the state, the General qualify for up to $400 each month to go tance of over $5.8 million to over 500 public Assembly also appropriated funds for the towards student loans. Part of the funding interest attorneys working in 83 counties program that were used for loan repayments for this support comes from the Legal Aid of throughout North Carolina. These attorneys from 1993 until 2011. “We are incredibly NC Fund at the NC Bar Foundation endow- have served as assistant district attorneys, grateful to IOLTA for their consistent sup- ment, as several donors gave money specifi- public defenders, and in legal aid offices. port to operate our program, which has cally to support loan repayment assistance “Their work ensures the equal access to jus- allowed us to direct state and other funding for LANC attorneys who graduated from tice our society prizes,” says NC LEAF to the public interest attorneys to discharge their law schools—Wake Forest, UNC, and Executive Director Esther Hall. their debts,” says Hall. The program has Duke. George Hausen, LANC executive Loan repayment assistance programs worked hard to diversify its funding base and director, is grateful to be able to use NC (LRAPs) like NC LEAF help bridge the gap to raise funds from individuals and law firms. LEAF’s services. “We very much appreciate for graduates working for public service It has become the administrator for addition- having a loan repayment assistance program organizations or agencies. And, by providing al LRAPs, but is most anxious to convince with the experience to administer this pro- much-needed assistance to these public serv- the General Assembly to provide financial gram competently and efficiently. Loan ice lawyers, LRAPs help public service support for the program again to stabilize repayment assistance has directly impacted employers attract and retain gifted and com- funding for this important work. our ability to retain experienced attorneys mitted young lawyers, which in turn benefits through this economic downturn. These the communities in which they live and NC LEAF Administers Additional attorneys have provided greater expertise and work. LRAPs capacity to respond to the increased need for Jim Barrett of Pisgah Legal Services in Given its experience in administering a our services.” Sixty LANC attorneys are cur- Asheville has seen those benefits in his pro- loan repayment assistance program, NC rently enrolled in the program. gram. “Law school loan repayment assistance LEAF was asked to take on that task for a In 2008 the federal College Cost helps us retain staff attorneys beyond their number of additional programs. Since 2010, Reduction & Access Act created a Public training period so that they are most produc- it has been the designated state agency for Service Loan Forgiveness Program, under tive at solving clients’ difficult problems. NC disbursement of the federally funded John R. which public interest attorneys, after 10 years LEAF is, therefore, so important to the Justice Loan Repayment Assistance Program, and 120 loan payments, may qualify for for- approximately 100,000 low-income people designed to encourage qualified attorneys to giveness on the remaining balance of their who need Pisgah Legal Services to help them choose careers as prosecutors and public student loans. While NC LEAF does not meet their basic needs and be safe from defenders and continue in that service for administer this program, it does provide domestic violence.” three years. The grant provides equal assis- information about the program to potential From the beginning, the program has tance for prosecutors and public defenders, participants trying to decide how to structure worked collaboratively with law schools and and has assisted 86 participants through the their loan repayment future most effectively. bar organizations in our state. The program’s four years with $582,674 in funding. board is composed of their representatives. Jennifer Harjo, current president of the Responding to Funding Crisis Current board member Susan Doyle rep- NC Association of Public Defenders and From 1993 through 2011, NC LEAF resents the NC Conference of District NC LEAF Board member understands the enjoyed its most stable funding as it received Attorneys. "As an NC LEAF board member, value of loan repayment assistance through state funding (from an initial appropriation I have seen the importance of being able to this program and from NC LEAF. “The abil- of $25,000 up to $500,000 in 2010-11) for provide assistance to attorneys who want to ity to retain highly qualified and trained loan repayments and operating funding from give back to their communities through pub- attorneys in a Public Defender Office is cru- an annual IOLTA grant and law school sup- lic service. In many cases, these attorneys cial to the preservation of the constitutional port. Both were augmented by a fund-raising would be unable to continue with this much rights and liberties of all citizens. It is also the campaign, including a law firm campaign

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that allowed firms to sponsor individual state.” The Mecklenburg Bar Foundation has Why We Support the Work—One attorneys. Since losing the state funding— added $78,000 to those funds in annual Lawyer’s Story the largest source of its loan repayments— grants made since 2009 in support of public Heather Taraska, assistant district attorney the program has struggled to continue its service lawyers in their county. To date, 43 in Mecklenburg County, appreciates NC loan repayment assistance. attorneys in Mecklenburg County have been LEAF for assisting her in paying off her educa- Public interest attorneys working in assisted through this combined support. tional loans. Mecklenburg County have greatly benefitted Other organizations have also stepped up “When I told my parents that I wanted to from the generosity of the C. D. Spangler to help NC LEAF as it struggles to continue go to law school to become a public interest Foundation. In 2009 the foundation made a loan repayment assistance in the absence of attorney, they were able to offer me moral, $250,000 gift in honor of Peter Gilchrist, the state funding. NC IOLTA added small but not financial, support. I borrowed retiring district attorney, who had been a grants for loan repayment assistance to its money to pay for my tuition, my books, and staunch supporter of NC LEAF. As he told operating support for 2013 and 2014. The my living expenses. I borrowed a lot of the American Bar Association when they NC Bar Association donated $30,000, and money, upwards of $75,000. After graduat- were encouraging the establishments of the NC State Bar is providing rent-free space ing 12 years ago, I began my career as a pros- LRAPs in 2003, “Law graduates today have a to the organization in its new building. The ecutor earning $27,500 a year. I wasn’t sure staggering amount of educational debt, NC Equal Access to Justice Foundation how I was going to pay off my loans while which places a substantial burden on their offered matching grant challenges of working in the public sector, and it terrified ability to work in the public sector. I have $15,000 each in 2012 and 2013, both of me. NC LEAF helped me make my loan lost many young lawyers, most of them which were met through NC LEAF fund- payments every month until there were no forced to seek higher salaries elsewhere in raising. As Esther Hall notes, "It is particular- longer any to be made. Thanks to NC LEAF, order to deal with the financial strain of ly gratifying to see the level of support from I still put bad guys in jail, debt free.” n repaying law school debt while providing for former participants in response to our appeal their families. By helping young law gradu- for funds. They value the assistance received For more information regarding NC LEAF, ates accept and remain in public service from NC LEAF early in their careers, and are please visit the website: ncleaf.org. careers, North Carolina’s LRAP makes a generous in helping replenish the source so Evelyn Pursley has been the executive director tremendous difference for the citizens of my their peers can benefit." of NC IOLTA since July 1997.

THE NORTH CAROLINA STATE BAR JOURNAL 17 Innocent after Proven Guilty— Incident at Donnaha

B Y G RAY W ILSON

erbert Thomas Shore spent 17 years in Williams lay dead in his front yard with the top of his head blown off. The autopsy revealed that he had been killed by a 12- prison for a murder he did not commit. gauge slug, which is a large plug of lead. Shore fled before the sheriff could arrest him at his home, evaded capture for six months, He was one of four participants in a then turned himself in to await trial. Shore declared that he was not the one who shot Williams, although he did admit winging drunken brawl among friends in the him with a load of birdshot in the thigh before leaving the scene. At the trial two years later in 1996, Donnaha communityH in the northwest corner of Forsyth County on August 23, 1994. Early in Assistant District Attorneys David Spence and Fred Bauer prosecuted the case, defend- ed by Fred Crumpler and David Freedman. the evening, when the parties to this affray were already primed with Maker’s Mark, beer, and Judge William Z. Wood Jr. presided over a hotly contested battle, in which the jury was tasked with figuring out what happened that vodka, an argument broke out between Shore and Tim Williams over a $10 NASCAR bet that night in Donnaha, with little assistance from eyewitnesses. Shore’s stepson, also under indictment for murder, refused to testify, Williams allegedly lost. Shore tried to take it out of his hide, but Williams soon got the best of and Larry Hicks, who had been wounded in the eye by a shotgun pellet during the affray, conveniently recalled nothing. But Shore the fisticuffs, prompting Shore to pull a pocket knife on him. Williams replied with a tire jack, took the stand in his defense and promptly failed, gutting his credibility under steady cross-examination from Spence, who and once again Shore was outmatched, fleeing into the woods to lick his wounds. reduced the defendant to putty within 30 minutes. Four able attorneys argued pas- sionately to the jury, which took just over an hour to find Shore guilty of first-degree When he recovered, he staggered home, home nearby to retrieve a Mossberg 12- murder and a host of lesser charges. A lone only to be confronted by his stepson, who gauge sawed-off, pump action riot gun, replacement juror dissented during the sen- grabbed some firearms and drove Shore back modified with a pistol grip and hair trigger. tencing phase, sparing Shore’s life by one to Donnaha to set things right with They were waiting behind Williams’ van in vote. The trip to Central Prison followed. Williams. To do so, Shore packed an L.C. his driveway when Shore and his stepson Over the next decade, multiple appeals, Smith 12-gauge, double-barrel shotgun with stopped their Jeep on the roadway out front. motions for appropriate relief, and even a a modified choke, while his stepson carried It was unclear who started firing first, but clemency petition to then Governor Mike a Beretta 20-gauge, single-barrel shotgun. before long the night was peppered with a Easley were mounted without success. One Meanwhile, Williams and his compan- variety of reports from the assortment of appellate court declared that there was ion, Larry Hicks, had traveled to Hicks’ shotguns. By the time the shootout was over, “overwhelming evidence of guilt,” and from

18 SUMMER 2014 the transcript at trial, this was not an unrea- establish definitively which shotgun the ed to have him brought to Winston-Salem. sonable conclusion. In the meantime, Shore Winchester shell came from, but he was Shore was ecstatic when I visited him in the languished in the state correctional system, confident that he would at least be able to Forsyth County Detention Center, but he being shipped around North Carolina to exclude Shore’s shotgun if it was not fired had no idea why he had been shipped there. various facilities. At the age of 62, he sus- from that 12-gauge. So we packed up and I explained, and tears formed in his eyes as I tained a mild heart attack and underwent shipped everything to him in Arizona for did so. Through the glass partition, he asked two-vessel bypass surgery. He learned that microscopic examination at his home labo- me if this could really be true, and I told him his stepson had pleaded guilty to second- ratory. to hang on for the hearing, which took a degree murder and was similarly housed Several weeks later in March 2011, Scott couple of weeks and a lot maneuvering with elsewhere for a 20-year term. But Shore was called me at my office with some startling the DA’s Office to arrange. Local criminal in for life, and he knew he would die in news. Not only was he able to exclude the law attorney Chris Beechler was instrumen- prison. His lovely wife, who had also been Winchester shell as never having been fired tal in greasing the skids for the hearing that erroneously charged with harboring a fugi- from Shore’s shotgun, he was also able to resulted in Shore’s release by Superior Court tive while her husband was on the lam, conclude to a high degree of certainty that Judge John O. Craig. Jerry Smith was there divorced him after ten years. Shore stopped this shell in fact came from the 12-gauge to observe, and was commended for his praying for freedom—all he really wanted shotgun in the possession of Larry Hicks, efforts on behalf of Shore. The murder was to die. who was standing behind the van just next charge was stricken, and Shore was approved In 2007 we were retained by Jerry Smith, to the victim the night of the shooting. How for immediate release based on time served a highly successful businessman and friend could this have happened? No one would on the remaining charges. On June 6, 2011, of Shore, to take one more look at the case. ever know for sure—and no one was talk- he walked out of jail toting a couple of large The 2,000-page transcript was hardly ing—but it was likely that Hicks accidental- black trash bags which contained all his encouraging, but one salient omission ly pulled the hair trigger during the affray, as worldly possessions. emerged from a review of the trial. The State he stood there that night frightened, Shore moved back into his family home Bureau of Investigation ballistics laboratory injured, and intoxicated, killing his friend in in Winston-Salem, where his mother had had inspected an empty 12-gauge the process. The micrographs I received died only a year earlier. He settled back into Winchester shotgun shell found next to the from Scott left no doubt that he was correct. a life of freedom, tinkered with carburetors victim, but could not tie it to any weapon. How the SBI lab missed this connection in the garage behind his house, and eventu- That shell was a “reload,” meaning reloaded remains a mystery. ally acquired a quarter horse and a pair of by hand after the initial factory shell had I called Matt Breeding, an assistant dis- hound dogs. Formerly a nationally ranked been fired. There was no way to tell if the trict attorney we had been working with on barrel racer, Shore was also an accomplished reload had fired birdshot or a slug, but it was this matter, to discuss Scott’s findings, and auto mechanic who had once owned a suc- clearly a slug that had killed the victim. he was understandably skeptical. This would cessful repair shop in the city. He became Several 12-gauge Remington-Peters shotgun not be the first time someone with a law reacquainted with his children, grandchil- shells found in the roadway, however, were degree had informed the local DA that an dren, and siblings, and remained friends easily matched to Shore’s shotgun because of innocent man had been wrongfully convict- with his former spouse. After a while he even unmistakable features on the casings. The ed. But the new DA in Forsyth County was found a girlfriend. We went to the cemetery SBI confirmed that all of those shells had Jim O’Neill, whom we had met with earlier where Tim Williams was buried so that fired birdshot, not a slug. Hence, the only to present our work on the case. We were Shore could pay his respects. We also went shell that could have fired the fatal round pleasantly surprised to hear O’Neill politely to the scene of the shooting up in Donnaha, was the Winchester found next to the vic- tell us that he did not care about the proce- a field now plowed under with little more tim. But nobody could match it to a weapon dural posture of the matter (on which we than Joe Pye Weed for cover. Shore was able at the scene. were likely foreclosed at this point), nor to pry a couple of pebbles of birdshot from That did not stop Smith, who promptly what a model prisoner Shore had been. He the bark of an old sycamore tree. It was a hot hired the best ballistics expert in the said he only cared about doing the right August afternoon with towering cumulus world—Ronald Scott from Phoenix, thing. In this case, it would turn out that he clouds building and thunder booming in Arizona. Scott was the kind of professional meant it. Breeding asked me to send our the distance inside an approaching gray the US government retained to investigate information over for him for review by mass. There had been several more murders questionable shootings in Iraq. He was Stephen Bunch, a retired ballistics expert in Donnaha since the shooting in 1994, and supremely credentialed and had testified in formerly employed with the FBI, and that a Cherokee burial ground had recently been hundreds of trials around the country over he would let us know what they (meaning discovered nearby, with a host of artifacts the course of his distinguished career. We the expert and the DA’s Office) thought of and evidence of human sacrifice. Shore flew him to North Carolina after obtaining this latest development. heaved a sigh of relief as we pulled away. both shotguns and all of the spent shell cas- In a few weeks I got another call from Then we headed home. n ings from the property room at the court- Breeding, who informed me that his expert house (which required a court order and agreed with our own, and that he had G. Gray Wilson is a senior partner with the police escort). Scott was quick to tell us already made a call to the prison facility in Wilson Helms & Cartledge, LLP, and a State that he thought it unlikely that he could Caswell County where Shore was incarcerat- Bar councilor representing Judicial District 21.

THE NORTH CAROLINA STATE BAR JOURNAL 19 A Life Recognized— Judge Hiram Ward

B Y D ANIEL R. TAYLOR J R .

n an early life suitable for a Tom Clancy novel and a later life qualifying for one

of the highest offices of our country, Hiram Ward exemplified “Pro Humanitate” Iand his love of Wake Forest has been matched by few. The Early Years Japanese bombed Pearl Harbor on Tom Brokaw called them “the greatest December 7, 1941,1 Ward was training to generation,” and United States District become a radio operator and aircraft Judge Frank Bullock described his friend mechanic. In the spring and early summer of Hiram Hamilton Ward as one of “the great- 1942, Ward and the 83rd Bombardment est generation’s” greatest members. Born in Squadron, flying an early version of the B- Thomasville, North Carolina, in 1923, and 25,2 flew patrols in search of Japanese sub- raised during the Depression on a family marines off the West Coast and, perhaps an farm outside of Denton, North Carolina, omen of things to come, practiced bombing Ward was an adventurer who loved the out- and close air support missions in the doors, hunting, and fishing. Under the tute- California desert. lage of his older brother, he learned to fly a small airplane while he was still in high Flight to the Front school. He was the first boy in Denton to In July of 1942, Hiram Ward and the the routed corridors.” In the following become an Eagle Scout, an experience he 83rd relocated to MacDill Field, outside of months, the 83rd, with Ward now assigned relied on and cherished the remainder of his Tampa, Florida, and prepared to deploy to the additional duty as gunner, repulsed life. Ward’s hometown adventures, however, Africa where Adolph Hitler’s forces under the Rommel’s “end run” to break through the El would pale in comparison to what was to command of Erwin Rommel were advancing Alamein line at Alma Halfa. Historians uni- come, as he documented in his wartime on the Suez Canal and the oil fields of the versally regard the battle of El Alamein as the diaries. Middle East. A few months after his 18th turning point in the Germans’ efforts to cap- Aware of the war in Europe and sensing birthday, Ward wrote that his plane landed ture the Suez Canal, and one if not the most involvement by the United States in the near “at Khartoum after dark and in the rain on a important battle in shortening the war with future, Ward sought to enlist in the United dimly lit by flare pot runway.” Germany. The American B-25s are credited States Army Air Corp following graduation As the B-25s of the 83rd were making with making the most significant contribu- from Denton High School in 1940. At age their way to the Egyptian delta, the British tion to the victory. The devastation brought 17 he was unable to do so without his par- forces commanded by Major General Neil by the 83rd was so severe that Rommel him- ents’ consent. His parents agreed and in Ritchie and the German forces under Field self called the squadron “the Earth Quakers.” October 1940, Ward reported for basic train- Marshall Erwin Rommel were fighting for In the months that follow, Ward and the B- ing at Jefferson Barracks, Missouri, near St. control of North Africa, a stalemate between 25s of the 83rd, flying close air support for Louis. Assigned to the 12th Bombardment two exhausted forces. On August 19, 1942, British ground forces, pursued the German Group, 83rd Bombardment Squadron, Ward’s plane arrived in the combat zone forces as they retreated West along the south- Ward lacked the age and education to qualify “after shooting off the prescribed flares, cir- ern shore of the Mediterranean—through for military pilot training, and when the cling the designated points, and following places like Egypt, Libya, and until the

20 SUMMER 2014 German forces fled North Africa. The pace States by the Air Corps Ferry Command. We kept losing altitude until we were of the pursuit was so intense that the Further back in the jungle were dispersed almost at the top level with only jungle in bombers of the 83rd rarely returned to the buildings called “bashas.” These were sight ahead. Suddenly we saw an opening airstrip from which they had departed— made of split bamboo sides with a thick ahead—probably an abandoned rice their ground support ever moving their base thatched roof and concrete floor. Several paddy—so we belly landed in the water, field westward in pursuit of the retreating brick and cement washrooms were scat- muck, and mire of the opening. To our enemy. tered through the basha area so we no amazement, the gas tank did not explode. Ward and the 83rd spent the next six longer had to bathe from a steel helmet. The fire on the top of the left wing tank months bombing Italian and German forces Once ground crews checked out the was undoubtedly smothered by the water in Italy. On the morning of February 2, planes, the 83rd began transitional flying to and mud that came over the leading edge 1944, an announcement was posted on the familiarize themselves with the new aircraft, of the wing as we landed. We scurried out 83rd Squadron Flight Operations Board and within a few days the squadron was fly- of the plane and to a hillside in the jungle which read simply “Prepare for overseas ing missions against the Japanese forces in about 500 yards away. What we originally movement as you have dropped your last Burma in support of General Stillwell’s thought was smoke rising from the plane bomb in Italy.” Ward and other flight crew efforts to keep the Japanese ground forces turned out to be vapor from the hot members were advised, “We would be taking away from the Burma Road. engines submerged in water. only our personal belongings.” Ward Once I got down, I could not get up. I described the trip: Shot Down Over Burma had lost a lot of blood from the wounds On February 6, 1944, we departed for On July 9, 1944, Ward flew his 54th (and in each thigh and the right groin. A cou- Taranto (Italy) in a truck convoy, arriving last) mission, in which he narrowly escaped ple of our crew members went back to the there late that night. No provisions had death. He described the harrowing mission plane and got our parachute backpacks, been made for us so we lived on cold C and the events of the next few days as fol- which contained the first aid kits and rations and water and slept in bombed lows: emergency rations. They then cut away out buildings on the harbor waterfront. Our target was in the Myitkyina area of my trousers, put pressure bandages over On the afternoon of February 8th, we Northern Burma. The weather was poor the four largest wounds to stop the bleed- boarded the British troop ship “Dilmara” in East India, but we were informed that ing, and gave me an injection of an entire (packed like sardines), and that night it was clear over the Burma Valley. While tube of Novocain, which actually con- steamed south into the Mediterranean it was a nine plane mission, two planes tained two doses. This was about 3 PM. Sea. had to drop out—one with engine prob- I do not remember much about that The next morning the rumors that we lems and the second with a bad tire when night except that I became nauseated were going home to become a training we landed to refuel. The remaining seven from the overdose of Novocain, that it group for overseas combat were dashed— planes continued with the mission. After was raining hard, and that mosquitoes all we were heading east instead of west. we crossed the Chin Hills [a mountain but carried me away. The journey took Ward through Port range that runs from Burma into India] Sometime the next day, 15 or 16 oriental Said (Egypt) to Camp Huckstep (Egypt), and into Burma, the weather was, as pre- soldiers came to our airplane, took a look near Heliopolis (one of the oldest cities in dicted, good. As we were trying to get inside, picked up our trail, and came ancient Egypt) just North of Cairo (Egypt) back into formation after coming straight to me. They turned out to be for two weeks of R&R, where Ward would through the bad weather over the Chin Kachin guerrillas enlisted by the OSS to recount that, “The food was good and you Hills, we were jumped by Japanese fighter fight behind the lines for the British and could even get candy bars, ice cream, ham- planes. Some of our men say there were American forces. The Kachins were under burgers, and Coca Colas.” But war time 16 Jap planes, while others counted 13. the command of an English and an R&R is short and on February 29, 1944, the In any event, we had a running fight for Indian officer. now 20-year-old Ward once again boarded several minutes and knocked several of The Kachins hated the Japanese because the Dilmara, leaving Port Tewfik at the east the Jap planes down before the P-51s of the treatment they and their race end of the Suez Canal, and sailed through arrived to get the Japs off our back. I was received from them when they overran the Gulf of Suez, the Red Sea, the Gulf of credited with one Zero. Burma. Kachins were small, wiry people Aden, the Indian Ocean, and the Arabian Our top turret gunner was killed, I was about 5’2” - 5’4” tall. They knew the Sea, arriving in Bombay, India, on March 12, wounded, and the tail gunner and the Burmese jungle as well as they knew their 1944. From Bombay, the 83rd traveled by photographer both had slight shrapnel own home. Within minutes they con- train and by riverboat to Kurmatola (India). wounds from the Japanese fighters’ explo- structed a stretcher from bamboo poles, Ward wrote: sive shells. Our left inboard tank had blue vines, and my parachute. They carried me We arrived at Kurmatola, India (now flame like a blow torch shooting out of out of the jungle, sometimes wadeing in Bangladesh), March 21, 1944, to find a two holes in the tank. We were not get- water up to their chest. They avoided steel mat runway on a strip that the army ting full power from the right engine, so open areas and any area where we might engineers had cleared in the jungle. we dropped the bottom hatches and be seen by anyone, especially the Disbursed around the field were new B- threw everything of weight overboard. By Japanese. 25Hs & B-25Js just flown over from the then we were down too low to bail out. We arrived at the guerrilla camp in the

THE NORTH CAROLINA STATE BAR JOURNAL 21 jungle about dark. An Indian doctor Ward’s orders required him to report to and Dockham and promised Ward a job in worked on my legs, while others held me Redistribution Station #2 in Miami, Florida, the bookstore to allow him to earn the addi- down as the doctor had nothing with but allowed a 22-day delay en route fur- tional money needed to attend Wake Forest. which to kill the pain. I must have passed lough. He caught a train to High Point and Everett identified a room for them to rent at out again because it was daylight when I was reunited with his family before traveling one of the fraternity houses, and introduced awoke. on to Miami on October 25, 1944. In the young men to the registrar of the college, The following day, Tuesday, July 11, we December, while in Miami, Ward under- Grady Patterson, who promised to handle learned that the P-51s, who knew where went further operations to remove 13 addi- the paperwork. By the end of the day, Ward we went down, had notified the OSS, tional fragments of shrapnel from his right and Dockham were students, enrolled at and that the Kachin Guerrillas had been thigh so he could walk without a limp. Wake Forest College, returning to Raleigh sent out to rescue us before the Japanese However, the surgeons were unable to only to retrieve their personal belongings. could get to us. That afternoon an L-5 remove a number of additional fragments, Wake Forest was a comfortable environ- Grasshopper, which the army used as an which he carried with him for the remainder ment of 400 students, and Ward developed a artillery spotter, circled the guerrillas’ of this life. He was then reassigned to Boca lasting relationship with Everett Snyder, camp at treetop level and dropped a note Raton, Florida, to await discharge. On May hunting and fishing with him frequently. requesting that a strip be cleared for him 17, 1945, Ward began his trip from Boca Early in the first semester, Snyder introduced to land. The Kachins had this done with- Raton to the Separation Center at Fort Ward to the lovely Evelyn McDaniel, a stu- in a few minutes, and the L-5 landed. Bragg, North Carolina, where he was dent from Florida. A warm friendship devel- I was placed on a stretcher in the rear of “[s]eparated from the service with an oped, then grew. Ward, a serious student, the plane. The pilot, a Sgt. Anderson, Honorable Discharge, all back pay, and a one completed his undergraduate studies at asked my crew members to hold the tail way bus ticket to Denton, North Carolina.” Wake Forest College less than two years after while he applied the brakes and gave it Medically discharged on May 20th, with stepping foot on campus.3 He married full throttle. At his signal they released the numerous pieces of shrapnel remaining in his Evelyn McDaniel on June 1, 1947. tail, we bounded down the strip a few body and a partial disability, Ward had Influenced greatly by a business law yards and were airborne. Avoiding served four years and seven months, of which course taught by legendary Wake Forest Japanese positions and Myitkyina, which half—two years and three months—had Professor Edgar W. Timberlake, Ward’s was held by the Japanese, we finally land- been overseas. Less than a month after his thoughts turned to law school. After reflec- ed at a strip northwest of Myitkyina, and 22nd birthday, he was one of a relatively tion, including the thought that he might I was carried to Dr. Gordon Seagrave’s small number of Americans who had fought already be too old to attend law school at age tent. Dr. Seagrave (the Burma surgeon) on three continents against all of the major 24, he was persuaded to the contrary by his cleaned my wounds, cutting away dead Axis powers—Germany, Italy, and Japan. father-in-law as well as his father’s close flesh, and applied sulfa powder. He then Ward had risen to the rank of technical ser- friend, Sim DeLapp, a prominent dressed the wounds and said the military geant, United States Army Air Corps, Lexington, North Carolina, lawyer. Ward would get me to the 20th General Field received the Bronze Star, the Purple Heart, enrolled in Wake Forest Law School in the Hospital the next day. the Air Medal along with Presidential Unit fall of 1947. He was a diligent student and Citation, the American Defense Medal, the graduated in the spring of 1950, third in his Return to the US Europe-African Middle East Theater Ribbon law school class. The relationships he devel- On July 12, Ward was moved by air to the with five campaign stars, the Asiatic Pacific oped those five years would be close to his United States Army 20th General Hospital Theater Medal with one bronze service star, heart for the rest of his life—Evelyn, the in Ledo, India: and the WWII Victory Medal. Ward was Law, and Wake Forest. Shrapnel was removed from my right ready to move on to the next phase of his Knowing of Ward’s desire to practice law groin and one piece from my right leg. young life. in his hometown, which had never had a Small fragments were removed from my lawyer, DeLapp encouraged Ward to run for right hand and face. A temporary cap was Wake Forest and Evelyn the North Carolina House of place over the broken tooth. The surgeon In the fall of 1945, Ward and his friend, Representatives when the law school experi- indicated the rest could be done in the Elwood Dockham, enrolled in North ence was coming to a close. DeLapp coun- USA. Carolina State University, moved their per- seled Ward that he “needed to work to be On July 31, Ward was discharged from sonal belongings into their newly assigned recognized as a lawyer,” rather than to be the the medical unit and reassigned to the reha- dormitory room, and drove Ward’s new used 17 year old boy people would remember bilitation unit, “graduated from crutches to a car approximately 20 miles to Wake Forest, from ten years earlier. Hiram took Sim’s cane in late August,” and subsequently North Carolina, to visit his Aunt Snyder. advice to heart. Evelyn Ward recalls her hus- returned to the 83rd Squadron where he Ruth was married to Everett Snyder, who band having no real expectation of winning, awaited the completion of paperwork for his managed the Wake Forest College bookstore but eating lots of chicken and barbecue din- return to the United States. He left on and soda shop. It was a life-altering day. ners and speechifying in an attempt to pub- September 22. It took several flights before Everett Snyder wanted Ward to attend licize his name in the community. Being he landed at LaGuardia Field in New York Wake Forest and was not to be denied. He doggedly persistent and equally persua- on October 2, 1944. presented the Wake Forest campus to Ward sive—traits exhibited since his childhood

22 SUMMER 2014 and galvanized by his life’s experiences— Federal Land Condemnation Commission DeLapp, Wade Phillips, W.P. Sandridge, Ward came close to defeating a long-time, for the Kerr Scott Dam Reservoirs. Over the Charles Kivett, Doug Albright, and Ed deeply entrenched local politician, losing by next year, Ward held hearings, received evi- Washington. He tried cases before some of less than 1,000 votes. dence, and determined the “just compensa- the most respected judges of the day—leg- tion” to be paid to landowners of over 100 ends of the bench—including John J. Parker, The Practice of Law separate tracts of land taken by the govern- Edward M. Stanley, Rufus Reynolds, As Ward explored his options for the ment to create the reservoir. Every case Johnson Hayes, H.H. Hubbard, Hamilton practice of law, a local bank promised him its decided by the commission that was Hobgood, John McLaughlin, Walter title work if he would return home to appealed was confirmed by the United States Johnson, George Ragsdale, Walter Crissman, Denton, which he did, becoming the first Court of Appeals for the Fourth Circuit. Robert Martin, and Edward Clark. lawyer ever to establish an office in Denton. Lest one think that Ward was totally con- In the following years, his practice consisted sumed by this work as a lawyer, he renewed The Bench and Wake Forest of the promised title work, other real estate his interest in flying and purchased a Cessna United States District Judge Edward M. work, probate work, criminal matters in the 180. Always the cautious one, prepared for Stanley died unexpectedly in December lower court, and an occasional appearance in the unexpected, Ward insisted that Evelyn 1971. It is of little wonder that, with his Superior Court in criminal and civil matters. learn to fly, which she did, and they enjoyed extraordinary knowledge of the law and At Wake Forest Law School, Ward many family trips with their two sons when broad experience, Ward was immediately became close with one of his professors, I. his busy legal practice allowed. recognized as an able replacement, notwith- Beverly Lake Sr. When Lake accepted an Reflecting on the most important cases of standing strong competition from other appointment with the National Production his practicing career, the lawyers with whom members of the Bar. Ward was nominated by Authority (NPA) in Washington, DC, Ward he regularly jousted and the judges before President Richard M. Nixon on May 18, joined him in July 1951 as a staff attorney, whom he frequently appeared, Ward’s list is 1972, confirmed by the United States Senate and served as Lake’s first assistant for approx- both varied and impressive. Ward’s career on June 28, 1972,4 and sworn in as a United imately nine months. The NPA was created includes handling successfully a significant States District Judge for the Middle District as part of the Department of Commerce in plaintiff’s personal injury case, avoiding the of North Carolina on July 12, 1972.5 September 1950, shortly after the com- death penalty by pleading temporary insani- Ward’s career on the bench tracked in mencement of the Korean War. It was tasked ty for a man charged with the brutal murder many respects his early adult life in the mili- with promoting production and supply of of his estranged wife and her lover, obtaining tary, his experiences in law school, and his materials necessary for recently commenced an acquittal based on self-defense where the time as a practicing attorney. Just as he saw defense mobilization. Nine months after deceased—after making threatening early action in World War II, within days of Ward moved to Washington, DC, Lake advances on the defendant and his wife— becoming a federal judge, Ward presided returned to North Carolina, joining the was shot and killed with a 22-caliber pistol over a confrontation that had been brewing North Carolina Attorney General’s Office. with only one of the five rounds entering the between Pilot Freight Carriers and the Ward returned as well, joining his father’s deceased body from the front. Ward repre- Teamsters Union for two years. The contro- close friend, Sim DeLapp, in forming sented Branch Bank & Trust Company versy had been previously addressed by an DeLapp & Ward in April 1952, a general before the North Carolina Banking arbitration panel and courts in two different practice law firm in Lexington, North Commission and the follow-up appeal to the states. Pilot obtained permission from the Carolina. Also, during 1951 and 1952, Ward Supreme Court in its efforts to open two Interstate Commerce Commission to con- was the Southern Representative for the branches in Davidson County, opposed by duct business in Florida, which expanded the Eisenhower for President Campaign, travel- Lexington State Bank, and in a very protract- freight carrier’s operations from Boston to ing throughout the South organizing sup- ed action removed a “cloud” from the title of Miami. The underlying legal question was port and speaking on behalf of General stock of six different companies, and whether the Teamsters had the right to repre- Dwight Eisenhower, who was elected the obtained a declaration that a complex con- sent the Pilot drivers in Florida in labor 34th President of the United States in tract between the companies was valid and negotiations, as the Teamsters did in North November of 1952. enforceable. Ward aided clients in establish- Carolina. The Teamsters submitted the ques- In addition to his active trial practice, ing new laws in North Carolina, including tion to a regional industry grievance com- Ward agreed to serve as interim judge of important laws establishing the power of the mittee, which sided with the Teamsters. Pilot Denton Recorder’s Court following the bankruptcy courts. contended that the contact did not apply, death of the judge. He also served three These civil and criminal cases were tried contending that only the national industry terms on the North Carolina State Board of with and against some of the finest lawyers in grievance committee had jurisdiction to hear Elections. Following reports of massive voter this area of the United States—real lions of the dispute. Thus, Pilot was of the view that fraud in Madison County, Ward, serving as the North Carolina Bar—including Claude the regional industry grievance committee chair, oversaw the election fraud investiga- Pierce, Hubert Humphrey, Bynum Hunter, was without authority to decide the issue, tion and proceedings in 1964. Later that year Ralph Stockton, McNeil Smith, Walter and its decision was without binding effect. he was appointed by United States District Brinkley, Don Walser, Grady Barnhill, As a result, Pilot refused to recognize the Judge Edward M. Stanley of the Middle Weston Hatfield, Roy Hall, Norwood Teamsters’ right to represent Florida drivers. District of North Carolina as chair of the Robinson, John Minor, Bill Davis, Sim With Pilot refusing to honor the award of

THE NORTH CAROLINA STATE BAR JOURNAL 23 the regional Industry Grievance Committee, than the Carolina Cougars of the American place not as any personal homage or honor the Teamsters organized a nationwide strike Basketball Association. So widely varied was to the judge, but out of respect for the system of Pilot’s operations. This resulted in organ- the early legal life of Hiram Ward, Federal and as an object reminder to everyone, ized Pilot drivers across the United States District Court judge. including the judge, that the controversies refusing to drive. The strike crippled Pilot’s In the following years, Ward presided then before the court are to be treated with operations, and Pilot was forced to lay off over cases alleging illegal and discriminatory respect and seriousness, and that equal justice thousands of workers. firing because of race and age by corpora- is to be dispensed to all. Those words—that Immediately after the Teamsters’ organ- tions and municipalities, and he upheld the the controversies then before the court are to ized the strike, Pilot commenced a lawsuit constitutionality of numerous North be treated with respect and seriousness and against the Teamsters in federal court in Carolina statutes, including a statute that that equal justice is to be dispensed to all— Tampa and moved for an injunction pro- prohibited collective bargaining by public were core beliefs of Ward. hibiting the Teamsters from continuing its employees and a statute that proscribed cer- Ward also tried a number of unusual strike. A federal judge in Tampa denied Pilot’s tain conduct at massage parlors. Although he bank-related white collar criminal cases. He request. Pilot commenced a somewhat nar- took his job seriously and was thought by tried several Burlington doctors charged with row legal action in Winston-Salem, North most lawyers who appeared before him to be misapplication of bank funds and whose Carolina Superior Court, and obtained a a stern taskmaster, there was a lighter side as conduct, as bank directors, led to the failure temporary restraining order prohibiting was evident in his opinion upholding of a Burlington bank. He also tried numer- Teamsters from striking in North Carolina. Durham’s massage parlor statute in which he ous cases related to malfeasance at the then The suit also sought in excess of $10,000,000 wrote, “This case represents a touchy situa- Northwestern Bank, which later merged into from the Teamsters and claimed that Pilot tion in which it will be impossible not to rub First Union, then into Wachovia, then into was losing $200,000 a day as a result of the one of the parties the wrong way.” Wells Fargo. The cases included misapplica- strike. As allowed by federal law, the He tried one of the first computer soft- tion of bank funds by the bank’s president, Teamsters removed the North Carolina state ware cases presented in North Carolina Edwin Duncan, and related cases where court action to the United States District which lasted for weeks and was significant in bank officials engaged in illegal electronic Court for the Middle District of North that few of the jurors knew what a computer eavesdropping of both the Federal Bureau of Carolina where the Teamsters sought to have was, much less owned one. Investigations and the Internal Revenue the injunction dissolved, allowing the North North Carolina led the nation in bank Service. After his unsuccessful appeal, Edwin Carolina strike to continue. Pilot moved to robberies during this time, primarily because Duncan paid Ward a high compliment. have the North Carolina injunction enforced North Carolina was one of the few states that I never really thought those convictions until trial. A hearing on the motion in this allowed branch banking. Rarely a criminal would be overturned, mainly because I complex matter was set before the recently session of court passed without at least one thought the judge who presided over my appointed Judge Ward, just 15 days after he robbery of some description on the docket. trials [Hiram Ward] did a damned good was sworn in as a federal judge. One of the most fascinating was the “jack in job of handling the cases. I never talked to Ward possessed no previous experience the box” case where the perpetrators con- him outside the courtroom, but he with the complex issues of union and labor spired to ship one of their accomplices from seemed like a good fellow, and it was law. Yet, after studying the legal memoranda Greensboro to Atlanta on an Eastern Airlines obvious to me he knew what he was of the parties and listening to witnesses and flight in a large box. The plan was the co- doing. (Greensboro Daily News, October arguments for two days, he handed down a conspirator would exit the box, steal millions 24, 1979.) decision described by commentators and of dollars of securities from a Wells Fargo Ward was not shy about righting wrongs. noted labor law scholars as completely cor- container, and return to the box with the In a class action commenced by Forsyth rect. Neither party appealed. The intense securities to be retrieved in Atlanta by his co- County Legal Aid, he determined that focus and accuracy of the decision surprised conspirators. Like almost every bank robber Forsyth Memorial Hospital had not met its no one who knew Ward and foreshadowed during this time, the perpetrators either pled legal obligations to provide indigent care as the pace by which Ward moved through the guilty or were convicted and found them- required by the Hill Burton Act. He ordered next 16 years as a United States District selves resident in a federal penitentiary. the hospital to advise patients that they may Court Judge. Immediately after issuing his In a case symbolic of the turbulent 1970s, qualify for free health care upon admission, ruling to a courtroom packed by the parties Lyle Snider, a Quaker tax protester, claimed to make prompt decisions with regard to and the press in the Pilot/Teamsters case, everyone in the world was his dependent on which patients will be treated free, and to Ward returned to the quiet of his chamber his federal tax return and refused to pay fed- adopt strict guidelines regulating the transfer and before the end of the day entered a final eral taxes based on his belief that the war in of patients out of the hospital. judgment in a case he inherited from Vietnam and Cambodia was illegal. To fur- The nature and quantity of the cases in the deceased Judge Stanley that restricted profes- ther his protection against the government, federal courts of North Carolina and how they sional basketball player and former Snider, along with his wife, declined to fol- were administered underwent dramatic University of North Carolina star Billy low the customary practice of standing at the changes during the time Ward served. When Cunningham, then playing for the beginning and end of a court session as the he first went on the bench, Ward was one of Philadelphia 76ers of the National Basketball judge enters or leaves the courtroom. Ward two judges to service six courthouses through- Association, from playing for any team other explained to them that the custom takes out the district. The judge and staff would

24 SUMMER 2014 travel to each of these courthouses twice a year for a weekly criminal and then a weekly civil session, in effect riding the circuit. Life was more leisurely and interaction with the bar more frequent, intimate, and casual. The cases were simpler—for example, “moonshine” (non-tax paid liquor), bank robbery, and con- tract disputes. The court functioned more like it had since its beginning. All that quickly changed during the 1970s and 1980s. Caseloads doubled every ten years during the time Ward sat on the bench. This necessitated abandoning the cir- cuit riding system to one where the litigants and attorneys came to the judge at one of three courthouses. The complexity of the cases also grew. After the passage of the Civil Rights Act in the late 1960s, Ward’s court became a leader in resolving hotly contested, emotionally packed, and complicated class action, racial discrimination cases. Other cluded a judge from becoming chief judge legal education, they find themselves leaders forms of discrimination cases soon filled the after his or her 65th birthday. Erwin was to in the legal profession, leaders of their firms, court’s docket, and then came complicated turn 65 on August 23, 1988. Faced with the judges, and among of the most successful environmental, intellectual property, and reality that Congress would not act in suffi- lawyers in the country. Twenty-three alumni more complex business lawsuits. Drug and cient time to confirm a replacement so as to of Wake Forest School of Law had the privi- gun cases dominated and overwhelmed the allow him to retire and Erwin to be appoint- lege of and received the benefits of serving as criminal docket. The life of a federal judge ed chief judge before his 65th birthday, Ward law clerks for Judge Ward. went from being more akin to a genial over- advised President Reagan of his decision and Wake Forest remains ever thankful for seer of disputes, to being more like a business elected to take senior status on August 19, Ward’s service and dedication. Wake Forest manager efficiently producing an almost infi- 1988. As desired by Ward, Erwin was then School of Law recognized him with the nite variety of written products. Every case appointed chief judge. Outstanding Alumni Service Award in 1980 could and often did require Ward, his col- Throughout his time on the bench, Ward and 1989, and in 1996 Wake Forest leagues, and their staffs to become “experts” remained ever dedicated to Wake Forest. He University honored him with an honorary in a different area of law. The pace was at served on the Board of Visitors of Wake Doctor of Laws degree. In 1994 he received times hectic and so very different from what Forest School of Law from 1973 until his the Liberty Bell Award, one of the highest Ward expected when he took the job. Yet he death. He strongly supported the appoint- awards of the North Carolina Bar did it and did it extremely well as the litigants ment of N. Carlton Tilley as his replacement Association. As it came from practicing and attorneys who appeared before him will on the federal bench, but perhaps most attorneys, he took great pride that his “harsh- attest. In order to unwind, Ward would important was his dedication to his law est critics” as he jokingly referred to the trial return to his beloved Denton home and clerks, almost all of whom were recent Wake bar, would bestow such an honor on him. cabin for a restorative in the peaceful land of Forest Law graduates. Federal judges hire On July 6, 1999, as a result of substantial his ancestors he called “God’s Country.” It recent law school graduates to assist them in behind the scenes work by a number of his being one of his two loves (aside from his their research and writing obligations. clerks, as well as lawyers with whom he had family and friends), the other was Wake Generally, the job lasts a year or two, then worked, and United States Congressman Forest. He would often hunt with his close the law clerk moves on in his or her career Howard Coble, the building in which he friend Fred Crumpler, and often fish with and is replaced by another recent law school worked from the late summer of 1976 was fellow Wake Forest graduates. graduate. Performing as he did in all matters renamed the “Hiram H. Ward Federal Ward planned to stay on the bench as in his life, Ward took his responsibilities seri- Building and US Courthouse.” Following chief judge until his replacement was con- ously, and he used this opportunity not just Ward’s death on April 4, 2002, his law clerks, firmed because he did not want his departure to ensure that his law clerks were prepared to family, and friends endowed a scholarship in to increase the workload of his fellow judges. be the best lawyers possible, but also as an his name to assist others to pursue their legal Because of delays in Washington, however, it opportunity to give back to the school he education at Wake Forest. became evident that doing so would prevent loved so dearly. Six students have benefited from the his friend and fellow judge Richard Erwin All of Ward’s law clerks are alumni of scholarship so far, and with additional from becoming the first African American Wake Forest Law School and now, years donors that number will grow. One of the chief district court judge in North Carolina later, in no small part due to his influence and the second in the South. Federal law pre- and guidance, and an excellent Wake Forest CONTINUED ON PAGE 37

THE NORTH CAROLINA STATE BAR JOURNAL 25 Book Review - Midnight Assassin: A Murder in America’s Heartland

B Y M ARGARET D ICKSON

hen I first picked up widespread belief that family troubles were no her husband. Midnight Assassin, by one else’s business, and burdened by gender Running through authors Bryan, a UNC stereotypes that forced her subservience to her the story of Margaret law professor, and Wolf, husband and men in general, Margaret and John Hossack is her writer husband, I Hossack was stuck. the story of Susan anticipatedW a sad but standard tale of domestic Margaret consistently maintained that her Glaspell, a young violence, and I dreaded a boring tale of turn- husband was fatally struck by an intruder as reporter who cov- of-the-20th-century Midwestern farm life. she slept by his side. She told of hearing some- ered the first trial I was wrong on both counts. one leave the house, and a neighbor recalled for the Des Moines Midnight Assassin is an account of the mur- seeing and hearing a horseman gallop away Daily News and der of John Hossack in rural Iowa in from the Hossack home. Margaret said she who never forgot Margaret’s haunt- December 1900. Hossack, a well-known and thought the family dog acted strangely, and ing story. Glaspell did not speculate about prosperous farmer, was bludgeoned to death in some theorized the animal might have been Margaret’s guilt or innocence, but she was his bed in the dark of night with his wife, drugged. Blood was seen on her nightclothes, clearly sympathetic to the plight of a rural Margaret, and several of their children in the but on the back side, a fact inconsistent with Midwestern farm wife whose fate hung on the home at the time. His wife of 32 years was having swung a tool that split her husband’s judgment of men much like her husband. charged and tried twice for his murder. A sen- head. And then there was the neighbor with Glaspell returned to her family home in sational occurrence, the story is told through whom John Hossack had quarreled. Davenport, Iowa, and began a career as a fic- newspaper accounts and firsthand reports Margaret Hossack was tried by an all male tion writer. She became an early feminist and from people who were in and around Warren jury in April following the murder, in a pro- wrote a bestseller about a woman artist’s path County, Iowa, when the crime was commit- ceeding whose published coverage included toward self-discovery, a journey that didn’t ted, and similar accounts of Margaret unflattering descriptions of her physical include marriage and motherhood. She later Hossack’s two murder trials. appearance and speculation about both her moved to New York City and Provincetown, Midnight Assassin is a true story that reads wifely behavior and her guilt. The courtroom Massachusetts, married, and continued her like a good whodunit. The authors bring the was packed with women who attended daily. writing. She wrote Trifles, a well-received play mysterious and compelling story to life with- Jurors deliberated overnight and found her about a woman accused of killing her hus- out forcing any point of view on the reader. guilty. She was sentenced to life imprisonment band. She later reworked Trifles into a short They allow the obvious but unanswered ques- and incarcerated in the women’s section of the story entitled “A Jury of Her Peers,” which has tions to remain just that. Iowa state penitentiary. been anthologized and is read by students It is also a snapshot of a time in American The tide of public opinion was swinging, today. She was awarded a Pulitzer in 1931. history far different than our own, but whose however, and the Hossack verdict was over- It has been said that we Americans love a assumptions about gender roles continue to turned by the Iowa Supreme Court. A subse- good murder story, and Midnight Assassin cer- echo through our 21st century culture. quent re-trial in 1903, at which Margaret tainly delivers. Across more than a century, it Margaret and John Hossack had a troubled Hossack was again surrounded by her children reflects back to us our ongoing fascination with marriage, according to neighbors to whom she and sympathetic women spectators, ended in a crime and with achieving justice, and the complained about her husband’s cruelty and hung jury. The Warren County Board of impacts of media and public opinion on the miserliness to their family. Their children sup- Supervisors declined to fund another trial, and entire process. It also reminds us that there are ported her view of their father. But in 1900, an Margaret Hossack lived out her life quietly. some things we will just never know. Iowa farm wife in such a marriage had few Speculation abounded that she had protected A good read, indeed. n places to turn for help. Isolated in a rural com- one of her children who actually committed munity with little daily contact with anyone the murder, but no one was ever charged. Margaret Dixon is a public member on the beyond her immediate family, hindered by the Margaret died in 1916 and is buried beside State Bar’s Council.

26 SUMMER 2014 THE DISCIPLINARY DEPARTMENT

Lawyers Receive Professional Discipline

merly of Havelock, was suspended by the imposing an interim suspension of the law Disbarments DHC for three years. The suspension was license of George Rexford (“Rex”) Gore of William Britt of Lumberton misappro- stayed for three years upon Gibbs’ compli- Shallotte. Gore, the former elected district priated entrusted funds totaling at least ance with certain conditions. During 2004 attorney, pled guilty in Brunswick County $175,000. He was disbarred by the and 2005, Gibbs neglected the cases of Superior Court to the misdemeanor of Disciplinary Hearing Commission. numerous clients, did not promptly comply Willful Failure to Discharge Duties. Kia Scott of Concord embezzled entrust- with orders of the bankruptcy court, and did ed funds, violated the rules for trust account not participate in the State Bar’s fee dispute Censures management, altered official court docu- program. The DHC concluded that Gibbs’ Robert Lee Scott of Greensboro was cen- ments, made false representations to the misconduct was substantially the result of a sured by the DHC. Scott did not timely court, and committed a criminal offense disability from which she has now recovered. obtain title insurance, did not timely pay the showing professional unfitness. She was dis- She was recently reinstated from disability title insurance premium, and did not ade- barred by the DHC. inactive status. quately communicate with his client about Mark Kevin Seifert, formerly of Cary, Michael Griffin of Shelby did not main- unpaid property taxes in a real estate closing. pled guilty to nine felony counts of second tain accurate client ledgers, did not provide degree sexual exploitation of a minor. He annual written accountings to clients, did Reprimands surrendered his law license and was disbarred not promptly disburse entrusted funds to Winston-Salem lawyer Shiloh A. Daum by the Wake County Superior Court. clients, did not identify the client against was reprimanded by the Grievance whose funds he drafted an item payable to Committee. Daum associated himself with Suspensions & Stayed Suspensions himself, did not reconcile his trust account, two out-of-state law firms. Both firms violat- Gregory Bullard of Lumberton did not and disbursed funds for the benefit of clients ed the Rules of Professional Conduct in perform monthly and quarterly trust who did not have funds in the trust account. advertising on their websites and in direct account reconciliations, did not comply with The DHC suspended Griffin for two years. mail. his Trust Account Compliance Program con- The suspension is stayed for three years upon The Wake County Superior Court repri- tract, and did not timely correct deficiencies compliance with numerous conditions. manded David Kirkbride of Raleigh for in his trust accounting practices. The DHC The DHC suspended former assistant making a false statement under oath to the suspended him for two years. The suspen- district attorney Elaine Kelley of Linden for court. sion is stayed for five years upon compliance four years. She and the elected district attor- John J. Peck of Wilmington was repri- with numerous conditions. ney who employed her agreed to increase her manded by the Grievance Committee. Peck Steven Cheuvront of Morganton forged compensation by submitting false travel engaged in a conflict of interest and did not the initials of a prosecutor on two dismissals claims to the Administrative Office of the consistently indicate on the face of items and filed the dismissals with the clerk. The Courts. Kelley received reimbursement for payable to him from his trust account the DHC suspended him for two years. After 63 mileage claims totaling over $14,000 for client balance from which the item was serving one year active suspension, mileage she did not incur. After serving two drawn. Cheuvront may petition for a stay of the bal- years active suspension, Kelly may apply for The Grievance Committee reprimanded ance upon showing compliance with numer- a stay of the balance upon showing compli- Jacksonville lawyer Stephanie Lynne ous conditions. The DHC found several ance with numerous conditions. Villaver. Villaver violated several Rules of mitigating factors. William Shilling of Franklin was convict- Professional Conduct governing lawyer The DHC suspended Allan De Laine of ed of child abuse and communicating advertising. Clayton for two years. De Laine forged a threats. Shilling also made false statements to Charlotte lawyer Melvin L. Wall Jr. was client’s name on a civil complaint, dismissed investigating officers and to the State Bar. reprimanded by the Grievance Committee. the action without the client’s knowledge or The DHC suspended him for two years. Wall served as a surety on a bond and co- authorization, and neglected the cases of two After serving one year active suspension, mingled his personal funds with entrusted clients, causing their claims to be time- Shilling may petition for a stay of the balance funds. barred. After serving one year active suspen- upon showing compliance with numerous sion, he may petition for a stay of the balance conditions. Transfers to Disability Inactive Status upon showing compliance with numerous The chair of the Grievance Committee conditions. Interim Suspensions Ronna Dawn Gibbs of Gibsonville, for- The DHC entered a consent order CONTINUED ON PAGE 31

THE NORTH CAROLINA STATE BAR JOURNAL 27 LAWYER ASSISTANCE PROGRAM

How I Almost Became Another Lawyer Who Killed Himself

B Y B RIAN C LARKE

The legal profession has a problem. substance abuse, which is another huge Lawyers are suffering and, far too often, problem) was due to a number of factors, they are taking their own lives. but that “the rampant, multidimensional Lawyers, as a group, are 3.6 times more stress of the profession is certainly a factor.” likely to suffer from depression than the Further, “there are also some personality average person. A John Hopkins study traits common among lawyers—self- found that of 104 occupations, lawyers reliance, ambition, perfectionism, and com- were the most likely to suffer depression. petitiveness—that aren't always consistent Further, according to a two-year study with healthy coping skills and the type of completed in 1997, suicide accounted for emotional elasticity necessary to endure the 10.8% of all deaths among lawyers in the unrelenting pressures and unexpected dis- United States and Canada, and was the appointments that a career in the law can third leading cause of death. Of more bring.” importance was the suicide rate among Patrick’s discussion of this issue really lawyers, which was 69.3 suicide deaths per struck a chord with me. Practicing law is 100,000 individuals, as compared to 10-14 hard. The law part is not that hard (that was your client’s case or problem, you often do. suicide deaths per 100,000 individuals in the fun part for me), but the business side When that happens, losing hurts. the general population. In short, the rate of of law is a bear. Finding clients, billing time, Letting your client down hurts. This pain death by suicide for lawyers was nearly six and collecting money are just a few aspects leads to reliving the case and thinking about times the suicide rate of the general popula- of the business of law of which I was not a all of the things you could have done better. tion. big fan. Keeping tasks and deadlines in This then leads to increased vigilance in the A quality of life survey by the North dozens (or hundreds) of cases straight, and next case. While this is not necessarily a bad Carolina Bar Association in the early 1990s getting everything done well and on time, is thing, for some lawyers this leads to a con- revealed that almost 26% of respondents a constant challenge. The fear of letting one stant fear of making mistakes, then a con- exhibited symptoms of clinical depression, of those balls drop can be terrifying, espe- stant spike of stress hormones that, eventu- and almost 12% said they contemplated cially for the Type A perfectionist who is ally, wear the lawyer down. This constant suicide at least once a month. Studies in always terrified of making a mistake or bombardment of stress hormones can trig- other states have found similar results. In doing a less than perfect job. Forget work- ger a change in brain chemistry that, over recent years, several states have been averag- life balance. Forget vacations. Every day out time, leads to major depression. ing one lawyer suicide a month. of the office is another day you are behind. Depression is a subtle and insidious dis- Before I tell my story, I want to spend a Plus, as a lawyer (and especially as a liti- ease. By the time you are sick enough to rec- little time talking about why these diseases gator), no matter how good a job you do, ognize that you have a problem, your ability are so prevalent among lawyers. sometimes you lose. That inevitable loss is to engage in accurate self-evaluation is sig- One of the more eloquent “whys” for the made worse by the emotion that the lawyer nificantly impaired. It is a strange thing to high incidence of depression among lawyers often takes on from his or her client. know, deep down, that something is wrong was contained in an opinion piece by Almost no client is excited to call her with you, but to not be able to recognize the Patrick Krill (a lawyer, clinician, and board- lawyer. Clients only call, of course, when massive changes in yourself. Helping your- certified counselor) that accompanied a they have problems. Those problems can self at that point is often impossible. CNN article on lawyer suicides. As Patrick range from the mild (for example, a traffic Unfortunately, those suffering from depres- put it, “lawyers are both the guardians of ticket) to the profound (like a capital mur- sion become expert actors, extremely adept your most precious liberties, and the butts der charge). But whatever the problem, the at hiding their problems and building a of your harshest jokes; inhabiting the client is counting on the lawyer to fix it. façade of normalcy. Eventually it takes all of unique role of both hero and villain in our Every lawyer I know takes that expectation your energy to maintain this façade. The cultural imagination…” Patrick explained and responsibility very seriously. As much façade becomes the only thing there is. that the high incidence of depression (and as you try not to get emotionally invested in Depression is not a character flaw. It is

28 SUMMER 2014 not a weakness. It is not a moral failing. You left for either my family or my clients. And to pay. cannot “just get over it.” No amount of the guiltier I felt. It was a brutal downward Had I not gotten help, I would not be will-power, determination, or intestinal for- spiral. Eventually it took every ounce of writing this article because I would likely titude will cure it. Depression is a disease energy I had to maintain the façade and go not be alive today. No amount of will power caused (in very basic and general terms) by through the motions of the day. The façade or determination could have helped me an imbalance and/or insufficiency of two was all there was. Suicide seemed rational. climb out of that hole. Only by treating my neurotransmitters in the brain: serotonin There were danger signs, of course, but disease with medication and therapy was I and norepinephrine. In this way, it is bio- neither I nor anyone around me recognized able to recover, control my illness, and get logically similar to diabetes, which is caused them for what they were. I burst into tears my life back. by the insufficiency of insulin in the body. during a meeting with my bosses. I started Now, I don’t write any of this to solicit As a disease, depression can be treated, and taking the long way to work in the morning sympathy or pity. I am doing fine. I have treated very effectively. But it takes time and and home in the evenings—often taking an five wonderful (if occasionally maddening) it takes help—personal help and profession- hour or more to make the five mile trip. children and an amazing wife. I have a job al help. Eventually—after months of this—my wife that I love and am truly good at. I have the And now we get to the personal part. asked me what was wrong and I responded, job that I was put on this earth to perform, Don’t say I didn’t warn you. “I just don’t know if I can do this anymore.” which makes me incredibly lucky. I have Though I likely had been depressed for a She asked what “this” was. I said, “You wonderful students who will be outstanding long while, I was diagnosed with severe know...life,” and started bawling. The lawyers. I have no complaints. clinical depression in late 2005. As another façade crumbled and I was utterly adrift. (I I write this because I know that when lawyer who helped me put it, suffering from don’t actually remember this conversation you are depressed you feel incredibly, pro- depression is like being in the bottom of a with my wife, but she does.) foundly alone. You feel that you are the only dark hole with—as you perceive it from the After getting over the initial shock of my person on earth who has felt the way you bottom—no way out. The joy is sucked emotional collapse, my wife forced me to go do. You feel like no one out there in the from everything. Quite often, you just want to the doctor and get help. She took the ini- world understands what you are dealing to end the suffering—not so much your tiative to find a doctor, make me an with. You feel like you will never feel “nor- own, but the perceived suffering of those appointment, and took me (which is good, mal” again. around you. because I was utterly incapable of doing any But you are not alone. You are not the You have frequent thoughts that every- of those things). She called my firm and only person to feel this way. There are lots one would be better off if you were not told them I needed FMLA leave. One of my of people who understand. I understand. I around anymore because, being in such colleagues put me in touch with the NC have been there. I got better. So can you. misery yourself, you clearly bring only mis- State Bar’s Lawyer Assistance Program So please, if you are suffering from ery to those around you. When you are in (LAP), which connected me with a LAP depression or anxiety (or both) get help. Tell the hole, suicide seems like the kindest volunteer who had suffered from severe your spouse. Tell your partner. Tell a col- think you can do for your family and depression and recovered. I found the peer league. Ask for help. Asking for help does friends, as ending your life would end their support of LAP to be a critical tool in my not make you weak. It takes profound pain and misery. road to recovery. With his help, treatment strength to ask for help. You can get better. While I do not remember all of the from my doctor, and the support and love You can get your life back. details of my descent into the hole, it was of my family, I got better and better. I start- Trust me when I say that life is so much certainly rooted in trying to do it all—per- ed taking medication and clawed my way to better once you get out of—and away fectly. After my second child was born, I the top of the hole. from—that dark hole. It is well worth the was trying to be all things to all people at all But, for more than a year I was sort of effort. n times. Superstar lawyer. Superstar citizen. clinging to the edge of the hole about to Superstar husband. Superstar father. Of plummet back down. So I changed doctors Brian Clarke is an assistant professor of course, this was impossible. The feeling that and medications and did a lot of talk thera- law at Charlotte School of Law. began to dominate my life was guilt. A con- py. Eventually, more than 18 months later, The North Carolina Lawyer Assistance stant, crushing guilt. Guilt that I was not in I was finally back to some semblance of my Program is a confidential program of assis- the office enough because I was spending “old self.” I was happy again (mostly). I was tance for all North Carolina lawyers, judges, too much time with my family. Guilt that I a good father again (mostly). I was a good and law students, which helps address prob- was letting my family down because I was husband again (mostly). I enjoyed being a lems of stress, depression, alcoholism, addic- spending too much time at work. Guilt that lawyer again (mostly). I enjoyed life again. tion, or other problems that may lead to I was letting my bosses down because I was There have been a couple of relapses, impairing a lawyer’s ability to practice. If you not being the perfect lawyer to which they where the hole tried to reclaim me. would like more information, go to nclap.org had become accustomed. Guilt. Guilt. However, I never fell all the way back down. or call: Cathy Killian (for Charlotte and areas Guilt. I will happily take medication for the rest of west) at 704-910-2310, Towanda Garner (in The deeper I sunk into the hole, the my life. And I will regularly see a therapist the Piedmont area) at 919-719-9290, or more energy I put into maintaining my for the rest of my life. I will be forever vigi- Robynn Moraites (for Raleigh and down east) façade of super-ness, and the less energy was lant regarding my mental state. Small prices at 704-892-5699.

THE NORTH CAROLINA STATE BAR JOURNAL 29 LEGAL ETHICS

I’m Telling Mom! Reporting Professional Misconduct

B Y S UZANNE L EVER

The mandatory reporting requirement set the quantum of evidence of which the State Bar. However, if the lawyer knows out in Rule 8.3 is an important way that the lawyer is aware. A report should be made that Prosecutor routinely abuses the dis- legal profession enforces the Rules of to the North Carolina State Bar unless cretionary power to schedule criminal Professional Conduct. However, the nuances some other agency or court is more cases or, after being advised that this con- of the reporting requirement frequently per- appropriate in the circumstances. Similar duct is a violation of the Rules, Prosecutor plex new, as well as seasoned, lawyers. considerations apply to the reporting of continues the conduct, the lawyer should Rule 8.3(a) provides: judicial misconduct. report the matter to the State Bar or other A lawyer who knows that another lawyer For example, in most instances, failure to appropriate authority. has committed a violation of the Rules of follow the technical requirements of the A similar conclusion was reached in 2011 Professional Conduct that raises a sub- advertising rules would not raise a “substan- FEO 4, which deals with exclusive reciprocal stantial question as to that lawyer's hon- tial question” about honesty, trustworthiness, referral agreements. The opinion provides esty, trustworthiness, or fitness as a lawyer or fitness. Similarly, a conflict of interest or an that a lawyer who discovers that another in other respects, shall inform the North inadvertent contact with a represented person lawyer is participating in what appears to be Carolina State Bar or the court having would generally not rise to this level. If a an improper referral arrangement should first jurisdiction over the matter. lawyer found possible incompetent represen- communicate his concerns to the other tation upon reviewing a prior lawyer’s file, the lawyer and recommend that the lawyer con- “I think Billy read my diary.” lawyer would likely not be required to report tact the State Bar for an ethics opinion as to Rule 8.3 requires the lawyer’s actual that conduct unless it was serious or serial his continuing participation. The opinion knowledge of a violation of the Rules—not malpractice, thus raising a substantial ques- goes on to state that if, after this communica- speculation or conjecture. The terminology tion about fitness to practice law. Matters tion, the lawyer has knowledge that the other section of the Rules of Professional Conduct, involving a lawyer’s trust account should lawyer has continued his participation in an Rule 1.0, states that “knowingly,” “known,” always be reported. improper referral arrangement, the lawyer and “knows” denote “actual knowledge of the The “substantial question” requirement is must report the other lawyer to the Bar. fact in question,” but also provides that “a discussed in RPC 243 (1997). In RPC 243, a person’s knowledge may be inferred from the prosecutor threatens to use the statutory cal- “You can’t tell mom. You pinky circumstances.” endaring power of the District Attorney's swore!” Office to delay a defendant’s trial if the defen- The duty of confidentiality, as set forth in “Billy is picking his nose!” dant will not accept a plea bargain. The opin- Rule 1.6, limits a lawyer’s duty to report the Only a violation that raises a substantial ion concludes the prosecutor’s threat to use misconduct of another lawyer. See Rule question about specific traits of the lawyer— the criminal trial scheduling process to coerce 8.3(c). If a client’s interests would be harmed honesty, trustworthiness, or fitness—must be a plea agreement from a criminal defendant is by reporting to the State Bar (or a court with reported. Comment [4] to Rule 8.3 provides: prejudicial to the administration of justice in jurisdiction), or the client instructs the lawyer If a lawyer were obliged to report every violation of Rule 8.4. not to report, the lawyer may not report violation of the Rules, the failure to report As to whether a lawyer who overhears the unless one of the exceptions to the duty set any violation would itself be a profession- threat has a duty to report the prosecutor to forth in Rule 1.6(b) applies. Comment [3] to al offense. Such a requirement existed in the Bar, the opinion provides: Rule 8.3 provides that “a lawyer should many jurisdictions but proved to be Prosecutor's conduct may be an isolated encourage a client to consent to disclosure unenforceable. This Rule limits the incident resulting from a momentary where prosecution would not substantially reporting obligation to those offenses that lapse in judgment. If so, such conduct prejudice the client's interests.” a self-regulating profession must vigor- does not raise a "substantial" question as ously endeavor to prevent. A measure of to Prosecutor's fitness as a lawyer. The “I didn’t think I needed to tell mom. I judgment is, therefore, required in com- lawyer who overhears the conversation told dad.” plying with the provisions of this Rule. may want to counsel Prosecutor with Reporting the matter to the court having The term "substantial" refers to the seri- regard to his conduct, but the lawyer is jurisdiction over the matter satisfies the ousness of the possible offense and not not required to report the conduct to the reporting requirements of Rule 8.3.

30 SUMMER 2014 Comment [2] to the rule provides: State Bar administrative rules on discipline ing. Although other professions also have Although the North Carolina State Bar is and disability (27 N.C.A.C. 1B), requires a been granted powers of self-government, always an appropriate place to report a lawyer licensed in North Carolina who has the legal profession is unique in this respect violation of the Rules of Professional been disciplined in any state or federal court because of the close relationship between Conduct, the courts of North Carolina for a violation of the Rules of Professional the profession and the processes of govern- have concurrent jurisdiction over the con- Conduct in effect in such state or federal ment and law enforcement... The legal duct of the lawyers who appear before court, or who has been transferred to disabil- profession's relative autonomy carries with them. Therefore, a lawyer's duty to report ity inactive status or its equivalent by any state it a responsibility to assure that its regula- may be satisfied by reporting to the pre- or federal court, to make a written report of tions are conceived in the public interest siding judge the misconduct of any the action to the North Carolina State Bar and not in furtherance of parochial or self- lawyer who is representing a client before within 30 days. Failure to make the report interested concerns of the bar. Every lawyer the court. may subject the lawyer to professional disci- is responsible for observance of the Rules Reporting misconduct based on a lawyer’s pline. Rule 8.3(d) of the Rules of Professional of Professional Conduct. A lawyer should impairment to the Lawyer Assistance Conduct. also aid in securing their observance by Program (LAP) of the North Carolina State Notwithstanding the absence of a other lawyers. Bar does not satisfy the reporting requirements requirement in Rule 8.3 to self report poten- Preamble to the Rules of Professional of Rule 8.3. The report of misconduct should tial professional misconduct to the State Bar, Conduct, Rule 0.1, paras. [14], [16]. be made to the Grievance Committee of the it may be in the lawyer’s best interest to self- Lawyers have been entrusted with these State Bar if the lawyer’s impairment results in report conduct that involves dishonesty, responsibilities because they are in the best a violation of the Rules of Professional fraud, deceit, or misrepresentation because it position to observe misconduct by fellow Conduct that is sufficient to trigger the may be considered a mitigating factor in the lawyers, and to assist the legal profession in reporting requirement. See 2003 FEO 2. event a grievance file is opened, and disci- investigating and sanctioning misconduct. However, as stated in 2003 FEO 2, pline may be imposed. While self-reporting “Neglect of these responsibilities compro- reporting to the Bar as required under Rule will not eliminate the possibility of disci- mises the independence of the profession 8.3 “does not diminish the appropriateness of pline, it may affect the level of discipline. and the public interest which it serves.” also making a confidential report to LAP. The Before a lawyer decides to self-report, the Preamble, para. [16]. Therefore, so long as bar's disciplinary program and LAP often lawyer should consider whether to seek the report is not frivolous, or made simply to deal with the same lawyer and are not mutu- advice from counsel and/or the lawyer’s pro- harass another lawyer, a lawyer should not ally exclusive. The discipline program fessional liability carrier. hesitate to make any report that, while not addresses conduct; LAP addresses the under- required under Rule 8.3, the lawyer reason- lying illness that may have caused the con- “I used my lunch money to buy ably believes is necessary for the protection of duct. Both programs, in the long run, protect Pokemon cards.” the public or the profession. n the public interest.” It is important to note that there is a sepa- Discussing an issue with ethics counsel rate reporting duty (as well as a different Suzanne Lever is assistant ethics counsel for does not satisfy the reporting requirement. reporting standard) when it comes to safe- the North Carolina State Bar. keeping property. Rule 1.15-2(o) states that “I’ll give you my left over Easter candy “[a] lawyer who discovers or reasonably if you don’t tell mom.” believes that entrusted property has been mis- A lawyer may not participate in the settle- appropriated or misapplied shall promptly Disciplinary Actions (cont.) ment of a dispute conditioned on an agree- inform the North Carolina State Bar.” It is ment not to report lawyer misconduct or an prudent to remember that the reporting transferred Stephen L. Snyder of Spruce agreement to withdraw a previously filed requirement in Rule 1.15-2 is different from Pine, James M. Gaither Jr. of Hickory, Mark grievance. See RPC 84 (1990). Similarly, a that set out in Rule 8.3 and applies to a Waple of Fayetteville, and Reid G. Brown of threat to file disciplinary charges is unethical lawyer’s own conduct as well as the conduct of Waynesville to disability inactive status. in circumstances where a lawyer would be other lawyers or nonlawyers. Contacting the required to file such charges by Rule 8.3. Such trust account compliance counsel Peter Bolac Reinstatements a threat would also be improper if the discipli- regarding such trust account issues will satisfy The DHC reinstated R. Dawn Gibbs, nary charges are frivolous. See Rule 3.1. the reporting requirement of Rule 1.15-2. formerly of Havelock and now of Burlington, from disability inactive status. “If I just glue this vase back together, “Nobody likes a tattletale.” Douglas T. Simons of Durham surren- mom will never know.” While lawyers may feel icky “snitching” dered his law license and was disbarred by Maybe not. With the limited exception set on their colleagues, sometimes it is necessary. the State Bar Council in 2005. Simons out in Rule 8.3(d), there is no duty under The reason for the reporting obligation set admitted that he misappropriated at least Rule 8.3 to self-report. This seems to be the out in Rule 8.3 is summarized in the $300,000. In February 2014 the DHC rec- most common misconception about Rule Preamble to the Rules of Professional ommended denial of his petition for rein- 8.3. However, Rule .0116, Reciprocal Conduct: statement. Simons has not indicated whether Discipline & Disability Proceedings, of the The legal profession is largely self-govern- he will appeal to the council. n

THE NORTH CAROLINA STATE BAR JOURNAL 31 LEGAL SPECIALIZATION

Profiles in Specialization—Pamela Silverman

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

I recently had an opportunity to talk with Pamela Silverman, a board certified specialist in estate planning and probate law practicing in Mecklenburg and Union Counties. Pam attended Brown University, earning her undergraduate degree in psychology, and subsequently received her law degree from Duke University. Following graduation she spent several years practicing tax law at Kennedy Covington. Taking two extended sabbaticals to accommodate raising her chil- dren, Pam returned to full-time practice about ten years ago and began to focus on estates and trusts. She opened her own firm and, as soon as she met the criteria in 2011, applied to be board certified. She also offers legal services in equine law to area horse farm owners and fellow equestrian competitors. A competitive rider herself, Pam has attained © WNC Photography United States Dressage Federation Silver Medal status. Following are some of her comments about the specialization program planning attorneys typically work independ- I receive most of my referrals from other and the impact it has had on her career. ently, it was initially a bit intimidating to lawyers—those who are board certified and Q; Why did you pursue certification? generate a list of references. It turned out to those who aren’t. I also have financial advi- There were a number of reasons, but be a good opportunity to reach out to my sors, trust officers, and accountants who refer mainly because of my varied background and peers. I was greeted positively and encour- potential clients my way. my unconventional career path, I felt that aged. I appreciated the experience of getting Q: How does certification benefit your certification was a very important credential pushed out of my comfort zone. The exam clients? for me to validate my work experience and preparation was also tremendously valuable. The certification gives my clients the knowledge. I feel like I should do it on a regular basis. In assurance that I have the expertise to handle Q: How did you prepare for the exam? my daily practice I don’t address all of the their cases. It seems that in a large firm, I knew that the exam was daunting and estate planning issues every month. I think expertise is assumed, whereas in a small firm that I would have to prepare. I purchased the it’s easy to get rusty. Dedicating my time to a or solo practice, clients don’t necessarily have video replay of the Estate Planning Survey thorough review of estate planning law was that same confidence and expectation of Course from the NC Bar Association, as the the most valuable thing I’ve done for my quality. Having the additional credential of live course wasn’t offered that year. I did a lot practice in the last five years. certification helps clients and potential of reading and self study. I identified areas Q: How has certification been helpful to clients to really understand my level of dedi- that I knew were not my strengths and your practice? cation to this practice area and the breadth of focused a great deal of my study attention on I think becoming board certified has been knowledge that I have to offer. those. I also contacted one of the mentors on most helpful in raising my self-confidence. Q: Are there any hot topics in your specialty the list that the State Bar provided and found Being able to achieve this goal was extremely area right now? her to be tremendously helpful in guiding validating for me. I find that marketing and Recent changes to the laws have had a my study plan. networking are much more important in a large impact on middle market clients, typi- Q: Was the certification process valuable to solo practice than a large firm. Having this cally those with estates around one to nine you in any way? extra credential is very valuable among the million or even ten million dollars in value. Yes, the process was very valuable— legal community. exceedingly valuable, in fact. Because estate Q: What are your best referral sources? CONTINUED ON PAGE 33

32 SUMMER 2014 IOLTA UPDATE

Income Outlook Remains Bleak for Near Future

Income in 2016. (The current prediction is for 1% at funds from reserve because of a large cy pres All IOLTA income earned in 2013 has the end of 2015 and 2.25% a year later.) If award received in 2012. We were also able to now been received and recorded. past history holds true, however, it will take add funds to our reserve, bringing it to just Unfortunately, we must report that the awhile after the change in the Fed rate for under $1 million. The reserve funds and the income from IOLTA accounts continues to rates on IOLTA accounts to increase. In the additional income from cy pres awards decrease as many banks are recertifying their meantime, we are continuing to work with received in 2013 allowed the trustees to keep comparability rates at lower levels. Income the NC Equal Access to Justice Commission grants steady at $2.3 million again for 2014, from IOLTA accounts declined by 9% and (EAJC) to educate lawyers and judges about though we will have to take $215,000 from was under $2 million ($1,767,728) for the cy pres awards for the benefit of civil legal reserve to meet that figure. The reserve now second year. Our total income, however, was services, and have updated the commission’s holds just over $740,000. $2.4 million due to two cy pres awards dur- manual, Cy Pres and Other Court Awards, ing 2013 totaling over $650,000. which is located on our website. State Funds In March the Federal Reserve shifted its In addition to its own funds, NC IOLTA “forward guidance” on how long it plans to Grants administers the state funding for legal aid on keep short-term interest rates at zero. The Beginning with 2010 grants we have lim- behalf of the NC State Bar. Total state fund- Fed said it will now consider a "wide range" ited our grant-making to a core group of ing distributed for 2012-13 was $3.5 mil- of factors instead of relying mainly on the (mainly) legal aid providers. Even with that lion, decreased from over $5 million in unemployment rate. It wants investors to restriction and using over $2.5 million in 2010-11 due to reductions to both the know it will keep rates low for some time reserve funds, grants have dramatically appropriated funds and the filing fee alloca- with no plans to quickly raise them. Most decreased (by over 40%). For 2013 we were tions. The Equal Access to Justice Fed officials don't expect the first rate hike able to keep grants steady at the 2012 level of Commission and the NCBA continue to until 2015, with rates rising somewhat faster $2.3 million without using any additional work to sustain and improve this funding. n

Specialization Profile ence there. I am active in both the Union lic to enable them to reach out and find the County Chamber of Commerce and the level of competence they are seeking in a (cont.) Women in Business group. I appreciate lawyer. In estate and trust work, it can be being a part of this community and being very difficult for clients to evaluate the work Many estate planning clients fall into that able to offer a valuable and needed service completed by a lawyer or even to understand range, and it’s important for those who set up to my neighbors. the language used. Selecting a board certified trust and estate plans several years ago to seek Q: How did equine law become a part of attorney gives clients a greater comfort level updated counsel and determine if adjust- your practice? and sense of trust. ments are necessary. Those services developed out of my own Q: What would you say to encourage other Q: Is certification important in your region? hobby about 15 years ago. Through my own lawyers to pursue certification? In the Mecklenburg and Union County personal experience as a competitive dressage I think that board certification for lawyers areas where I live and practice, being able rider, I became knowledgeable about pur- will continue to increase in importance. We to offer the services of a board certified spe- chasing, leasing, and selling horses. Others in live in a very complex world, and most cialist in estate planning law is very impor- the industry began to seek my advice and lawyers are moving in the direction of offer- tant. Many clients and potential clients counsel for their equine facility operations ing more specialized services. Lawyers should have substantial wealth that is tied up in and other transactional issues like horse pur- always strive to improve their existing level of land ownership and, therefore, not liquid. I chase and financing agreements, boarding practice. It is important to challenge yourself, have lived in Union County for many years agreements, and sponsorship arrangements push yourself out of your comfort zone, and on my own horse farm, so I understand the between professional trainers and investors. not be complacent. Board certification is a issues other residents face on both a profes- It makes up a small portion of my practice, worthy credential to obtain. n sional and a personal level. To my knowl- approximately 10-15%, but it’s a portion edge, I am the only board certified special- that I enjoy very much! For more information on the State Bar’s spe- ist in estate planning law in Union County, Q: Does certification benefit the public? cialization program, please us on the web at and I work hard to keep an elevated pres- Certification provides a filter for the pub- nclawspecialists.gov.

THE NORTH CAROLINA STATE BAR JOURNAL 33 TRUST ACCOUNTING

Top Tips on Trust Accounting: DOs and DON’Ts of Accepting Credit Cards

B Y P ETER B OLAC

DO read the relevant ethics opinions on ately to the general trust account. This will may not participate in such an agreement credit cards before you decide to accept protect the funds of other clients from unless the trust account is specifically credit cards for advanced fees and costs. chargeback debits (see 97 FEO 9). exempted from the grant of a security inter- RPC 247, Payment of Fees by Electronic DON’T share credit card equipment est. For example, this would prohibit a Transfer (1997); 97 FEO 9, Credit Card with another firm if sharing will result in the lawyer from using the service Square unless Chargebacks Against a Trust Account (1998); temporary commingling of both firms’ the company is willing to alter its merchant 2009 FEO 4, Credit Card Account that funds. agreement, which requires the lawyer to Avoids Commingling (2009). DO consider using a payment processor grant “a security interest in, as well as a right DON’T just ask your friends what they that is tailored for the legal community. of setoff against, and hereby assign, convey, use and do the same. There is a chance they There are many processors that cater to deliver, pledge, and transfer to us, as security are doing it wrong and are in violation of lawyers by agreeing to separate unearned for repayment of any obligations due under the rules. fees (deposited into trust account) and this Agreement, all of your right, title, and DO know the rules on passing the costs earned fees (deposited into operating interest in and to all of your accounts with associated with credit cards on to your clients account), and protect trust funds from any us.” (squareup.com/legal/ua) (allowed by our ethics opinions with full debits by charging swipe fees and charge- DO your homework. Having the ability advance disclosure, but may be in violation backs to the operating account. The costs to accept credit card payments from clients of merchant agreements or consumer protec- of these accounts are competitive with can be a great tool for a law practice, but tion laws). Further, lawyers must ensure that other providers, and these companies are make sure that you are aware of the rules swipe fees or discount charges assessed knowledgeable about the specific require- and risks associated with this process. against the trust account are 1) properly ments in Rule 1.15. While the State Bar If you have any questions relating to accounted for, and 2) not paid with client cannot vouch for any particular company, credit cards or any other trust accounting funds unless the funds were specifically col- the North Carolina Bar Association recom- issue, please contact Peter Bolac at (919) lected for that purpose. mends LawPay as their preferred credit 450-7860 or [email protected]. Follow DON’T deposit unearned fees and card processor for lawyers (lawpay.com). Peter on Twitter @TrustAccountNC for advanced costs into your operating account. DON’T use PayPal to collect entrusted alerts on trust account scams. n Entrusted funds should NEVER, under any funds. RPC 247 says that advanced fees circumstances, touch a lawyer’s operating and expenses must be deposited “directly” Peter Bolac is the State Bar’s district bar account until they are earned by the lawyer. into a trust account. When a lawyer accepts liaison and trust account compliance counsel. When in doubt or when limited by circum- credit card payments through PayPal, the stances such as a bank’s inability to distin- money is deposited into a PayPal account Random Audits guish between earned and unearned charges, and the lawyer must transfer the money Districts randomly selected for audit in funds should be deposited into the trust from the PayPal account into the trust the 2nd quarter are District 10 (Wake account and earned fees should be promptly account. Since the PayPal account is not a County) and District 13 (Bladen, removed to the lawyer’s operating account. trust account, this process is not permitted. Brunswick, and Columbus Counties). DO know the rules relating to protecting Lawyers are permitted, however, to use your trust account from chargebacks. A PayPal to accept earned fees that will be lawyer must attempt to negotiate an agree- deposited into your operating account. ment with his or her bank that requires the DO know that the proper way to refund Thank You to Our bank to debit chargebacks against an unearned fees paid by electronic transfer is account other than the trust account. If the by a trust account check (RPC 247). Meeting Sponsor bank will not agree to debit another DON’T participate in a merchant account, the lawyer must establish a trust agreement that grants the bank a security account for the sole purpose of receiving interest in the trust account. Rule 1.15- Thank you to Lawyers Mutual for advance payments by credit card and trans- 1(g) prohibits the use or pledge of funds in sponsoring the Councilor Picnic. fer all payments from this account immedi- a trust account to obtain credit. A lawyer

34 SUMMER 2014 RULE AMENDMENTS

Amendments Approved by the Supreme Court

On March 6, 2014, and April 10, 2014, Procedures for Administrative Committee Plan of Legal Specialization; Section .1800 the North Carolina Supreme Court In 2013 the General Assembly elimi- Hearing and Appeal Rules of the Board of approved the following amendments to the nated the judicial surcharge, which the Legal Specialization rules of the North Carolina State Bar (for State Bar had previously been obligated to The amendments add trademark law to the complete text see the Fall 2013 and collect from its members for distribution the official list of recognized specialties Winter 2013 editions of the Journal or visit to the State Board of Elections. In conse- and allow denial of a regrading petition by the State Bar website): quence, it was necessary to delete all refer- the chair of the Board of Legal ences to the surcharge from the State Bar’s Specialization upon a finding that insuffi- Amendments to the Rules on Classes rules on inactive status and administrative cient points are at issue to justify regrading of Membership suspension. the examination. 27 N.C.A.C. 1A, Section .0200, Membership - Annual Membership Fees Amendments to the Rules and Amendments to the Rules for The amendments allow an inactive Regulations Governing the CLE Registration of Interstate and member of the State Bar to be designated as Program International Law Firms “retired” in the State Bar membership 27 N.C.A.C. 1D, Section .1500, Rules 27 N.C.A.C. 1E, .0200, Registration of records and to hold himself or herself out Governing the Administration of the Interstate and International Law Firms as a “Retired Member of the State Bar.” Continuing Education Program; Section The amendments require any law firm .1600, Regulations Governing the filing a certificate of authority to transact Amendments to the Rules for Administration of the Continuing business in North Carolina with the secre- Judicial District Bars Education Program tary of state to register with the State Bar as 27 N.C.A.C. 1A, Section .0900, The amendments to the CLE rules and an interstate or international law firm. Organization of the Judicial District Bars regulations accomplish the following: The amendments exempt members who change the name of the professionalism Amendments to the Rules for the are on active military duty or newly admit- requirement for new lawyers to Paralegal Certification Program ted to the Bar from the obligation to pay a “Professionalism for New Admittees 27 N.C.A.C. 1G, Section .0100, The judicial district bar annual membership fee. Program” (PNA Program); specify that the Plan for Certification of Paralegals; Section The proposed amendments also require PNA Program may be presented by live .0200 Rules Governing Continuing judicial district bars that assess mandatory webcast or by video replay if one hour of Paralegal Education membership fees for the first time after every six hours of programming is live; The amendments to the Plan for 2013 to adopt a fiscal year of July 1- June revise the accredited sponsor rule to reflect Certification of Paralegals clarify the cur- 30. accurately the process that is used to rent duties of the Paralegal Certification approve programs presented by accredited Committee; allow certified paralegal mem- Amendments to the Model Bylaws for sponsors; permit the accreditation of a bers of the board to be reappointed by the Judicial District Bars product-specific technology course if there council at the end of their terms without 27 N.C.A.C. 1A, Section .1000, Model is a nexus to the practice of law and certain nomination by vote of all certified parale- Bylaws for Use by Judicial District Bars other conditions are met; increase the gals; permit denial of certification because The amendments reflect 2013 changes to number of CLE credits that may be taken of misconduct based on dishonesty, fraud, NC Gen. Stat. §7A-142, the statute that online each year from 4 to 6; correct a deceit, or misrepresentation; and expand allows members of a judicial district bar to typographical error that implies that more the standards for qualified paralegal studies participate in the selection of nominees to be than 6 hours of computer-based CLE may programs to include institutional members considered by the governor when filling a be carried over to the next calendar year; of national accrediting agencies recognized vacant district court judgeship in the district. and clarify that webcasting is a live simulta- by the United States Department of neous broadcast that is not subject to the Education. The amendments to the rules Amendments to Delete References to restrictions on video replay presentations. on continuing paralegal education (CPE) the “Judicial Surcharge” from the allow stress management courses to be Rules Governing the Procedures for Amendments to The Plan of Legal approved for CPE. the Administrative Committee Specialization 27 N.C.A.C. 1D, Section .0900, 27 N.C.A.C. 1D, Section .1700, The

THE NORTH CAROLINA STATE BAR JOURNAL 35 Amendments Pending Approval of the Supreme Court

At its meeting on April 25, 2014, the Proposed Amendments to the Rules of 7.3 to the Court should be deferred until after council of the North Carolina State Bar Professional Conduct the publication of the amendments to the NC voted to adopt the following rule amend- 27 NCAC 2, The Rules of Professional Rules proposed by the Study Committee on ments for transmission to the North Conduct Ethics 20/20, which include unrelated pro- Carolina Supreme Court for approval (for In 2009 the American Bar Association posed amendments to Rule 1.17 and Rule the complete text see the Spring 2014 edi- (ABA) appointed the ABA Ethics 20/20 7.3. All pending proposed amendments to the tion of the Journal or visit the State Bar web- Commission to review the ABA Model Rules NC Rules will be combined and submitted to site): of Professional Conduct and the US system of the Supreme Court at one time. lawyer regulation in the context of advances in Proposed amendments to the following Proposed Amendments to the technology and global legal practice. In North Carolina Rules of Professional Procedures for Reinstatement from response to the recommendations of the ABA Conduct will be submitted to the Supreme Inactive Status and Administrative Ethics 20/20 Commission, the ABA amended Court (proposed amendments to the title of a Suspension some of the ABA Model Rules of Professional rule are noted): 27 N.C.A.C. 1D, Section .0900, Conduct to address issues of technology, out- Rule 1.0, Terminology Procedures for Administrative Committee sourcing, and lawyer mobility. In March 2013 Rule 1.1, Competence The proposed amendments eliminate a special committee of State Bar councilors Rule 1.4, Communication the three different CLE requirements for was appointed to study the ABA’s actions and Rule 1.6, Confidentiality of Information reinstatement from inactive status and to make recommendations to the State Bar Rule 1.17, Sale of a Law Practice administrative suspension in favor of one Council on whether the North Carolina Rules Rule 1.18, Duties to Prospective Client standard that applies to all petitioners for of Professional Conduct (the NC Rules) Rule 4.4, Respect for Rights of Third Persons reinstatement without regard to when the should be similarly amended. At the conclu- Rule 5.3, Responsibilities Regarding petitioner was transferred to inactive or sus- sion of its review, the Study Committee on Nonlawyer Assistants Assistance pended status; make March 10, 2011, the (ABA) Ethics 20/20 recommended amend- Rule 5.5, Unauthorized Practice of Law; effective date for the requirement of passage ments to 13 of the NC Rules. The proposed Multijurisdictional Practice of Law of the bar exam if a petitioner was adminis- amendments were approved for publication at Rule 7.1, Communications Concerning a tratively suspended for seven years or more; the council’s January 2014 meeting and were Lawyer’s Services and permit a member to take up to 6.0 published in the Spring 2014 edition of the Rule 7.2, Advertising CLE credits per year online to satisfy the Journal together with an executive summary. Rule 7.3, Direct Contact with Potential requirements for reinstatement from inac- The executive summary and proposed rule Solicitation of Clients tive status and administrative suspension. amendments can be viewed on the State Bar Rule 8.3, Disciplinary Authority; Choice of website at the following address: Law Proposed Amendments to the ncbar.gov/PDFs/Ethics_20-20.pdf. Certification Standards for the At its meeting on October 25, 2013, the Proposed Amendments to the Rules Criminal Law Specialty council voted to adopt amendments to Rule Governing Admission to the Practice of 27 NCAC 1D, Section .2500, 1.17 and Rule 7.3 of the Rules of Professional Law in the State of North Carolina Certification Standards for the Criminal Conduct for transmission to the North Section .0100, Organization Law Specialty Carolina Supreme Court for approval (for the Proposed amendments to Rules The proposed amendment reduces the complete text see the Fall 2013 edition of the Governing Admission to the Practice of Law number of opposing counsel and judges that Journal or visit the State Bar website). change the street and mailing address listed must be listed as peer references on an appli- However, at its meeting on January 24, 2014, for the offices of the Board of Law Examiners cation for certification in criminal law. the council determined that submission of the to reflect the board’s recent move to a new proposed amendments to Rule 1.17 and Rule location.

Proposed Amendments

At its meeting on April 25, 2014, the Proposed Amendment to the Rules Continuing Legal Education Program council voted to publish the following pro- Governing the Administration of the The proposed amendment will require a posed rule amendments for comment from CLE Program lawyer to be a nonresident for at least six the members of the bar: 27 N.C.A.C. 1D, Section .1500, Rules consecutive months in a given year to qual- Governing the Administration of the ify for the nonresident exemption from

36 SUMMER 2014 Law Specialty vide the names of ten lawyers or judges who The proposed amendments clarify that are familiar with the competence and quali- The Process CLE courses on topics related to immigra- fication of the applicant in the specialty Proposed amendments to the Rules tion law may be used to satisfy the CLE field….All references must be licensed and in of the North Carolina State Bar are pub- requirements for certification and recertifica- good standing to practice in North Carolina. lished for comment in the Journal. They tion, and require four peer references to be At least two four of the completed peer ref- are considered for adoption by the coun- from lawyers or judges who have substantial erence forms received by the board must be cil at the succeeding quarterly meeting. experience in immigration law. from lawyers or judges who have substantial If adopted, they are submitted to the practice or judicial experience in immigra- North Carolina Supreme Court for .2605 Standards for Certification as a tion law…. approval. Amendments become effective Specialist in Immigration Law (e) ... upon approval by the Court. Unless Each applicant for certification as a spe- otherwise noted, proposed additions to cialist in immigration law shall meet the .2606 Standards for Continued rules are printed in bold and under- minimum standards set forth in Rule .1720 Certification as a Specialist lined; deletions are interlined. of this subchapter. In addition, each appli- The period of certification is five years... cant shall meet the following standards for [E]ach applicant for continued certification certification in immigration law: as a specialist shall comply with the specific (a) Licensure and Practice ... requirements set forth below in addition to mandatory CLE. (b) ... any general standards required by the board (c) Continuing Legal Education - An of all applicants for continued certification. .1517 Exemptions applicant must earn no less than 48 hours of (a) Substantial Involvement ... (a) Notification of Board. accredited continuing legal education (CLE) (b) Continuing Legal Education - The ... credits in topics relating to immigration law specialist must have earned no less than 60 (d) Nonresidents. Any active member during the four years preceding application. hours of accredited continuing legal educa- residing outside of North Carolina who does At least 20 of the 48 CLE credit hours must tion credits in topics relating to immigration not practice in North Carolina for at least six be earned during the first and second year law as accredited by the board. At least 30 of (6) consecutive months and does not repre- preceding application and at least 20 of the the 60 CLE credit hours must be earned dur- sent North Carolina clients on matters gov- CLE hours must be earned during the third ing the first three years after certification or erned by North Carolina law shall be exempt and fourth years preceding application. Of recertification, as applicable. Of the 60 from the requirements of these rules. the 48 hours, at least 42 must be in immigra- hours, at least 52 must be in immigration (e) Law Teachers. tion law; the balance may be in the related law; the balance may be in the related areas ... areas of federal administrative procedure, of federal administrative procedure, trial trial advocacy, evidence, taxation, family law, advocacy, evidence, taxation, family law, Proposed Amendments to Certification employment law, and criminal law and pro- employment law, and criminal law and pro- Standards for the Immigration Law cedure. cedure. Specialty (d) Peer Review - An applicant must (c) Peer Review ... n 27 NCAC 1D, Section .2600, make a satisfactory showing of qualification Certification Standards for the Immigration through peer review. An applicant must pro-

Judge Ward (cont.) who provided access to Judge’s Ward’s handwrit- first production B-25 was delivered to a United States ten notes, a scrapbook she maintained about Army Air Corp unit in February 1941. Judge Ward’s career, and conversations and 3. At the time, Wake Forest had an accelerated program for scholarship recipients themselves can best comments from numerous clerks. Daniel Taylor returning war veterans. Ward spent two academic years and two summers in the college, and then three years in convey the importance of Hiram Ward’s is a senior partner in the Winston-Salem office the law school. He obtained both degrees in five years. legacy and the scholarship that honors it: of Kilpatrick Townsend & Stockton. 4. Ward, a lifelong Republican, was introduced at his con- Hiram Ward’s life reflected the Wake firmation hearing before North Carolina’s very highly Forest “Pro Humanitate” motto, and he Endnotes regarded Democratic United States Senator Sam Ervin. would surely be proud that his legacy lives on 1. Japan and Germany declared war on the United States 5. North Carolina has three judicial districts, and the through the students helped by the scholar- on December 7, 1941, “a day that will live in infamy” Middle District includes a 28-county area stretching from Virginia to South Carolina, and from Durham to n and United States responded by declaring war on Japan ship in his name. on December 8, 1941, and on Germany on December Wilkesboro. The main office of the Middle District is 11, 1941. in Greensboro, but Ward took up residency in the This article was researched and written by 2. The B-25 was a twin engine medium bomber and one then-Post Office building on 5th Street in Winston- Daniel R. Taylor Jr., one of Judge Ward’s early of America’s most famous airplanes of World War II. Salem. Winston-Salem was the leading business city in The first test flight was on August 19, 1940, and the North Carolina at the time and home of the most pub- law clerks, with the assistance of Evelyn Ward, licly traded companies in North Carolina.

THE NORTH CAROLINA STATE BAR JOURNAL 37 PROPOSED OPINIONS

Committee Proposes Opinion on Advising Clients about Social Media

Council Actions due to age. In addition, lawyers suffer from mental impairment does not lessen a lawyer’s At its meeting on April 25, 2014, the depression and substance abuse at approxi- obligation to provide clients with competent State Bar Council adopted the ethics opin- mately twice the rate of the general popula- representation.” Under Rule 1.16(a)(2), a ions summarized below: tion.1 This opinion examines the obligations lawyer is prohibited from representing a 2014 Formal Ethics Opinion 2 of lawyers in a firm who learn that another client and, where representation has com- Dual Representation of Trustee and firm lawyer suffers from a mental condition menced, required to withdraw if “the Secured Creditor in Contested Foreclosure that impairs the lawyer’s ability to practice lawyer's physical or mental condition mate- Opinion rules that a lawyer may not rep- law or has resulted in a violation of a Rule of rially impairs the lawyer's ability to represent resent both the trustee and the secured cred- Professional Conduct. This opinion relies the client.” Unfortunately, an impaired itor in a contested foreclosure proceeding. upon ABA Commission on Ethics and lawyer may not be aware or may deny that 2014 Formal Ethics Opinion 3 Professional Responsibility, Formal Opinion his impairment is negatively impacting his Pro Bono Legal Services Provided by 03-429 (2003) [hereinafter ABA Formal Op. ability to represent clients. ABA Formal Op. Government and Public Sector Lawyers 03-429] for its approach to the issues raised 03-429. Opinion encourages government lawyers by the mental impairment of a lawyer in a Rule 5.1(a) requires partners in a firm and to engage in pro bono representation unless firm. For further guidance, readers are all lawyers with comparable managerial prohibited by law from doing so. encouraged to refer to the ABA opinion. authority in the firm to “make reasonable efforts to ensure that the firm or the organi- Ethics Committee Actions Inquiry #1: zation has in effect measures giving reason- At its meeting on April 24, 2014, the Attorney X has been practicing law suc- able assurance that all lawyers in the firm or Ethics Committee voted to send the follow- cessfully for over 40 years and is a prominent the organization conform to the Rules of ing proposed opinions to subcommittees for lawyer in his community. In recent years, his Professional Conduct.” Similarly, Rule further or continued study: Proposed 2013 ability to remember has diminished and he 5.1(b) requires a lawyer having direct super- FEO 14, Representation of Parties to a has become confused on occasion. The other visory authority over another lawyer to Commercial Real Estate Loan Closing, and lawyers in his firm are concerned that he may “make reasonable efforts to ensure that the Proposed 2014 FEO 1, Protecting be suffering from the early stages of other lawyer conforms to the Rules of Confidential Client Information When Alzheimer’s disease or dementia. Professional Conduct.” Taken together, these Mentoring. The Ethics Committee also voted What are the professional responsibilities2 provisions require a managerial or superviso- to publish revised versions of two proposed of the other lawyers in the firm?3 ry lawyer who suspects or knows that a opinions and three new proposed opinions. lawyer is impaired to closely supervise5 the The comments of readers on the proposed Opinion #1: conduct of the impaired lawyer because of opinions are welcomed. The partners4 in the firm must make rea- the risk that the impairment will result in sonable efforts to ensure that Attorney X violations of the Rules. Proposed 2013 Formal Ethics does not violate the Rules of Professional When deciding what should be done in Opinion 8 Conduct. response to a lawyer’s apparent mental Responding to the Mental Impairment Mental impairment may lead to inability impairment, it may be helpful to partners of Firm Lawyer to competently represent a client as required and supervising lawyers to consult a mental April 24, 2014 by Rule 1.1, inability to complete tasks in a health professional for advice about identify- Proposed opinion analyzes the responsibili- diligent manner as required by Rule 1.3, and ing mental impairment and assistance for the ties of the partners and supervisory lawyers in a inability to communicate with clients about impaired lawyer. Id. As observed in ABA firm when another firm lawyer has a mental their representation as required by Rule 1.4. Formal Op. 03-429, impairment. Although a consequence of the lawyer’s [t]he firm’s paramount obligation is to impairment, these are violations of the Rules take steps to protect the interest of its Introduction: of Professional Conduct nonetheless. As clients. The first step may be to confront As the lawyers from the “Baby Boomer” noted in ABA Formal Op. 03-429, the impaired lawyer with the facts of his generation advance in years, there will be “[i]mpaired lawyers have the same obliga- impairment and insist upon steps to more instances of lawyers who suffer from tions under the [Rules of Professional assure that clients are represented appro- mental impairment or diminished capacity Conduct] as other lawyers. Simply stated, priately notwithstanding the lawyer’s

38 SUMMER 2014 impairment. Other steps include forceful- ongoing supervision for Attorney X or to ly urging the impaired lawyer to accept change the circumstances or type of work assistance to prevent future violations or that he performs to avoid additional viola- Public Information limiting the ability of the impaired lawyer tions of his professional duties. The other to handle legal matters or deal with lawyers in the firm must also take steps to The Ethics Committee’s meetings are clients. mitigate the adverse consequences of public, and materials submitted for con- Id. If the lawyer’s mental impairment can be Attorney X’s past conduct including replac- sideration are generally NOT held in accommodated by changing the lawyer’s ing client funds. confidence. Persons submitting requests work environment or the type of work that Rule 8.3(a) requires a lawyer "who knows for advice are cautioned that inquiries the lawyer performs, such steps also should that another lawyer has committed a viola- should not disclose client confidences or be taken.6 “Depending on the nature, sever- tion of the Rules of Professional Conduct sensitive information that is not neces- ity, and permanence (or likelihood of period- that raises a substantial question as to that sary to the resolution of the ethical ques- ic recurrence) of the lawyer’s impairment, lawyer's honesty, trustworthiness, or fitness tions presented. management of the firm has an obligation to as a lawyer in other respects [to] inform the supervise the legal services performed by the North Carolina State Bar or the court having lawyer and, in an appropriate case, prevent jurisdiction over the matter." Only miscon- the lawyer from rendering legal services to duct that raises a “substantial question” as to clients of the firm.” Id. Making a confiden- the lawyer’s honesty, trustworthiness, or fit- Citation tial report to the State Bar’s Lawyer ness must be reported. As noted in the Assistance Program (LAP) (or to another Comment, To foster consistency in citation to lawyers assistance program approved by the [t]his Rule limits the reporting obligation the North Carolina Rules of Professional State Bar7) would also be an appropriate to those offenses that a self-regulating Conduct and the formal ethics opinions step. The LAP can provide the impaired profession must vigorously endeavor to adopted by the North Carolina State Bar lawyer with confidential advice, referrals, and prevent. A measure of judgment is, there- Council, the following formats are rec- other assistance. fore, required in complying with the pro- ommended: visions of this Rule. The term "substan- · To cite a North Carolina Rule of Inquiry #2: tial" refers to the seriousness of the possi- Professional Conduct: NC Rules of Attorney X’s mental capacity continues to ble offense and not the quantum of evi- Prof’l Conduct Rule 1.1 (2003) diminish. Apparently as a consequence of dence of which the lawyer is aware. · To cite a North Carolina formal mental impairment, Attorney X failed to Rule 8.3, cmt. [4]. ethics opinion: NC State Bar Formal deliver client funds to the office manager for If an impaired lawyer’s misconduct is iso- Op. 1 (2011) deposit in the trust account. It is believed lated and unlikely to recur because the men- Note that the current, informal that he converted the funds to his own use. tal impairment has ended or is controlled by method of citation used within the for- In addition, Attorney X failed to complete medication or treatment, no report of mal ethics opinions themselves and in discovery for a number of clients although he incompetent or delinquent representation this Journal article will continue for a declined assistance from the other lawyers in may be required. See RPC 243 (an “isolated transitional period. the firm. Some clients may face court sanc- incident resulting from a momentary lapse of tions as a consequence. Although Attorney X judgment” does not raise a substantial ques- is engaging and articulate when he meets tion about honesty, trustworthiness, or fit- and the client does not consent to disclosure. with clients, he no longer seems able to pre- ness). “Similarly, if the firm is able to elimi- See Rule 8.3(c). pare for litigation and, on more than one nate the risk of future violations of the duties Rule 1.4(b) requires a lawyer to “explain a occasion, Attorney X’s presentation in court of competence and diligence under the matter to the extent reasonably necessary to was muddled, meandering, and confused. [Rules] through close supervision of the permit the client to make informed decisions What are the professional responsibilities lawyer’s work, it would not be required to regarding the representation.” If the manag- of the other lawyers in the firm? report the impaired lawyer’s violation.” ABA ing lawyers determine that the impaired Formal Op. 03-429. lawyer cannot provide competent and dili- Opinion #2: However, reporting is required if the mis- gent representation and should be removed Attorney X has violated Rule 1.15 by fail- conduct is serious, such as the violation of from a client’s case, the situation must be ing to place entrusted funds in the firm trust the trust accounting rules described in this explained to the client so that the client can account. He has also violated Rule 1.1 and inquiry, or the lawyer insists upon continu- decide whether to agree to be represented by Rule 1.3 by providing incompetent represen- ing to practice although his mental impair- another lawyer in the firm or to seek other tation and by failing to act with reasonable ment has rendered him unable to represent legal counsel. promptness in completing discovery. These clients as required by the Rules of Rule 5.1(c) requires a partner or a lawyer are violations of the Rules of Professional Professional Conduct.8 In either situation, a with comparable managerial authority or Conduct that may have to be reported to the report of misconduct may not be made if it with supervisory authority over another State Bar or to the court. In addition, steps would require the disclosure of confidential lawyer to take reasonable remedial action to may have to be taken to provide additional client information in violation of Rule 1.6, avoid the consequences of the lawyer’s viola-

THE NORTH CAROLINA STATE BAR JOURNAL 39 made to the Grievance Committee of the necessary for those clients to make an State Bar if a lawyer's impairment results informed decision about the selection of Rules, Procedure, in a violation of the Rules that is sufficient counsel.” ABA Formal Op. 03-429.9 There to trigger the reporting requirement. The is no comparable duty to former clients of Comments lawyer must be held professionally the impaired lawyer as long as the firm avoids accountable. See, e.g., Rule .0130(e) of any action that might be interpreted as an All opinions of the Ethics the Rules on Discipline and Disability of endorsement of the services of the departed, Committee are predicated upon the Attorneys, 27 N.C.A.C. 1B, Section impaired lawyer, including sending a joint Rules of Professional Conduct as revised .0100 (information regarding a member's letter regarding the lawyer’s departure from effective March 1, 2003, and thereafter alleged drug use will be referred to LAP; the firm. amended, and referred to herein as the information regarding the member's The remaining lawyers in the firm may Rules of Professional Conduct (2003). alleged additional misconduct will be conclude that, while under their supervision The proposed opinions are issued pur- reported to the chair of the Grievance and support, the impaired lawyer did not suant to the “Procedures for Ruling on Committee). violate the Rules and, therefore, there is no Questions of Legal Ethics.” 27 Making a report to the State Bar, as duty to report to the State Bar under Rule N.C.A.C. ID, Sect .0100. Any interest- required under Rule 8.3(a), does not 8.3. Nevertheless, subject to the duty of con- ed person or group may submit a writ- diminish the appropriateness of also mak- fidentiality to clients under Rule 1.6, volun- ten comment or request to be heard ing a confidential report to LAP. The tarily reporting the impaired lawyer to LAP concerning a proposed opinion. Any Bar's disciplinary program and LAP often (or another lawyer assistance program comment or request should be directed deal with the same lawyer and are not approved by the State Bar) would be appro- to the Ethics Committee at PO Box mutually exclusive. The discipline pro- priate. The impaired lawyer will receive assis- 25908, Raleigh, NC 27611, by June 30, gram addresses conduct; LAP addresses tance and support from LAP and this may 2014. the underlying illness that may have help to prevent harm to the interests of the caused the conduct. Both programs, in impaired lawyer’s clients. the long run, protect the public interest. Inquiry #5: Inquiry #4: Associate lawyers and staff members are Captions and Attorney X announces his intent to leave often the first to observe behavior indicating Headnotes the firm to set up his own solo practice and that a lawyer has a mental impairment. If an to take all of his client files with him. The associate lawyer or a staff member reports A caption and a short description of other lawyers in the firm are concerned that, behavior by Attorney X that indicates that each of the proposed opinions precedes absent any supervision or assistance, Attorney X is impaired and may be unable to the statement of the inquiry. The cap- Attorney X will be unable to competently represent clients competently and diligently, tions and descriptions are provided as represent clients because of his mental what is a partner’s or supervising lawyer’s research aids and are not official state- impairment. duty upon receiving such a report? ments of the Ethics Committee or the What are the duties of the remaining council. lawyers in the firm if Attorney X leaves and Opinion #5: sets up his own practice? If a partner or supervising lawyer receives a report of impairment from an associate tion of the Rules. Even if the impaired lawyer Opinion #4: lawyer or a staff member, regardless of is removed from a representation, the firm In addition to any duty to report, the whether the lawyer suspected of impairment lawyers must make every effort to mitigate remaining lawyers may have a duty to any is a senior partner or an associate, the partner any adverse consequences of the impaired current client of Attorney X to ensure that or supervising lawyer must investigate and, if lawyer’s prior representation of the client. the client has sufficient information to make it appears that the report is meritorious, take an informed decision about continuing to be appropriate measures to ensure that the Inquiry #3: represented by Attorney X. impaired lawyer’s conduct conforms to the If the firm partners determine that As noted in Opinion #2, Rule 1.4(b) Rules of Professional Conduct. See Opinion Attorney X has violated the Rules and there is requires a lawyer to “explain a matter to the #1 and Rule 5.1(a). It is never appropriate to a duty to report under Rule 8.3, may they ful- extent reasonably necessary to permit the protect the impaired lawyer by refusing to act fill the duty by reporting Attorney X to the client to make informed decisions regarding upon or ignoring a report of impairment or State Bar’s Lawyer Assistance Program (LAP)? the representation.” The clients of an by attempting to cover up the lawyer’s impaired lawyer who leaves a firm must impairment. Opinion #3: decide whether to follow the departed lawyer No. 2003 Formal Ethics Opinion 2 to his new law practice. To make an Inquiry #6: addressed this issue in the context of report- informed decision, the clients must be If an associate lawyer in the firm observes ing opposing counsel as follows: informed of “the facts surrounding the with- behavior by Attorney X that indicates that The report of misconduct should be drawal to the extent disclosure is reasonably Attorney X is not competent to represent

40 SUMMER 2014 clients, what should the associate lawyer do? Bar who provide informal ethics advice. See employer’s legal responsibilities to an impaired lawyer. Opinion #7. Regardless of whether Attorney Lawyers are advised to consult the ADA and the Equal Employment Opportunity Commission’s website, Opinion #6: X’s conduct triggers the duty to report, the eeoc.gov, for guidance. The associate lawyer must report his or associate lawyer may seek advice and assis- 3. “Firm” as used in the Rules of Professional Conduct her observations to a supervising lawyer or tance from the LAP or from another and this opinion denotes “a lawyer or lawyers in a law the senior management of the firm as neces- approved lawyer assistance program, or may partnership, professional corporation, sole proprietor- sary to bring the situation to the attention of contact a trusted, more experienced lawyer in ship, or other association authorized to practice law; or lawyers employed in a legal services organization or the lawyers in the firm who can take action. another firm to serve as a mentor or advisor legal department of a corporation, government entity, on how to address the situation. or other organization.” Rule 1.0(d). Inquiry #7: 4. “Partner” as used in the Rules of Professional Conduct An associate lawyer in the firm reports to Inquiry #9: and this opinion denotes “a member of a partnership, a shareholder in a law firm organized as a professional his supervising lawyer that he suspects that Assume Attorney X is a sole practitioner corporation, or a member of an association authorized Attorney X is mentally impaired. He also and the lawyers in his community observe to practice law.” Rule 1.0(h). describes to the supervising lawyer conduct behavior that may indicate that he is in the 5. It is improper for a firm to charge a client for additional by Attorney X that violated Rules 1.1 and early stages of Alzheimer’s disease or demen- supervision for an impaired lawyer if the supervision 1.3. The supervising lawyer tells the associate tia. What is the responsibility of the lawyers exceeds what is normally required to ensure competent representation unless the client is advised of the reason to ignore the situation and to not say any- in the community? for the additional supervision and agrees to the charges. thing to anyone about his observations See Rule 1.5(a). including clients, other lawyers in the firm, Opinion #9: 6. ABA Formal Op. 03-429 provides the following exam- or staff members. The associate concludes The Rules of Professional Conduct ples of accommodation: that no action will be taken to investigate or impose no specific duty on other members of A lawyer who, because of his mental impairment, is address Attorney X’s behavior. Does the asso- the bar to take action relative to a potentially unable to perform tasks under strict deadlines or other pressures, might be able to function in compliance with ciate lawyer have any further obligation? impaired fellow lawyer except the duty to the [Rules] if he can work in an unpressured environ- report to the State Bar if the other lawyer’s ment. In addition, the type of work involved, as Opinion #7: conduct raises a substantial question about opposed to the circumstances under which the work A subordinate lawyer is bound by the his honesty, trustworthiness, or fitness to occurs, might need to be examined when considering the effect that an impairment might have on a lawyer’s Rules of Professional Conduct notwithstand- practice law and the information about the performance. For example, an impairment may make ing that the subordinate lawyer acts at the lawyer is not confidential client information. it impossible for a lawyer to handle a jury trial or hostile direction of another lawyer in the firm. Rule See Opinion #7. Nevertheless, as a matter of takeover competently, but not interfere at all with his 5.2(a). If the associate lawyer believes that professional responsibility, attendant to the performing legal research or drafting transaction docu- ments. the duty to report professional misconduct duties to seek to improve the legal profession 7. One such program is the Transitioning Lawyers under Rule 8.3 may be triggered by the con- and to protect the interests of the public that Commission (or “TLC”) of the North Carolina Bar duct of Attorney X, the associate lawyer are articulated in the Preamble to the Rules Association, which considers issues of aging and cogni- should discuss this concern with his supervis- of Professional Conduct, the lawyers in the tive impairment and helps lawyers to wind down their ing lawyer. If the supervising lawyer declines community are encouraged to assist the law practices to “retire gracefully.” See more at: tlc.ncbar.org. to address the situation, the associate lawyer potentially impaired lawyer to find treatment 8. ABA Formal Op. 03-429 cautions that when reporting should seek guidance as to his professional or to transition from the practice of law. A an impaired lawyer pursuant to Rule 8.3, disclosure of responsibilities from the lawyers at the State mental health professional, the LAP, or the impairment may be necessary; however, the report- Bar who provide informal ethics advice. another lawyer assistance program can be ing lawyer should be careful to avoid violating the consulted for advice and assistance. ADA. Inquiry #8: 9. ABA Formal Op. 03-429 counsels that, when provid- Inquiry #10: ing a client with information about the departed Assume that Attorney X is the sole prin- lawyer, a firm lawyer “must be careful to limit any state- cipal in the firm and there is one associate Do the responses to any of the inquiries ment to ones for which there is a reasonable factual lawyer. Attorney X displays behavior that above change if the lawyer’s impairment is foundation.” This will avoid violating the prohibition may indicate that he is in the early stages of due to some other reason such as substance on false and misleading communications in Rule 7.1 and the prohibition on deceit and misrepresentation in Alzheimer’s disease or dementia. There is no abuse or mental illness? Rule 8.4(c). senior management to whom the associate lawyer can report. What should the associate Opinion #10: Proposed 2013 Formal Ethics lawyer do? No. Opinion 12 Disclosure of Settlement Terms to Opinion #8: Endnotes Former Lawyer Asserting a Claim for If the associate lawyer believes that the 1. ABA Comm. on Ethics and Prof’l Responsibility, Fee Division duty to report professional misconduct Formal Op. 03-429 (2003) (citing George Edward April 24, 2014 Bailly, Impairment, the Profession, and Your Law Partner, under Rule 8.3 may be triggered by the con- 11 No.1 Prof. Law. 2 (1999)) [hereinafter ABA Formal Proposed opinion rules that, in a worker’s duct of Attorney X, the associate lawyer Op. 03-429]. compensation case, when a client terminates should seek guidance as to his professional 2. This opinion does not address the issues that may arise representation, the subsequently hired lawyer responsibilities from the lawyers at the State under the Americans with Disabilities Act of 1990, 42 may disclose the settlement terms to the former US C. §§12101 et seq. (2003) (the ADA) relative to an

THE NORTH CAROLINA STATE BAR JOURNAL 41 lawyer to resolve a pre-litigation claim for fee quantum meruit against the client or against mation in judicial and administrative pro- division pursuant to an applicable exception to the subsequent lawyer. Guess v. Parrott, 160 ceedings. Pursuant to 45 C.F.R. the duty of confidentiality. NC App. 325, 585 S.E.2d 464 (2003). §164.512(e), covered entities may disclose Rather than wait for Lawyer A to file suit, protected health information in a judicial or Facts: however, the better practice is to attempt to administrative proceeding if the request for Client hired Lawyer A to represent Client resolve a dispute before litigation. To this the information is in response to an order in a workers’ compensation matter. A year end, at the beginning of the representation, from a court or administrative tribunal. Such later, Client discharged Lawyer A and subse- Lawyer B should counsel Client about the information may also be disclosed in quently hired Lawyer B. Lawyer A filed a law pertaining to Lawyer A’s claim for a legal response to a subpoena or other lawful motion to withdraw as counsel while reserv- fee based on quantum meruit. Lawyer B also process if certain assurances regarding notice ing her right to a legal fee. Lawyer B settled should explain to Client that Rule 1.6(b)(6) to the individual or a protective order are Client’s workers’ compensation case and the permits a lawyer to disclose confidential provided. Specifically, a covered entity may Industrial Commission entered an order client information, without the client’s con- disclose protected health information if the approving the settlement and the legal fee to sent, “to respond to allegations in any pro- covered entity receives satisfactory assurance be paid from the proceeds of the settlement. ceeding concerning the lawyer's representa- from the party seeking the information that Lawyer A asked Lawyer B for a copy of the tion of the client,” and that the exception to reasonable efforts have been made by such Industrial Commission’s order. Client the rule, as noted in the comment, “does not party to ensure that the individual who is the instructed Lawyer B to keep the settlement require the lawyer to await the commence- subject of the requested protected health information confidential. Lawyer B therefore ment of an action or proceeding…” Rule information was given notice of the request, refused to provide Lawyer A with a copy of 1.6, cmt [11]. Therefore, Lawyer B may dis- or the covered entity received satisfactory the Industrial Commission’s order, and also close the details of the settlement to resolve assurance from the party seeking the infor- refused to disclose the settlement amount. Lawyer A’s claim for a share of the fee. Only mation that reasonable efforts were made by However, Lawyer B asked Lawyer A to sub- that information relevant to the valuation of such party to secure a qualified protective mit an accounting of Lawyer A’s hours in the Lawyer A’s legal services may be disclosed. order. 45 C.F.R. §164.512(e)(1)(ii)(2013). case and Lawyer A’s hourly rate. Lawyer A However, 45 C.F.R. §164.512(e)(1)(vi) refused to provide an accounting of her time Proposed 2014 Formal Ethics allows a covered entity to disclose protected without more information about the settle- Opinion 4 health information in response to a subpoena ment. Lawyer A insists that she needs to Serving Subpoenas on Health Care without receiving satisfactory assurance from know the settlement amount to determine Providers Covered by HIPAA the requesting party if the covered entity the amount of the fee that is to be divided April 24, 2014 itself makes reasonable efforts to provide between the two lawyers. Lawyer A further Proposed opinion rules that a lawyer may notice to the individual or to seek a qualified asserts that before she can determine the send a subpoena for medical records to an entity protective order. amount of her fee, she must know which covered by HIPAA without providing the assur- injury claims are subject to the settlement. ances necessary for the entity to comply with the Inquiry #1: subpoena as set out in 45 C.F.R. May a lawyer send a subpoena to an enti- Inquiry: §164.512(e)(ii). ty covered by HIPAA and demand compli- May Lawyer B share the settlement ance without providing the assurances set details with Lawyer A? Introduction: out in 45 C.F.R. §164.512(e)(ii)? The Health Insurance Portability and Opinion: Accountability Act of 1996 (HIPAA) Opinion #1: Yes. Keeping a client’s information confi- required the US Department of Health and Yes, assuming the subpoena complies dential is paramount among the duties a Human Services (USDHHS) to establish a with the Rules of Civil Procedure. lawyer owes to the client. Unless Client con- set of national standards for the protection of As a matter of professional courtesy, if the sents to the disclosure of information about the certain health information including identi- lawyer does not provide the necessary assur- settlement, or one of the exceptions set out in fiable medical records of individual patients. ances set out in the Privacy Rule, the lawyer Rule 1.6(b) applies, Lawyer B may not reveal Pursuant to this mandate, the USDHHS may include a letter with the subpoena alert- the details of the settlement to Lawyer A. issued Standards for Privacy of Individually ing the entity that certain health information A client has the right to discharge his Identifiable Health Information (the Privacy may be subject to state and/or federal privacy lawyer at any time. Where a lawyer with a Rule), which established national standards laws and informing the entity that it may contingency fee contract is terminated before for the protection of protected health infor- delay compliance with the subpoena for a the matter is concluded, the discharged mation. The Privacy Rule applies to any reasonable amount of time to comply with lawyer has a claim for quantum meruit recov- health care provider who transmits health any applicable privacy laws. See Rule ery from the proceeds of the matter. information in electronic form in connection 1.2(a)(2) (lawyer does not violate rules by Covington v. Rhodes, 38 NC App. 61, 247 with certain specified transactions.1 treating others with courtesy). In addition to S.E.2d 305 (1978), disc. rev. denied, 296 NC At issue in this inquiry is 45 C.F.R. being a matter of professional courtesy, it 410, 251 S.E.2d 468 (1979). Furthermore, §164.512(e) of the Privacy Rule, which per- may be in the client’s best interest to seek the discharged lawyer may file his claim for tains to disclosure of protected health infor- compliance with federal and state privacy

42 SUMMER 2014 laws to avoid subsequent objections to the ably be litigated although a law suit has not If removing postings does not constitute disclosure of the produced materials that been filed. The client’s postings and other spoliation and is not otherwise illegal or a may cause delay, additional expense, or pro- information on a social media website violation of a court order, the lawyer may hibit the use of the produced materials. (referred to collectively as “postings”) could instruct the client to remove existing post- be used to impeach the client or are other- ings on social media. If the lawyer advises Inquiry #2: wise relevant to the issues in the law suit. the client to take down postings on social Would the response to Inquiry #1 be dif- media, where there is a potential that ferent if the health care provider receiving the Inquiry #1: destruction of the postings would constitute subpoena is also a client of the lawyer’s firm Prior to filing a law suit, may the lawyer spoliation, the lawyer must also advise the in an unrelated matter? give the client advice about the legal implica- client to preserve the postings by printing tions of postings on social media websites the material, or saving the material to a Opinion #2: and coach the client on what should and memory stick, compact disc, DVD, or other Assuming that the client seeking the should not be shared on social media? May technology, including web-based technolo- medical records and the provider/client have the lawyer give the same advice after a law gy, used to save documents, audio, and the same interest in seeing that the medical suit is filed? video. The lawyer may also take possession records are produced in accordance with of the material for purposes of preserving applicable law, the lawyer serving the sub- Opinion #1: the same. Advice should be given before and poena may, with the informed consent con- Yes. Lawyers must provide competent after the law suit is filed. firmed in writing of both clients, provide and diligent representation to clients. Rule advice to the provider/client relative to the 1.1 and Rule 1.3. To the extent relevant and Inquiry #3: requirements of the various privacy rules and material to a client’s legal matter, competent May the lawyer instruct the client to may give the provider/client a reasonable representation includes knowledge of social change the security and privacy settings on amount of time to comply. media and an understanding of how it will social media pages to the highest level of If the lawyer provides advice to the impact the client’s case including the client’s restricted access? May the lawyer give the provider/client relative to the subpoena and a credibility. If a client’s postings on social same advice after a law suit is filed? conflict arises pertaining to the subpoena media might impact the client’s legal matter, (i.e., provider/client desires to quash the sub- the lawyer must advise the client of the legal Opinion #3: poena or, upon the provider/client’s failure to ramifications of existing postings, future Yes, if such advice is not a violation of law respond to the subpoena, the client seeking postings, and third party comments. Advice or a court order. Advice should be given the medical records is required to file a should be given before and after the law suit before and after the law suit is filed. motion to compel or a motion for sanc- is filed. tions), the lawyer may not represent either Endnote the client seeking the records or the Inquiry #2: 1. Black’s Law Dictionary defines spoliation as the inten- provider/client relative to the enforcement of May the lawyer instruct the client to tional concealment, destruction, alteration, or mutila- tion of evidence, usually documents, thereby making the subpoena, unless both clients give their remove existing postings on social media? them unusable or invalid. The doctrine of spoliation of informed consent confirmed in writing. After a law suit is filed, may the lawyer give evidence holds that when “a party fails to introduce in the client such advice? evidence documents that are relevant to the matter in Endnote question and within his control...there is a presump- tion, or at least an inference, that the evidence with- 1. Summary of the HIPAA Privacy Rule, OCR Privacy Opinion #2: held, if forthcoming, would injure his case.” Jones v. Brief, US Department of Health and Human Services, No, in general, relevant social media post- GMRI, Inc., 144 NC App. 558, 565, 551 S.E.2d 867, Office for Civil Rights: hhs.gov/ocr/privacy/hipaa/ 872(2001) (quoting Yarborough v. Hughes, 139 NC understanding/summary/index.html. ings must be preserved. The New York State Bar opined that a 199, 209, 51 S.E. 904, 907-08 (1905)). Proposed 2014 Formal Ethics lawyer may advise a client about posting on Opinion 5 a social media website and may review and Proposed 2014 Formal Ethics Advising a Civil Litigation Client about discuss the client's posts, including what Opinion 6 Social Media posts may be removed, if the lawyer complies Duty to Avoid Conflicts When Advising April 24, 2014 with the rules and law on preservation and Members of Nonprofit Organization Proposed opinion rules a lawyer must advise spoliation of evidence. NY State Bar, Ethics April 24, 2014 a client about information on social media if Op. 745 (2013). We agree. Proposed opinion rules that a lawyer who information and postings on social media are A lawyer shall not counsel a client to provides free brief consultations to members of a relevant and material to the client’s representa- engage, or assist a client, in conduct the nonprofit organization must screen for conflicts tion. The lawyer may advise a client to remove lawyer knows is criminal or fraudulent. prior to conducting a consultation. information on social media if not spoliation or Rule 1.2(d). The lawyer therefore should otherwise illegal. examine the law on spoliation1 and Inquiry: obstruction of justice and determine A nonprofit organization of nonlawyer Facts: whether removing existing postings would professionals provides its members with A client has a legal matter that will prob- be a violation of the law. contact information for certain medical and

THE NORTH CAROLINA STATE BAR JOURNAL 43 other professionals who have agreed to pro- sentation of the client involves a conflict of ing a representation.” Therefore, Rule 6.5 vide the members with brief consultations interest? relaxes the application of the conflict of to answer questions on various subjects that interest rules. are relevant to the members’ professional Opinion: Rule 6.5 was adopted in response to con- practices. No. Rule 6.5 does not apply. Comment cerns that a strict application of the conflicts The organization has asked Lawyer if she [1] to Rule 6.5 states that “[l]egal services of interest rules may be deterring lawyers is willing to provide such consultations to its organizations, courts, and various nonprof- from serving as volunteers in programs pro- members concerning their legal questions. If it organizations have established programs viding short-term limited legal services under Lawyer agrees, she will be described by the through which lawyers provide short-term the auspices of a nonprofit organization or a organization on its website as a member sup- limited legal services—such as advice or the court-annexed program. See Ann. Model port legal resource. It will be clear that completion of legal forms—that will assist Rules of Prof’l Conduct R. 6.5 (7th ed. Lawyer is not an employee of the organiza- persons to address their legal problems 2009). Rule 6.5’s exception to the duty to tion and that she has volunteered to provide without further representation by a avoid conflicts of interest applies only where such consultations directly to the organiza- lawyer.” Rule 6.5 is designed to encourage it is not feasible for the lawyer to complete a tion’s members. Such consultations will be lawyers to participate in nonprofit pro- comprehensive conflicts check prior to without charge to the members, and the grams offering limited legal services on a undertaking the representation. The pro- organization will not compensate Lawyer for short-term basis. Examples of such pro- posed arrangement with Lawyer does not her services. grams include legal-advice hotlines, advice- present such a scenario. Upon being contact- Lawyer will secure the informed consent only clinics, or pro se counseling programs. ed by a member of the nonprofit organiza- of each inquiring member to the limited See Rule 6.5, cmt. [1]. As noted in tion, it is feasible for Lawyer to complete a scope of such representation. However, Comment [1] to Rule 6.5: “Such programs conflicts check prior to conducting the initial Lawyer believes that it would be impractical are normally operated under circumstances consultation. Therefore, Rule 6.5 does not for Lawyer to conduct a conflicts search on in which it is not feasible for a lawyer to apply and Lawyer has a duty to screen for each member who calls her before she con- systematically screen for conflicts of inter- conflicts of interest as otherwise set out in the sults with that member concerning his or her est as is generally required before undertak- Rules of Professional Conduct. n legal question. It is reasonable to suppose that some members who call Lawyer for a free consul- In Memoriam tation may, thereafter, wish to engage her to represent them on a paid basis. However, Richard G. Badgett Lewis Hillsman Parham Jr. the initial consultation is not conditioned Winston-Salem, NC Charlotte, NC on such continued representation. Lawyer will conduct a conflicts check as to any James Leo Carr Joseph C. Reynolds member who seeks to engage her in an Durham, NC Asheville, NC ongoing representation before commencing William Eugene Crosswhite Stephen S. Schmidly such representation. Statesville, NC Asheboro, NC Rule 6.5(a), Limited Legal Services Programs, provides: Mary C. Fairley Ricky Franklin Shumate A lawyer who, under the auspices of a Woodstock, GA Greensboro, NC program sponsored by a nonprofit organ- Benjamin Robert Gilliatt Richard E. Steinbronn ization or court, provides short-term lim- Shelby, NC Andrews, NC ited legal services to a client without expectation by either the lawyer or the Margaret Adams Harris John Calhoun Sterritt IV client that the lawyer will provide contin- Greensboro, NC Asheville, NC uing representation in the matter: (1) is James Cameron MacRae David Kerr Taylor Jr. subject to Rules 1.7 and 1.9(a) only if the Fayetteville, NC Washington, DC lawyer knows that the representation of Boyd B. Massagee Jr. the client involves a conflict of interest; Janice Irene Van Dyke Hendersonville, NC and (2) is subject to Rule 1.10 only if the Durham, NC lawyer knows that another lawyer associ- William Franklin McLeod Sr. Alice Newell Watkins-Corey ated with the lawyer in a law firm is dis- Reidsville, NC Greensboro, NC qualified by Rule 1.7 or 1.9(a) with Martin Luther Nesbitt Jr. Thomas D. Windsor respect to the matter. Asheville, NC Marshville, NC Is Lawyer’s initial consultation with mem- bers of the organization governed by Rule Louis Knox Newton 6.5 such that Lawyer is subject to Rules 1.7 Wilmington, NC and 1.9(a) only if she knows that the repre-

44 SUMMER 2014 BAR UPDATES

Law School Briefs

All of the law schools located in North who exemplify the themes and ideals laid out Carolina are invited to provide material for this Duke Law School in the State of the Union Address." Davis column. Below are the submissions we received Leading scholar of comparative legal histo- helped Elizabeth City State University decrease this quarter. ry, Chinese law, joins faculty—Taisu Zhang, carbon emissions by 200 metric tons annually. an interdisciplinary scholar of comparative and Brennan Aberle featured “fighting for the Campbell University School of Law economic legal history, property law, and underdog”—A February 17 News & Record Campbell Law climbs five spots in latest US Chinese law, will join the governing faculty in article featured Elon Law alumnus Brennan News rankings—Campbell Law School July. Zhang, whose ambitious research agenda Aberle ’12, an assistant public defender in climbed five spots and remained in the top tier includes empirical and theoretical study of Guilford County. “I get to be the person who’s for law schools per the latest US News & World property rights in pre-industrial China and there for someone when no one else is there,” Report rankings released on March 11. Western Europe as well as the operation of the said Aberle, who was named after a US Standing 121st nationally, the ranking bests contemporary Chinese judiciary, has been a Supreme Court justice, as were his two broth- Campbell Law’s previous benchmark of 126 visiting professor of law at Duke since 2012. ers, by their father, an appellate public defend- set a year ago. Campbell Law ranked high in His work illuminates the role of culture in er in Louisiana. several metrics comprising the overall rankings, shaping legal institutions and the economic Family reunification enabled by Elon Law including student/faculty ratio, graduates impact of those institutions. students—After a ten-year separation caused employed nine months after graduation with a Two graduates selected for Supreme Court by civil war in Somalia, four children were full-time job lasting at least a year for which bar clerkships—Two 2012 graduates of Duke Law reunited with their mother on April 16 in passage was required or a JD degree was an School have been selected for Supreme Court Greensboro, aided by law students in Elon’s advantage, and bar passage. Of the seven law clerkships. Supreme Court Associate Justice Humanitarian Immigration Law Clinic. schools in North Carolina, Campbell Law Clarence Thomas has selected Jenn Bandy as a Elon Law forum commemorates Julius stands as one of four institutions ranked inside clerk for the 2014-2015 term. She clerked for Chambers—Elon Law’s 2014 Martin Luther the top tier. Judge William H. Pryor Jr. of the US Court of King Jr. forum explored the life and legacy of Campbell Law ranks second on February the Appeals for the Eleventh Circuit in one of the nation’s most significant civil rights NC bar exam—Campbell Law School ranked Birmingham, AL, before joining Kirkland & attorneys. “Few other lawyers have had such a second among the seven North Carolina law Ellis in Washington, DC, as an associate. profound influence and impact on the progress schools for first-time bar passage on the Sarah Boyce ’12 will clerk for former of justice and the advancement of civil rights as February 2014 North Carolina bar exam. Of Associate Justice Sandra Day O’Connor dur- did Julius Chambers,” said George R. Johnson the six Campbell Law graduates who sat for ing the 2015-16 term. Her time will be divid- Jr., dean and professor of law. the exam for the first time, five (83.33%) ed between assisting O’Connor, who retired Elon Law to host national symposium on passed. from the court in 2006 but remains engaged in experiential education in law—The June 13- Campbell Law earns high marks from judicial service on the United States Courts of 15 symposium will feature William C. The National Jurist for bar passage, employ- Appeals, and serving as a fifth clerk for one of Hubbard, president elect of the ABA, and Bill ment—Campbell Law School scored an “A” the active justices. Boyce, who previously Henderson, professor of law, Maurer School of in bar passage and an “A-” in employment in clerked for Judge Jeffrey S. Sutton of the US Law at Indiana University at Bloomington. new rankings recently released by The Court of Appeals for the Sixth Circuit, is cur- Visit law.elon.edu/aell to register. National Jurist. With the rankings, rently completing a one-year Bristow Visit law.elon.edu for details on all stories Campbell Law stands as one of just 22 insti- Fellowship in the US Department of Justice. above. tutions nationally to receive a grade of “A-” Eight Duke Law graduates have been or better in both the bar passage and employ- selected for Supreme Court clerkships since North Carolina Central University School ment categories. 2010. of Law West named 2014 Women in Business Legal eagles are on the line—Beginning award winner—Campbell Law Assistant Elon University School of Law this academic year, second- and third-year stu- Dean of External Relations Megan West was Elon Law student joins First Lady at State dents in the North Carolina Central named a 2014 Women in Business award win- of the Union—Tyrone Davis '14, a Leadership University School of Law are participating in ner by the Triangle Business Journal. A 2010 Fellow at Elon Law, attended the President’s the Lawyer on the Line (LOTL) program, an Campbell Law graduate, West was recognized annual address on January 28 as a guest of First outreach service of the North Carolina Bar at an awards luncheon on April 7 at the Lady Michelle Obama, an honor the White Association in partnership with Legal Aid of Raleigh Marriott City Center. House reserves for "extraordinary Americans North Carolina. Low-wealth clients who con-

THE NORTH CAROLINA STATE BAR JOURNAL 45 tact Legal Aid with simple, civil cases are Award was presented to Irvin W. "Hank" referred to this hotline service through which University of North Carolina School Hankins ’75, partner and general counsel at lawyers volunteer one-hour phone consulta- of Law Parker Poe in Charlotte. The Distinguished tions to start them on their path to justice. Commencement—Donald Verrilli, the cur- Alumni Award was presented to Barbara Law students participate alongside the volun- rent solicitor general of the United States, will Weyher ’77, founding partner at Yates, teer attorneys through the LOTL Law School deliver the commencement address for UNC McLamb and Weyher in Raleigh. The school Co-op. School of Law. Verrilli was appointed as solici- also presented its Outstanding Recent When cases are referred to the students, the tor general by President Obama in 2009, and Graduate Award to Lindsey Roberson ’07, first hour is an intake interview. To learn how has briefed and argued, on behalf of the United assistant district attorney in New Hanover to conduct these screening calls, Legal Aid pro- States, some of the most significant Supreme County. vides the students with access to resource mate- Court cases of recent years. rials in an online library. With facts in hand, Banking Institute—Cyber-security threats Wake Forest University School of Law the students research the relevant case law and to financial institutions, the reconstruction of Wake Forest Law Appellate Advocacy write reports, including their recommenda- mortgage lending, and the future of commu- Clinic takes appeal to SCOTUS—Wake Forest tions. Students submit these for review to the nity banking were just some of the topics Law Professor John Korzen argued one of the NCCU faculty with the relevant expertise and addressed at the Annual Banking Institute Appellate Advocacy Clinic appeals, CTS to the supervising volunteer attorney, NCCU hosted April 3-4 in Charlotte by the UNC Corporation v. Waldburger, a civil nuisance Law Alumna Elysia Prendergast Jones. Once Center for Banking and Finance. The keynote action, in the US Supreme Court on the students have the go-ahead, they call the speaker was Timothy J. Mayopoulos, presi- Wednesday, April 23. Korzen, who is director clients back to deliver their advice, and some- dent and CEO of Fannie Mae. of the clinic, says all ten of the clinic’s students times additional services. Center for Civil Rights—Theodore M. helped with the research, briefing, and the oral “It’s several steps,” said Jones. “Lawyer on “Ted” Shaw will join UNC School of Law July argument preparation, and they all attended the Line is one call, one client, one hour, but 1 as the first Julius L. Chambers Distinguished the argument. “Working on a case at the what the students do is much more intensive. Professor of Law and as director of the UNC Supreme Court and attending the argument, They pull case law. They research. The regular Center for Civil Rights. The position had been in a case with important nationwide ramifica- attorneys aren’t required to do that.” open since founding director Julius L. tions, was a memorable culmination to all of Jones reminds the students that their role is Chambers, who died last year, stepped down the students’ law school experiences,” Korzen to empower the client. “They want to fight for in 2010. Previously Shaw served as director- said. “They have learned a lot about real-world their clients, but they must help the people counsel of the NAACP Legal Defense Fund, appellate practice all year through their other take charge.” the legal arm of the civil rights movement appeals, and this experience took the clinic to The cases run the gamut from landlord and founded by Thurgood Marshall. Shaw joined another level.” The Appellate Advocacy Clinic tenant disputes to child custody, expunge- the LDF in 1982 to litigate school desegrega- is a two-semester course for 3Ls. ments, accessing government benefits, and tion, voting, and other civil rights cases. Wake Forest Law professor presents annual bankruptcy. Distinguished Alumni Awards—UNC report to UN Human Rights Council—Wake “It’s great experience for the students, and it School of Law celebrated its annual distin- Forest Law Professor John Knox, UN inde- allows Legal Aid to make more efficient use of guished alumni award winners at the annual pendent expert on human rights and the envi- its limited resources,” said Professor Page Law Alumni Weekend Leadership and Awards ronment, presented his annual report to the Potter, director of NCCU’s Pro Bono Program. Dinner, April 10. The Lifetime Achievement UN Human Rights Council on Monday, March 10. The report concludes that environ- mental harm can adversely affect the ability to enjoy human rights, including rights to life, health, and property. To protect human rights from this harm, states are therefore required to assess environmental impacts on human rights Don’t Miss Important State and to make environmental information pub- lic, to facilitate participation in environmental Bar Communications decision-making, and to provide access to remedies, among others. His main recommen- Log on to ncbar.gov and make sure dation is that states and others take these we have your email address. human rights obligations into account in the development and implementation of their environmental policies. The Human Rights Council, which is the principal UN human rights body, appointed Knox in 2012 to a three-year mandate to clarify the relationship of human rights principles and environmental protection. n

46 SUMMER 2014 BAR UPDATES

John B. McMillan Distinguished Service Award

Joseph B. Roberts III is a recipient of the tently represented the disadvantaged and dis- the Best Lawyers in America, and named John B. McMillan Distinguished Service possessed, Joseph Roberts is a deserving one of the Top 100 Super Lawyers in North Award. A native of Gastonia, Mr. Roberts recipient of the John B. McMillan Carolina. Mr. Greene is a certified mediator earned his undergraduate degree from the Distinguished Service Award. and arbitrator, and is an active member of University of North Carolina in 1962, and K. Edward Greene is a recipient of the the NC Courts Commission and the his law degree from UNC Law School in John B. McMillan Distinguished Service Advocates for Justice. Judge Greene’s contri- 1964. Mr. Roberts began in general practice Award. Mr. Greene earned his undergradu- butions to his community and the legal pro- and eventually became one of the state’s most ate degree from East Carolina University, his fession make him a deserving recipient of respected lawyers in the field of workers’ law degree from UNC Law School, and an the John B. McMillan Distinguished compensation law. He currently practices L.L.M. in Judicial Process from the Service Award. workers’ compensation in Gastonia as the University of Virginia. Mr. Greene began senior partner of the Roberts Law Firm, PA. his law practice in Harnett County in 1969. Seeking Award Nominations Throughout his nearly 50 years of practice, He served as a district court judge for seven The John B. McMillan Distinguished Mr. Roberts has established himself as an years followed by 16 years as a member of Service Award honors current and retired outstanding attorney, mentor, community the North Carolina Court of Appeals. On members of the North Carolina State Bar servant, and leader. Among countless other and off the bench, Judge Greene treats every who have demonstrated exemplary service to endeavors, Mr. Roberts served in the North person with courtesy and respect, and the legal profession. Awards will be presented Carolina House of Representatives, was pres- encourages respect for the law and the in recipients’ districts, with the State Bar ident of the 27th Judicial District Bar, was a process. Mr. Greene retired from the court councilor from the recipient’s district intro- member of the Gaston County Board of of appeals in 2002 as the court’s senior asso- ducing the recipient and presenting the cer- Elections, and chaired the Workers’ ciate judge, and now practices full-time at tificate. Recipients will also be recognized in Compensation Section of the North Wyrick, Robbins, Yates & Ponton focusing the Journal and honored at the State Bar’s Carolina Bar Association. He has spoken at on appellate litigation. For over 44 years of annual meeting in Raleigh. numerous CLEs and has written many arti- practice, Mr. Greene has devoted himself to Members of the bar are encouraged to cles relating to workers’ compensation law. the furtherance of the profession by teach- nominate colleagues who have demonstrated Throughout his entire career, Mr. Roberts ing family law and torts at both Campbell outstanding service to the profession. The has mentored the lawyers of Gastonia in the Law School and UNC Law School. He has nomination form is available on the State ways of professionalism in a lawyer’s dealings lectured at countless CLE programs, and Bar’s website, ncbar.gov. Please direct ques- with courts, colleagues, clients, and the com- has published multiple law review articles tions to Peter Bolac at the State Bar office, munity. A man of integrity who has consis- on trial practice. He has been listed among (919) 828-4620. n

State Bar Outlook (cont.) the least troublesome aspects of the situation. accounting would also be welcome. The But, we would do well to support any initia- trustee for any decent and self-respecting altogether. That being the case, our Issues tive that tends to focus the Bar’s attention on lawyer ought to be able to readily ascertain Committee has recently given considerable the problem and on each lawyer’s professional the ownership of all entrusted funds and thought to how lawyers—particularly sole obligation to do what he or she reasonably quickly confirm the honesty of the person in practitioners—can minimize the risks associ- can to avoid needless harm to clients in the whose shoes he or she is standing. Finally, a ated with sudden unavailability by engaging event of his or her own unexpected absence. good lawyer ought to provide for the cost of in some thoughtful “succession planning.” Something as simple as caching passwords in closing the doors on the way out. A modest We know, for instance, that state bars in a few a safe but accessible place could make life amount of money on deposit for that purpose other states encourage or require attorneys to much easier for those who are “left behind.” or a small prepaid life insurance policy would nominate their own trustees in advance. Even more helpful would be a commitment go a long way toward insulating clients from Then, when need arises, there are, presum- to a well-organized filing system that would their lawyer’s misfortune, or his or her deci- ably, willing and able lawyers ready to step in. make it easy to identify current clients and to sion, suddenly, to go “waltzing Matilda.” n Frankly, I doubt that that sort of “advance separate the active files from those that are directive” will ultimately do much good. closed. Compliance with the Rule of L. Thomas Lunsford II is the executive direc- Finding someone to serve is generally one of Professional Conduct in regard to trust tor of the North Carolina State Bar.

THE NORTH CAROLINA STATE BAR JOURNAL 47 BAR UPDATES

Client Security Fund Reimburses Victims

At its April 24, 2014, meeting, the North tive status on January 15, 2014. 25, 2012. The board previously approved Carolina State Bar Client Security Fund 2. An award of $1,850 to a former client reimbursement to another Rodgers client a Board of Trustees approved payments of of Annette Exum of Raleigh. The board total of $26,009.63. $27,104.88 to five applicants who suffered determined that Exum was retained to repre- 4 An award of $400 to a former client of financial losses due to the misconduct of sent a client in an EEOC claim against the Ronald Carl True of Asheville. The board North Carolina lawyers. client’s former employer. Exum failed to file determined that True was retained by a The payments authorized were: suit in federal court on the client’s behalf client to represent her and her friend in sep- 1. An award of $1,000 to a former client within the time allowed. Exum was suspend- arate actions for divorce from their spouses. of Thomas Clements of Fayetteville. The ed on January 5, 2011, and later transferred True died on March 3, 2013, without hav- board determined that when Clements to disability inactive status on February 7, ing provided his client’s friend any valuable accepted representation of the client for a 2011. services. domestic matter, Clements had been put on 3. An award of $17,940.88 to a former 5. An award of $5,914 to a former client notice that an administrative suspension client of J. Neal Rodgers of Charlotte. The of David Vesel of Raleigh. The board deter- would become effective within 30 days of board determined that Rodgers was retained mined that Vesel handled a client’s refinance service unless he completed his CLE hours to handle a client’s personal injury matter. closing. Vesel wrote out disbursement checks and paid the non-compliance fee. Clements Rodgers settled the matter and retained to the client’s creditors, which he gave to the failed to comply and the suspension became funds to satisfy a medical lien. The State Bar client for disbursement. The client failed to effective. Clements provided no valuable froze Rogers’ trust account prior to the funds distribute the checks to the creditors prior to legal services or refund to the client. being disbursed. Rodgers’ trust account bal- the State Bar freezing Vesel’s trust account Clements was suspended on September 22, ance is insufficient to pay all of his clients’ based upon Vesel’s misappropriation. Vesel 2013, and later transferred to disability inac- obligations. Rodgers was disbarred on May was disbarred on July 5, 2013. n

BOARD OF LAW EXAMINERS

July 2014 Bar Exam Applicants The July 2014 Bar Examination will be held in Raleigh on July 29 and 30, 2014. Published below are the names of the applicants whose applications were received on or before April 30, 2014. 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.

Dean Achterman Durham, NC Robert Armstrong Charlotte, NC Adam Banks Wake Forest, NC Kristin Andrews Cary, NC Helen Baddour Raleigh, NC Laura Ackerman Durham, NC Nicole Arrington Raleigh, NC Holly Bannerman Durham, NC Matthew Andrews Charleston, SC Philip Baetjer Wake Forest, NC Daniel Adducci Greensboro, NC Seth Ascher Winston-Salem, NC Anna Barefoot Raleigh, NC Patrick Anstead Durham, NC James Bailey Concord, NC Atolani Akinkuotu Fayetteville, NC Leah Ash Winston-Salem, NC Sarah Barnes Winston-Salem, NC Patrick Apple Charlotte, NC Brittany Bailey Raleigh, NC Jennifer Aldrich Pleasant Garden, NC Emery Ashley Jr. Durham, NC Christopher Barnes Little Mountain, SC Shannon Arata Smithfield, NC Wilmoth Baker Rocky Mount, NC Amber Allen Durham, NC Linda Atiase Durham, NC Neil Barnes Greensboro, NC Michael Arena Charlotte, NC John Baker Pittsboro, NC David Allen Clayton, MO Peter Austin Indian Land, SC Milton Barnette Pearl River, NY Ryan Arens Morrisville, NC Megan Ballard Raleigh, NC Victoria Ames Winston-Salem, NC Christian Ayers Atlanta, GA James Bartorelli Scottsdale, AZ Cindy Arevalo Memphis, TN Sherifatu Bangura High Point, NC Chad Anderson Durham, NC Erica Backus Durham, NC Julia Bartz

48 SUMMER 2014 Durham, NC Michael Bowlin Durham, NC Ashley Carter Wilmington, NC Sarah Beamer Charlotte, NC Loryn Buckner Mebane, NC Katherine Corpening Charlotte, NC Elizabeth Bowling Durham, NC Candace Casey Raleigh, NC Olivia Becilla Charlotte, NC Matthew Buckner Winston-Salem, NC Brittni Cortright Raleigh, NC Lindsey Bowman Durham, NC Avery Catlin Charlotte, NC Emily Beeson Mechanicsville, VA Seth Bullard Lexington, VA Guy Cousins Greensboro, NC Sarah Bowman Winston-Salem, NC Galo Centenera Charlotte, NC Jonathan Beigle Fletcher, NC Marcos Bullock Chapel Hill, NC Erin Cowan Lynchburg, VA Angel Bowser Charlotte, NC Andrew Chamberlain Lexington, NC Traci Belk Lansing, MI Emily Bullock Charlotte, NC Ron Cowart Rock Hill, SC Douglas Boyette Charlotte, NC Cheyenne Chambers Charlotte, NC David Bell Raleigh, NC Michael Bunch Columbus, OH Lindsey Cox Durham, NC Brittany Branch Greensboro, NC Katherine Chanas Charlotte, NC Dana Bell Charlotte, NC John Bunge WInston-Salem, NC Taylor Crabtree Cary, NC Joshua Brasch Gainesville, FL Eleanor Chandler Durham, NC Cameron Belton Charlotte, NC Carl Burchette Raleigh, NC Jasmine Crawford Charlotte, NC David Brennan Chapel HIll, NC Roby Chatterji Elizabeth City, NC Alisha Benjamin Winston-Salem, NC Shante Burke-Hayer Chapel Hill, NC Elspeth Crawford Raleigh, NC Molly Brewer Charlotte, NC Andrew Cheek Asheboro, NC Mary Bergstrom Raleigh, NC Sherea Burnett Charlotte, NC Justin Crawley Silver Spring, MD Joseph Brewer Graham, NC Richard Cheek Grundy, VA Alexis Berkowitz North Wilkesboro, NC Robert Burrow North Wilkesboro, NC Kelly Crecco Cornelius, NC Erin Briley Charlotte, NC Marcus Childress Chapel Hill, NC Brittany Birch Durham, NC Benjamin Buskirk Alexandria, VA Margaret Cromer Santa Monica, CA Logan Britt Raleigh, NC Rex Cho Durham, NC Daniel Blackburn Charlotte, NC Amanda Buyrn Raleigh, NC Brentley Cronquist Purlear, NC Joseph Britton Raleigh, NC Allan Chua Roxboro, NC Erin Blackwell Zebulon, NC Micah Byrd Charlotte, NC James Crowder Winston-Salem, NC Jack Brock Durham, NC Travis Cianciulli Graham, NC Latoya Blackwell Winterville, NC Jourdan Cabe Raleigh, NC James Crutchley Durham, NC Nicholas Brod Durham, NC Sarah Cibik Fayetteville, NC William Blake Durham, NC Alex Cabe Raleigh, NC Phyllis Culbertson Durham, NC Ross Bromberger Waynesville, NC Erick Cipau Winston-Salem, NC William Blalock Apex, NC Amanda Cairns Allston, MA Emma Cullen Greensboro, NC Karen Brooks Raleigh, NC Corey Clapper Raleigh, NC Tamara Bland Winston-Salem, NC Tyler Caldwell Raleigh, NC Vanessa Curtis Morrisville, NC Virginia Broome Winston-Salem, NC Vanessa Clark Morrisville, NC Kyle Blodgett Mint Hill, NC Anil Caleb Charlotte, NC Caitlin Cutchin Greensboro, NC Megan Brothers Fayetteville, NC Kinna Clark Winston-Salem, NC Jhanalyn Blount Raleigh, NC Colin Campbell Durham, NC Melissa Dahl Little Rock, AR Lindsey Brower Lynchburg, VA Jennifer Claud-White Charlotte, NC Jamie Blundell Charlotte, NC Grant Canington Raleigh, NC Wesley Dail Charlotte, NC Matthew Brower Raleigh, NC David Clemmons Raleigh, NC Brittany Boatman Lawrence, KS Eric Cannon Charlotte, NC Stephen Dalton Valparaiso, IN Andrew Brower Greensboro, NC Catherine Clodfelter Brevard, NC Jennifer Bobowski Greensboro, NC Bryan Cantley Chapel Hill, NC Molly Daniel-Springs Greensboro, NC Thomas Brown Raleigh, NC James Coates Charlotte, NC Chelsey Boggs Greensboro, NC Brendan Cappiello Ada, OH Kenneth Dantinne Washington, DC Anthony Brown Chapel Hill, NC Anna Cobb Chapel Hill, NC Abbey Boggs Charlotte, NC John Cargill Chapel Hill, NC Meredith Darlington Charlotte, NC Malcolm Brown Greensboro, NC Jessika Coe Durham, NC Jennifer Bogue Durham, NC Draper Carlile Chicago, IL Debolina Das Raleigh, NC Mary Brown Charlotte, NC Diane Collopy Chapel Hill, NC Lauren Bohdan Raleigh, NC Rachel Carlson Cary, NC Sean Dauterive Lexington, VA Anitra Brown Oxford, MS Sarah Colwell Winston-Salem, NC Callen Bolick Raleigh, NC Kriss Anne Carlstrom Chapel Hill, NC Hannah Davies Apex, NC Maria Brown Charlotte, NC Mariamarta Conrad Rutherfordton, NC Vincent Borden Durham, NC Brett Carpenter Coats, NC Tyrone Davis Charlottesville, VA Catherine Bruce Raleigh, NC Teresa Cook Greensboro, NC Linda Boss Chapel Hill, NC Anthony Carreri chapel hill, NC James Davis Winston-Salem, NC Zoe Bruck Lansing, MI Justin Cook Davidson, NC Glenna Boston New Orleans, LA Isabel Carson Kernersville, NC Valyce Davis Durham, NC Maria Bruner Charlotte, NC Scott Cook Roanoke Rapids, NC Yallana Boston-McGee Durham, NC Kelly Carson Greensboro, NC Charles Davis Carrboro, NC Nicholas Brunner New Haven, CT Thomas Cooke Chapel Hill, NC Kate Bostrom Finksburg, MD Evan Carter New York, NY Kayla Davis Greensboro, NC Alexandria Bryant Charlottesville, VA Aneshia Cooper Fayetteville, NC Natalia Botella Raleigh, NC Courtney Carter Durham, NC Brittany Davis Charlotte, NC Justin Bryant Charlotte, NC Haley Cooper Raleigh, NC Jennifer Bottoms Mount Airy, NC Sydney Carter Clinton, NC Jacob Davis Charlotte, NC Thailer Buari Charlotte, NC Sarah Core Raleigh, NC Charles Bowen Winston-Salem, NC Benjamin Carter Four Oaks, NC Jill Dawkins Charlotte, NC Elizabeth Buckley Rocky Mount, NC Stephanie Corley Charlotte, NC

THE NORTH CAROLINA STATE BAR JOURNAL 49 Roy Dawson Winston-Salem, NC Connie Evans Bloomington, IN Valonne Givens Chapel Hill, NC Margaret Duke Charlotte, NC Nicholas Fracassi Sneads Ferry, NC James Deal Raleigh, NC Andrew Evans North Wilkesboro, NC Gloria Gloria Carrboro, NC Brian Dunaway Raleigh, NC Templin Frame Charlotte, NC Aundrea Dean Charlotte, NC Jonathan Evans Cornelius, NC Quinn Godwin Charlotte, NC Kimberly Duncan Durham, NC Victoria Franklin Chapel Hill, NC Stephen DeGrow Charlotte, NC Elizabeth Evans Sanford, NC Janessa Goldstein Winston-Salem, NC William Duncan Beulaville, NC Joshua Franks Charlotte, NC Kristen DelForge Columbia, SC Emily Everest Brookline, MA James Goodwin Greensboro, NC Eric Duncan Atlanta, GA Clayton Frazier Winston-Salem, NC Lauren Demanovich Winston-Salem, NC Adam Everett Raleigh, NC Robert Goolsby Chapel Hill, NC Ross Duncklee Raleigh, NC Molly Fredeking Raleigh, NC Jeremy Demmitt Cary, NC Lauren Eversole Charlotte, NC Kelli Gordon Winston-Salem, NC Kristen Dunham Lancaster, OH Tyler Fredrickson Raleigh, NC Lawrence Dempsey Greensboro, NC Rebecca Fackler Crossnore, NC Brittany Gordon Raleigh, NC Chad Dunn Charlotte, NC Natalie Freeman Metairie, LA Caroline Denning Charlottesville, VA Ryan Fairchild Charlotte, NC Michael Gossett Durham, NC Stephen Dunn Chapel Hill, NC Breanna Freeman Charleston, SC Lana Denning Clayton, NC Olivia Fajen Raleigh, NC Michael Goudreault Fayetteville, NC Julian DuRant Durham, NC Megan Frers Mooresville, NC David Denninger Winston-Salem, SC Ronald Fallatt Charlotte, NC Madeline Gould Winston-Salem, NC Amanda Dure Charlotte, NC Ama Frimpong Charlotte, NC Timothy Denninger Washington, DC Stephanie Faris Winston-Salem, NC Charlene Gourlay Charlotte, NC Luka Duric Pittsboro, NC Matthew Froelich Charlotte, NC Christina Dennis Salisbury, NC Jason Farley Elgin, SC Marisa Graham Winston-Salem, NC John Durnovich Raleigh, NC Michael Frongello Mooresville, NC Kevin Denny Charlotte, NC Shane Farr Apex, NC Isa Gratacos Rosario Chapel Hill, NC William Dyer V Durham, NC Lindsey Frye New Bern, NC Lee Denton Charlotte, NC Chance Farr Chapel Hill, NC William Gravatt Winston-Salem, NC Daniel Dziuban Fort Mill, SC Rachel Fulk Durham, NC Kenneth Deon Greensboro, NC Sarah Farris Raleigh, NC Carla Gray Columbia, SC Esther Earbin Raleigh, NC Lev Gabrilovich Chapel Hill, NC Jonathan deShetler Carrboro, NC Michael Fausnight Chapel Hill, NC Lauren-Kelly Greenbacker Columbia, SC Joshua Eason Raleigh, NC Amanda Gainey Washington, DC Tasneem Dharamsi Charlotte, NC Elizabeth Feagans Morrisville, NC Laura Greene Virginia Beach, VA Rebeca Echevarria Charlotte, NC James Gambrell Raleigh, NC Joanna Dick Winston-Salem, NC John Fede Charlotte, NC Jonathan Greer Raleigh, NC Rebecca Eden Greensboro, NC Michael Gandee Cary, NC William Dickey Washington, DC Nicole Fegan Wilmington, NC Leah Gregoire Fayetteville, NC Eric Edgerton Atlanta, GA Sean Gannaway Dallas, NC Elizabeth Dils Asheville, NC Ryan Feinberg Winston-Salem, NC Caroline Gregory Raleigh, NC Whitney Edmondson Charlotte, NC Tyler Ganzel Raleigh, NC Deshaun Dilworth Newton, NC Piper Ferguson Charlotte, NC Jordan Griffin Indian Trail, NC Blaine Edwards Raleigh, NC Lucas Garber Monroe, NC Daniel DiMaria Charlotte, NC Amber Ferrell Charlotte, NC Bryan Grossman Fayetteville, NC Christopher Edwards Charlotte, NC Rebekah Garcia Raleigh, NC Jonathan Dixon Winston-Salem, NC David Festin Winston-Salem, NC Eva Gullick Greenville, NC Nigel Edwards Charlotte, NC Latoya Gardner Chapel Hill, NC Matthew Dolan Raleigh, NC Brent Finnell Charlotte, NC Robert Gunst Charlotte, NC Ryan Eletto Apex, NC Jennifer Garey Winston-Salem, NC Carolyn Donohue Chapel Hill, NC Ryan Fisher Apex, NC Nina Gupta Charlotte, NC Naomi Ellis Chapel Hill, NC Amber Garland Fayetteville, NC Katharine Doran Raleigh, NC Rebecca Fiss Charlotte, NC Kathryn Guyette Salisbury, NC Marshall Ellis Chapel Hill, NC David Garvin Charlotte, NC John Dougherty Raleigh, NC Kevin Flanigan Chapel Hill, NC Harper Gwatney Durham, NC Belal Elrahal Winston-Salem, NC Steven Gauck Raleigh, NC George Douglas Chapel Hill, NC Walter Fletcher Cary, NC Ashley Gwyn Raleigh, NC John Emmrich Durham, NC Charles George Charlotte, NC James Douglas Charlotte, NC Ibelis Flores Aiken, SC Michael Haigler Chapel Hill, NC Megan Endersby Charlotte, NC Julia German Charlotte, NC Katherine Dowell Winston-Salem, NC William Flowers Durham, NC Adam Hall Raleigh, NC Lindsey Engels Charlotte, NC Indranil Ghosh King, NC William Dozier Charlotte, NC Qisoundra Flowers Durham, NC Joshua Hall Raleigh, NC Robert Ennis Fuquay Varina, NC Tiffany Gidley Hope Mills, NC Brandy Drake Chapel Hill, NC Jamaal Forney Raleigh, NC Destin Hall Albemarle, NC Harold Eustache Fayetteville, NC Kimberly Gill Lenoir, NC Christopher Draughn Winston-Salem, NC Bradley Fortier Lansing, MI Amberley Hammer Charlotte, NC Irene Eustathiou Durham, NC Gael Gilles Currituck, NC Megan Driggers Cary, NC Rebecca Fortune Fort Mill, SC John Hanna Winston-Salem, NC John Evans Chapel Hill, NC Jason Gillis Charlotte, NC Daniel Driscoll Greensboro, NC Anita Foss Elizabeth City, NC Craig Harasimowicz

50 SUMMER 2014 Winston-Salem, NC Molly Hilburn-Holte Charlotte, NC Emily Kafka Greensboro, NC Christopher Harden Raleigh, NC Nathan Jarrett Robbins, NC Charlotte Kraich Charlotte, NC Laura Hill Jackson, MS Anna Kalarites Earlysville, VA Amber Hardy Greensboro, NC Keith Jaworski Arlington, VA Laura Krcmaric Winston-Salem, NC Lydia Hill Lexington, VA Holly Kamm Durham, NC Andrew Hargrove Columbia, SC Rachel Jeanes Charlotte, NC Sperethoula Kroustalis Raleigh, NC Lindsey Hills Greensboro, NC Daniel Keeney Greensboro, NC Lauren Harkey Charlotte, NC Philip Jefferay Winston-Salem, NC Mario Krueger Chapel Hill, NC Sarah Hink Raleigh, NC Jasmine Kelly Apex, NC James Harrell Raleigh, NC Walter Jenkins Winston-Salem, NC Rachel Krumholtz Winston-Salem, NC Chassidy Hinton Biscoe, NC Donald Kelly Charlotte, NC Nathan Harrill Durham, NC Justin Jenkins Coral Gables, FL Megan Kunz Winston-Salem, NC Alexandra Hirsch Winston-Salem, NC Alexander Kelly Kernersville, NC Ashley Harris Charlotte, NC Kenneth Jennings Winston-Salem, NC Georgia Kuplic Raleigh, NC Ariel Hodge Raleigh, NC Benjamin Kempton Chapel Hill, NC Angel Harris Greensboro, NC Jonathan Jerkins Raleigh, NC Elizabeth Kyser Cary, NC Lisa Hodges Raleigh, NC Christopher Kendall Winston-Salem, NC Molly Harris Raleigh, NC Margaret Jernigan Raleigh, NC Stephanie Laboy Durham, NC Paul Hogle Raleigh, NC Mary Kennedy Durham, NC Christine Hart Durham, NC Gabriel Jimenez Medina Charlotte, NC Kamay Lafalaise Matthews, NC Scott Holder Wake Forest, NC Ryan Kennedy Winston-Salem, NC Colleen Hart Durham, NC David Jimerfield Durham, NC Tiffany Lail Chapel Hill, NC Ross Holland Cary, NC Victoria Kepes Winston-Salem, NC Elaine Hartman Winston-Salem, NC Harry Johnson Sullivans island, SC David Lambert Raleigh, NC Benjamin Holt Raleigh, NC Matthew Kerr Asheboro, NC Christopher Hartsfield Durham, NC William Johnson Charlotte, NC David Lambeth Charlotte, NC Mallory Horne Durham, NC Seaira Kersch Chapel Hill, NC Julija Hassel Greensboro, NC Caroline Johnson New Orleans, LA Peter Lamm Charlotte, NC Devlin Horton Ambler, PA Joseph Kesler Greensboro, NC Adam Hauser Chapel Hill, NC Lisa Johnson Raleigh, NC David Lampert Greensboro, NC Cory Howard Port Saint Lucie, FL Danielle Kestnbaum Ada, OH Phillip Hausman Winston-Salem, NC Sarah Johnson Highland Park, IL Joshua Lance Raleigh, NC Jaimey Howard Columbia, SC Amber Khan Chapel Hill, NC Gregory Haver Durham, NC Hilary Johnson Mebane, NC Charles Lane Charlotte, NC Rachel Hsiao Charlotte, NC Lawrence Kibler Jr. Greensboro, NC Hailey Hawkins Lillington, NC Charles Johnson III Huntersville, NC James Lanier Charlotte, NC Amanda Huegerich Oak Island, NC Sarah Kim Charlotte, NC Megan Hawn Chapel Hill, NC Jenny Joliet Concord, NC Matthew Lanning Maiden, NC Palmer Huffstetler Noblesville, IN Amanda Kincaid Charlotte, NC Suzanne Haynes Lincolnton, NC James Jolley Greensboro, NC Patrick Lawler Greensboro, NC Donald Huggins Raleigh, NC Mary Fletcher King Chapel Hill, NC Meredith Hearn Fuquay-Varina, NC Leah Jones Raleigh, NC Seth Lawrence Winston-Salem, NC Kathryn Hughes Winston-Salem, NC Isaac King Chapel Hill, NC Mary Hedges Winston-Salem, NC Whitney Jones South Miami, FL Ashley Lawrence Raleigh, NC Timothy Hughes Charlotte, NC Nikol King New Bern, NC Joel Heimbach Asheville, NC Jacqueline Jones Mount Pleasant, SC LeeAnne Lawrence Raleigh, NC Amber Hughes Charlotte, NC Michael King Edenton, NC Nicholas Helms Kinston, NC Gerald Jones Mount Olive, NC Justin Lea Stanfield, NC Jeremy Hughes Charlotte, NC Amanda King Winston, NC Robert Henderson Charlotte, NC Ticora Jones Advance, NC Madeline Lea Winston-Salem, NC Timothy Hultzman Salisbury, NC Yanneka King Hurdle Mills, NC Timothy Henderson Durham, NC Meredith J Jones Raleigh, NC James Lee Carrboro, NC Jacob Husain Holly Ridge, NC Erin King Raleigh, NC Iyanna Henry Charlotte, NC Casey Jones Chapel Hill, NC Dawn Lee Chapel Hill, NC Jeffery Hux Wilson's Mills, NC Steven King Winston-Salem, NC Christopher Hensley Raleigh, NC Kaitlyn Jones Chapel Hill, NC Phoebe Lee Cary, NC Tony Huynh High Point, NC Alyssa Kisby Durham, NC Martha Hernandez Greensboro, NC Samuel Jones Durham, NC Nicholas Lee Wendell, NC Kenneth Isaacs Greensboro, NC Kevin Kitcey Virginia Beach, VA Kathryn Herndon Boone, NC Monica Jones Charlotte, NC Kelsey Lee Kings Mountain, NC Karmina Ishak Harrisburg, NC Benjamin Kleinman Concord, NC Clifford Herndon Raleigh, NC Ashton Jordan Chapel Hill, NC Scott Leeds Rockingham, NC Daniel Iten Tallahassee, FL Daniel Knight Miami, FL Matthew Herr Charlotte, NC Ryan Joyce Raleigh, NC Whitney Levis Durham, NC C. L. Jackson Winston-Salem, NC David Knoespel Charlotte, NC William Hester Charlotte, NC Zachary Joyner Lexington, VA Adrienne Lewis Winston-Salem, NC Jeremy Jackson Chapel Hill, NC Heryka Knoespel Huntersville, NC Alice Hicks Raleigh, NC Francis Jurovich Lexington, VA Brett Lewis Winston-Salem, NC Nathan James Flat Rock, NC Tammy Kom Raleigh, NC Samuel Hightower Raleigh, NC Marianna Kacjuba Astoria, NY Logan Liles Chapel Hill, NC Marisa James Denver, NC Katherine Koone Zebulon, NC

THE NORTH CAROLINA STATE BAR JOURNAL 51 James Limehouse Raleigh, NC Deborah McDermott Chapel Hill, NC Mara Nelson Winston-Salem, NC Alexandra Mansbach Durham, NC Brittany Mixon Cherokee, NC Charles Lingerfelt Charlotte, NC Angelica McDonald Raleigh, NC Elena Nesch Morrisville, NC Peyton Mansure Durham, NC Gerren Mobley Durham, NC Howard Lintz Greensboro, NC Charles McDowell Raleigh, NC Brett Neve Chapel Hill, NC Pedro Mantilla Raleigh, NC Brandon Moen Chapel Hill, NC Elizabeth Linzan Raleigh, NC Ramona McGee Charlotte, NC Erin Nevitt Charlotte, NC Luis Maradiaga Durham, NC Ryan Moffitt Raleigh, NC Allen Livingston Chapel Hill, NC Kasey McGee Burlington, NC Johanna Newman Charlotte, NC Blake Marcus Pittsburgh, PA Camille Mollozzi Charleston, SC Sean Lobar Lansing, MI Colin McGrath Washington, DC Caleb Newman White Hall, MD Ashley Markham Raleigh, NC Brandon Monette Huntersville, NC Sarah Loehr Durham, NC John McGraw Charlotte, NC Rachel Nicholas Charlotte, NC Thomas Markle Raleigh, NC Iara Montoro Durham, NC Daniel Logan Nashotah, WI Cory McInnis Lexington, KY William Nichols Winston-Salem, NC Mary Markle Laurinburg, NC Brittany Moore Clayton, NC Torrey Lomas Tempe, AZ David McKaig Asheviille, NC Sherrie Niles Matthews, NC William Marks Knightdale, NC Matthew Moore Franklin, MA Kevin Long Statesville, NC Madeline McKeller Davidson, NC Daniel Nisenson Charlotte, NC Karey Marren Washington, DC Stephen Moore Williamsburg, VA Brittany Long Columbus, GA Terrence McKelvey Raleigh, NC Monica Noble Fletcher, NC Kayla Marshall Nashville, TN Joshua Mooring Raleigh, NC John Long Jr. Charlottesville, VA Franklin McKinney Grundy, VA Cassidy Nolan Cary, NC Edward Marshall Raleigh, NC Daniel Moose Durham, NC Rebecca Lopes Charlotte, NC Sarah McLean Raleigh, NC Sarah Norris Fayetteville, NC Aaron Marshall Gastonia, NC Obed Morales Raleigh, NC Jacob Lopes Charlotte, NC Maria McLendon Winston-Salem, NC Patrick Novak Winston-Salem, NC Michael Martin Asheville, NC Bradley Moree Philadelphia, PA Maria Lopez Raleigh, NC Raquel McLennon Raleigh, NC Ana Nunez Charlotte, NC Haley Martin Apex, NC Emily Moree Durham, NC Wade Love Charlotte, NC James McLeod Raleigh, NC Ann Nutter Greensboro, NC Sarah Martin Tuscaloosa, AL Molly Morgan Louisville, KY Anna Love Wingate, NC John McMurray Durham, NC Jillian Nyhof Zebulon, NC Emily Martin Columbia, SC Rashad Morgan Lexington, VA James Lucarello Chesapeake, VA Anna McNeill Durham, NC Carlon Ocel Charlotte, NC Molly Martinson Raleigh, NC Thomas Morrow Alexandria, VA Jasmine Lucas Chapel Hill, NC Eliu Mendez Summerfield, NC Seiko Okada Carthage, NC Eric Martinson Raleigh, NC Aaron Morse Carrboro, NC Laura Luffman Raleigh, NC Emmanuel Mensah-Acquaye Charlotte, NC Maura OKeefe Greensboro, NC William Massengale Charlotte, NC Joseph Mosher Chapel Hill, NC Katrice Lyles Chapel Hill, NC Samuel Merritt Charlotte, NC Colin Okoye Boiling Springs, SC Dylan Mataway-Novak East Lansing, MI Blaire Mosley Raleigh, NC John Lyman Durham, NC Barbara Meskill Huntersville, NC Philip Olivier Chapel Hill, NC Emily Mather Charlotte, NC Benjamin Mueller Raleigh, NC Erin MacDonald Raleigh, NC Richard Metcalf Silverthorne, CO David Omer Durham, NC Audra Matney Greensboro, NC Saiyani Mukombe Raleigh, NC Lucy MacDonald Knoxville, TN Keith Metz Durham, NC Yoko Onishi Raleigh, NC Kenneth Mattern Charlotte, NC Samantha Mul Yokohama, Japan Roland Macher Sanford, NC Steven Meyerhoffer Charlotte, NC Ukachukwu Onuoha Cornelius, NC Caroline Mauch Raleigh, NC Daniel Mullins Chapel Hill, NC Marc Mackenzie Greensboro, NC William Miles Chapel Hill, NC Michelle Oria Falls Church, VA Justin May Wrightsville Beach, NC Satie Munn Sunrise, FL Anuradha Madan Raleigh, NC Ali Miller Chapel Hill, NC Amelia O'Rourke-Owens Chapel Hill, NC Ashley McAlarney Charlotte, NC Michael Murphy Durham, NC Andrea Madle Chapel Hill, NC Amanda Miller Raleigh, NC Nikolas Ortega Durham, NC Scott McAllister Charlotte, NC Anna Murphy Raleigh, NC Munashe Magarira Charlotte, NC Jonathan Miller Greensboro, NC Jenalee Osier Chapel Hill, NC Sharee McCall New York, NY Seanna Murray Pineville, NC Patterson Maharajh Apex, NC Adam Mincher Charlotte, NC Susan Overby Charlotte, NC Kayla McCann Oxford, NC Sarah Murray Raleigh, NC John Malcomb Ashland, KY Maria Minis Raleigh, NC Joseph Owen Columbia, SC Blaire McClanahan Belmont, NC Kahran Myers Chapel Hill, NC Chad Malmberg Greensboro, NC Michael Minnick Charlotte, NC Victoria Owens Waxhaw, NC Teresa McCollum Los Angeles, CA John Nail Charlotte, NC Emily Malone Rock Hill, SC Candace Mitchell Winston-Salem, NC Kelly Owens Washington, DC Catherine McCormick New York, NY Michael Nash Charlotte, NC Emily Maloney Chapel Hill, NC William Mitchell Browns Summit, NC Kathleen Oxley Mooresville, NC Shawndria McCoy Greensboro, NC Tessa Neal Charlotte, NC Courtney Mann Knightdale, NC Catherine Mitchell Grundy, VA William Pagan Charlotte, NC Keith McCrickard Durham, NC Jonathon Neale Durham, NC Justin Mann Greensboro, NC Jocelyn Mitnaul Charlotte, NC Shannon Page

52 SUMMER 2014 Raleigh, NC Kaitlin Powers Raleigh, NC Karen Rust Raleigh, NC Matthew Pagett Chapel Hill, NC Katie Reynolds Jamestown, NC Brittney Simpson Raleigh, NC Lauren Powers Chapel Hill, NC Kelly Ryan Simpsonville, SC Nikeeta Pal Chapel Hill, NC Rebecca Reynolds Chapel Hill, NC Janisha Simpson Pineville, NC Trevor Presler Charlotte, NC Dana Rybak Jacksonville, FL Susan Park Durham, NC Chad Rhoades Raleigh, NC William Sims Chapel Hill, NC Kayla Price Clemmons, NC Holly Safi Durham, NC William Parker Clinton, NC Giles Rhodenhiser Durham, NC Jesse Skene Durham, NC Haley Price Durham, NC Harun Saglik Chapel Hill, NC Melvin Parker Greensboro, NC Howard Rhodes Cary, NC Jennifer Skinner Wake Forest, NC Jessica Price Hillsborough, NC Bianca Sahni Winston-Salem, NC Barbara Parker Monroe, NC Adrianne Ribar Charlotte, NC Michael Skinner Knoxville, TN Daniel Prichard Rougemont, NC Katelyn Sally Charlotte, NC Elizabeth Parrott Durham, NC Christina Rice Raleigh, NC Ashton Slate Raleigh, NC Asia Prince Charlotte, NC Navdeep Sandhu Hickory, NC Jeanelle Patel Holly Springs, NC Natalya RIce Durham, NC Kyle Smalling Raleigh, NC Thomas Prince East Bend, NC Alyson Sandul Raleigh, NC Minisha Patel Charlotte, NC Cara Richards Odenton, MD Monique Smart High Point, NC Stephen Prince Cary, NC Regina Sarkis Winston-Salem, NC Ann Patterson Pinehurst, NC Ian Richardson Charlotte, NC Chynna Smith Tallahassee, FL Stephen Pritchard Raleigh, NC Alexander Saunders Raleigh, NC Brandon Patton Winston-Salem, NC Ramon Richardson Raleigh, NC NeQuantis Smith Raleigh, NC Stephanie Proietty Rockville, MD Elizabeth Sawyer El Paso, TX Timothy Pavone Charlotte, NC Ethridge Ricks Chicago, IL Sherrie Smith Charlotte, NC Lachelle Pulliam Chapel Hill, NC Jeremy Schneider Charlotte, NC Donald Pender Charlotte, NC Kent Ridge Sterling, VA Jena Smith Durham, NC James Pully Charlotte, NC Juan Sclafani Charlotte, NC Seleste Perez Raleigh, NC Jonathan Ries Forest, VA Morgan Smith Charlotte, NC Kelsey Queen Charlotte, NC Andrew Scott Clemmons, NC Rome Perlman Charlotte, NC Chad Riggsbee Greensboro, NC Rachel Smith Charlotte, NC Kelly Quick Raleigh, NC John Sechrist Charlotte, NC John Perna Durham, NC Samone Ripley Winston-Salem, NC Jason Smith Cary, NC Jessica Ra Winston-Salem, NC Robin Seila Raleigh, NC Josepine Peters Raleigh, NC Zachary Rivenbark San Juan, PR Kenneth Smith Beaver, WV George Raad Jr Burgaw, NC Edith Serrano Raleigh, NC Courtney Peters Charlotte, NC Adrainne Roberts Rougemont, NC Taylor Smith Raleigh, NC Allison Rackley Winston-Salem, NC Bobby Sessoms Wake Forest, NC Sandra Petersson Carrboro, NC Nicholas Roberts Athens, GA Hillary Smith Charlotte, NC Ryan Radford High Point, NC Eli Sevcik-Timberg Chapel Hill, NC Joseph Petrack Columbia, MD Christian Robin Chapel Hill, NC Lindsay Smith Lexington, NC Jacob Raehn Greensboro, NC Michael Shapiro Durham, NC Jacob Phelps Columbia, SC Porsha Robinson Laurinburg, NC Eric Smithson Oxford, MS Carla Raez Chapel Hill, NC Danielle Shapiro Stateville, NC Justin Philbeck Huntersville, NC Daron Robinson Jr. Ormond Beach, FL William Snukals Winston-Salem, NC Brenna Ragghianti Mount Holly, NC Kristine Shawkey Raleigh, NC Catherine Phillips Greensboro, NC Rosa Rodriguez-Michel Charlotte, NC Demitra Sourlis Raleigh, NC Jonathan Rash Chapel Hill, NC Ruth Sheehan Chapel Hill, NC Anne Phillips Durham, NC Jeffrey Roether Raleigh, NC Opeyemi Sowemimo Ann Arbor, MI Caitlin Ray New York, NY Phillip Shelton Durham, NC Mandalin Phillips Huntington, WV Myles Rogers Chapel Hill, NC Rachel Spears Charlotte, NC Megan Ray Winston-Salem, NC Troy Shelton Eastover, NC Jeffrey Philogene Jacksonville, FL Emily Rojas Morrisville, NC Scotty Speas Charlotte, NC Emily Ray Chapel Hill, NC Amanda Sherin Rural Hall, NC Robert Pike Charlotte, NC Erica Romain Chapel Hill, NC LaSaundra Spencer Nashville, NC Christopher Rayburn Chapel Hill, NC Bryan Sherrick Concord, NC Andrew Pinto Charlotte, NC Lindsay Romine Youngsville, NC Anthea Spires Greensboro, NC Patrick Reale Raleigh, NC Jungwon Shin Cary, NC Gabrielle Pippen Charlotte, NC Lianna Rossman Charlotte, NC David Staggs Greensboro, NC Andrew Realon Charlotte, NC Edwin Shoaf Springfield, MA Dulce Plaza Greensboro, NC Alexander Rothschild Winston-Salem, NC Ashley Stallings Charlotte, NC John Reece Winston-Salem, NC Kevin Sholette Benson, NC Dawson Plimpton Winston-Salem, NC Tiffany Roulhac Charlotte, NC Shemrico Stanley Mars Hill, NC Melissa Reed Fayetteville, NC Geri Shomo Charlotte, NC Zachary Poole Apex, NC Kathryn Ruark Greensboro, NC Cameron Stanton Salisbury, NC Breanne Reed Chapel Hill, NC Kendall Short Greensboro, NC Joyce Pope Pittsburgh, PA Christopher Rumfelt Atlanta, GA Kyle Stark Chapel Hill, NC Thomas Reichert Marion, NC John Simermeyer Raleigh, NC Ryan Potts III Ocean View, DE Virginia Runion Baltimore, MD Alexander Stark Charlotte, NC Justin Reimer Campbell, CA Megan Simmons Raleigh, NC Jason Power Chapel Hill, NC Rebecca Rushton Goose Creek, SC Nicholas Stark Charlotte, NC Christopher Reinhard Eugene, OR Grier Simmons Matthews, NC

THE NORTH CAROLINA STATE BAR JOURNAL 53 Adam Steele Kofi Thompson Allison Vaughn Sara White Amanda Witzke Holly Springs, NC Chapel Hill, NC Lancaster, SC Winston-Salem, NC Holly Springs, NC Lear-la Stefanics Maurice Thompson Ana Lucia Vera Khalilah White Amy Wold Santa Clara, CA Columbia, SC Miami, FL Durham, NC Charlotte, NC Laraque Stewart Constance Thompson Andrew Vetrone Heather Whitecotton Cory Wolfe Durham, NC Winston-Salem, NC Cornelius, NC Sugar Grove, IL Chapel Hill, NC Charlotte Stewart Alexis Thore Timothy Victory William Whitehead Jordan Wolfe Chapel Hill, NC Mooresville, NC Raleigh, NC Greensboro, NC Hillsborough, NC Adam Stoddard Elizabeth Thornberry Ada Vicuna Danielle Whitt Alice Womack Cary, NC Whitsett, NC Huntersville, NC Jacksonville, FL Raleigh, NC Matthew Stone Emily Thornton Matthew Villmer Hannah Whitten Brian Wood Raleigh, NC Winston-Salem, NC New York, NY Raleigh, NC New York, NY Andrew Stormer Thomas Thurman Andrew Vining Caroline Wicks Erin Woodrum Raleigh, NC Durham, NC Baton Rouge, LA Mount Pleasant, SC Winston-Salem, NC Stephanie Stracqualursi Garrett Tillman Jennifer Vogel Will Widman William Woody Raleigh, NC Charlotte, NC Charlottesville, VA Oxford, MS Greensboro, NC Kristi Strawbridge Anna Tison Christopher Waivers Tiffany Wilborn Brandee Woolard New Bern, NC Raleigh, NC Raleigh, NC Charlotte, NC Raleigh, NC Katherine Street Cheri Todd Kevin Walker Sandra Wilburn Luke Woollard Clayton, NC Charlotte, NC Loveland, OH Cary, NC Chapel Hill, NC Daniel Strickland Anne Tosco Patrick Wallace Candyce Wilkerson Virginia Wooten Washington, DC Chapel Hill, NC Winston-Salem, NC Charlotte, NC Chapel Hill, NC Cassandra Strunk John Toth Charles Walsh Elizabeth Wilkinson Hilary Workman Knoxville, TN Winston-Salem, NC Raleigh, NC Raleigh, NC Raleigh, NC Alexandra Suarez Christopher Towery Hedao Wang Jonathan Willardson Tiasha Wray Morrisville, NC Charlotte, NC Durham, NC Wilkesboro, NC Charlotte, NC Matthew Sullivan John Townsend Mimi Wang Craig Williams Jeffrey Wright Charlotte, NC Greensboro, NC Matthews, NC Fayetteville, NC Durham, NC Jacob Sullivan Daniel Tracey Ashwini Kumar Wankhede David Williams Caitlin Wright Raleigh, NC Raleigh, NC Summerfield, NC Raleigh, NC Raleigh, NC Samantha Surles Bradley Trahan Merrill Ward Catherine Williams Candace Wright Chapel Hill, NC Raleigh, NC Greensboro, NC Charlotte, NC Raleigh, NC Liliam Sussman Nicole Trautman Stephen Warren Robert Williams Tommie Wright-Kearney Charlotte, NC Charlotte, NC Goldsboro, NC Columbia, SC Durham, NC Giles Sutton Christina Trent Bridget Warren David Williams Bryan Wymbs Charlotte, NC Naples, FL Chapel Hill, NC Raleigh, NC Salisbury, NC Justin Sutton Alexandra Tronolone Justice Warren Jeremy Williams Maryana Yavdyk Durham, NC Chapel Hill, NC Chapel Hill, NC Raleigh, NC Charlotte, NC Melissa Swaby Elizabeth Troutman Porsha Washington Whitney Williams Ebrahim Yazdani-Zonoz Cleveland, OH Chapel Hill, NC Charlotte, NC Durham, NC Washington, DC Erin Swinney Jessica Troy James Waters Ronald Williams David Yopp Durham, NC Cary, NC Durham, NC Raleigh, NC Raleigh, NC Andrew Tamer Douglas Tsao Lindsay Watson Karen Williams Sarah Young Charlotte, NC Winston-Salem, NC Winston-Salem, NC Houston, TX Advance, NC Cheston Tang Whitley Turner Erica Weatherford Noble Williamson Katherine Youngblood Winston-Salem, NC Charlotte, NC Greensboro, NC Charlotte, NC Boone, NC Allison Tanner Joseph Turrentine Brandon Weaver Lashanda Willis Chrisy Yun Chapel Hill, NC Chapel Hill, NC Raleigh, NC Durham, NC Durham, NC Shantel Tatem Laura Twichell Noah Webster Nelia Willis Alice Zachary Charlotte, NC Winston-Salem, NC Charlotte, NC Raleigh, NC Durham, NC Christian Taylor Rebecca Ugolick Robert Weinbach Damon Wilson Christopher Zachodzki Cary, NC Raleigh, NC New Bern, NC Winston-Salem, NC Charlotte, NC Michael Taylor Lisa Underwood Philip Weinstein William Wilson Rewa Zakharia Chapel Hill, NC Raleigh, NC Apex, NC Winston-Salem, NC Charlotte, NC Katherine Taylor Zachary Underwood Howard Wellons Dana Wilson Benjamin Zich Chapel Hill, NC Winston-Salem, NC Gastonia, NC Winston-Salem, NC Hickory, NC Brandon Taylor Emily Unnasch Jenna Wells Kathryn Wilson Agnieszka Zmuda Fort Mill, SC Winston-Salem, NC Spring Lake, NC Washington, DC Raleigh, NC Brittany Taylor David Unwin Lisanne Welsh Martha Wilson-Parks Cary, NC Houston, TX Monroe, NC Rock Hill, SC Heather Taylor Emily Urch Casey Wentz Amadu Wiltshire Raleigh, NC Durham, NC Cary, NC Charlotte, NC Kimberly Thaxton Melissa Ursi Robert Wessels Kaleb Wingate Cornelius, NC Charlotte, NC Hickory, NC Durham, NC Zachary Thayer Adriana Urtubey Christopher West William Winn Durham, NC Charlotte, NC Cary, NC Winston-Salem, NC Christian Thomas Caitlin Vamvakaris Robert Weston Leslie Wise Winston-Salem, NC Winston-Salem, NC Carrboro, NC Charlotte, NC Samantha Thompson Lily Van Patten Blakely Whilden William Wiseman Chapel Hill, NC Durham, NC Chapel Hill, NC Chapel Hill, NC Jessica Thompson Elizabeth Vance Shakimah Whitaker Morgan Wittman Reidsville, NC Winston-Salem, NC Winston-Salem, NC Durham, NC

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