THE NORTH CAROLINA STATE BAR

SUMMER JOURNAL2011

IN THIS ISSUE Reexamining Inactive Attorneys page 8 The ABCs of the DHC page 15 The Selma Cyclepaths page 20

THE NORTH CAROLINA STATE BAR JOURNAL

Summer 2011 Volume 16, Number 2 FEATURES Editor Jennifer R. Duncan 8Reexamining Inactive Attorneys By Margaret M. Hunt Publications Committee Margaret J. McCreary, Chair John E. Gehring, Vice-Chair 10 Getting Paid, Avoiding Conflicts, David Benbow and Supervising Staff: Fee Dorothy Bernholz Lauren Collins Agreements, Multi-party G. Stevenson Crihfield Representation, and Delegation Rebecca Eggers-Gryder Anna R. Hamrick of Duties George L. Jenkins By Judge John M. Tyson Robert C. Montgomery Lonnie Player Carlyn G. Poole 15The ABCs of the DHC Harold G. Pope By Martin B. (Marty) McGee G. Gray Wilson Alan D. Woodlief Jr. 18Tabitha Ann Holton, First in the South © Copyright 2011 by the North Carolina State Bar. All By Walter C. Holton Jr. rights reserved. The North Carolina State Bar Journal (ISSN 10928626) is published four times per year in 20 The Selma Cyclepaths March, June, September, and December under the direc- By Robert W. Bryant Jr. tion and supervision of the council of the North Carolina State Bar, 208 Fayetteville Street, Raleigh, NC 27601. 22 WARNING: The Information You Member rate of $6.00 per year is included in dues. Nonmember rates $10.78 per year. Single copies $3.21. Are About to Read...Is Disturbing The Lawyer's Handbook $10.78. Advertising rates available By Peter G. Bolac upon request. Direct inquiries to Director of Communications, the North Carolina State Bar, PO Box 25908, Raleigh, North Carolina 27611, tel. (919) 828- 4620. Periodicals postage paid at Raleigh, NC, and addi- Continued on page 4. tional offices. Opinions expressed by contributors are not necessarily those of the North Carolina State Bar. POST- MASTER: Send address changes to the North Carolina State Bar, PO Box 25908, Raleigh, NC 27611. The North Carolina Bar Journal invites the submission of unsolicited, original articles, essays, and book reviews. Submissions may be made by mail or e-mail ([email protected]) 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, Update Membership Information: Members who need to update their membership and the potential interest to the readers of the Journal. The information must do so by contacting the Membership Department via one of the four Journal reserves the right to edit all manuscripts. 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 [email protected]. In deciding what address to list with the State Bar, be advised that this address will be used for all official correspondence from the State Bar and that PRINTED ON RECYCLED PAPER membership information is a public record pursuant to the NC Public Records Act.

THE NORTH CAROLINA STATE BAR JOURNAL 3 Officers Staff Anthony S. di Santi, Boone - President 2010-2011 Roger Allen, Investigator James R. Fox, Mount Airy - President-Elect 2010-2011 Steve Annis, Investigator M. Keith Kapp, Raleigh - Vice-President 2010-2011 Carmen H. Bannon, Deputy Counsel L. Thomas Lunsford II, Raleigh - Secretary-Treasurer Betsy C. Barham, Receptionist Barbara B. Weyher, Raleigh - Past-President 2010-2011 Tim Batchelor, Investigator Kelly Beck, Compliance Coordinator, Membership Councilors Krista Bennett, Fee Dispute Facilitator, ACAP DEPARTMENTS Michael D. Blan, Systems Analyst/Programmer By Judicial District Peter Bolac, Judicial District Bar Liaison/Trust Account 1: Donald C. Prentiss, Elizabeth City Compliance Officer 2: G. Thomas Davis Jr., Swan Quarter Elizabeth E. Bolton, Receptionist 5 President’s Message 3A: Leslie S. Robinson, Greenville Maria Brown, Paralegal 3B: Debra L. Massie, Beaufort Eddie Capel, Investigator 24 Lawyer Assistance Program 4: Robert W. Detwiler, Jacksonville Becky B. Carroll, Paralegal 5: Harold L. Pollock, Burgaw 28 Profile in Specialization W. Donald Carroll Jr., Director, LAP 6A: Gilbert W. Chichester, Roanoke Rapids Margaret Cloutier, Senior Deputy Counsel 6B: Ronald G. Baker Sr., Ahoskie 29 IOLTA Update Joseph J. Commisso, Director of Investigations 7: Randall B. Pridgen, Rocky Mount Luella C. Crane, Director of ACAP 30 Legal Ethics 8: George L. Jenkins Jr., Kinston Bruno E. DeMolli, Staff Auditor & Investigator 9: Julius E. Banzet III, Warrenton Sharon Denton, Events Manager 31 Paralegal Certification 9A: R. Lee Farmer, Yanceyville Jennifer R. Duncan, Director of Communications 10: Nicholas J. Dombalis II, Raleigh 32 A. Root Edmonson, Deputy Counsel The Disciplinary Department John N. (Nick) Fountain, Raleigh William N. Farrell Jr., Deputy Counsel David W. Long, Raleigh 34 Featured Artist Martha Fletcher, Admin. Asst. Carlyn G. Poole, Raleigh David J. Frederick, Investigator 35 Donna R. Rascoe, Raleigh Proposed Ethics Opinions Towanda Garner, Piedmont LAP Coordinator Sally H. Scherer, Raleigh Lanice Heidbrink, Exec. Asst., Admin. 40 Rule Amendments John M. Silverstein, Raleigh Jeffery Hill, Computer Systems Administrator Cynthia L. Wittmer, Raleigh Leanor Hodge, Deputy Counsel 11A: Marcia H. Armstrong, Smithfield Joshua Hoffman, Admin. Asst., Office of Counsel 11B: Donald E. Harrop Jr., Dunn Debra P. Holland, Asst. Director, CLE 12: Lonnie M. Player Jr., Fayetteville Buffy Holt, Admin Asst, LAP BAR UPDATES 13: Harold G. Pope, Whiteville Tammy Jackson, Membership Director 14: John A. Bowman, Durham Katherine Jean, Counsel and Assistant Executive Dir. Margaret J. McCreary, Durham David R. Johnson, Deputy Counsel 15A: Steven H. Messick, Burlington 33 In Memoriam Barbara Kerr, Archivist 15B: Dorothy Bernholz, Chapel Hill Melanie Kincaid, Public Liaison, ACAP 45 Law School Briefs 16A: William R. Purcell, Laurinburg Erica Leventhall, Grant Data Asst., IOLTA 16B: C. Christopher Smith, Lumberton Suzanne Lever, Asst. Ethics Counsel 47 Distinguished Service Award 17A: Joseph G. Maddrey, Eden Joyce L. Lindsay, Exec. Asst., Admin. 17B: John E. Gehring, Walnut Cove 48 Carey Adam Maner, Membership Asst. Client Security Fund 18: Barbara R. Christy, Greensboro Beth McIntire, IT Manager Robert C. Cone, Greensboro 49 Bar Exam Applicants Beth McLamb, Membership Asst. Richard S. Towers, High Point Nichole P. McLaughlin, Deputy Counsel 19A: James D. Foster, Concord Barry S. McNeill, Deputy Counsel 19B: W. Edward Bunch, Asheboro Diane Melching, Admin. Asst., ACAP 19C: Darrin D. Jordan, Salisbury Sandra R. Melvin, Office Manager 19D: Douglas R. Gill, Southern Pines Dottie K. Miani, Facilities Manager/Deputy Clerk of DHC 20A: Frederick D. Poisson Jr., Wadesboro Claire U. Mills, Accounts Manager, IOLTA 20B: Harry B. Crow Jr., Monroe Alice Neece Mine, Asst. Executive Dir., Dir. of CLE, 21: Michael L Robinson, Winston-Salem Specialization, & Paralegal Certification G. Gray Wilson, Winston-Salem Denise Mullen, Asst. Director of Specialization 22: C. David Benbow IV, Statesville Loriann Nicolicchia, Accreditation Coordinator, CLE 22B: Roger S. Tripp, Lexington Emily Oakes, Attendance Compliance Coordinator, CLE 23: Jimmy D. Reeves, West Jefferson Brian Oten, Deputy Counsel 24: Rebecca Eggers-Gryder, Boone Lisanne Palacios, Accounting Manager 25: Forrest A. Ferrell, Hickory Heather Pattle, Administrator, Office of Counsel 26: David N. Allen, Charlotte C. Fred Patton, Jr., Investigator Robert J. Bernhardt, Charlotte Wondella Payne, Paralegal Ronald L. Gibson, Charlotte Scott Perry, AP Investigator F. Fincher Jarrell, Charlotte Angel Pitts, Mail/Copy Clerk Mark W. Merritt, Charlotte Jennifer Porter, Deputy Counsel Nancy Black Norelli, Charlotte Evelyn Pursley, Executive Dir., IOLTA Mujeeb Shah-Kahn, Charlotte Sonja B. Puryear, Admin. Asst., IOLTA 27A: Sonya Campbell McGraw, Gastonia Lori Reams, Admin. Asst., Office of Counsel 27B: Ralph W. Meekins, Lincolnton Joan Renken, Admin. Asst., LAP 28: Howard L. Gum, Asheville Randall C. Ross, Investigator 29A: Marvin R. Sparrow, Rutherfordton Sandra L. Saxton, Public Liaison, ACAP 29B: Margaret M. Hunt, Brevard Sonya Sells, Paralegal 30: W. David Sumpter III, Murphy Fern Gunn Simeon, Deputy Counsel Jaya Singh, Accounting Asst. Public Members Jennifer Slattery, Accreditation Clerk, CLE William F. Dowdy III, Raleigh Judith Treadwell, Public Liaison, ACAP Dr. Vinod Goel, Morrisville Pam Tully, Investigator Issac Heard Jr., Charlotte Edmund F. Ward, Asst. Director, LAP A. Dawn Whaley, Admin. Asst., Investigations Edward R. White, Investigator Tara J. Wilder, Asst. Dir., Paralegal Certification Christiane Woods, Admin Asst., Investigations

4 SUMMER 2011 THE PRESIDENT’S MESSAGE

April and the General Assembly in Raleigh

B Y A NTHONY S. DI S ANTI

eing from the mountains of age from the storm, they should address investment of time and money while the western North Carolina, since their needs or their community’s needs client may not want to settle because the April 2000 I have eagerly antic- instead of traveling to Raleigh for the meet- offered compensation is inadequate. If a cor- ipated the April quarterly meet- ing. The council met as planned to address poration were charging an hourly fee, the ingB of the council in its mission to protect the goal of maximizing profits could motivate it Raleigh. In the mountains, public charged to it in 1933 to provide unnecessary legal services. we are approximately a by the General Assembly, People, not corporations, are licensed to month behind the full blos- although in a much more practice law. Regulation of the profession, som of spring one finds in somber mood. and therefore protection of the public, Raleigh, a time when the With the General depends entirely upon the obligation of each city is in its most beautiful Assembly in session during individual owner of a law firm, all of whom state. On Saturday, April our meeting, the council must be lawyers, to comply with the Rules of 16, 2011, as I planned to be monitored the progress of Professional Conduct. A nonattorney in Raleigh the next week, legislation which would investor in a law firm by definition would ominous warnings were have an impact on the State not have a law license and could not be sanc- being broadcast of danger- Bar’s mission to protect the tioned for violating the Rules of Professional ous storms within our state. public. House Bill 832 and Conduct. A nonattorney investor’s business As I monitored the warn- Senate Bill 254 were con- decisions would not necessarily be made ings, I learned of the severe tornadoes that sidered by the council, which decided to with reference to the interests of the client. struck eastern North Carolina, including oppose the bill. The bill would allow nonat- The provision of this bill limiting nonattor- Raleigh. Photographs of the damage posted torney ownership of professional corpora- ney ownership to 49% does not eliminate on WRAL’s website indicated severe damage tion law firms. This bill would represent a this problem. It would only take the vote of along South Saunders Street in Raleigh. radical change in the practice of law. The one lawyer member, joined with the votes of Knowing that South Saunders Street is American Bar Association has twice in the the nonattorney members, to assume control the approach to the Marriott Raleigh Center past decade considered and rejected similar of a law firm. If up to 49% of the ownership City where the meetings of the council are proposals. To the State Bar’s knowledge, only of a law firm were not bound by the Rules of conducted, I became concerned the Marriott one jurisdiction, the District of Columbia, Professional Conduct, the lawyer owners’ had sustained damage which might preclude permits any nonattorney ownership in a law independence and ability to serve clients the council’s ability to meet the next week. I firm, but under much narrower circum- could easily be compromised. was able to contact our executive director, stances. The DC rule only allows nonattor- Nonattorney ownership in law firms cre- Tom Lunsford, Sunday morning, and I was ney ownership in a law firm by employees of ates another irreconcilable conflict. The bill pleased to learn that his family and he were the firm who provide professional services, provides that the firm need not address con- safe, as were the other members of the State such as lobbying, financial planning, or flicts of the personal interests of a sharehold- Bar’s staff who are so vital to the work of the accounting services that assist the firm in er who owns less than 5% of the outstanding council, and that the Marriott, while being serving its clients. In contrast, this bill would shares. Under the Rules of Professional close to severe damage in Raleigh, escaped allow any nonattorney to be a shareholder in Conduct, any conflict of any lawyer in the damage from the storm. I was equally con- a law firm. firm must be addressed, typically by disqual- cerned that members of the council, or their There has long been a prohibition in ifying the firm from participating in the rep- communities, especially in eastern North North Carolina against corporations practic- resentation. Carolina, might be so affected by the storms ing law. N.C.G.S. 84 5; State v. Carolina Other problems created, but not that they could not attend the council meet- Motor Club, 209 N.C. 624 (1936). This is resolved, by the proposed legislation include: ing. However, as North Carolinians have because the fiduciary obligation of a corpo- • Protecting client confidences from always done in times of turmoil, we conclud- ration to maximize profits conflicts with a nonattorney investors; ed that it was important to continue the lawyer’s professional responsibility to put the • Assuring that pro bono and other profes- work of the council. I contacted the mem- client’s interests ahead of all others. If a cor- sional responsibilities to the public are not bers of the council and advised them that if poration were charging a contingent fee, it they or their community had sustained dam- may want to settle quickly with a minimum CONTINUED ON PAGE 6

THE NORTH CAROLINA STATE BAR JOURNAL 5 offered compensation is inadequate. The exempt under 26 USC 501(c)(5) and (6), lawyer charged with promoting the client’s which includes any labor, agricultural, horti- best interests has a direct conflict with the cultural, trade association, or business interests of his or her employer. league, regardless of purpose, is simply too A nonprofit corporation cannot have a broad and serves no public purpose. The law license and therefore could not be sanc- proposed legislation would establish a sys- tioned for failing to comply with the Rules tem in which the interests of clients could be of Professional Conduct. Its business deci- subordinated to the interests of third parties sions are not made with reference to the who are beyond the state’s regulation. requirements of the Rules of Professional House Bill 690 will require that residen- Conduct. However, the continued employ- tial real estate closings and settlements under ment of a lawyer employed by a corporation the Good Funds Settlement Act be super- NEVER MISS AN to provide legal services to its members vised by attorneys licensed in this state and OPINION FILING AGAIN! would be dependent upon the lawyer’s obe- will require that interest earned on real estate dience to the corporation’s officers and direc- settlement funds held in trust and escrow For email notification of opinion fil- tors. The lawyer’s independence and ability accounts be paid into the North Carolina ings of the North Carolina Appellate to serve the client’s interests could easily be State Bar’s Interest on Lawyers’ Trust Courts, sign up at: compromised. Account Fund. The council decided to sup- http://appellate.nccourts.org/ For these reasons, the prohibition against port this bill. A special committee of the notify_signup.php the practice of law by corporations, both for- council is reviewing Authorized Practice profit and nonprofit, is virtually universal. Advisory Opinion 2002-1 as a result of the To the State Bar’s knowledge, Pennsylvania is harm that has been caused to the public due the only jurisdiction in the United States to real estate lay closings and mortgage fraud President’s Message (cont.) that has adopted legislation similar to the as evidenced by the collapse of the real estate proposed legislation. 42 Pa.C.S. § 2524 market in 2008. This issue has also caused a jeopardized because of financial pressures (2010). reduction in funds available for the State from minority shareholder interests; North Carolina statutes already contain Bar’s IOLTA program, which is a major • Assuring that nonattorney investors in the only two exceptions dictated by the pub- funding source for legal services to our most one law firm cannot invest in a competing lic’s interest: legal services organizations and vulnerable citizens. This bill is consistent law firm; and public interest law firms. These exceptions with the State Bar’s mandate to protect the • Assuring that a law firm cannot invest arise from a line of United States Supreme public from harm caused by the unautho- in a competing firm to create disqualifying Court decisions beginning with NAACP v. rized practice of law. conflicts. Button, 371 U.S. 415 (1963). The Supreme I wish to recognize and thank the State The State Bar is deeply concerned that Court held that civil rights and union organ- Bar’s Deputy Counsel, David Johnson, for this bill offers no known benefit to the pub- izations have a First Amendment right to his assistance in providing support for the lic, but creates significant and unavoidable provide legal services to their members so council’s opposition to the bill which would dangers to consumers of legal services. that their members have meaningful access allow nonattorney ownership of professional House Bill 714 and Senate Bill 706 to the courts. The Button exceptions are nar- corporation law firms and the bill which would allow nonprofit corporations operat- rowly drawn to provide access to the courts would allow nonprofit corporations operat- ing as professional or trade organizations or to pursue shared legal interests by members ing as professional or trade organizations or as business leagues to provide legal services who otherwise could not obtain legal repre- business leagues to provide legal services to to their members. The council decided to sentation. In contrast, the proposed legisla- their members. The staff and council of the oppose this bill. As noted above, there has tion would permit any corporation exempt North Carolina State Bar will continue to long been a prohibition in North Carolina from tax under 26 USC 501(c)(5) or (6) to monitor these bills and other issues that may against corporations practicing law. The rea- provide, and charge fees for, legal services impact the State Bar’s mission to protect the sons for this prohibition are compelling. The even when the legal issues involved are not public while they work diligently to prepare mission of a nonprofit corporation may also related to a shared political agenda. The First for the next meeting of the council which conflict with the client’s interests. The client Amendment requires no such exception. will be held in Blowing Rock in July. It is my may want to settle to obtain needed com- There is no reason to believe that all or even hope that the beauty of mountains in the pensation while the corporation prefers to a majority of members of corporations summer will be consistent with the beauty of reach a public resolution to promote an eco- exempt from taxation under 26 USC Raleigh in the spring, and that our nation nomic or political agenda. The corporation 501(c)(5) and (6) lack access to legal repre- and state will not again endure the tragedy may want to settle because the proposed set- sentation. Any exception to the prohibition caused by the severe storms so prevalent this tlement promotes the corporation’s agenda against the practice of law by corporations year. n or because the corporation does not want to must promote a compelling public purpose invest more resources in the litigation while and be narrowly drafted. Granting the privi- Anthony S. di Santi is a partner with di the client does not want to settle because the lege of practicing law to any corporation tax- Santi Watson Capua & Wilson in Boone.

6 SUMMER 2011

Reexamining Inactive Attorneys

B Y M ARGARET M. HUNT

n 2009, then-State Bar

President John McMillan

appointed the Program

Evaluation Committee to review certain StateI Bar programs and the programs’ governing rules to determine if changes were necessary or appropriate to assist the State Bar in its statutory responsibility to regulate the legal profession. As part of this review, the Administrative SIS/Paul Vismara

Subcommittee of the Program Evaluation Committee was asked to determine whether the rules governing the reinstatement of attorneys from inactive status and from administrative suspension ensure the competency and fitness of attorneys who return to active status.

As a result of the recommendations of the ney submits a written petition pursuant to other proceeding of the State Bar; or (c) fail- Administrative Subcommittee, the State Bar Rule .0900 and the State Bar Council enters ure to complete the annual CLE require- Council recently published and adopted sig- an order transferring the attorney to inactive ments or failure to file the Annual Report nificant changes to 27 N.C.A.C. 1D Rules status. An attorney may go inactive for any form for CLE. .0902 and .0904 governing reinstatement of reason and thereby be relieved of the duty to Disciplinary suspensions are ordered by attorneys from inactive status and from pay dues and fulfill the CLE requirements. the Disciplinary Hearing Commission for administrative suspension. These rule revi- An attorney is administratively suspended by violations of the Rules of Professional sions were approved by the North Carolina the council upon failure to fulfill one or Conduct. Reinstatement from disciplinary Supreme Court and became effective on more of the obligations of membership in suspension is pursuant to the order of the March 10, 2011. Rule .0902 governs rein- the State Bar, including: (a) failure to pay the Disciplinary Hearing Commission. statement from inactive status, and Rule annual membership fee, Client Security Disciplinary suspensions and reinstatements .0904 governs reinstatement from adminis- Fund assessment, judicial surcharge, manda- are not discussed in this article. trative suspension. tory judicial district bar dues, or any late fees; Rule .0902 sets out the procedure for Inactive status is granted when an attor- (b) failure to pay the costs of a disciplinary or reinstatement from inactive status. Because

8 SUMMER 2011 the rule revisions for reinstatement from tus in another jurisdiction and complies with statement to active status if they have been inactive status contain significant new mandatory CLE requirements in the state inactive for two years or more. Regardless of requirements, the Administration where licensed, those CLE credit hours may the number of years of inactive status, these Subcommittee felt that it would be unfair to be applied to the requirements under this attorneys will not be required to obtain a impose these new requirements on attorneys provision. passing grade on a regularly scheduled North on inactive status at the time the revisions 2. The total number of required hours Carolina bar examination. take effect because these attorneys may have must be completed within two years of filing Another new provision of Rule .0902 gone inactive and remained inactive in a petition to resume active status. allows the secretary of the State Bar to rein- reliance on the prior standards for reinstate- 3. If seven or more years have elapsed state an attorney upon petition if the inactive ment. Therefore, these revisions apply only between the date of the inactive status order attorney has fulfilled all the requirements for to those attorneys who are transferred to and the date the petition for reinstatement is reinstatement and there are no issues relating inactive status on or after March 10, 2011. filed, an attorney seeking to return to active to character or fitness. Previously, attorneys The rule revisions impose the following status must obtain a passing grade on a regu- could be reinstated only by order of the new reinstatement requirements for attor- larly scheduled North Carolina bar examina- Council. Reinstatement by the secretary is neys granted inactive status on or after tion. However, when calculating the seven discretionary. If the secretary declines to rein- March 10, 2011: years, an attorney seeking reinstatement state, the attorney’s petition will be reviewed 1. If more than one but less than seven from inactive status may offset one year of by the council’s Administrative Committee years have elapsed between the date of the inactive status in North Carolina for each at the next quarterly meeting of the council. inactive status order and the date the petition year of active licensure in another state. Since the State Bar Council only meets quar- for reinstatement is filed, the attorney must The requirements for attorneys already terly, this new provision may shorten the complete 12 hours of approved CLE for on inactive status prior to March 10, 2011, period between filing the petition and the EACH YEAR the attorney was inactive. For the effective date of the rule revisions, who order for reinstatement. each 12-hour requirement, four hours may later petition for reinstatement, will be gov- Attorneys on administrative suspension be taken on-line; two hours must be in the erned by the rule in effect prior to these revi- who seek reinstatement under Rule .0904 areas of ethics and or professionalism; and sions. Therefore, those attorneys will be are required to complete the same revised five hours must be in practical skills. required to complete 15 hours of CLE credit However, if an attorney maintains active sta- within one year of filing a petition for rein- CONTINUED ON PAGE 14

THE NORTH CAROLINA STATE BAR JOURNAL 9 Getting Paid, Avoiding Conflicts, and Supervising Staff: Fee Agreements, Multi-party Representation, and Delegation of Duties

J UDGE J OHN M. TYSON

Getting Paid and Fee Arrangements represented the client, the scope The legal profession is heavily regulated of the representation and the by the North Carolina Legislature, the basis or rate of the fee and Judicial Branch, and the North Carolina expenses for which the client will State Bar (“State Bar”). While most private be responsible shall be commu- compensation contracts are free of regulatory nicated to the client, preferably oversight, the State Bar issued Rule 1.51 reg- in writing, before or within a rea- ulating fees, under the authority granted by sonable time after commencing North Carolina General Statute § 84-23: the representation. (a) A lawyer shall not make an agreement (c) A fee may be contingent for, charge, or collect an illegal or clearly on the outcome of the matter for excessive fee or charge or collect a clearly which the service is rendered, excessive amount for expenses. The factors to except in a matter in which a be considered in determining whether a fee is contingent fee is prohibited by clearly excessive include the following:2 paragraph (d) or other law. A (1) the time and labor required, the nov- contingent fee agreement shall elty and difficulty of the questions be in a writing signed by the involved, and the skill requisite to per- client and shall state the method form the legal service properly; by which the fee is to be deter- (2) the likelihood, if apparent to the mined, including the percentage client, that the acceptance of the particu- or percentages that shall accrue lar employment will preclude other to the lawyer in the event of set- employment by the lawyer; tlement, trial or appeal; litigation (3) the fee customarily charged in the and other expenses to be deduct- locality for similar legal services; ed from the recovery; and SIS/Image Zoo (4) the amount involved and the results whether such expenses are to be obtained; deducted before or after the con- (5) the time limitations imposed by the tingent fee is calculated. The agreement must nation. client or by the circumstances; clearly notify the client of any expenses for (d) A lawyer shall not enter into an (6) the nature and length of the profes- which the client will be liable whether or not arrangement for, charge, or collect: sional relationship with the client; the client is the prevailing party. Upon con- (1) a contingent fee for representing a (7) the experience, reputation, and ability clusion of a contingent fee matter, the lawyer defendant in a criminal case; however, a of the lawyer or lawyers performing the shall provide the client with a written state- lawyer may charge and collect a contin- services; and ment stating the outcome of the matter and, gent fee for representation in a criminal or (8) whether the fee is fixed or contingent. if there is a recovery, showing the remittance civil asset forfeiture proceeding if not oth- (b) When the lawyer has not regularly to the client and the method of its determi- erwise prohibited by law; or

10 SUMMER 2011 (2) a contingent fee in a civil case in the amounts charged; (3) avoid wasteful, mer Rule 2.6(e) (superseded by Rule 1.5(f)) which such a fee is prohibited by law. unnecessary, or redundant procedures; and a state court action was pending.27 (e) A division of a fee between lawyers and (4) ensure the total cost to the client The old maxim that work always takes who are not in the same firm may be made is not clearly excessive. longer, costs more, and will not be per- only if: In RPC 107,14 the State Bar ruled that an formed in the way originally envisioned (1) the division is in proportion to the attorney and client may agree to employ applies to attorney fee agreements. The State services performed by each lawyer or each alternative dispute resolution procedures to Bar places the burden on the attorney to lawyer assumes joint responsibility for the resolve fee or other disputes between them- explain in advance the amount of fees or representation; selves.15 billing rates to be charged, and limits the (2) the client agrees to the arrangement, Rule 1.5(f) is a recent addition to the methods of enforcement and collection an including the share each lawyer will State Bar’s Rules regarding fees. Any lawyer attorney may use to get paid. receive, and the agreement is confirmed having a dispute with a client regarding a fee in writing; and for legal services must make reasonable Conflicts of Interest (3) the total fee is reasonable. efforts to advise the client of the existence of Parties to real property and business (f) Any lawyer having a dispute with a the North Carolina State Bar’s Fee Dispute transactions often rely upon a single attorney client regarding a fee for legal services must: Resolution Program at least 30 days prior to to prepare and oversee the execution of doc- (1) make reasonable efforts to advise his initiating legal proceedings to collect the dis- uments. The attorney involved may main- or her client of the existence of the North puted fee.16 Notification must be given “not tain a prior or ongoing client relationship Carolina State Bar's program of fee dis- only when there is a specific issue in dispute, with one party. Non-represented parties may pute resolution at least 30 days prior to but also when the client simply fails to presume the attorney is under an ethical obli- initiating legal proceedings to collect the pay.”17 However, the fee is not disputed and gation to advise them and protect their inter- disputed fee; and notification to the client is not necessary ests. Even with full disclosure to the non-rep- (2) participate in good faith in the fee dis- “when the client expressly acknowledges lia- resented party, the attorney must be very pute resolution process if the client sub- bility for the specific amount of the bill and careful not to violate disciplinary rules, mits a proper request. states that he or she cannot presently pay the which prohibit conflicts of interest. The The State Bar and the courts have inter- bill.”18 When a client requests resolution of attorney should limit the expectations of the preted the application of this Rule in many a disputed fee, participation in the North non-represented party and clearly recom- factual scenarios. In O'Brien v. Plumides,3 Carolina Fee Dispute Program is mend for the non-represented party to seek the court of appeals held that an attorney mandatory.19 their own counsel. discharged by his client is entitled to recover In making reasonable efforts to advise a An attorney bears an ethical and profes- the reasonable value of the services already client of the existence of the Fee Dispute sional responsibility to his or her clients and rendered.4 The reasonable value of such Resolution Program, the State Bar prefers the to the courts in all representations. services is determined by the totality of the attorney to mail or send written communica- Frequently, one attorney will be retained by circumstances of each case.5 In tion to the client at the client’s last known both parties to draft the transactional docu- Redevelopment Comm'n v. Hyder,6 the court address.20 If the current address of the client ments. Both parties may communicate with of appeals held that reasonable attorney’s is unknown, “the lawyer should use reason- and seek advice from the attorney about the fees may be determined in part by the able efforts to acquire the current address of legal effect of provisions included in the doc- amount of the verdict obtained in a con- the client.”21 If the client requests fee dispute uments. These discussions may raise ethical demnation proceeding when compared with resolution, “the lawyer must participate in considerations of: (1) whether the attorney the amount of offers made in proposals to the resolution process in good faith.”22 who drafted the documents may represent the client prior to his employment of the The State Bar Fee Dispute Resolution either party in a later proceeding based on attorney.7 The results obtained through the Program uses mediation to resolve fee dis- the documents; and, if so, (2) what informa- attorney’s reputation, skill, and expertise are putes as an alternative to litigation.23 The tion must remain confidential and not be legitimate considerations in determining the lawyer is required to cooperate “with the per- disclosed in later proceedings. amount of the fee.8 son who is charged with investigating the The general rule is that an attorney may The State Bar ruled in CPR 379 that an dispute and with the person appointed to not represent adverse parties.28 Rule 1.7, attorney may charge interest on delinquent mediate the dispute.”24 The lawyer should however, provides exceptions: accounts,10 and later in CPR 12911 ruled fully set forth and support his or her position Notwithstanding the existence of a con- that it is ethical for an attorney to offer credit with appropriate documentation.25 The current conflict of interest..., a lawyer card services to clients for the payment of attorney cannot ethically charge an addition- may represent a client if: fees charged for services rendered.12 al fee to the client for participating in the Fee (1) the lawyer reasonably believes that the In 2007 Formal Ethics Opinion 13,13 the Dispute Resolution Program.26 lawyer will be able to provide competent State Bar ruled that an attorney must: The United States District Court for the and diligent representation to each affect- (1) establish a reasonable hourly rate for Eastern District of North Carolina refused to ed client; his services and for the services of his staff issue a temporary restraining order where the (2) the representation is not prohibited by to ensure honest billing predicated on lawyer, engaged in a fee dispute with the law; hourly charges; (2) disclose the basis for client, failed to follow the procedures of for- (3) the representation does not involve

THE NORTH CAROLINA STATE BAR JOURNAL 11 the assertion of a claim by one client An attorney representing solely one ing or giving advice concerning matters dis- against another client represented by the party to the transaction should make it closed by a land survey about the rights or lawyer in the same litigation or other pro- absolutely clear to the other party that the responsibilities of the parties; (4) providing a ceeding before a tribunal; and attorney is representing only his client. The legal opinion in response to questions by any (4) each affected client gives informed non-represented party should be instructed party regarding any legal rights; (5) advising consent, confirmed in writing.29 not to rely on any statement made by the a party how to take title in alternative ways or It is common for an attorney to represent attorney representing solely one party, and the legal consequences of taking title in those multiple parties when drafting transactional advised to seek independent advice from ways; (6) drafting a legal document or assist- documents. However, the attorney must another attorney. ing a party to select a document among dif- obtain informed consent from all represent- ferent forms having varying legal implica- ed parties.30 Informed consent is an “agree- Supervising Staff tions; (7) explaining or recommending to a ment by a person to a proposed course of Recent changes impact the closing and party a course of action, if this advice conduct after the lawyer has communicated financing of residential real estate transac- requires a legal judgment; and (8) attempting adequate information and explanation tions. On December 14, 2001, the Federal to resolve a legal dispute between the appropriate to the circumstances.”31 The Trade Commission wrote the North parties.40 amount of disclosure required to obtain the Carolina State Bar Ethics Committee and client’s informed consent depends upon the urged the State Bar to reconsider two ethics Non-Lawyer Roles circumstances.32 Information regarding “the opinions requiring attorneys to be physically The State Bar does not consider oversee- implications of the common representation, present at residential real estate closings.38 In ing the execution of residential real estate including possible effects on loyalty, confi- response, the State Bar issued an advisory closing documents and receiving and dis- dentiality and the attorney-client privilege, opinion defining the role of non-lawyers bursing closing proceeds as acts constituting and the advantages and risk involved” must during a real estate closing.39 The advisory the practice of law that require an attorney to be disclosed.33 opinion states: be physically present.41 A supervised non- The attorney owes a duty of loyalty to Residential real estate transactions typi- lawyer assistant may identify to a client, who each client. The attorney must disclose suffi- cally involve several phases, including the is a party to a residential real estate transac- cient information to enable a client to pro- following: abstraction of titles; applica- tion, the documents to be executed, direct vide informed consent. If the attorney’s ethi- tion for title insurance policies, including the client as to the correct place on each doc- cal responsibilities to another client prohibit title insurance policies that may incorpo- ument to sign, and disburse proceeds, even full disclosure, the attorney cannot represent rate tailored coverage; preparation of though the lawyer is not physically present.42 both parties.34 Each client has the right to legal documents such as deeds (in the If any party asks any question regarding the know all factors affecting the attorney’s judg- case of a purchase transaction) and deeds legal rights or obligations of the parties, or ment on the case.35 If one client asks the of trust; explanation of documents impli- the legal effect of the documents, a non- attorney not to disclose the “information rel- cating parties’ legal rights, obligations, lawyer may not answer.43 evant to the common representation,” that and options; resolution of possible clouds In 2006, the State Bar brought an action request is an instant “deal breaker” to dual on title and issues concerning the legal against a company holding itself out to the representation. rights of parties to the transaction; execu- public and accepting attorney’s fees for If the attorney is able to surmount the tion and acknowledgment of documents preparing legal documents, title abstracts and conflict of interest hurdles and represent in compliance with legal mandates; opinions, and performing real estate both parties at the document negotiation recordation and cancellation of docu- closings.44 Through a consent order, the and drafting stages, the attorney is not ments in accordance with North superior court enjoined the unlicensed indi- allowed to represent either party in litigation Carolina law; and disbursement of pro- viduals and the company from engaging in arising from the prior representation. Rule ceeds after legally-recognized funds are the practice of law and performing residen- 1.7(b)(3) specifically prohibits the attorney available. These and other functions are tial real estate closings and any services asso- from representing both parties “in the same sometimes called, collectively, the “clos- ciated with a closing.45 The company did litigation or other proceeding before a tribu- ing” of the residential real estate transac- not admit any wrongdoing or violations of nal.” Even with the clients’ informed con- tion. The North Carolina General the law in the consent judgment.46 sent, this prohibition is not waivable.36 Assembly has determined specifically The attorney must be careful not to that only persons who are licensed to Delegation of Duties “reveal information acquired during the pro- practice law in the state may handle An attorney may delegate his or her fessional relationship with a client” in subse- many of these functions. duties only when necessary, and must make quent litigation. The client may give The advisory opinion also states the fol- reasonable efforts to ensure a non-lawyer’s informed consent for confidential informa- lowing actions constitute the unauthorized conduct is compatible with the professional tion to be disclosed.37 As a practical matter, practice of law, if performed by a non-lawyer: obligations of the lawyer.47 For example, a a client will not consent to allow the attorney (1) providing a legal opinion on title to real non-lawyer may deliver a message to the to use confidential information, which is property; (2) explaining the legal status of court holding calendar call, stating that the adverse to that client’s interests. Any waiver is title to real estate or the legal effect of any- lawyer is unable to attend due to a legitimate strictly scrutinized. thing found in the chain of title; (3) explain- reason.48 A scheduling conflict in another

12 SUMMER 2011 court is an example of a legitimate reason.49 attorney, “[t]he most common practice is Creditor, the high bidder. Additionally, under certain circum- for the closing attorney to represent the Debtor commenced this action in 2008 stances, an attorney may delegate to a non- purchaser and lender while performing against Trustee and Law Firm. Debtor’s lawyer the signing of court documents and limited functions for the seller (such as claims alleged Law Firm served as both the pleadings.50 This signing should only be the preparation of the deed).” Patrick K. substitute trustee in the foreclosure proceed- done if the attorney is unavailable and no Hetrick, Larry A. Outlaw & Patricia A. ings and as counsel for the Creditor. Law other attorney in the firm is available to Moylan, N.C. Real Estate Comm’n, Firm collected fees in connection with their sign.51 In order to comply with professional North Carolina Real Estate Manual 508 services in both these capacities. Law Firm obligations, three criteria must be met: First, (2008-2009 ed.) (italics omitted) [here- moved to dismiss the complaint and asserted the signing must not violate any law, court inafter North Carolina Real Estate Plaintiff’s claims were based entirely on pur- order, local rule, or rule of civil procedure.52 Manual]. In fact, the State Bar instructs ported violations of the North Carolina State Second, the non-lawyer must be properly that the closing attorney “may prepare the Bar ethics opinions, which cannot be used as supervised under the circumstances.53 Third, deed as an accommodation to the needs a basis for civil liability as a matter of law. the signature must clearly disclose that of her client, the buyer, without becom- Issue: Whether Debtor’s claims are based another signed on the lawyer’s behalf.54 ing the lawyer for Seller.” N.C. St. B. entirely on alleged violations of the North Formal Ethics Op. 10 (July 14, 2005), Carolina State Bar's ethics opinion, and if so, Recent Cases involving an Attorney’s reprinted in North Carolina State Bar whether these violations are a basis for civil Ethical Duties and Liability 2008 Lawyer’s Handbook, at 317 liability? 1. Real Estate Closings: Johnson v. (2008)....Moreover, the buyer’s attorney Holding: Debtor’s complaint relies heav- Schultz55 usually “handles or coordinates the clos- ily on purported violations the NC Rules of Facts: “This appeal presents the question ing, prepares the closing statement(s), and Professional Conduct and corresponding of how North Carolina law allocates the risk disburses funds.” North Carolina Real ethics opinions. A careful reading of the of loss between a buyer and a seller when the Estate Manual 509.57 Debtor’s complaint reveals no recognized closing attorney in a residential real estate . . . . cause of action without use of or reliance transaction embezzles the sales proceeds.” In summary, after considering the proce- upon ethics rules and their corresponding Vendors brought action for breach of con- dures customarily used for residential real State Bar ethics opinions. tract against purchasers, closing attorney, and estate closings and applying long-stand- The Rules of Professional Conduct are others, seeking rescission of deed and recov- ing principles of equity, we hold that buy- not designed to be a basis for civil liability. ery of title, or, in the alternative, money ers must bear the loss caused by the mis- Plaintiff’s complaint fails to identify a formal damages after attorney misappropriated pur- conduct of their own retained attorney. legal duty that is independent of those artic- chase money funds. After the attorney We stress that it is the buyer alone in most ulated in the Rules or the corresponding admitted vendors' allegations, purchasers residential real estate transactions who is State Bar ethics opinions. The NC Supreme and the remaining defendants filed motions legally deemed to repose confidence in Court has rejected the use of ethics rules to for summary judgment. The superior court the closing attorney through the existence establish an attorney’s liability. granted defendants' motions, and vendors of the attorney-client relationship. Although the Debtor argues the case is appealed. The court of appeals, in a divided The court of appeals’ majority opinion was about a breach of fiduciary duty, the Debtor panel, reversed and remanded.56 Defendants affirmed. expressly admitted in oral argument that the appealed as of right to the Supreme Court 2. Attorney Client – Fraud – Mortgages – alleged breach of fiduciary duty is based sole- based upon the dissenting opinion. Trusts: Laws v. Priority Trustee Services58 ly on the “mere status” of serving as both Issue: Did buyers repose confidence in Facts: In March 2005, Priority Trustee trustee under deed of trust and counsel to the the closing attorney and were they required Services (Trustee) served as substitute lender. The court ruled the Debtor’s allega- to bear the loss caused by their attorney's trustee under a deed of trust of the Laws tions were insufficient under NC law to state misconduct? (Debtor) property in connection with a a claim upon which relief can be granted. Holding: Yes, buyers who followed cus- mortgage loan from Equity One, Inc. Plaintiff’s complaint was dismissed. tomary procedures for closing real estate (Creditor). After Plaintiff defaulted on the transaction reposed confidence in their clos- loan, Trustee initiated foreclosure proceed- Summary ing attorney (Parker) and were required to ings. Plaintiff filed a Chapter 13 petition While most private compensation con- bear the loss caused by their own attorney's prior to the foreclosure sale. This filing tracts are free of regulatory oversight, an misconduct in embezzling sales proceeds automatically stayed the sale. attorney’s fee agreement is subject to regula- deposited by bank into the attorney's escrow Creditor, represented by Morris, tions, which may limit the amounts an attor- account. Schneider & Prior, LLC, (Law Firm), sought ney may charge for services and the enforce- To determine which party reposed confi- to lift the stay. A consent order was entered, ment procedures available to collect fees dence in Parker, we must consider the which allowed the stay to remain in force as earned. An attorney representing parties in customary procedures for closing real long as the Debtor made agreed-upon pay- real property and business transactions must estate transactions in North Carolina. ments. After Debtor failed to make these inform a non-represented party not to rely Although both parties in a residential real payments, foreclosure proceedings resumed. on that attorney to advise and protect his estate closing are free to hire their own Trustee facilitated the sale of the property to interests. Conflicts of interest may prevent an

THE NORTH CAROLINA STATE BAR JOURNAL 13 attorney involved in the original transaction account). 46. Id. from continuing to represent either party if 12. Id. 47. Id. litigation occurs. 13. 2007 Formal Ethics Opinion 13, (January 25, 2008). 48. 2000 Formal Ethics Opinion 10 (July 27, 2001). “The Formal Ethics Opinions are identified by the last 49. Id. The State Bar is aggressive in pursuing two digits of the year of initial publication in the State 50. 2006 Formal Ethics Opinion 13 (October 20, 2006). individuals, corporations, and other entities Bar Journal and are numbered serially. After the desig- who engage in activities, which constitute the nation for each opinion is the date upon which the 51. Id. unauthorized practice of law. Attorneys Council of the North Carolina State Bar adopted the 52. Id. engaged in real estate transactions should opinion, a topical headnote, a short summary of the 53. Id. opinion, and the full text of the opinion itself.” 54. Id. carefully review their current office proce- 14. “RPCs are ethics opinions promulgated under the dures. Delegation of the attorney’s duties to 55. Johnson v. Schultz, 364 N.C. 90, 691 S.E.2d 701 now-superseded (1985) Rules of Professional Conduct (2010). office staff must be strictly supervised. When (effective from January 1, 1986, until July 24, 1997). 56. Johnson v. Schultz, 195 N.C. App. 161, 671 S.E.2d The ethics opinions adopted under the Revised Rules an attorney is not physically present or imme- 559 (2009). of Professional Conduct (effective July 24, 1997) fol- diately available, non-lawyers cannot perform low the RPCs and are designated as ‘Formal Ethics 57. Id. tasks that constitute the practice of law. Opinions.’ Each RPC bears the identifying number 58. Laws v. Priority Tr. Servs., 610 F. Supp.2d 528 The attorney at a real estate closing typ- assigned to it at the time of its initial publication in the (W.D.N.C. 2009) aff’d 375 Fed.Appx. 345, 2010 WL ically represents the buyer and the lender, State Bar's quarterly publication.” www.ncbar.gov/ 1712254 (April 28, 2010) (Per Curiam) not the seller. As between buyer and seller, ethics/ last visited March 24, 2011. (Unpublished). See also McGee v. Eubanks, 77 15. RPC 107 (April 12, 1991). N.C.App. 369, 335 S.E.2d 178 (1985). the buyer will bear the loss resulting from 16. Rule 1.5(f) attorney misconduct. Violations of the 17. Id Rules of Professional Conduct or ethics 18. Id opinions do not per se establish civil liability 19. Rule 1.5, Comment 10. Reexamining Inactive for an attorney. n 20. Id. Attorneys (cont.) 21. Id. Judge John M. Tyson currently serves as a 22. Rule 1.5, Comment 11. recall judge for the North Carolina Court of 23. Id. requirements as attorneys who petition for Appeals and as an emergency superior court 24. Id. reinstatement from inactive status after the judge. He served an eight-year elected term on 25. Id. effective date of the rule revisions. However, the North Carolina Court of Appeals, and has 26. Id. these new requirements must be met regard- more than 30 years of professional experience. 27. Parker v. United States, 948 F. Supp. 24 (E.D.N.C. less of the date of the attorney’s suspension. Judge Tyson is a board certified specialist in 1996). The Administrative Subcommittee conclud- Real Property Law: Business, Commercial, 28. Rule 1.7 ed that these attorneys failed to fulfill the and Industrial Transactions, and is the only 29. Rule 1.7(b). requirements of membership leading to sus- North Carolina judge so certified. He expresses 30. Rule 1.0(f). pension and did not act in reliance on the his appreciation to Dominique “Missy” Koch, 31. Id. reinstatement rules. Therefore, it is not 2011 Campbell University Law graduate, 32. Rule 1.7, Comment 18. unfair to require them to satisfy the new rein- and Andrew Seymour, Campbell University 33. Id. statement requirements. Any attorney who Law class of 2012, for editing and research 34. Rule 1.7, Comment 19. now petitions for reinstatement from an assistance. 35. Rule 1.7, Comment 31; see generally Nationwide Mut. administrative suspension must now com- Fire Ins. Co. v. Bourlon, 172 N.C. App. 595, 604, 617 plete 12 hours of CLE for each year of sus- Endnotes S.E.2d 40, 46-47 (2005) (“In North Carolina, our courts have previously recognized the common interest pended status. If administratively suspended 1. N.C. St. B. R. Prof. Conduct 1.5 (Client-Lawyer or joint client doctrine, noting that as a general rule, for seven or more years, the suspended attor- Relationship) (2003). where two or more persons employ the same attorney ney must take and pass a regularly scheduled 2. N.C.G.S. § 84-23 (2010). to act for them in some business transaction, their com- North Carolina Bar examination. munications to him are not ordinarily privileged inter 3. O'Brien v. Plumides, 79 N.C. App. 159, 339 S.E.2d 54, The implementation of the rule revisions cert. dismissed, 318 N.C. 409, 348 S.E.2d 805 (1986). sese.” (Internal quotation omitted)), aff’d, 360 N.C. 356, 625 S.E.2d 779 (2006). will help to ensure the public’s confidence in 4. Id. at 162, 339 S.E.2d at 55. 36. Rule 1.7, Comment 13. the competency and fitness of attorneys 5. Id. 37. Id. returning to the practice of law after a period 6. Redevelopment Comm'n v. Hyder, 20 N.C. App. 241, n 201 S.E.2d 236 (1973). 38. See www.ftc.gov/opa/2001/12/ncstatebar.shtm. of inactive status or suspension. 7. Id. at 245, 201 S.E.2d at 239. 39. North Carolina State Bar, Authorized Practice Advisory Opinion 2002-1 (January 24, 2003). 8. Id. Margaret McDermott Hunt is the State Bar 40. Id. 9. CPR 37 North Carolina State Bar Lawyer’s Handbook Councilor from District 29B and practices in 2010, §9-10 (2010). 41. Id. Brevard. She graduated from Wake Forest 10. Id. 42. 2002 Formal Ethics Opinion 9 (January 24, 2003). University School of Law and was admitted to 11. CPR 129 (October 27, 1977); see 2009 Formal Ethics 43. Id. practice in North Carolina in 1975. She is a Opinion 4 (April 24, 2009) (discussing the use of credit 44. See North Carolina State Bar v. The Closing Place, et al., former member and chair of the Administrative card accounts that avoid the commingling of funds by (Lawyers Weekly (October 20, 2006) (No. 06-13-1161, depositing unearned fees into the law firm’s trust pp. 18) (Donald W. Stephens, J.)). Committee and was co-chair of the Program account and earned fees into the law firm’s operating 45. Id. Evaluation Committee.

14 SUMMER 2011 The ABCs of the DHC

B Y S HARON B. ALEXANDER

ost attorneys

never need to

know or even

wonder about the role of the MDisciplinary Hearing Commission (DHC) in North

Carolina or the process followed in proceedings before the DHC. Even fewer members of the public have reason to contemplate the purpose or even the existence of the DHC. This is not a bad thing. A regular part of

SIS/Christopher Zacharow every issue of the State Bar Journal is “The Discipline Department,” which catalogues actions taken by the Grievance Committee, by the DHC, and, in some instances, by the superior court. While this regularly informs us about the results of the grievance process, an understanding of the process itself and the relationship between the State Bar and the DHC has not been addressed.

The most important characteristic we sent themselves or are represented by counsel How does a case reach the DHC? should all know about the DHC is that it is an of their choice. In most cases, the State Bar will initiate an independent body whose sole purpose is to Sharon Alexander of Hendersonville cur- investigation upon receipt of a complaint from hear lawyer disciplinary and disability cases. It rently serves as the chairperson of the DHC, a member of the public that an attorney has is not a part of the State Bar. Attorneys from and Dottie Miani has served as the clerk of the engaged in misconduct that violates the Rules the Office of Counsel of the State Bar represent DHC for longer than she would allow us to of Professional Conduct. The results of this the State Bar as advocates in matters before the report. They answered some of the common investigation are presented to the Grievance DHC. Attorneys who are respondents repre- questions received about the DHC process. Committee of the State Bar. The Grievance

THE NORTH CAROLINA STATE BAR JOURNAL 15 involved in a hearing before the DHC, this During other periods of time, I have been in Fire Investigator available to conduct process is most likely going to push all of your Raleigh most every Friday during the month. origin and cause, and other fire investi- buttons. It becomes very difficult to make The attorneys who represent the Office of gation services. Retired police fire inves- good decisions as either a client or a lawyer in Counsel and the attorneys who appear before tigator, certified, licensed, and insured. this situation. the DHC representing respondent attorneys Visit my website at www.pyropi.com. do a phenomenal job of sharpening up the Contact me at 919-625-8556 or What are the rules of procedure? issues, preparing their cases, and presenting the [email protected]. Once a complaint is filed by the Office of evidence clearly and succinctly. Counsel, the procedures set out in the regula- tions at 27 North Carolina Administrative What are duties of the chairperson of Committee may dismiss the case, take non- Code .0114 apply. These regulations (and the DHC? disciplinary action (such as a letter of caution more) are a part of the annual Lawyer’s The chairperson assigns individual mem- or a letter of warning), or find probable cause Handbook. The North Carolina Rules of Civil bers of the DHC to panels and appoints a that the attorney is guilty of misconduct justi- Procedure also apply to most aspects of the member to chair each panel. The chairperson fying disciplinary action. If the Grievance process before the DHC. also serves on panels and must serve as the Committee finds probable cause and the need chair of any such panel. The time and date of for a hearing, the Office of Counsel files a Who holds hearings? each hearing is set by the chairperson. The complaint on behalf of the State Bar with the The DHC consists of 20 individuals: 12 chairperson enters consent orders of disbar- DHC. In addition, the Grievance Committee members of the North Carolina Bar and eight ment and orders of temporary suspension may find probable cause but believe that a non-lawyers. All of the lawyer members are when an attorney is convicted of a serious hearing is not necessary. In those cases, the appointed by the council of the State Bar. crime. Traditionally, chairpersons have Grievance Committee may choose to impose Four of the non-lawyer members are appoint- assigned themselves to the more difficult cases certain levels of discipline. If the Grievance ed by the governor, and the balance are when the difficulty is foreseeable. Although Committee imposes discipline or sends a letter appointed by the General Assembly. Members not a duty assigned by the administrative of warning, the respondent attorney may reject are appointed for three-year terms, and no rules, the chairperson has typically been a the Grievance Committee’s determination member may serve more than seven years, resource to all members of the DHC when and, essentially, appeal this determination to with an exception which allows the chairper- they have needed to talk through a procedural the DHC. When a decision of the Grievance son of the DHC to serve an additional three- or conflict issue. Committee is rejected by an attorney, the year term in that capacity. Hearings are held Office of Counsel files a complaint with the by panels of three members of the DHC, two When are hearings held? DHC. Although there are other paths by lawyers and one non-lawyer member. One of The hearing in each individual case must which a matter may reach the DHC, the filing the lawyer members serves as the chair of each be scheduled no less than 90 and no more than of a complaint and issuance of summons is panel. The individual panels are appointed by 150 days from the date when the respondent- always the beginning of the disciplinary the chairperson of the DHC within 20 days attorney is served with the complaint. Most process in the DHC. after the respondent attorney has been served hearings can be completed within one day and with the complaint and summons. Every are scheduled on Fridays. Traditionally, panels What should I do if I am served with a effort is made to appoint members of each have completed hearings on Saturday when complaint filed by the Office of panel who do not have any involvement in or they could not do so on Friday. Lately, many Counsel? knowledge about the underlying circum- more hearings have required two days or more Answer the complaint! A significant mis- stances that are the subject of the complaint or to complete, and more hearings are being take often made by attorneys who are served the people involved. scheduled to begin on Thursday. with a summons and complaint from the Office of Counsel is to ignore the complaint. How much time does DHC business Where are hearings held? As in almost every civil action, the complaint take for a typical member? Hearings are usually held in one of the and summons are notice that an action has Most members average a hearing each courtrooms located in the State Bar office been filed and that allegations are deemed month, and most hearings take a full day. In building on Fayetteville Street in Raleigh. We admitted if not answered within the allocated addition, some cases involve pre-trial hearings have been allowed to trespass in the court of time (20 days). The DHC has, unfortunately, or post-trial hearings. Sometimes, the parties appeals building and have other venues in entered a number of default orders, imposing will settle all issues prior to the hearing, and the Raleigh available when multiple hearings are discipline on attorneys who may have had a members of the panel must approve a consent scheduled at the same time. defense or evidence that would have justified order. This approval process often involves a lesser discipline. Also, anyone who is a respon- telephone conference among the panel mem- What does the hearing process look dent attorney should give serious considera- bers. Without taking travel time into consider- like? tion to hiring counsel to represent them. I ation, most members of the DHC devote an Although these hearings are slightly less for- have frequently been reminded of that old say- average of ten to 15 hours each month to mal than bench trials, procedural and eviden- ing about a pro se lawyer having a fool for a DHC business. I was on the DHC for close to tiary rules are followed as in any judicial pro- lawyer and a fool for a client. If you are a year before I actually attended a hearing. ceeding. Testimony is taken under oath, and all

16 SUMMER 2011 witnesses are subject to cross-examination. A court reporter is always present to keep an Leonard T. Jernigan, Jr., attorney and accurate record. The chairperson of each panel adjunct professor of law at NCCU rules on evidentiary and procedural questions that arise during the course of the hearing. School of Law, is pleased to Hearings are held in two phases. The only issue announce that his 2010 supplement during the first (adjudicatory) phase is whether to Jernigan's North Carolina Workers' the respondent-attorney has violated the Rules Compensation: Law and Practice, with of Professional Conduct. If a violation is Forms (4th edition) is now available found, the second (disciplinary) phase is neces- from West, a Thomson Reuters sary, during which the issue is what discipline business (1-800-344-5009). should be imposed. The panel deliberates pri- vately after each phase and announces the deci- n Board Certified Specialist in sions during the hearing. Decisions are memo- Workers' Compensation Law rialized in written orders, which are filed with n NFL and National Hockey the clerk of the DHC as soon as possible. League Workers' Compensation Panel Member Are the proceedings before the DHC open to the public? Yes. After a complaint is filed with the DHC, the record and the proceedings, except Leonard T. Jernigan Jr. Carolina Place Building the deliberations of the panel, are open to the Kristina K. Brown 2626 Glenwood Avenue, Suite 330 public. The pleadings and orders are available Raleigh, North Carolina 27608 on the State Bar’s website as soon as they are Practice Limited To: filed. This website also contains a calendar of Workers' Compensation (919) 833-0299 all cases currently pending, with information Serious Accidental Injury/Civil (919) 256-2595 fax about the hearing dates and panel members. Litigation www.jernlaw.com The hearings themselves are certainly open to the public. I would encourage anyone with an interest in the process or in a specific mat- ter to attend a hearing. During my experi- vide procedural and substantive guidance. For neys who appear but do not cooperate in the ence, the crowd in the courtroom has ranged example, the Supreme Court held that disbar- process, usually because they do not under- from only the parties, counsel, and witnesses ment was not justified in the absence of a find- stand the process. to a packed courtroom and television cameras ing of harm or significant potential harm to that were broadcasting the hearing to a clients. That Court also disapproved a “propor- Conclusion national audience. tionality” review of the discipline imposed on Without question, too many attorneys similar facts. As members of individual panels, underestimate the gravity of the DHC process. What is the level of proof required for we grapple with the application of precedent Certainly, every member of every panel is very the DHC? during our determination of appropriate disci- aware that our decisions can dramatically The findings and conclusions made by pline. We try to maintain some consistency in impact a human being’s ability to make a living every DHC panel must be supported by clear, the decisions while being mindful of the and that we have an obligation to protect the cogent, and convincing evidence. The panel unique facts and circumstances presented in public and the profession. The respondent does entertain motions to dismiss at the end of each case. This often feels schizophrenic since attorneys frequently do not seem to appreciate the Plaintiff’s evidence and at the end of all evi- most every case we hear has some compelling this and as a result, do not effectively partici- dence, and such motions have been granted at twist that distinguishes it from any other set of pate in the process. I have to say that a close times. facts and circumstances. second mistake made by respondent attorneys is the failure to actually read the Rules of Is there any right to appeal a decision Why are more hearings taking longer Professional Conduct! In order to enable of the DHC? than one day? DHC panel members to make the best deci- Yes. Either party has a right to appeal a final This trend seems to be the result of several sions possible, everyone involved in the process order of the DHC to the North Carolina different factors. The cases being filed in the would be well advised to educate themselves Court of Appeals. The procedures governing DHC are more complex, with a larger num- on the substance and procedure. n such an appeal are the same as those applicable ber of them involving numerous, serious vio- to civil cases, and the appellate courts apply the lations of the Rules. The number of cases that Sharon B. Alexander has practiced law in whole record test. The court of appeals and the involve voluminous documents seems to be Henderson County since 1983 and has been with Supreme Court review DHC decisions criti- increasing. The most distressing factor is the the same firm, now Prince, Youngblood & cally and have both issued opinions that pro- number of cases that involve respondent attor- Massagee, PLLC, since 1984.

THE NORTH CAROLINA STATE BAR JOURNAL 17 Tabitha Ann Holton, First in the South

B Y W ALTER C. HOLTON J R .

n the aftermath of the Civil War, North Carolina became the sixth of the

United States, and the first southern state, to admit women to practice law.

The US Supreme Court ruled in 1872 that women did not have a constitu-

tional right to join a profession, leaving the fate of the first female southern

Iattorney in the hands of the NC Supreme Court.

The Honorable Richmond M. Pearson signed the commission for Justice Pearson to served on the state Supreme Court for 30 of replace the late Justice Salmon Chase on the the most critical years in our state’s history. As US Supreme Court, but Grant’s feet grew cold a justice from 1849 to 1878, and as chief jus- upon learning that Pearson was 68 years old. tice for the last 20 of those years, Pearson held Grant withdrew the commission due to the Supreme Court together through the Civil Pearson’s age. War, ruling in 1863 that the governor had no By January 1878, Justice Pearson’s career authority to use the state’s militia to enforce spanned 42 years of unbroken service on the Confederate conscription laws. Confederate NC courts. But a new challenge awaited the Photo: North Carolina Collection, University civil and military authorities roundly criticized Court in Raleigh. As Justice Pearson prepared of North Carolina at Chapel Hill Library. the ruling, but Governor Zebulon Vance to return to the Court from his home in upheld the law. At the conclusion of the war Yadkin County at the start of the year, the bar path. All of these siblings were inspired and in 1865, the provisional military authority applicants from across the state were descend- educated by their parents, Quinton and appointed Pearson to remain as chief justice. ing on the capital as well for examination by Harriet Holton. Once full civilian authority was restored, the justices to determine their fitness to prac- Quinton studied the law vigorously, but at Justice Pearson was elected to retain the posi- tice law—the first order of business for the his mother’s urging he chose instead to ride tion. He presided over the impeachment pro- Court’s spring term. the circuit through central North Carolina as ceeding of Governor William W. Holden in The new group included Tabitha (ta - a Methodist minister. Quinton and Harriet 1871 (the only impeachment proceeding in by´- tha) Ann Holton, age 23, who studied were known to command up to eight lan- state history) and remained chief justice until law with her brothers and decided to join guages between them, teaching several lan- his death. her brother Samuel’s request for admission guages to each of their children, including Justice Pearson enjoyed one of the most to the bar. Descendents of an outspoken Tabitha. Quinton lost popularity in the storied careers in NC jurisprudence, including Methodist minister, Tabitha and Samuel Methodist conference as an outspoken oppo- the start of a law school in 1848 that lasted for were following the footsteps of their older nent of slavery before the Civil War. Following 30 years on his Yadkin County estate called brother Gene, already admitted. Younger the war, he again parted from the conference “Richmond Hill.” In 1873, President Grant brother John would soon travel the same as a result of his avid Reconstructionist views.

18 SUMMER 2011 Following his wife’s death in March 1871, influenced Tabitha’s decision to approach Court voted. Miss Holton would be allowed Quinton and family settled into the Deep the Supreme Court. to take the exam to be administered by Justice River area of Guilford County. Harriet’s loss But as the chief justice crossed the Yadkin Edwin Reade, who later wrote, “It fell to my was a major blow to the family, but it did not River into Forsyth County that Saturday, “a lot to conduct the examination; and I did it so deter Tabitha and her brothers’ pursuit of paralysis struck” and he died in Winston later gently and sympathetically that my associate legal training. While Quinton continued to that night at age 73. Perhaps the most cele- justices said enviously, that I did not ask her a travel, his children studied under the guid- brated jurist of his time was destined to miss single question that would have bothered a ance of local Greensboro attorneys, includ- the historic event to follow that week. child. Well, whether it would have bothered a ing Albion Winegar Tourgée, then a superior They say the wheels of justice grind slowly, child or not, it did not bother her, for she court judge. and Tabitha’s quest for admission must have answered promptly and correctly and got her Tourgée was a carpetbagger from Ohio been agonizing. The Supreme Court opened license.” who had enlisted in the Union army in Monday, January 7, but immediately The Raleigh News reported, “her answers 1861. Tourgée suffered a severe back injury adjourned in honor of the chief justice’s death, to all the questions propounded were satisfac- at the battle of Bull Run and was later cap- adding another excruciating 24 hours for tory and were given in such a manner as to tured during the Battle of Perryville, spend- Tabitha to reconsider her decision without her show her acquaintance with the law. Not a ing four months in a Confederate prison. potential ally on the bench. On Tuesday, single question was unanswered, and it was Following the war, Tourgée and his wife set- January 8, the 19 male applicants appeared stated that she passed the examination as well, tled in Greensboro where he became a cham- before the Court, were examined, and were if not better, than any of the masculine appli- pion for racial equality. Once elected as a admitted to the bar. The Court, however, cants.” superior court judge in 1868, Tourgée requested Miss Holton return Wednesday, Tabitha’s certificate was backdated one day plunged into numerous indictments of Ku “ten and ½ o’clock, a.m.” with counsel to so that her admission coincided with the 19 Klux Klan members. He lost reelection in argue on her behalf. “masculine applicants.” I am sure Tabitha 1874 largely due to his stands for racial jus- During the wait, Tabitha told the Raleigh appreciated the gesture, but certainly the extra tice. In 1876 Tourgée moved his family to Observer that she “suffered the horrors of a 24-hour delay was not so easily erased in her Raleigh, having tired of the threats by the hundred deaths.” A quiet, unassuming mind. Klan in Greensboro. woman, Tabitha had created quite a stir before Tabitha and her brothers Gene, John, and By early January 1878, history was con- a Supreme Court that had just lost its chief Samuel went on to practice law in Surry, verging upon the Supreme Court in Raleigh. justice. Certainly, she had every chance to Yadkin, and Forsyth counties. Tuberculosis The US Supreme Court had held six years ear- return home and leave the controversy took Tabitha’s life on June 14, 1886, at age 32, lier that women had no federal constitutional behind. But according to the newspaper, as she traveled to Yadkinville. Her brothers right to pursue a profession or calling, delegat- Tabitha’s spirits rallied when “she thought of continued their legal pursuits, no doubt enor- ing the choice of whether to allow women her many days of hard study, and she felt mously inspired by their sister’s courage. In into the legal profession to the individual determined to ‘do or die.’” 1897, President McKinley named Tabitha’s states. In the five states that allowed women to On Wednesday, January 9, 1878, at ten brother Gene as the United States Attorney. practice, the progress was due to legislative and1/2 o’clock a.m., the Court opened to hear President Roosevelt renewed the appointment action. However, neither North Carolina nor the argument. Tourgée spoke for Tabitha. in 1906 and he served faithfully in that posi- any southern state had undertaken the admis- Former Supreme Court Justice William tion until 1914. sion of a female attorney prior to Tabitha’s Battle, then dean and virtual founder of the Today, a marker outside the courthouse in arrival in Raleigh. UNC School of Law, argued in opposition. Dobson notes Tabitha’s life and achievements. On Saturday, January 5, as Tabitha and “No southern lady should be permitted to Her portrait, along with brother John’s, hangs Samuel headed to Raleigh from Greensboro, sully her sweetness by breathing the pestifer- in the courtroom in Yadkinville with the other Chief Justice Pearson set out as well by buggy ous air of the courtroom,” Battle argued. prestigious attorneys of Yadkin County, from Yadkin County to open the Supreme Tourgée countered, “There is one objection including the portrait of Supreme Court Court’s spring term. I cannot help but believe which I desire to notice, because it clothes Chief Justice Richmond M. Pearson. I do not that the chief justice’s presence on the Court itself in the guise of chivalric concern for know if Tabitha ever met the famed chief jus- was reassuring to Tabitha’s mission. Having women.” Such “rag tag chivalry” had not pre- tice—I suspect that she may have through her himself been denied a seat on the nation’s top vented women from organizing hospitals dur- father or Tourgée, who also spoke at the chief court due to his age, the chief justice was ing the Civil War, nor prevented women from justice’s memorial service in Raleigh that same uniquely positioned to consider Tabitha’s entering the medical profession. As an attor- month. But I do know that Tabitha’s place in request to join the bar. ney, a woman would have even more control history is every bit as secured as his. n Due to her father Quinton’s love of over her cases than a physician over her debating the law and the breadth of his patients. Tourgée concluded that Miss Holton Walter C. Holton Jr., grandson of Gene travels through Yadkin County, it is reason- “only asks the Court the privilege of using the Holton and grandnephew of Tabitha Ann able to assume that Tabitha’s father and brain which God has given her...She asks no Holton, served as the United States Attorney for Justice Pearson crossed paths more than favors, but a fair chance if the Court can grant the Middle District of North Carolina from once. I suspect that her father’s respect for it to her.” 1994 to 2001 and now practices in Winston- Justice Pearson’s legacy and independence The argument lasted 90 minutes. The Salem.

THE NORTH CAROLINA STATE BAR JOURNAL 19 The Selma Cyclepaths

B Y R OBERT W. B RYANT J R .

think it was in late 1988—two years earlier, I

had moved from Elizabeth City to join my

brother-in-law’s legal practice in Selma—

when my younger brother, Larry, called me and said he neededI to talk with me in person. I suspected bad news. My sus- picions were, unfortunately, correct. He told me that he had been diagnosed with multiple sclerosis (MS).

A terrific athlete until around age 30, and myelin, damaging it and a hero in everyone’s eyes but his own, Larry forming scars (called sclerosis) Cyclists line up for the 100-mile Bike MS route. Photo cour- had been suffering for several years from a that prevent the axons from tesy of the Sun Journal. number of health problems that affected his effectively conducting signals. mobility, vision, and thought processes. In These scars form along the 1988, the medical community had much nerves, the spinal cord, and the white matter frustrated. I wanted to find a meaningful more limited information and resources than of the brain. While scientific research has way to make a difference not only to Larry, they do today for diagnosing MS. It was uncovered much about the mechanisms but to others who were in his situation. I had through a process of elimination that the involved in MS, the exact cause of the dis- met David Holmes at my church, Edgerton diagnosis was made. A husband and father of ease remains elusive. There is no known Memorial United Methodist Church, in two sons, Larry was devastated, as were all of cure, though medications have been devel- Selma. David had become aware of Larry’s us in the family. oped over the past 20 years or so to treat the disease and, coincidentally, had picked up a MS is an inflammatory disease that symptoms and to slow the progression of the brochure promoting something called the affects the ability of nerve cells to communi- disease. MS 150 sponsored by the Eastern North cate with one another. In all people, long Among my many reactions to Larry’s Carolina Chapter of the National Multiple fibers (axons) in the nerves are wrapped in a news was the feeling of helplessness, a sensa- Sclerosis Society. He was an avid cyclist. He fatty, insulating substance called myelin. tion to which I was unaccustomed. As suggested that we try the MS 150 Ride. I Think of the plastic or rubber sheath lawyers, we are regularly tasked with identi- soon came to learn that “doing the 150” wrapped around the wiring in an electrical fying a problem, deciding some alternative meant riding 150 miles over a two-day peri- cord and you might better be able to picture solutions, and working toward the best pos- od on a bicycle. The only bike I owned at the what myelin does. In MS, it is believed that sible conclusion for our clients. This feeling time was a cheap, off-the-shelf one from the body’s own immune system attacks the of helplessness made me uncomfortable and Rose’s Department Store, which had been

20 SUMMER 2011 stored in my shed for several years, so I bor- though the detailed stuff and achieve the best rowed David’s old touring bicycle. In spite of possible result. For his prodigious efforts I Other North Carolina lawyers and the fact that the MS 150 was less than three am eternally grateful. judges who have ridden with weeks away, I accepted David’s offer. After far From mid-April to the annual MS Tour Cyclepaths in the MS Tour, or have too short a training period consisting of per- in September of each year, the Selma trained with the team on Saturdays, haps riding a total of 40 or 50 miles, I solicit- Cyclepaths sponsor weekly training rides on include the following: ed maybe $200 in contributions from family the outskirts of Clayton, North Carolina, and friends and I rode in my first MS bike every Saturday morning. These are training Lisa Angel (Raleigh) tour in 1990. I could not have imagined at rides for all ages and abilities. Those who reg- Heidi Bloom (Raleigh) the time how that experience would change ularly participate in these training rides are Kimberly Bryan (Raleigh) my life, that of my family, and (I hope) the not likely to experience the saddle soreness Laurie Burch (Raleigh) lives of other families living with multiple that I did on that first MS 150 weekend. Ken Carmack (Raleigh) sclerosis. Ever since the Cyclepaths became a real Lois Colbert (Charlotte) We did not have a formal MS bike team presence in the MS Bike Tour, the team has Woofer Davidian (Raleigh) in the beginning. It was just a couple of been anchored by my many lawyer friends. Tom Dimmock (Raleigh) friends and me. By 1993, our numbers had Currently, Jenny Bradley (Raleigh), Gaines Judge Wallace Dixon (Durham) swelled to maybe seven or eight people and Weaver (Raleigh), Martin Tetreault Archie Futrell III (Raleigh) we decided that we needed a name. After an (Smithfield), and Lynn Burleson (Raleigh) Eddie Greene (Raleigh) afternoon brainstorming session, one of our are co-captains of the team. Kelly Greene (New Bern) riders, Darlene Creech, coined the name we In 2005, 98 Selma Cyclepaths raised Bob Hargett (Raleigh) all favored, the Selma Cyclepaths. This $118,547. For six consecutive years, the Wade Harrison (Burlington) earned us the Best Team Name award in the Selma Cyclepaths have been the top Kevin Hopper (Raleigh) MS tour that year and we beamed with fundraising team of the eastern North Logan Howell (Raleigh) pride. Little did we know back then the Carolina MS Bike Tour. Since the team was Christine Kennedy (Raleigh) many awards that future years held for the launched in 1993, we have raised a total of Frank Laney (Raleigh) Cyclepaths. $846,042 in support of MS research and Betsy Cook Lazen (Raleigh) Prior to 2003, we never had more than 12 programs. As a sitting state district court Judge Rich Leonard (Raleigh) riders in any given year. I sent out hundreds judge, I am unable to solicit funds for non- Alan McInnes (Raleigh) of letters to church friends and attorney col- profit organizations, so now I just send the Cathy McLamb (Raleigh) leagues, inviting them to either ride with me MS Society my own check for as much of a Danielle Marquis (Raleigh) or make a contribution. Almost all opted to contribution as I can afford each year. I still Charles Mooney (Raleigh) write a check. In 2002, surgery on my knee enjoy riding my bike with the Selma Fred L. Morelock (Raleigh) forced me to miss the MS 150. I was sad- Cyclepaths on Saturday mornings in the Helen Oliver (Raleigh) dened to learn that only three Selma spring and summer and in the Bike MS Tour John Parker (Raleigh) Cyclepaths made it to the starting line of the each year and, through the gracious generos- Mark Payne (Smithfield) MS 150 that year. One of those Cyclepaths ity of friends and family, I personally raised a Carlyn Poole (Raleigh) was fellow family law attorney Lynn combined total in excess of $100,000 in Judge Paul Ridgeway (Raleigh) Burleson, who had ridden with us every year those years before becoming a judge. Max Rodden (Raleigh) since he accepted my challenge in 1996. Many of the Selma Cyclepaths team Steve Smalley (Raleigh) Lynn practices with the Tharrington Smith members have a close personal connection to Wade Smith (Raleigh) firm in Raleigh. He had the notion to rebuild someone with MS. Tom Andrews, former Alice Stubbs (Raleigh) the team with area lawyers. It turned out to general counsel to the Administrative Office Melissa Trippe (Raleigh) be a brilliant idea! Many of these lawyers had of the Courts and retired since 2005, has par- Will Webb (Raleigh) made contributions to Lynn or me in the ticipated in the MS Bike Tour rides for 15 past, but now the plan was to recruit them as years, seven of these as a Cyclepath. Tom’s sis- riders. We ran ads in area newspapers and in ter, Joyce, diagnosed with MS in 1974, the Wake County Bar Flyer. We made passed away in 1994 at 47 years of age. riding with the Cyclepaths every year since announcements at CLE programs, made Always among North Carolina’s top 2004. Jenny’s father, Joe, was diagnosed with phone calls, and handed out flyers at various fundraisers, Tom has also probably collected MS in 1995 after years of suffering symp- events. The response was amazing. We regis- at or above $100,000 in donations for the toms that were mislabeled or misdiagnosed. tered 64 riders in 2003 and have had no less Eastern NC chapter of the MS Society. His Jenny and her dad are thankful that fundrais- than that number of riders every year since, supporters are largely people in the court sys- ing events like the MS Bike Tours have topping out at 102 riders in 2007. Most of tem (judges, magistrates, district attorneys, increased funding for research and programs, the growth in the number of Cyclepaths rid- clerks, etc.), with his regular contributors and they are confidently hopeful that the dis- ers since 2003 has been occasioned by the located all over the state. ease will eventually be eradicated through steadfast work enthusiastically carried out by Jenny Bradley, a family law attorney with Lynn, who has an unparalleled ability to slog the Cheshire Parker firm in Raleigh, has been CONTINUED ON PAGE 23

THE NORTH CAROLINA STATE BAR JOURNAL 21 WARNING: The Information You Are About to Read…Is Disturbing

B Y P ETER G. BOLAC

ver the last two years, according to reports made to the Ethics Committee by Staff Auditor Bruno DeMolli,O between 50 and 65% of audited lawyers failed to reconcile their client trust accounts. In addition, according to the quar- terly report of April 20, 2009, at least half of the audited lawyers had violated the follow- ing provisions of Rule 1.15 of the Rules of Professional Conduct: 1. Failing to use business-size checks that contain the auxiliary on-us field (100%). 2. Written accountings not provided to the client according to the rules (60%). 3. Date of deposit appearing on ledger does not reconcile with the bank record (52%). 4. Deposit slips do not list source of funds if source is not the client (50%). SIS/Jean Hin Unfortunately, this particular quarterly report is not an anomaly. There are a stag- geringly large number of lawyers who do In a world without the constraint of lim- Trust Account Compliance Program not comply with the requirements of Rule ited resources, the State Bar could open a The State Bar has created a new program 1.15. Many seasoned and experienced grievance file against any lawyer who is in pursuant to amendments to the Discipline lawyers may think the problem is with the violation of Rule 1.15 of the Rules of and Disability Rules of the North Carolina new crop of young, inexperienced lawyers Professional Conduct, no matter the gravity State Bar, 27 N.C.A.C. 1B, Rule .0112(l), who have been forced out on their own of the violation. The reality, of course, is that which were approved by the North Carolina with nothing but a license and a shingle; the Grievance Committee is already inundat- Supreme Court in March 2011. however, this assumption is incorrect. As ed with allegations of professional miscon- The Trust Account Compliance Program highlighted on the same April 2009 report, duct. Happily, many of those allegations (TAC) is a voluntary program. Participation nearly a quarter (23%) of previously audited prove to be without merit, but they still is confidential. When a lawyer is found after lawyers failed to reconcile their trust require investigation and the Grievance a procedural audit to have significant trust accounts and nearly a third (32%) of previ- Committee still must address them. The account compliance issues, the chair of the ously audited lawyers were found to have Grievance Committee determined that deci- Grievance Committee may offer entrance more discrepancies in 2009 than in their sive action was needed to correct growing into the program as an alternative to opening previous audits. Lawyers of all ages, experi- deficiencies in trust accounting practices, but a grievance file. If the lawyer consents to par- ence levels, and geographic locations display that simply opening a grievance file was not ticipate in the program, he or she will be similar deficiencies. the answer. required to meet periodically with the State

22 SUMMER 2011 Bar’s Trust Account Compliance Counsel. may act to expand the requirements for sat- required procedures. The trust account com- The trust account compliance counsel will isfactory completion of the program. If the pliance counsel stands ready to help them. n monitor the lawyer’s trust accounts, review lawyer is in compliance after two years of the the lawyer’s trust account records, and program, no further supervision or monitor- Peter Bolac is the district bar liaison and inspect the lawyer’s handling of entrusted ing will occur and no grievance file will be trust accounting compliance counsel for the funds for as long as two years. If the lawyer opened. In this case, the lawyer has avoided North Carolina State Bar. timely complies with all requirements of the the grievance process, has improved his or program and satisfactorily completes the her trust accounting practices, and the public program, the Grievance Committee will not has been protected from the dangers of mis- open a grievance file on the issue of the managed trust accounts. Selma Cyclepaths (cont.) lawyer’s pre-referral noncompliance with Rule 1.15. Trust Accounting Resources such efforts. A loyal Cyclepath, Jenny has If the lawyer does not consent to partici- Our battle against bad trust accounting taken on a steadily increasing role in the pate in the program, or if the lawyer consents practices not only utilizes the TAC program operation and management of team func- to participate but does not timely comply and grievance process, but it also includes tions. with all requirements and/or does not satis- resources and education. The State Bar pro- Wade Smith, probably already known by factorily complete the program, the duces a highly informative Attorney’s Trust many of you as an acclaimed criminal Grievance Committee WILL open a griev- Account Handbook, which is available on the defense lawyer practicing with Tharrington ance file and the lawyer may be subject to State Bar website, www.ncbar.gov. In addi- Smith in Raleigh, is the “elder statesman” imposition of professional discipline for non- tion, the staff auditor, Bruno DeMolli, and (read this as most senior) rider among the compliance with Rule 1.15. the trust account compliance counsel, Peter Selma Cyclepaths. A prolific raiser of funds This program is not intended for, and will Bolac, continue to present CLE courses on for the MS Society, Wade unpretentiously not be offered to, lawyers involved in possi- the trust accounting rules to local districts goes about doing his part for the team with- ble misappropriation of entrusted funds, and newly admitted lawyers and are available out fanfare, shying away from any individual criminal conduct, dishonesty, fraud, misrep- to answer any questions that you may have recognition. He is a real inspiration to his fel- resentation, deceit, or any other conduct the concerning the management of your trust low riders, and a talented musician and can- chair of the Grievance Committee deems account, either by phone at (919) 828-4620, vas artist to boot. inappropriate for referral. These cases will or by email at [email protected]. Lynn, Tom, Jenny, and Wade are four of continue to be automatically sent to the the finest people you could ever know, but Grievance Committee. Conclusion they are just a few examples of the folks that The State Bar is not sure why many comprise the Selma Cyclepaths. Every mem- A Service for Lawyers and to the lawyers are flouting Rule 1.15. Perhaps they ber of the team has similar characteristics of Public believe they are too busy; perhaps they forget; dedication, good-heartedness, and philan- The TAC program, while officially under perhaps they do not realize that failure to thropy. I am privileged to be able to enjoy the supervision of the Grievance Committee, handle their trust accounts responsibly will the company of such individuals. is intended to help lawyers learn to manage result in disciplinary action; perhaps they I have now ridden in 19 MS Bike Tours. their trust accounts and to avoid the griev- believe their deficiencies are not significant I missed the very first tour and two others ance process. Not every lawyer found to have enough to warrant the Grievance when surgeries temporarily took me out of deficiencies will be asked to enter the pro- Committee’s attention. However, ignoring the saddle. Larry lived with this debilitating gram, as some deficiencies can easily be cor- these duties will now be a losing strategy. If a illness for roughly 20 years until complica- rected. The program is focused on offering lawyer is found to be significantly out of com- tions from MS took his life in 2008. an alternative to the grievance process for pliance with Rule 1.15, the lawyer must Although he is gone, I still ride in his mem- lawyers determined to be significantly out of either voluntarily enter the TAC program or ory and to help others struggling with MS. compliance. The objective of the program is become the subject of a grievance. The While the medical community has yet to for the lawyer to gain competence in trust Grievance Committee routinely refers develop a cure for this illness, huge strides accounting rules and procedures in a confi- lawyers who are significantly out of compli- have been made and hopefully someday soon dential environment, thereby improving the ance with Rule 1.15 to the Disciplinary a cure for MS will be developed. It is my goal safety of the public’s entrusted funds. Hearing Commission for a public trial. The that the Cyclepaths will be forced to choose The requirements of the program are DHC routinely imposes lengthy stayed sus- some other worthy charitable organization uniquely tailored to each lawyer based on the pensions during which respondents must toward which to devote their collective nature and gravity of his or her deficiencies. comply with extensive conditions in order to efforts. Larry remains a hero, even in death, Some lawyers will need less supervision than continue practicing law. See 09 DHC 25, 10 because he continues to provide part of the others, and some lawyers will take less than DHC 4, 10 DHC 12, and 10 DHC 26. All inspiration for the best cycling team in east- two years to complete the program, while DHC proceedings are public. All disciplinary ern North Carolina. n others will not. Procedural mistakes made orders entered by the DHC are public. To during the term of the program do not nec- avoid this outcome, lawyers must learn to For more information on the Selma essarily expel a lawyer from the program, but keep proper trust account records and follow Cyclepaths, go to www.selmacyclepaths.org.

THE NORTH CAROLINA STATE BAR JOURNAL 23 LAWYER ASSISTANCE PROGRAM

Women at Work: Gender, Discrimination, and Professional Life Satisfaction

B Y D ARCY C LAY S IEBERT

n a recent Atlantic article entitled, Men and women work the same number of “The End of Men,” author Hanna weekends, have the same number of days on- Rosin writes provocatively about call for emergencies, and take the same aver- women—in the workplace, in educa- age number of vacation days. When limiting tion,I and in society. She argues that society is data analysis to full-time workers, men and careers (Hull, 2000). In a complex data analy- embracing women in a way never before seen, women report working and billing statistically sis, Hagan suggests a number of reasons that perhaps because “the modern, post-industrial equivalent numbers of hours. This equiva- women lawyers’ income is lower than that of economy is more congenial to women than to lence of productivity was also recently found their male counterparts, and the differences men.” in Young & Wallace’s 2009 study. It is surpris- are far greater than when presented simply as Rosin cites researchers, educators, and ing, then, that men earned more than women mean differences and when compared with philosophers to make her point that, “The earned in our study. Men’s average earnings other professions. Simply said, men are more attributes that are most valuable today—social are between $100,000 and $149,999, but likely to gain more from elite educations, intelligence, open communication, the ability women’s average earnings are between managerial opportunities, specializations, and to sit still and focus—are, at a minimum, not $75,000 and $99,999. yearly salary increases (Hagan, 2007). predominantly male.” She reports that So what are we to make of this? An exam- The data concerning women lawyers in women now hold 51.4% of managerial and ination of literature suggests that although North Carolina appear to agree with these professional jobs, along with 45% of the asso- women lawyers do well in terms of income earlier findings, as women more generally ciates’ positions in law firms. Given that when compared with all employed women, report experiencing discrimination and women now earn 60% of undergraduate every income study finds that women lawyers’ harassment in their occupation at far greater degrees and half of all law degrees, these per- income lags behind male lawyers’ income sig- rates than the men report. This may not centages will continue to increase quickly. nificantly. The theory of human capital would entirely be due to salary discrimination, how- Globally, she reports, “the greater power of argue that women’s lower salaries are a conse- ever. Schultz & Shaw (2003) suggest that women, the greater the country's economic quence of their differential choices of employ- despite the legal profession’s efforts to assimi- success.” Despite this, “the US still has a wage ment—that they choose lower-paying jobs late women who are entering the profession gap, one that can be convincingly explained— (e.g., in government) that provide the flexibil- in increasing numbers, women’s wider con- at least in part—by discrimination.” ity they need to juggle work and family (Chiu, cerns are still being ignored, “leaving conven- So how do women lawyers fare in North 1999; Young & Wallace, 2009). The North tional legal practice untransformed in many Carolina? The research literature and the find- Carolina sample supports this hypothesis in important respects.” ings from our 2008-2009 study, “Work and that proportionally more men work in private Hagan (2007) agrees in his review, stating Well-Being” answer some questions while practices (77%) than women do (65%); that, “Put simply: women enter firms at rates raising others.1 The differences between men women tend to work more frequently in gov- comparable to those for men, but they are and women in the profession are interesting, ernment and other public sector jobs. This is more likely to leave (Brockman 1994; but the similarities may be even more so. similar to Hull & Nelson’s 2000 findings Reichman & Sterling 2002), and sooner (Kay Men and women in our study appear sur- among Chicago lawyers. Despite this, we 1997), while they earn less (Hagan 1990; prisingly similar on occupational issues, and found no gender differences in the size of Rhode 2001; Stager & Foot 1988) and are less the findings reflect a generally stressful profes- practice in which lawyers are employed, so likely to become partners (Donnell et al. sion. Both groups report that their workplace women are working in large firms in equal 1998; Epstein et al. 1995; Hagan & Kay is stressful to the same degree, and they face numbers as men. Thus, it is unlikely that this 1995; Radford 1990).” Our more current ethical compromises in their work at similar small difference in private versus public data support this, as women in our study (and rates. Men and women experience similar employment accounts for the overall differ- others; see Hagan & Kay, 1995) report being rates of support from supervisors and co- ence in personal income. significantly more likely to quit practicing in workers, and the number that would advise However, others argue that subtle as well as the next few years. their children to become lawyers is statistically more blatant forms of discrimination exist Yet, despite all this evidence, women and the same—less than half. among employers so that women’s options are men in our study report no difference in their Workload differences are also minimal. restricted from the very beginning of their professional life satisfaction. A number of

24 SUMMER 2011 possibilities could explain this. First, our To provide a richer picture of gender dif- study show no differences. measure was a global measure of satisfaction; ferences, we conducted some additional statis- Thus, women in our study are a hardy lot, other studies have discovered that although tical tests. In terms of professional role, being working like the men, having issues that place women score higher on some facets of job a lawyer is more salient to women’s rather than them at risk for distress, but reporting no satisfaction (e.g., the substance of their men’s identity. Conversely, men are more additional personal or professional distress. work), they score much lower on others (job committed than women to their role identi- However, one additional difference may be at setting, social index of work, and the power ties as lawyers, yet this role commitment is of play in this study. As a group, men graduated track) (Dinovitzer, et al., 2004). Elwork equal importance to both men’s and women’s from law school much earlier (average year = (1995) also reports that female lawyers’ satis- professional life satisfaction. In terms of per- 1984) than women (average year = 1993); as faction may be negatively influenced by their sonal traits, women report significantly higher a group, women are professionally more jun- experience of more role conflicts—that “they, levels of overachieving, perfectionism, and ior. To examine if this variable is important, more than men, are pressured to delay or needing others’ approval. Nevertheless, need- we conducted additional analyses that com- forgo childbearing, to assume unequal family ing others’ approval is important to men’s pro- pared women lawyers who graduated before responsibilities for child and elder care, or to fessional satisfaction but not to women’s satis- 1995 (49%) with those who graduated in parent children alone.” Once again, our data faction, despite the gender differences. 1995 or more recently (51%). support these previous findings in that pro- Men and women differ in their personal Despite the difference in professional (and portionally, more women in our study histories as well. More women than men in chronological) age, recent graduates and earli- (25.5%) are unmarried than men (15.7%), a our study report having parents with psychi- er graduates score no differently in levels of finding that is echoed in the literature about atric problems, and more women report expe- perceived discrimination, harassment, professional women who feel compelled to riencing emotional and sexual abuse as a child. burnout, depression, and most of the alcohol place their career before a personal life if they Statistically, more women than men report and other drug measures. Among the person- want to succeed in their profession. that their spouse or partner has alcohol and ality characteristics, the only difference is that Certainly, other factors not captured by our other drug problems, but the difference is so the recent graduates report needing others’ questionnaire contribute to women’s sense of small as to be unimportant, practically. approval more so than earlier graduates report discrimination. Similarly, a few differences in alcohol and this. Although not statistically significant, To better explain women lawyers’ profes- other drug use are evident, but these are, recent graduates tend to report slightly higher sional life satisfaction, we conducted a multi- again, not practically important differences levels of overall burnout, and they are especial- ple regression analysis. This useful statistical (e.g., values for 12-month use of marijuana ly (statistically significantly) reporting higher analysis captures the influence of multiple are 1.08 for women and 1.27 for men, placing scores on “I feel frustrated by my job.” variables on professional life satisfaction in one them both in the 1-2 times per year range). Although both groups have equivalent process, rather than more simplistic analyses Given all this evidence—that women scores on mental and physical self-report that examine variables one at a time. When lawyers have troubled personal histories at measures, recent women graduates report considering all of the many issues investigated greater rates than men, have more demand- consuming more alcohol drinks in a single in our survey, only five (two negative and ing personal traits such as perfectionism and day (4.8) than the earlier graduates, who three positive) predict professional life satisfac- needing others’ approval, and experience dis- report 3.5 drinks in a single day. This may tion for women. Negative influences include crimination in a variety of areas of their pro- reflect the general population estimates that working in a stressful workplace and having to fessional lives when being a lawyers is quite younger people tend to binge drink more, work on weekends; positive influences include salient to their personal identity—one would especially those in college or who are recent having higher personal income, having more expect them to be at greater risk for personal graduates. supportive co-workers, and being more com- problems as well. Yet for the women in our Given these differences between women mitted to one’s profession. This is a very differ- sample, this is not the case. Women’s rates of who are more recent law school graduates and ent model than for men, whose professional burnout and depression are no different those who graduated before 1995, it may not satisfaction is similarly influenced by having from the men’s rates, which is a remarkable be surprising that the recent graduates more coworker support and being committed to finding because in the general population, frequently work when feeling “too distressed their role as lawyers, but additionally influ- women experience depression at least twice to be effective” than earlier graduates. This enced by having sufficient material resources as much as men. Women in this sample also same group of recent graduates also states that to do their jobs and being physically healthy. do not drink alcohol more than the men they are more likely to stop practicing law in Men’s professional satisfaction is negatively drink. Similar to reports in the general pop- the next few years for reasons other than influenced by being faced with ethical com- ulation, men drink alcohol more days per retirement. This last question is an important promises and by needing others’ approval. week than women drink, and reports of the indicator of intention to quit, meaning that (Note—all items are listed in descending most drinks consumed in a single day are the law profession will be losing their young order of importance). Thus, it is clear that greater for men (average = 6 drinks) than for women lawyers at a time when their expertise men and women have different needs to be women (average = 4 drinks). In addition, on and recent training could make important satisfied with their professional life, and that the typical measure for average amount of contributions to the field. the occupational factors that may be subject to alcohol consumption (average number of So what does one conclude from all this discriminative practices (i.e., personal income) days drinking per week x average number of information? Rosin suggests that our “white- are important influences. drinks per day), women and men in our collar economy values raw intellectual horse-

THE NORTH CAROLINA STATE BAR JOURNAL 25 power, which men and women have in equal Chicago: NALP Foundation for Law Career Rosin, H. 2010. The end of men. Atlantic, amounts. It also requires communication Research and Education and the American July/August. skills and social intelligence, areas in which Bar Foundation. Schultz, U., & Shaw, G. (2003) Women in women, according to many studies, have a Donnell, C., et al. (1998) Gender penalties: the World's Legal Professions. Oxford, United slight edge. Perhaps most important—for The results of the careers and compensation study. Kingdom: Hart. better or worse—it increasingly requires for- Monograph published by the Colorado Stager, D., & Foot, D. (1988) Changes in mal education credentials, which women are Women's Bar Association. lawyers' earnings: The impact of differentiation more prone to acquire, particularly early in Elwork, A., & Benjamin, G. A. H. (1995). and growth in the Canadian legal profession. adulthood.” If so, then all professions, includ- Lawyers in distress. Journal of Psychiatry and Law & Social Inquiry, 13, 71-85. ing the law, need to find ways not just to the Law, 25, 205-229. Young, M. C, & Wallace, J. E. (2009). eliminate the persistent and pervasive dis- Epstein, C. F., Saute, R., Oglensky, B., & Family responsibilities, productivity, and earn- crimination that exists, but also to embrace Gever, M. (1995). Glass ceilings and open ings: A study of gender differences among the kinds of potential that the robust North doors: Women’s advancement in the legal profes- Canadian Lawyers. Journal of Family Carolina women lawyers bring to the table. sion. Fordham Law Review, 64, 291–449. Economic Issues, 30, 305-319. The American Bar Report (2001) cited by Hagan, J. (1990). The gender stratification Hagan & Kay (2007) is the most recent avail- of income inequality among lawyers. Social Footnote able comprehensive review, and it concludes Forces, 68, 835–855. Close to ten years ago, the members of the from a wide range of research that, “women's Hagan, J., & Kay, F. M. (1995). Gender in Consortium for Professional Recovery Programs began discussing a collaborative project to survey North opportunities are limited by traditional gen- practice: A study of lawyers’ lives. Oxford: Carolina professionals. This consortium, comprised of der stereotypes, by inadequate access to men- Oxford University Press. representatives from medicine, law, dentistry, pharmacy, tors and informal networks of support, by Hagan, J., & Kay, F. M. (2007). Even psychology, nursing, and social work, met regularly to dis- inflexible workplace structures, and by other lawyers get the blues: Gender, depression, and job cuss methods to improve the behavioral health issues experienced by their professionals. The consortium mem- forms of gender bias in the justice system.” satisfaction. Law & Society Review, 41, 51-78. bers believed that both services and policy could be These issues are amenable to change, as are Hull, K. E. (1999). The paradox of the con- improved if they had current data about the behavioral more obvious differences such as personal tented lawyer. Law & Society Review, 33, 687- health and occupational issues facing their memberships. income. If the profession wishes to reduce the 700. Over the next several years, the consortium members worked together to develop a comprehensive set of issues number of women leaving the profession, Hull, K. E., & Nelson, R. L. (2000). that were relevant to all the professions, along with issues retaining the attributes that would serve the Assimilation, choice, or constraint? Testing theo- that were idiosyncratic to each discipline. The results of profession well, it must invest in the changes ries of gender differences in the careers of lawyers. this collaborative effort provided the foundation for the that would allow women equal treatment and Social Forces, 79, 229-264. development of “Work and Well-Being: A Survey of North Carolina Professionals.” Through the tireless access to leadership positions. It is not a zero- Kay, F. (1997) Flight from law: A competing efforts of consortium members, the project was refined sum game; men are not diminished when risks model of departures from law firms, Law & through an iterative process, ensuring the scientific valid- women are advanced. Instead, by affirming Society Review, 31, 301-35. ity and the professional relevance of the findings. The women’s unique contributions, the entire Radford, M. (1990) Sex stereotyping and results of this project, ultimately funded and implement- ed last year, are summarized herein. profession is enriched, its members’ health the promotion of women to positions of power. We mailed questionnaires to a probability sample of and well-being are improved, and the legal Hastings Law Journal, 41, 471-535. members of the North Carolina State Bar, and we profession’s values of social justice and equal Rhode, D. L. (2000). In the interests of jus- received 390 usable responses. The questionnaire was opportunity are upheld. n tice: Reforming the legal profession. New York: lengthy, and it included occupational items about work- Oxford Univ. Press. place and workload, behavioral health questions about alcohol and other drug use, depression, and burnout, Darcy Siebert, Ph.D., is an associate professor Reichman, N. J., & Sterling, J. S. (2002) along with demographic items. The survey was anony- at Rutgers School of Social Work. Recasting the brass ring: Deconstructing and mous; that is, the identity of the respondents could not be reconstructing workplace opportunities for connected to the information they provided. As a result, References women lawyers. Capital University Law most respondents answered all the items, and many pro- vided written comments as well. American Bar Association (2006). Review, 29, 923-77. Charting Our Progress: The Status of Women in the Profession Today. Commission on Women in the Profession. Chicago: American Bar Association. Annual Meeting Brockman, J. (1994) Leaving the practice of law: The wherefores and the whys. Alberta Law You are asked to take notice that the annual meeting of the North Carolina State Bar Review, 32, 116-80. will be held on Friday, October 21, 2011, in conjunction with the council's quarterly Chiu, C. (1998). Do professional women business meeting. Further, the council will hold an election on Thursday, October 20, have lower job satisfaction that professional 2011, at 11:45 a.m. at the Raleigh Marriott City Center, Fayetteville Street, Raleigh, men? Lawyers as a case study. Sex Roles, 38, to choose the agency's president-elect, vice-president, and secretary-treasurer for 2011- 521-537. 2012. All members of the Bar are welcome to attend these events. Dinovitzer, R., et al. (2004) After the JD: First results of a national study of legal careers.

26 SUMMER 2011

LEGAL SPECIALIZATION

Profiles in Specialization—George Oliver

recently met with George Oliver, a lucky to have a great paralegal—Christy board certified specialist practicing in Weiss—to assist me. Once the application New Bern, to talk about his law prac- was complete, I could enjoy reviewing the tice and his board certification in record of my work for the past five years. That businessI bankruptcy law. George grew up in provided a real sense of accomplishment. North Carolina, attending the University of I also found the exam challenging. Since North Carolina, Chapel Hill, for both his the ABC exam is a national one, there were bachelors in Communications and his law some issues reflected that just don’t apply in degree. Following law school, he worked in North Carolina local practice. I answered the Asheville handling primarily criminal defense questions by providing information about the and civil litigation. In 2000, George wel- local customs and that must have been comed his first daughter and decided to acceptable since I achieved a passing score! return home to New Bern to be close to his Q: Has the certification been helpful to your family. George joined the firm Stubbs and practice? Perdue in 2001 and began to handle bank- It definitely has. I get most of my referrals ruptcy cases. He became a board certified spe- from other lawyers, accountants, and previ- cialist in business bankruptcy law in 2006. ous clients. The certification lets them know Following are some of George’s comments that I don’t dabble in bankruptcy. The about the specialization program and the requirements to be a certified specialist are who file Chapter 11 bankruptcy to essentially impact it has had on his career. stringent and give a lawyer credibility from establish a fair market value for their property, Q: Why did you pursue certification? the get-go. Particularly for out-of-state refer- take the appraisal to the judge, and use the At that point in my career, I had been rals, it tells them my experience level. There is property to satisfy the debt. The end result is practicing bankruptcy law for five years and I also a section of the bankruptcy code that that the bank retains enough property to sat- saw it as a way to advance in the profession. I addresses hourly rates and allows board certi- isfy the debt, and the client is able to move knew it was a great program for a young fied specialists to charge higher fees for their forward with no debt owed to the bank. In lawyer. In my practice, I handle Chapter 11 services. The courts recognize the certification the right circumstances, this is really benefi- Debtor cases, and there are very few of us and place a value on it. cial for many people who have been caught who do that work. In a niche practice like Q: What have your clients said about your “underwater” with their property loans. It this, becoming a board certified specialist was certification? provides a workable solution in this economy, a great way to show other lawyers and clients Typically my clients understand that I am which is fair to everyone involved. that I am committed to this practice area. a board certified specialist and see the signifi- Q: How does certification benefit the prac- Q: How did you prepare for the examina- cance of that accomplishment. The informa- tice? tion? tion is easily found on my website and in my In my work, I like it when the attorney on Around that same time I was working to office materials. the other side is a board certified specialist. I edit the North Carolina Bankruptcy Practice Q: How does your certification benefit your want him/her to know the law as well or bet- Manual (along with Pam McAfee), so I was clients? ter than I do. I have had clients ask about immersed in reading and editing writings by My certification provides a real benefit to opposing counsel and initially react negative- some of the state’s best lawyers. The timing my clients through my commitment to this ly when I tell them that the other attorney is was really helpful. I also read the bankruptcy practice area. I recently had a groundbreaking board certified as well. I can reassure my code and focused on the consumer portion, case approved in our district that was a direct client by telling them that that’s actually a since that’s not something I was exposed to in result of my specialization in business bank- good thing. I know if opposing counsel is my practice at that time. ruptcy law. Through case research, I found board certified, we will have a greater chance Q: Was the certification process valuable to some information on a 1993 case where at working things out by consent. We are a you in any way? Judge Leonard ruled against a “Dirt for Debt” very collegial group in the eastern district It was valuable, it was also difficult. I Plan of Reorganization. With the current eco- bankruptcy bar, and the judges encourage applied during the first year of the joint certi- nomic and real property situation, I decided us to work together. I appreciate knowing fication program with the American Board of to try the idea again. In September 2010, that the other side will be fair, smart, and Certification (ABC), and compiling the case Judge Humrickhouse approved a similar plan information was time-consuming. I was in the Bannerman case. This allows clients CONTINUED ON PAGE 29

28 SUMMER 2011 IOLTA UPDATE

Comparability Makes a Difference to IOLTA Income

Income attorneys are encouraging their banks to providers. These grants represent an 11% All information on IOLTA income become Prime Partners. decrease from 2010 grants for those organiza- earned in 2010 has now been received and We would have surpassed last year’s tions. Our reserve fund currently holds just recorded. After experiencing an unprece- income from IOLTA accounts (which over $800,000. dented income downturn in 2009—a 55% decreased by 3%) if SunTrust, one of our decrease over the previous year—the total largest banks, had not stopped waiving the State Funds income of $2.2 million received in 2010 was service charges on IOLTA interest. We are in In addition to its own funds, NC IOLTA only a 6% decrease compared to the previous discussions with SunTrust regarding their administers state funding for legal aid on year. However, the first two quarters showed IOLTA policy. behalf of the NC State Bar. For the 2010 cal- a 34% decrease. Improved income in the last endar year, NC IOLTA administered just over two quarters can be attributed to the imple- Grants $5.1 million in state funds. Appropriated mentation of comparability, which took NC IOLTA made just over $3 million in funds for legal aid have already suffered effect July 1, 2010. Under comparability, 2010 grants (compared to $4.1 million in decreases because of the economy, and pro- lawyers may keep IOLTA accounts only in 2009) by using $1 million (37%) from our posals for the state budget are projecting sig- banks that agree to pay IOLTA accounts the reserve fund. Grants were restricted to a group nificant cuts for 2011-12. Such cuts will highest rate available to that bank’s other cus- of grantees at the forefront of access to justice require staff attorney layoffs and office closings tomers when the IOLTA accounts meet the work. Even so, grants to legal aid organiza- and will place many more NC citizens in the same qualifications. NC IOLTA maintains tions were decreased by approximately 20%. position of navigating our justice system with- the list of eligible banks on the NC State Bar When they met in December, the NC out the assistance of lawyers. The legal aid pro- website, and recognizes NC IOLTA’s Prime IOLTA trustees decided to take $1 million grams, the Equal Access to Justice Partner Banks which go above and beyond (59%) from our (now smaller) reserve fund Commission, the Equal Justice Alliance, and the eligibility requirements of the revised rule for the second year in a row in order to make the NCBA are working hard to sustain state to support the NC IOLTA program. We grants of $2.7 million, and grants were again funding for legal aid work, which is even more appreciate the fact that many North Carolina limited to the group of (mainly) legal aid necessary in the economic downturn. n

Specialization (cont.) nity to learn from and help each other. active in the profession. I see many compa- Q: Is certification important in your practice ny owners and corporate attorneys who experienced. area? have worked with a particular business for Q: How do you stay current in your field? Certification is very important in the years. They are deeply invested in the suc- I participate in a couple of great listserves, bankruptcy practice today. It’s a tricky prac- cess or failure of the company and it is through the NC Bar Association Bankruptcy tice area and a bankruptcy lawyer has to do sometimes difficult to hand it off to me, Section and the National Association of more than just know the basics of the bank- trusting that I will know how to best handle Bankruptcy Trustees. I also read American ruptcy code. To be effective, you really have the situation. The certification provides Bankruptcy Institute and Lexology articles, and to delve in and understand the nuances. some comfort to them that they’re making keep up with E-bar and other legal update Because bankruptcy is a hot area right the right decision. emails. I attend numerous continuing legal now, many lawyers want to handle those Q: What would you say to encourage other education (CLE) courses throughout the cases. I think the five-year minimum experi- lawyers to pursue certification? year, including The Bar Foundation’s Annual ence requirement for certification is critical. Becoming board certified is definitely Bankruptcy Institute, the Eastern In this economy, it’s really important to iden- worth the effort. I encourage those who may Bankruptcy Institute, and the National tify lawyers who are experienced in these cases qualify to seriously consider applying this Association of Bankruptcy Trustees seminars. from those who are just dabbling. year. n Because the bankruptcy bar is so collegial, I Q: How does certification benefit the pub- really love attending the CLEs. I always dis- lic? For more information on the State Bar’s spe- cover something new and enjoy the company Certification provides an objective way cialization program, please us on the web at of the other attorneys as well as the opportu- for potential clients to see which lawyers are http://www.nclawspecialists.gov.

THE NORTH CAROLINA STATE BAR JOURNAL 29 LEGAL ETHICS

Internet Angst or I Went to Law School, Not MIT

B Y S UZANNE L EVER

I am just going to say it. As one of the provided in a certain context. This opinion Professional Conduct for one lawyer to select ethics counsel at the North Carolina State was recently overruled by 2009 FEO 16. The another lawyer’s name as an advertisement Bar, I hate the Internet. Understanding the new opinion provides that a law firm may trigger. So for example, if Attorney Joe Smith Internet is like raising a child. Just as soon as include a “case summary” section on its web- selects as his advertisement keywords you think you have it figured out, something site, so long as the section contains factually “Attorney Jack Jones,” when an Internet user new gets thrown at you. Or maybe it is more accurate information accompanied by an then enters “Attorney Jack Jones” in the like that mythological creature with all the appropriate disclaimer. search engine, a link to Attorney Joe Smith’s heads where if you cut off one head, two Okay, so it took a few drafts, but we ulti- website appears as an advertisement. A link to more heads grow back in its place. mately got the whole “case summary sec- Attorney Jack Jones’ website would also The Ethics Committee first encountered tions” controversy settled. But now the Ethics appear in the main search results. This one is the beast that is the Internet in 1996. In RPC Committee is faced with numerous inquiries also going back to a subcommittee for further 239 (October 18, 1996), the Ethics pertaining to Internet advertising options rumination. The inquiry always invokes a Committee addressed the propriety of a law that clearly were not even a twinkle in the “lively” discussion from the members of the firm having its own website. The opinion eyes of the committee that revised the Rules Ethics Committee. What do you think? Does provides that it is permissible for a lawyer to of Professional Conduct in 2003. this behavior rise to the level of deceptive con- display information about his or her legal In one inquiry, the Ethics Committee duct under Rule 8.4 or is it just clever mar- services on “a site on the World Wide Web considers the ethical issues surrounding a keting? Feel free to join the discussion. which can be accessed via the Internet, a glob- lawyer advertising on a “deal of the day” or In the third inquiry, the Ethics Committee al network of interconnected computers.” “group coupon” website. A consumer regis- considers whether a law firm may use a “live (We were so young and naïve then.) RPC ters his or her email address and city of resi- chat support service” on its website. 239 provides that advertising on the Internet dence with the company’s website. The com- Apparently, after downloading the applicable is permissible so long as the website does not pany emails local “daily deals” to registered software program to the firm website, a “but- contain information that is false or mislead- consumers. The daily deals are generally for ton” is displayed on the website which reads ing, lists all jurisdictions in which the lawyers services such as spa treatments, tourist attrac- something like “Click Here to Chat Live.” in the firm are licensed to practice law, and tions, restaurants, etc. But now, lawyers Once a visitor clicks on the button to request discloses the geographic location of the law would like to advertise legal services on these a live chat, the visitor will be able to have a firm’s principal office. Seems simple enough. “deal of the day” websites as well. In connec- typed-out conversation in real-time with an Oh, for the good old days. At the recent tion with this inquiry, the Ethics Committee agent of the law firm. Depending on the soft- quarterly meeting, the Ethics Committee considered, among other issues, the potential ware program purchased, in addition to the considered three agenda items dealing with for prohibited fee sharing with a nonlawyer, live chat “button” being displayed on the web- the ever-changing, ever-technical, ever- as well as possible refund and trust account- site, a pop-up window may also appear on the incomprehensible landscape that is Internet ing issues. This opinion is going back to a screen specifically asking visitors if they would advertising.1 Proposed 2010 FEO 14 (Using subcommittee a second time for further head like “live help.” In another form of the service, search engine keywords to advertise on the scratching. a computer generated voice “speaks” to the vis- Internet), an inquiry on utilizing live chat In Proposed 2010 FEO 14, the Ethics itor and asks if the visitor would like live assis- support services on a law firm website, and Committee considered a lawyer’s actions in tance. At issue here is whether the live chat an inquiry on advertising on the Groupon connection with a search engine company’s support service amounts to improper in-per- website. search-based advertising program. Apparently son solicitation. Relying on the fact that the Prior to this deluge of inquiries pertaining the program allows advertisers (in our case public has become desensitized to the various to heretofore unheard of Internet offerings, lawyers) to select specific words or phrases interactive features of the Internet, and under- the predominant issue surrounding Internet that should trigger their advertisements. stands the right to ignore electronic commu- advertising was the permissible content on When a “user” performs a search, the adver- nications, the Ethics Committee gave this law firm websites. In 2000 FEO 1, the Ethics tisements triggered by the relevant words technology its blessing and is publishing the Committee determined that statements magically appear, along with the search opinion comment. about a lawyer's or a law firm's record in engine’s main search results. The specific Okay people, what is next?? If I get an obtaining favorable verdicts was permissible inquiry considered by the committee asked on a firm's website if the information was whether it is a violation of the Rules of CONTINUED ON PAGE 31

30 SUMMER 2011 PARALEGAL CERTIFICATION

Top Five Ways to Minimize Interruptions

B Y V ICKI V OISIN

How can you get your work done if you you have the time available, go for it and hold Voice, a monthly podcast produced by Legal Talk have constant interruptions? You can't...and them to the deadline. If you don't have a Network. More information is available at it's very frustrating. spare 15 minutes, schedule an appointment www.paralegalmentor.com where new sub- You have to practice self-defense when it with them later. scribers receive The Paralegal Mentor's 151 Tips comes to interruptions. If you don't take Rehearse a few lines like: “I'm sorry, but I for Your Career Success. steps to minimize them, your time will be need to finish this deposition summary in the wasted and your productivity will suffer. next hour. Can we talk later?” or “Attorney X Studies show that the average worker is inter- is waiting for this research. I can spend some rupted every eight minutes. The same studies time with you at 2:00 this afternoon.” If you Legal Ethics (cont.) reveal that 15% of the interruptions are use lines like these, you've turned the tables important, while the remaining 85% are a and you're now meeting on your own terms. inquiry asking whether it is permissible for a waste of time. 5. Urge co-workers to accumulate their lawyer’s website to be programmed to project Telephone calls and e-mail are major cul- questions. They should save all but urgent a hologram into a potential client’s house, I prits, but even worse are the two-legged inter- issues to discuss with you in one chunk of might just lose it. (Please, please don’t tell me rupters: your co-workers. time. It's much more productive to spend 20 this technology already exists.) n Here are five tips to minimize those two- minutes discussing five client matters than it legged interruptions and keep you in the pro- is to talk about one client matter for ten min- Suzanne Lever is assistant ethics counsel for ductivity fast lane: utes every hour. the North Carolina State Bar. 1. Stand up when someone enters your Bonus tip: Don't interrupt yourself! workspace or when they've over-stayed their Determine the time of day you are most pro- Endnote welcome. When you stand, you send a mes- ductive (early morning? mid-afternoon?) and 1. Not to mention the two opinions on “cloud comput- sage that the meeting will either be brief or make yourself unavailable to the world during ing” that were also on the agenda and are published for comment in this edition of the Journal. that it has ended. This works every time. You that time every day. Shut your door. Turn off start moving, they start moving, end of inter- anything that might be noisy or distracting. ruption. Stock your desk with all the supplies you need 2. Never ask “How are you?” when to eliminate unnecessary trips to the supply CORRECTION: Legal Ethics Article in someone stops by your office. This is an room. Then, practice what you preach: gather the Spring 2011 edition of the Journal. open invitation to chat. Do you really want to your questions and assignments and interrupt hear about their gallbladder surgery? Instead, your co-workers only once. The article entitled OCOB Opines that ask, “What can I do for you?” This will get Your challenge: Make a short list of the Lawyers May Not Secure Legal Fees with Deeds you right to the point of the interruption. interruptions you will allow. For all the rest, of Trust on Clients’ Residential Property in the 3. A bit of creative workspace re-organi- decide which of today's tips you can imple- last edition of the Journal implied that the zation goes a long way. If your desk faces the ment to minimize them. Once that decision Office of the Commissioner of Banks door, turn it so you don't look right into the is made, take the necessary steps to curb those (OCOB) issued an opinion on the applica- hallway at everyone who passes. Once they interruptions and you'll find yourself on your tion of the licensure requirements in the make eye contact, they always stop to chat. way to a more productive day. n North Carolina Secure and Fair Can you remove your chairs? If not, stack Enforcement Mortgage Licensing Act (NC some files on them so the office pest (i.e., © 2011 Vicki Voisin, Inc. Vicki Voisin, “The S.A.F.E.), N.C. Gen. Stat. §53-244.010 et time waster) can't take root for a half hour of Paralegal Mentor,” delivers simple strategies for seq., to a lawyer who prepares a deed of trust blah blah blah. Last, NEVER have a bowl of paralegals and other professionals to create success on a client’s residence to secure the lawyer’s candy on your desk. Who can resist a handful and satisfaction by achieving goals and deter- own legal fee. The OCOB has not issued an of M&Ms and a little conversation to go mining the direction they will take their careers. official opinion or declaratory ruling on this along with them? Vicki spotlights resources, organizational tips, issue. We apologize to the commissioner of 4. If you're asked to answer a “quick ethics issues, and other areas of continuing edu- banks for any misrepresentation. Lawyers are question” or someone wants “just a minute” cation to help paralegals and others reach their encouraged to review and comply with NC of your time, beware! Your first question full potential. She publishes a weekly e-zine titled S.A.F.E. when seeking a deed of trust on should be, “How much time do you need?” If Paralegal Strategies and co-hosts The Paralegal client’s residence to secure a fee.

THE NORTH CAROLINA STATE BAR JOURNAL 31 THE DISCIPLINARY DEPARTMENT

Grievance Committee and DHC Actions

Commission. estate transactions by preparing and sub- Disbarments The DHC found that Holly Stevens of mitting false HUD-1 Settlement Sybil Barrett of Charlotte falsely repre- Fayetteville prepared and submitted to Statements. His license was suspended for sented on a HUD-1 Settlement Statement lenders HUD-1 Settlement Statements that one year. The suspension is stayed for two that the proceeds of the seller’s loan were a contained false information and/or that years upon compliance with numerous con- downpayment by the buyer. Barrett was dis- failed to accurately portray the transaction, ditions. barred by the Disciplinary Hearing manipulated the timing of preliminary Carmen Battle, Pauline Makia, and Commission. opinions of title to hide flip transactions, Jamie Newsom practiced law in Gregory Bartko of Atlanta surrendered made false representations of ownership on Fayetteville. They unwittingly facilitated his law license and was disbarred by the preliminary opinions of title, and disbursed mortgage fraud because they were incompe- Wake County Superior Court. Bartko was funds inconsistently with the representa- tent and/or because they did not supervise convicted in federal court in the Eastern tions on the HUD-1s. Stevens was dis- their non-lawyer assistants. The District of North Carolina of one count of barred. Disciplinary Hearing Commission sus- conspiracy, four counts of mail fraud, and pended their law licenses for five years. The one count of the sale of unregistered securi- Suspensions & Stayed Suspensions suspensions are stayed upon compliance ties. Charles Feagan of Columbus neglected with numerous conditions. Joel H. Brewer of Roxboro, formerly the his client’s case and failed to respond to the elected district attorney for the 9A Judicial Bar. Feagan was reprimanded for similar Show Cause Hearings District, surrendered his law license and was misconduct in 2009. The DHC suspended In June, 2010, William E. Brown of disbarred by the Wake County Superior his license for five years. Fayetteville was suspended for three years Court. Brewer was convicted of nine misde- Kimberly Jordan of Raleigh made false for attempting to have sex with his clients meanor criminal charges, including seven representations to a client to obtain fees for and engaging in conduct prejudicial to the counts of assault on a female. services she had not rendered and failed to administration of justice. The suspension Kelton Brown of Knightdale surren- respond to the Bar. The Disciplinary was stayed for three years contingent upon dered his law license to the DHC and was Hearing Commission suspended her license his compliance with extensive conditions. disbarred. Brown used entrusted funds for for three years. The State Bar filed a motion for Brown to his own personal benefit and for the benefit By order of reciprocal discipline, James show cause why the stay should not be lift- of third parties without authorization to do Kernan of Oriskany, NY, was suspended for ed because of his failure to comply with the so and practiced law while he was adminis- five years or the term of his federal proba- conditions. The Disciplinary Hearing tratively suspended. tion, whichever is longer. The Supreme Commission lifted the stay and activated Tonya Ford of Raleigh surrendered her Court of New York disciplined Kernan for the suspension for six months. Brown must law license to the DHC and was disbarred. his conviction in federal court of knowingly satisfy the conditions in the original order Ford used entrusted funds for her own per- permitting a convicted felon to be engaged to be eligible for reinstatement. sonal benefit without authorization to do so in the business of insurance. and practiced law while she was administra- Pittsboro lawyer Cabell Regan commit- Interim Suspensions tively suspended. ted numerous trust account violations, The DHC entered an interim order sus- Mark Jenkins of Waynesville neglected including commingling personal and pending the law license of Theophilus O. multiple clients, made false representations entrusted funds, using entrusted property Stokes III of Greensboro following his con- to clients about the statuses of their cases, for the benefit of a third party without viction for two misdemeanor counts of collected excessive fees, and failed to authorization, and failing to reconcile his receiving stolen goods. respond timely to the Bar. Jenkins was dis- trust account. Regan was also convicted of barred by the DHC. five counts of willful failure to file state Censures Larry Overton of Ahoskie surrendered income tax returns. The Disciplinary Charlotte lawyer Pamela Hunter was his law license to the State Bar Council and Hearing Commission suspended his license censured by the Grievance Committee for was disbarred. Overton misappropriated for three years. The suspension is stayed for filing a frivolous medical malpractice claim. entrusted funds. two years upon compliance with numerous She later abandoned the lawsuit and offered David Rogers of Raleigh was convicted conditions. to pay her client money from her personal of attempted murder and is in prison. He The DHC found that Raleigh lawyer funds. She did not explain the payments in was disbarred by the Disciplinary Hearing Phillip Rose facilitated fraudulent real a way that allowed the client to make an

32 SUMMER 2011 informed decision about the payments, motions for sanctions and contempt, failed reprimanded by the Grievance Committee leading the client to believe the lawsuit had to appear for hearings on those motions, for failing to turn over three client files been settled. and failed to comply with court orders. The promptly and for failing to respond John T. Orcutt of Raleigh was censured Bankruptcy Court found that Trobich promptly to the State Bar. by the Grievance Committee for making engaged in willful, intentional, gross, and W. Ray Hudson of Troy was reprimand- misleading statements in advertising his flagrant violations of the court’s orders. ed for failing to respond to the Grievance legal services by comparing his services with High Point lawyer Stephen Wallace was Committee. Hudson eventually produced other lawyers’ services when the compar- censured by the Grievance Committee for the information sought after he was com- isons could not be substantiated. filing frivolous claims and using means that pelled to do so by court order. Travis Simpson of Winston-Salem was had no substantial purpose but to embar- Bryan D. Martin of Advance was repri- censured by the Grievance Committee. He rass, delay, or burden third persons. He manded for failing to respond to the failed to respond promptly to the Grievance attempted to enforce an order awarding Grievance Committee. Committee, failed to give a full and fair dis- attorney fees that he knew was entered in closure of the facts surrounding the griev- error. Wallace was previously disciplined for Transfers to Disability Inactive Status ance, failed to return property owned by his other misconduct in the same litigation. The DHC transferred Annette Exum of client, neglected his client’s case, failed to Raleigh to disability inactive status. keep his client apprised of the status of the Reprimands Albert M. Neal Jr. of Candler asserted a case, and failed to promptly return a client Raleigh lawyer John R. Bennett III was disability defense to disciplinary charges. file. reprimanded by the Grievance Committee The Disciplinary Hearing Commission The Grievance Committee censured for failing to participate in the fee dispute stayed the disciplinary proceedings, trans- Charlotte lawyer Robert K. Trobich. He resolution process in good faith and for fail- ferred Neal to temporary disability inactive failed to comply with the Bankruptcy ing to respond to the State Bar. status, and ordered him to undergo a med- Court’s order to appear, failed to respond to Maynard A. Harrell Jr. of Plymouth was ical evaluation. n

In Memoriam

Bobby Glenn Abrams John Mark Heavner Rebecca Harbour Partesotti Wilson Gastonia Takoma Park, MD Albeon Griffin Anderson Charles Bernard Hodson Edward Knox Powe III Wilmington Chapel Hill Durham Mark Alan Ash Mark Layne Jenkins Jimart Lee Rhinehart Raleigh Waynesville Wilmington John Linder Barber Sr. Vaughn Edward Jennings Jr. Clyde Thomas Rollins Winston-Salem Winston-Salem Greensboro Avery Colburn Bordeaux William Joslin Donald Miller Seltzer Raleigh Raleigh Charlotte Cynthia Y. Carroll Howard Alvin Knox Jr. John Elwood Shackelford New Bern Rocky Mount Asheville Gary Douglas Chamblee Solomon Levine Thomas Warwick Steed Jr. Charlotte Charlotte Raleigh William Maxie Davis Jr. Ernest W. Machen Jr. William K. Van Allen Clinton Charlotte Charlotte Jennie Dorsett Darrell Lane Matthews Debra Leigh Whited Raleigh Charlotte Burlington William Gordon Edwards Colleen Kelly McCarthy James Monroe Yelton Jr. Jamestown Fayetteville Johnson City, TN Wallace C. Harrelson James B. McMullan Herman W. Zimmerman Jr. Greensboro Washington Lexington

THE NORTH CAROLINA STATE BAR JOURNAL 33 FEATURED ARTIST

Featured Artist—Marvin Saltzman

It is difficult to make a statement about my work, the purpose of making my work, or the [effect] of its imagery upon viewers. I have been trying to put the visual fact into the verbal for the past 40 years...since the time when I decided that the landscape would be the base of my visu- al ramblings. It is now possible to put this into a few words...“I draw from the landscape sight- specific and paint about the landscape.” While those few words tell all there is to tell...some want more. —Marvin Saltzman

Marvin Saltzman has been creating and exhibiting his award-winning unique land- scape drawings and paintings for over four decades. His works have been displayed nationally in numerous private and public collections from California to New York. Saltzman was a recipient of the 1998 North Carolina Award in Fine Arts given by the North Carolina Department of Cultural Resources for his “strong, passionate, abstract Cumberland #3 paintings and the equally strong feelings he inspires in students.”1 Saltzman was born in Chicago, Illinois, Saltzman’s paintings have been displayed I paint in series...as few as four and as and attended the University of Chicago and in North Carolina at WakeMed Hospital, many as 24. I investigate through mul- the School of the Art Institute of Chicago the Ackland Art Museum, Duke University, tiple layers of paint visual possibilities of from 1954 to 1956. He received his Bachelor the Greenville Museum of Art, and IBM a given PLACE. What a viewer sees is a of Fine Arts and Masters of Fine Arts from Corporation, and nationally at several loca- surface created on top of a complex the University of Southern California and tions including the Library of Congress, the compositional statement…multiple lay- went on to teach at several universities, National Academy of Sciences, and the ers of paint made with brushes #1 including the University of North Carolina National Museum of American Art. through 3...and an intense use of at Chapel Hill from 1967 to 1996. While at Saltzman explains the process for creating color...a palimpsest...allowing the rem- UNC, he played a significant role in the ren- his landscape drawings and paintings as fol- nants of previous layers to emerge as the ovation of the Department of Art. lows: viewer examines the painting from dif- ferent distances. Over the surface is an array of “glyphs,” which force the viewer Each quarter, the works of a different contemporary North Carolina artist are dis- to move not only into the canvas but played in the storefront windows of the State Bar building. The artwork enhances the around the surface…dictated by the use exterior of the building and provides visual interest to pedestrians passing by on of my brush and color choice. It is about Fayetteville Street. The State Bar is grateful to The Mahler Fine Art, the artists' represen- my landscape...My sense of a given tative, for arranging this loan program. The Mahler is a full-service fine art gallery repre- PLACE. senting national, regional, and North Carolina artists, and provides residential and com- Saltzman currently lives and creates in mercial consulting. The Mahler, along with its sister gallery, The Collectors Gallery, are Chapel Hill, North Carolina. n located in downtown Raleigh. Readers who want to know more about an artist may con- tact owners Rory Parnell and Megg Rader at (919) 896-7503 or Endnote [email protected]. 1. Excerpt from the 1998 North Carolina Awards Brochure www.marvinsaltzman.com/about2.php.

34 SUMMER 2011 PROPOSED OPINIONS

Committee Considers the Risks of Software as a Service and Online Banking

Council Actions Journal as Proposed 2010 FEO 7, Subscribing At a meeting on April 22, 2011, upon the to Software as a Service While Fulfilling the recommendation of the Ethics Committee, Duties of Confidentiality and Preservation of Public Information the State Bar Council adopted the opinions Client Property, was revised and is issued summarized below: below under a new opinion number in order The Ethics Committee's meetings 2011 Formal Ethics Opinion 1 that it might be published in tandem with a are public, and materials submitted for Lawyer as Advocate and Witness related proposed opinion on online banking. consideration are generally NOT held in Opinion provides guidelines for the appli- (No opinion will be issued as “2010 FEO 7.”) confidence. Persons submitting requests cation of the prohibition in Rule 3.7 on a Three new proposed opinions are published for advice are cautioned that inquiries lawyer serving as both advocate and witness for comment. The comments of readers are should not disclose client confidences or when the lawyer is the litigant. welcomed. sensitive information that is not neces- 2011 Formal Ethics Opinion 2 sary to the resolution of the ethical ques- Former Client’s Failure to Object to Proposed 2011 Formal Ethics tions presented. Conflict Opinion 6 Opinion sets forth the factors to be taken Subscribing to Software as a Service into consideration when determining While Fulfilling the Duties of SaaS for law firms may involve the storage whether a former client’s delay in objecting to Confidentiality and Preservation of of a law firm’s data, including client files, a conflict constitutes a waiver. Client Property billing information, and work product on 2011 Formal Ethics Opinion 3 April 21, 2011 remote servers rather than on the law firm’s Advising a Criminal Defendant Who is Proposed opinion rules that a law firm may own computer and, therefore, outside the an Undocumented Alien contract with a vendor of software as a service, direct control of the firm’s lawyers. Lawyers Opinion rules that a criminal defense provided the lawyer uses reasonable care to assure have duties to safeguard confidential client lawyer may advise an undocumented alien that the risks that confidential client informa- information, including protecting that infor- that deportation may result in avoidance of a tion may be disclosed or lost are effectively min- mation from unauthorized disclosure, and to criminal conviction and may file a notice of imized. protect client property from destruction, appeal to superior court, although there is a degradation, or loss (whether from system possibility that the client will be deported. Inquiry #1: failure, natural disaster, or dissolution of a [Note: The council revised the opinion, Much of software development, including vendor's business). They also have a continu- changing the client/criminal defendant’s the specialized software used by lawyers for ing need to retrieve client data in a form that name from “Hector” to “Client A” through- case or practice management, document is usable outside of a vendor's product.2 out.] management, and billing/financial manage- Given these duties and needs, may a law firm ment is moving to the “software as a service” use SaaS? Ethics Committee Actions (SaaS) model. The American Bar At its meeting on April 21, 2011, the Association’s Legal Technology Resource Opinion #1: Ethics Committee voted to withdraw and Center explains SaaS as follows: Yes, provided steps are taken effectively to send the following proposed opinions to sub- SaaS is distinguished from traditional soft- minimize the risk of inadvertent or unautho- committees for further (or continued) study: ware in several ways. Rather than rized disclosure of confidential client infor- Proposed 2010 FEO 14, Use of Search Engine installing the software to your computer mation and to protect client property, includ- “Adwords” to Advertise on Internet, and or the firm's server, SaaS is accessed via a ing the information in a client’s file, from risk Proposed 2011 FEO 4, Participation in web browser (like Internet Explorer or of loss. Reciprocal Referral Agreement. Proposed 2011 FireFox) over the Internet. Data is stored The use of the Internet to transmit and Formal Ethics Opinion 5, Representation of in the vendor's data center rather than on store client information presents significant Lender in Contested Foreclosure When the firm's computers. Upgrades and challenges. In this complex and technical Corporate Trustee is Owned by Spouse and updates, both major and minor, are rolled environment, a lawyer must be able to fulfill Paralegal, published in the last edition of the out continuously…. SaaS is usually sold the fiduciary obligations to protect client Journal, will be recommended for adoption at on a subscription model, meaning that information and property from risk of disclo- the July quarterly meeting of the council. A users pay a monthly fee rather than pur- sure and loss. The lawyer must protect against proposed opinion previously published in the chasing a license up-front.1 security weaknesses unique to the Internet,

THE NORTH CAROLINA STATE BAR JOURNAL 35 particularly “end-user” vulnerabilities found sonable care to select a mode of communica- mum, the security measures listed below. in the lawyer’s own law office. The lawyer tion that, in light of the circumstances, will Note, however, that these are only minimum must also engage in continuous education best protect confidential communications, requirements. Lawyers are advised to consult about ever-changing security risks presented and the lawyer must advise affected parties if with a security professional when determin- by the Internet. there is reason to believe that the chosen com- ing what additional steps should be taken. See Rule 1.6 of the Rules of Professional munications technology presents an unrea- also Opinion #3 below. Conduct states that a lawyer may not reveal sonable risk to confidentiality. Id. • An agreement on how confidential client information acquired during the professional Furthermore, in 2008 FEO 5, the com- information will be handled in keeping with relationship with a client unless the client mittee held that the use of a web-based docu- the lawyer’s professional responsibilities must gives informed consent or the disclosure is ment management system that allows both be included in the SaaS vendor’s Terms of impliedly authorized to carry out the repre- the law firm and the client access to the Service or Service Level Agreement, or in a sentation. Comment [17] explains, “A lawyer client's file is permissible: separate agreement that states that the must act competently to safeguard informa- provided the lawyer can fulfill his obliga- employees at the vendor’s data center are tion relating to the representation of a client tion to protect the confidential informa- agents of the law firm and have a fiduciary against inadvertent or unauthorized disclo- tion of all clients. A lawyer must take steps responsibility to protect confidential client sure by the lawyer or other persons who are to minimize the risk that confidential information and client property. participating in the representation of the client information will be disclosed to • The agreement with the vendor must client or who are subject to the lawyer’s super- other clients or to third parties. See RPC specify that firm’s data will be hosted only vision.” Comment [18] adds that, when 133 and RPC 215….A security code within a specified geographic area. If by transmitting confidential client information, access procedure that only allows a client agreement the data is hosted outside of the a lawyer must take “reasonable precautions to to access its own confidential information United States, the law firm must determine prevent the information from coming into would be an appropriate measure to pro- that the hosting jurisdiction has privacy laws, the hands of unintended recipients.” tect confidential client information….If data security laws, and protections against Rule 1.15 requires a lawyer to preserve the law firm will be contracting with a unlawful search and seizure that are as rigor- client property, including information in a third party to maintain the web-based ous as those of the United States and the state client’s file such as client documents and management system, the law firm must of North Carolina. lawyer work product, from risk of loss due to ensure that the third party also employs • If the lawyer terminates use of the SaaS destruction, degradation, or loss. See also measures which effectively minimize the product, the SaaS vendor goes out of busi- RPC 209 (noting the “general fiduciary duty risk that confidential information might ness, or the service otherwise has a break in to safeguard the property of a client”); RPC be lost or disclosed. See RPC 133. continuity, the law firm must have a method 234 (requiring the storage of a client’s original In a recent ethics opinion, the Arizona for retrieving the data, the data must be avail- documents with legal significance in a safe State Bar’s Committee on the Rules of able in a non-proprietary format that is com- place or their return to the client); and 98 Professional Conduct concurred with the patible with other firm software or the firm FEO 15 (requiring exercise of lawyer’s “due interpretation set forth in North Carolina’s must have access to the vendor’s software or care” when selecting depository bank for trust 2008 FEO 5 by holding that an Arizona law source code, and data hosted by the vendor or account). firm may use an online file storage and third party data hosting company must be Although a lawyer has a professional obli- retrieval system that allows clients to access destroyed or returned promptly. gation to protect confidential information their files over the Internet provided the firm • The law firm must be able get data “off” from unauthorized disclosure, the Ethics takes reasonable precautions to protect the the vendor’s or third party data hosting com- Committee has long held that this duty does security and confidentiality of client docu- pany’s servers for lawyers’ own use or in-house not compel any particular mode of handling ments and information.3 backup offline. confidential information, nor does it prohibit In light of the above, the Ethics • Employees of the firm who use SaaS the employment of vendors whose services Committee concludes that a law firm may receive training on and are required to abide may involve the handling of documents or use SaaS if reasonable care is taken effectively by end-user security measures including, but data containing client information. See RPC to minimize the risks to the disclosure of con- not limited to, the creation of strong pass- 133 (stating there is no requirement that fidential information and to the security of words and the regular replacement of pass- firm’s waste paper be shredded if lawyer ascer- client information and client files. words. tains that persons or entities responsible for No opinion is expressed on the business Mandated security measures have the the disposal employ procedures that effective- question of whether SaaS is suitable for a par- potential to create a false sense of security in ly minimize the risk of inadvertent or unau- ticular law firm. an environment where the risks are continu- thorized disclosure of confidential informa- ally changing. Therefore, due diligence and tion). Moreover, while the duty of confiden- Inquiry #2: perpetual education as to the security risks of tiality applies to lawyers who choose to use Does “reasonable care” require any specific SaaS are required. technology to communicate, “this obligation practices? does not require that a lawyer use only infal- Inquiry #3: libly secure methods of communication.” Opinion #2: Are there other ways to minimize risk of RPC 215. Rather, the lawyer must use rea- Yes. Reasonable care requires, at a mini- loss or unauthorized disclosure of client prop-

36 SUMMER 2011 erty or confidential information that a law security measures including, but not limited firm should consider when contracting with a to, creating strong passwords and regularly SaaS vendor? changing the passwords. Rules, Procedure, • Security software is installed on the com- Opinion #3: puters at the law firm to ensure that the user Comments Yes, the list4 below provides some ways to is connected to the SaaS vendor website and All opinions of the Ethics minimize the security risks of SaaS.5 The list the computer is protected against malware, Committee are predicated upon the is not all-inclusive, and consultation with a viruses, and hacker attacks. Rules of Professional Conduct as revised security professional competent in the area of effective March 1, 2003, and thereafter online computer security is recommended Endnotes amended, and referred to herein as the when contracting with a SaaS vendor. 1. FYI: Software as a Service (SaaS) for Lawyers, ABA Rules of Professional Conduct (2003). Moreover, given the rapidity with which Legal Technology Resource Center www.abanet.org/ tech/ltrc/ fyidocs/saas.html. The proposed opinions are issued pur- computer technology changes, what consti- 2. Id. suant to the "Procedures for Ruling on tutes reasonable care may change over time 3. Paraphrasing the description of a lawyer’s duties in Questions of Legal Ethics." 27 and a law firm should employ or periodically Arizona State Bar Committee on Rules of Professional N.C.A.C. ID, Sect .0100. Any interest- consult with such a professional. Conduct, Opinion 09-04 (Dec. 9, 2009). ed person or group may submit a writ- • The financial history of the SaaS vendor 4. List derived from the recommendations of Erik ten comment or request to be heard has been investigated and indicates financial Mazzone, Director of Center for Practice concerning a proposed opinion. Any stability. Management, North Carolina Bar Association (in email communications with counsel to the Ethics comment or request should be directed • A lawyer for the firm has read and Committee, 3/30/10 and 3/31/10) and ABA Legal to the Ethics Committee at PO Box understood the user or license agreement, Technology Resource Center, see fn. 2. 25908, Raleigh, NC 27611, by June 30, including the security policy, and under- 5. Standards for better storage and transmission of client 2011. stands the meaning of the terms. data were recently proposed by the International Legal • The measures for safeguarding the phys- Technology Standards Organization, a non-profit organization. These can be found at www.iltso.org. ical and electronic security and confidentiali- 6. A firewall is a system (which may consist of hardware, ty of stored data of the SaaS vendor or any software, or both) that protects the resources of a pri- third-party data hosting company, including vate network from users of other networks. Captions and but not limited to firewalls, encryption tech- Encryption techniques are methods for ciphering mes- niques, socket security features, and intru- sages into a foreign format that can only be deciphered Headnotes 6 using keys and reverse encryption algorithms. A socket sion-detection systems, have been evaluated security feature is a commonly-used protocol for man- A caption and a short description of by the law firm or a security professional and aging the security of message transmission on the each of the proposed opinions precedes Internet. An intrusion detection system is a system are satisfactory. the statement of the inquiry. The cap- • The law firm, or a security professional, (which may consist of hardware, software, or both) that monitors network and/or system activities for tions and descriptions are provided as has reviewed copies of the SaaS vendor’s secu- malicious activities and produces reports for manage- research aids and are not official state- rity audits and found them satisfactory. ment. Definitions and additional information may be ments of the Ethics Committee or the found at www.iwebtool.com; www.numatek.com; • To safeguard against natural disaster, the council. SaaS vendor regularly backs up the firm’s data www.whatis.com; www.wikipedia.org; and www. wisegeek.com. to multiple data centers in different locations within the specified geographic area. • The agreement with the vendor con- Proposed 2011 Formal Ethics online banking include account-to-account firms that access to the firm’s data will be lim- Opinion 7 transfers, payments to third parties, wire ited to those employees of the vendor or any Using Online Banking to Manage a transfers, and applications for loans and new third-party data hosting company who are Trust Account accounts. Online banking permits users to informed of the fiduciary responsibility to April 21, 2011 view recent transactions and view and/or protect client information. Proposed opinion rules that a law firm may download cleared check images and bank • The agreement with the vendor provides use online banking to manage its trust accounts statements. Additional services may include that the law firm owns the data. provided the firm’s managing lawyers are regu- account management software. • Clients with access to shared docu- larly educated on the security risks and actively Financial transactions conducted over the ments are aware of the confidentiality risks maintain end-user security. Internet are subject to the risk of theft by of showing the information to others. See hackers and other computer criminals. Given 2008 FEO 5. Inquiry: the duty to safeguard client property, particu- • The law firm has a back-up for shared Most banks and savings and loans provide larly the funds that a client deposits in a document software in case of service inter- “online banking,” which allows customers to lawyer’s trust account, may a law firm use ruption such as an outside server going down. access accounts and conduct financial trans- online banking to manage a trust account? • The firm lawyers are educated on the actions over the Internet on a secure website risks of utilizing the Internet to transmit and operated by the bank or savings and loan. Opinion: store client information and are trained on Transactions that may be conducted via Yes, provided steps are taken effectively to

THE NORTH CAROLINA STATE BAR JOURNAL 37 minimize the risk of loss or theft specifically assist with the management of the trust being displayed on the website, a pop-up including the regular education of the firm’s account receive training on and abide by the window may also appear on the screen specif- managing lawyers on the ever-changing secu- security measures adopted by the firm. ically asking visitors if they would like “live rity risks of online banking and the active Understanding the contract with the deposi- help.” The window may contain a picture of maintenance of end-user security. tory bank and the use of the resources and a person with a headset and reads something As noted in [Proposed] 2011 FEO 6, expertise available from the bank are good like, “Hi, you may just be browsing but we Subscribing to Software as a Service While first steps toward fulfilling the lawyer’s fiduci- are here to answer your questions. Please click Fulfilling the Duties of Confidentiality and ary obligations. ‘yes’ for live help.” The pop-up window is Preservation of Client Property, the use of the This opinion does not set forth specific software-generated. It is only after the visitor Internet to transmit and store client data (or, security requirements because mandatory clicks on the button that the live agent is in this instance, data about client property) security measures would create a false sense engaged. presents significant challenges. In this com- of security in an environment where the In another form of the live chat support plex and technical environment, a lawyer risks are continually changing. Instead, due service, the “button” and pop-up window must be able to fulfill the fiduciary obliga- diligence and perpetual education are showing a picture of a person with a headset tions to protect client information and prop- required. A lawyer must fulfill his fiduciary is displayed on the website and a voice says erty from risk of disclosure and loss. The obligation to safeguard client funds by something like, “Hi, we are here to answer lawyer must protect against security weak- applying the same diligence and competen- your questions. Please click ‘yes’ for live help.” nesses unique to the Internet, particularly cy to manage the risks of online banking These statements are presumably software- “end-user” vulnerabilities found in the that a lawyer is required to apply when rep- generated. It is only after the visitor clicks on lawyer’s own law office. The lawyer must also resenting clients. the “yes” button that the live agent is engaged. engage in continuous education about ever- Is the utilization of these types of live chat changing security risks presented by the Proposed 2011 Formal Ethics support services a violation of the Rules of Internet. Opinion 8 Professional Conduct? Rule 1.15 requires a lawyer to preserve Utilizing Live Chat Support Service on client property, to deposit client funds Law Firm Website Opinion: entrusted to the lawyer in a separate trust April 21, 2011 No. Rule 7.3(a) provides that a lawyer account, and to manage that trust account Proposed opinion provides guidelines for the shall not by “in-person, live telephone, or according to strict recordkeeping and proce- use of live chat support services on law firm web- real-time electronic contact” solicit profes- dural requirements. See also RPC 209 (noting sites. sional employment from a potential client the “general fiduciary duty to safeguard the unless the person contacted is a lawyer or property of a client”) and 98 FEO 15 (requir- Inquiry: has a family, close personal, or prior profes- ing a lawyer to exercise “due care” when A law firm would like to utilize a live chat sional relationship with the lawyer. Instant selecting depository bank for trust account). support service on its website. Typically, such messaging, chat rooms, and other similar The rule is silent, however, about online a service requires the law firm to download a types of conversational computer-accessed banking. software program to the firm website. After communication are considered to be real- Online banking may be used to manage a the software is downloaded, a “button” is dis- time or interactive communication. The client trust account if the fiduciary obliga- played on the website which reads something interactive typed conversation with a live tions in Rule 1.15 can be fulfilled. To do this, like “Click Here to Chat Live.” The button agent provided by the live chat support serv- a lawyer who is managing a trust account is often accompanied by a picture of a person ice described above constitutes a real-time must use reasonable care to effectively mini- with a headset. Once a visitor clicks on the electronic contact. mize the risks to client funds on deposit in button to request a live chat, the visitor will It is important to note that the prohibi- the trust account by remaining educated as be able to have a typed out conversation in tion in Rule 7.3(a) applies only to lawyer-ini- to the dynamic risks involved in online bank- real-time with an agent identified as perhaps tiated contact. Rule 7.3 does not prohibit ing and ensuring that the law firm invests in a “law firm staff member” or an “operator.” real-time electronic contact that is initiated by proper protection and multiple layers of The agent will guide the visitor through a a potential client. In each of the instances security to address those risks. See [Proposed] series of screening questions through the use described above, the website visitor has made 2011 FEO 6. of a script. Typically, the agent will learn the initial contact with the firm. The visitor A lawyer who is managing a trust account about the facts of the potential case. The has chosen to visit the law firm’s website, indi- has affirmative duties to regularly educate agent will also obtain contact information cating that they have some interest in the himself as to the security risks of online bank- for the visitor. The agent then emails a tran- website’s content. It is appropriate at this ing; to actively maintain end-user security at script of the “chat” to the law firm. In some juncture for the law firm to offer the website the law firm through safe practices such as instances, the law firm pays only for the tran- visitor live assistance. strong password policies and procedures, the scripts of “chats” in which the visitor pro- In addition to the fact that the potential use of encryption and security software, and vides a way for the law firm to contact him client has initiated the contact with the law the hiring of an information technology con- or her. firm, the circumstances surrounding this type sultant to advise the lawyer or firm employ- Depending on the software program pur- of real-time electronic contact do not trigger ees; and to ensure that all staff members who chased, in addition to the live chat “button” the concerns necessitating the prohibition set

38 SUMMER 2011 out in Rule 7.3. Comment [1] to Rule 7.3 the term “operator” seems appropriate for a communications by a lawyer about the explains the policy considerations behind the nonlawyer, a designation such as “staff mem- lawyer or the lawyer's services. Rule 7.1(a). prohibition: ber,” or something similar, would require an They also prohibit conduct involving dis- There is a potential for abuse inherent in affirmative disclaimer that a nonlawyer staff honesty, fraud, deceit, or misrepresentation. direct in-person, live telephone, or real- member is not an attorney. The law firm Rule 8.4(c). A recipient of a letter on a law time electronic contact by a lawyer with a must ensure that the nonlawyer agent does firm’s letterhead assumes that the letter was prospective client known to need legal not give any legal advice. written by a firm lawyer or by an employee services. These forms of contact between a The law firm should be wary of creating or affiliate1 of the firm who is acting under lawyer and a prospective client subject the an “inadvertent” lawyer-client relationship. the authority, supervision, and control of a layperson to the private importuning of In addition, the law firm should exercise firm lawyer. If a person who is not employed the trained advocate in a direct interper- care in obtaining information from poten- or formally affiliated with the firm sends a sonal encounter. The prospective client, tial clients and be mindful of the potential letter on firm letterhead, it creates the false who may already feel overwhelmed by the consequences/duties resulting from the elec- impression that the person has the authority circumstances giving rise to the need for tronic communications. Rule 1.18 provides to act on behalf of the law firm and is being legal services, may find it difficult fully to that a person who discusses with a lawyer supervised by a firm lawyer. In the worst evaluate all available alternatives with rea- the possibility of forming a client-lawyer case, the recipient may falsely assume that soned judgment and appropriate self- relationship with respect to a matter is a the sender is a lawyer with the firm. A lawyer interest in the face of the lawyer's presence prospective client and that, even when no may not participate actively or passively in and insistence upon being retained imme- client-lawyer relationship ensues, a lawyer this deception. If a lawyer learns that some- diately. The situation is fraught with the who has had discussions with a prospective one who is not employed or affiliated with possibility of undue influence, intimida- client may generally not use or reveal infor- the firm is using firm letterhead to write to tion, and over-reaching. mation learned in the consultation. third parties, the lawyer must take steps to The use of a live chat support service does Furthermore, Rule 1.18(c) prohibits a stop the misuse of the letterhead. not subject the website visitor to undue influ- lawyer from representing a client with inter- A lawyer may, however, allow a client to ence or intimidation. The visitor has the abil- ests materially adverse to those of a prospec- draft a letter to be printed on letterhead if the ity to ignore the live chat button or to indi- tive client in the same or a substantially lawyer reviews and assumes responsibility for cate with a click that he or she does not wish related matter if the lawyer received infor- the content of the letter by signing it. to participate in a live chat session. mation from the prospective client that The Philadelphia Bar Association recently could be significantly harmful to that person Inquiry #2: issued an opinion that allows certain real-time in the matter. Therefore, acquiring informa- A client would like to use the letterhead of electronic communications, including com- tion from a prospective client via the live his lawyer’s firm for activities that do not con- munications through blogs, chat rooms, and chat service could create a conflict of interest stitute the practice of law. For example, when other social media. Philadelphia Bar Ass’n with a current client that would require negotiating the terms of a loan with a third Prof’l. Guidance Comm., Op. 2010-6 withdrawal. party, the client wants to write the terms on (2010). The opinion states that Rule 7.3 does the firm letterhead and have the third party not bar the use of social media for solicitation Proposed 2011 Formal Ethics sign the document. The client and the lawyer where a prospective client to whom the Opinion 9 anticipate that the loan will subsequently be lawyer’s communication is directed has the Use of Letterhead by Person Who is closed by the lawyer. May a lawyer allow a ability “to ‘turn off’ the soliciting lawyer and Not Employed or Affiliated with Firm client to use his firm’s letterhead in this man- respond or not as he or she sees fit.” The April 21, 2011 ner? May a lawyer agree to such use if the Philadelphia Bar Association opined that Proposed opinion rules that a lawyer may lawyer supervises or controls the content of “with the increasing sophistication and ubiq- not allow a person who is not employed by or the document? uity of social media, it has become readily affiliated with the lawyer’s firm to use firm let- apparent to everyone that they need not terhead. Opinion #2: respond instantaneously to electronic over- No, because the third party may falsely tures, and that everyone realizes that—like Inquiry #1: believe that the client is acting with the targeted mail—emails, blogs, and chat room May a lawyer allow a person who is not authority of the law firm. See Opinion #1. In comments can be readily ignored, or not, as employed by the lawyer’s firm and who is not addition, it may create the false impression the recipient wishes.” subject to the supervision or control of any that the law firm is verifying or endorsing the Although the use of this type of technolo- lawyer with the firm to use the firm’s letter- transaction. n gy is permissible, the practice is not without head? its risks, and a law firm utilizing this service Endnote must exercise certain precautions. The law Opinion #1: 1. A person who is not an employee but who is formally firm must ensure that visitors who elect to No. It is professional misconduct for a affiliated with a firm, such as a contract lawyer or para- legal, may use firm letterhead if the person is author- participate in a live chat session are not misled lawyer to violate the Rules of Professional ized to act on the firm’s behalf and the affiliation is set to believe that they are conversing with a Conduct through the acts of another. Rule forth on the letterhead or otherwise in the letter. See, lawyer if such is not the case. While the use of 8.4(a). The Rules prohibit false or misleading e.g., RPC 126.

THE NORTH CAROLINA STATE BAR JOURNAL 39 RULE AMENDMENTS

Amendments Approved by the Supreme Court

At a conference on March 10, 2011, the suspended for a year or more to take 12 Amendments to the Standards for the North Carolina Supreme Court approved CLE credit hours for each year of inactivi- Social Security Disability Law the following amendments to the rules of the ty or suspension. A petitioner who has Specialty North Carolina State Bar: been inactive or suspended for seven years 27 NCAC 1D, Rules of the Standing or more is required to pass the bar exami- Committees of the North Carolina State Bar, Amendments to Reinstatement Rules nation. The CLE and bar exam require- Section .2800, Certification Standards for to Make Disciplinary Suspension ments do not apply to a member who was the Social Security Disability Law Specialty Supersede Administrative Suspension on inactive status at the time the amend- The amendments adjust requirements in 27 N.C.A.C. 1B, Discipline and ments became effective; however, the the CLE standard for certification and recer- Disability Rules, Section .0100 Discipline requirements apply to any member who tification as a specialist in social security dis- and Disability of Attorneys transfers to inactive status after the effec- ability law. 27 N.C.A.C. 1D, Rules of the Standing tive date of the amendments and to any Committees of the North Carolina State Bar, suspended member regardless of the date Amendments to the Standards for the Section .0900 Procedures for Administrative of suspension. The rule amendments also Elder Law Specialty Committee permit the secretary of the State Bar to 27 N.C.A.C. 1D, Rules of the Standing The amendments provide that an admin- reinstate an inactive member to active sta- Committees of the North Carolina State Bar, istrative suspension order dissolves when an tus if the member has fulfilled all of the Section .2900 Certification Standards for the order of reinstatement is granted from a dis- requirements for reinstatement and there Elder Law Specialty ciplinary suspension. are no issues relating to the inactive mem- The amendments adjust requirements in ber’s character or fitness. the CLE standard for certification as a spe- Amendments to the Discipline Rules cialist in elder law. to Create a Trust Accounting Amendment to the Plan of Legal Supervisory Program Specialization Amendments to the Standards for the 27 N.C.A.C. 1B, Discipline and 27 N.C.A.C. 1D, Rules of the Standing Criminal Law Specialty and to Create a Disability Rules, Section .0100 Discipline Committees of the North Carolina State Bar, Specialty in Appellate Practice and Disability of Attorneys Section .1700, The Plan of Legal 27 N.C.A.C. 1D, Rules of the Standing The amendments create a trust account- Specialization Committees of the North Carolina State Bar, ing supervisory program. A lawyer who is The amendments to the Plan of Legal Section .2500 Certification Standards for the found, during random auditing or other- Specialization allow the Board of Legal Criminal Law Specialty wise, to be out of compliance with the trust Specialization to appoint five advisory mem- 27 N.C.A.C. 1D, Rules of the Standing accounting provisions of the Rules of bers to a specialty committee for the purpose Committees of the North Carolina State Bar, Professional Conduct may be referred by of enhancing the ability of a specialty com- Section .3000 Certification Standards for the the chair of the Grievance Committee to mittee to develop, administer or give a spe- Appellate Practice Specialty the program. A referred lawyer must pro- cialty exam, or to create a new subspecialty. The standards for the new appellate vide proof of compliance with all trust The board may waive the peer review and practice specialty certification are consis- accounting rules for a two-year period and, examination requirements for certification tent with the standards for other specialties if the lawyer successfully completes the for any initial advisory member of a specialty in requiring a successful applicant to program, a grievance file will not be committee. demonstrate substantial involvement, opened. attendance at CLE seminars in the special- Amendments to the Standards for the ty, adequate peer review, and passage of an Amendments to the Requirements for Workers’ Compensation Law Specialty examination. The new specialty in appel- Reinstatement from Administrative 27 N.C.A.C. 1D, Rules of the Standing late practice will encompass both criminal Suspension Committees of the North Carolina State Bar, and civil law. The rule amendments also 27 N.C.A.C. 1D, Rules of the Standing Section .2700 Certification Standards for the eliminate the criminal appellate subspecial- Committees of the North Carolina State Bar, Workers’ Compensation Law Specialty ty from the standards for the criminal law Section .0900 Procedures for Administrative The amendments clarify the CLE specialty. Existing criminal appellate prac- Committee requirements for certification and continued tice specialists will be recognized as appel- The amendments require a petitioner certification as a workers’ compensation law late practice specialists. for reinstatement who has been inactive or specialist.

40 SUMMER 2011 Amendments Not Approved by the Supreme Court

At its conference on March 10, 2011, pur- Professional Conduct tices on the basis of race, gender, national ori- suant to N.C. Gen. Stat. §84-21, the North 27 N.C.A.C. 2, Rules of Professional gin, religion, age, disability, sexual orientation, Carolina Supreme Court declined to enter Conduct, 0.1 Preamble: A Lawyer’s or gender identity. A proposed amendment to upon its minutes the following amendment to Responsibilities; 0.2 Scope the Scope section of the Rules of Professional the rules of the North Carolina State Bar: The proposed amendment to the Conduct would have clarified that the Preamble would have added a statement urg- Preamble is the introduction to the Rules and Proposed Amendments to the Rules of ing lawyers not to discriminate in their prac- is never the basis for professional discipline.

Amendments Pending Approval of the Supreme Court

At its meeting on April 22, 2011, the coun- Certification of Paralegals 27 N.C.A.C. 2, Rules of Professional cil of the North Carolina State Bar voted to 27 N.C.A.C. 1G, The Plan for Conduct adopt the following rule amendments for Certification of Paralegals The proposed amendments to Rule 7.3, transmission to the North Carolina Supreme The proposed amendments will enable Direct Contact with Potential Clients, clarify Court for approval (for the complete text see online voting for paralegal candidates for the that the advertising notice on targeted letters the Spring 2011 edition of the Journal or visit board. soliciting professional employment must be the State Bar website: www.ncbar.gov): in font that is as large as any other printing Proposed Amendments to the Rules of in the letter. Proposed Amendments to The Plan for Professional Conduct

Proposed Amendments

At its meeting on April 21, 2011, the of the investigation. and signed by the respondent. If the respon- council voted to publish the following pro- (b) Grievance Committee Action on dent requests it, the The counsel will provide posed rule amendments for comment from Initial or Interim Reports - As soon as prac- the respondent with a copy of the written the members of the bar: ticable after the receipt of the initial or any grievance upon request, except where unless interim report of the counsel concerning any the complainant requests to remain anony- Proposed Amendments to the grievance, the chairperson of the Grievance mous anonymity pursuant to Rule .0111(d) Discipline and Disability Rules Committee may of this subchapter. 27 N.C.A.C. 1B, Section .0100 (1) treat the report as a final report; (d) Request for Copy of Respondent’s Discipline and Disability of Attorneys (2) direct the counsel to conduct further Response - The counsel may provide to the The proposed amendments to Rule investigation, including contacting the complainant a copy of the respondent’s .0112 require a respondent lawyer to submit respondent in writing or otherwise; or response(s) response to the letter of notice to a signed response to a letter of notice and (3) direct the counsel to send a letter of the complaining party unless the respondent make non-substantive improvements to the notice to the respondent. objects thereto in writing. rule. (c) Letter of Notice, Respondent’s (e) Termination of Further Investigation Response, and Request for Copy of - After the Grievance Committee receives .0112 Investigations: Initial Grievance - If the counsel serves a letter of the a response to a letter of notice is received, Determination; Notice and Response; notice upon the respondent, a letter of the counsel may conduct further investiga- Committee Referrals notice is sent to the respondent, it will be tion or terminate the investigation, subject to (a) Investigation Authority - Subject to served by certified mail and will direct that a the control of the chairperson of the the policy supervision of the council and response be made provided within 15 days of Grievance Committee. the control of the chairperson of the receipt service of the letter of notice upon (f) Subpoenas - For reasonable cause, the Grievance Committee, the counsel, or other the respondent. Such response will be The chairperson of the Grievance Committee personnel under the authority of the coun- response to the letter of notice shall include may issue subpoenas to compel the atten- sel, will investigate the grievance and sub- a full and fair disclosure of all the facts and dance of witnesses, including the respon- mit to the chairperson of the Grievance circumstances pertaining to the alleged mis- dent, for examination concerning the griev- Committee a report detailing the findings conduct. The response must be in writing ance and may compel the production of

THE NORTH CAROLINA STATE BAR JOURNAL 41 the respondent’s payment of, or restitution. must waive any right of confidentiality that The chairperson of the Grievance the respondent might otherwise have had The Process Committee may dismiss a grievance upon regarding communications with persons act- request of the complainant and with consent ing under the supervision of the Lawyer Proposed amendments to the Rules of the counsel where it appears that there is Assistance Program Board. of the North Carolina State Bar are pub- no probable cause to believe that the respon- (1) If at any time before a finding of lished for comment in the Journal. They dent has violated the Revised Rules of probable cause the Grievance are considered for adoption by the coun- Professional Conduct. Committee determines that the alleged cil at the succeeding quarterly meeting. (i) Referral to Law Office Management misconduct is primarily attributable to If adopted, they are submitted to the Training - If at any time prior to a finding of the respondent’s substance abuse or North Carolina Supreme Court for probable cause, the chairperson of the mental health problem, the committee approval. Amendments become effective Grievance Committee, upon the recommen- may offer the respondent an opportuni- upon approval by the court. Unless oth- dation of the counsel or of the Grievance ty to voluntarily participate in a rehabil- erwise noted, proposed additions to Committee, determines that the alleged mis- itation program under the supervision of rules are printed in bold and under- conduct is primarily attributable to the the Lawyer Assistance Program Board lined, deletions are interlined. respondent’s failure to employ sound law before the committee considers disci- office management techniques and proce- pline. dures, the chairperson of the Grievance If the respondent accepts the commit- Committee may, with the respondent’s con- tee’s offer to participate in a rehabilita- sent, refer the case to a program of law office tion program, the respondent must pro- Comments management training approved by the State vide the committee with a written Bar. The respondent will then be required to acknowledgement of the referral on a The State Bar welcomes your com- complete a course of training in law office form approved by the chair. The ments regarding proposed amendments management prescribed by the chairperson acknowledgement of the referral must to the rules. Please send your written of the Grievance Committee which may include the respondent’s waiver of any comments to L. Thomas Lunsford II, include a comprehensive site audit of the right of confidentiality that might other- The North Carolina State Bar, PO Box respondent’s records and procedures as well wise exist to permit the Lawyer 25908, Raleigh, NC 27611. as attendance at continuing legal education Assistance Program to provide the com- seminars. If the respondent successfully com- mittee with the information necessary pletes the rehabilitation program, the The for the committee to determine whether books, papers, and other documents or writ- Grievance Committee can may consider the the respondent is in compliance with the ings which the chair deems deemed neces- respondent’s successful completion of the rehabilitation program. sary or material to the inquiry. Each subpoe- law office management training that as a (2) Completion of Rehabilitation na will be issued by the chairperson of the mitigating factor circumstance and may, for Program – If the respondent successfully Grievance Committee, or by the secretary at good cause shown, but is not required to, completes the rehabilitation program, the direction of the chairperson. The coun- dismiss the grievance for good cause shown. the Grievance Committee may consider sel, deputy counsel, investigator, or any If the respondent fails to successfully com- successful completion of the program as members of the Grievance Committee desig- plete the program of law office manage- a mitigating circumstance and may, but nated by the chairperson may examine any ment training as agreed, cooperate with the is not required to, dismiss the grievance such witness under oath or otherwise. training program’s employees or fails to com- for good cause shown. If the respondent (g) Grievance Committee Action on plete the prescribed training, that will be fails to complete the rehabilitation pro- Final Reports – The Grievance Committee reported to the chairperson of the Grievance gram or fails to cooperate with the will consider the grievance as As soon as Committee and the investigation of the orig- Lawyer Assistance Program Board, the practicable after the receipt of it receives the inal grievance shall resume the grievance will Lawyer Assistance Program will report final report of the counsel or the termination be included on the Grievance Committee’s that failure to the counsel and the griev- of an investigation, the chairperson will con- agenda for consideration of imposition of ance will be included on the Grievance vene the Grievance Committee to consider discipline at the Grievance Committee’s Committee’s agenda for consideration of the grievance, except as otherwise provided next quarterly meeting. imposition of discipline at the Grievance in these rules. (j) Referral to Lawyer Assistance Committee’s next quarterly meeting. (h) Failure of Complainant to Sign and Program - If at any time before a finding of (k) Completion of Rehabilitation Dismissal Upon Request of Complainant - probable cause, the Grievance Committee Program - If the respondent successfully The investigation into the conduct of an determines that the alleged misconduct is completes the rehabilitation program, the attorney alleged misconduct of the respon- primarily attributable to the respondent’s Grievance Committee can consider that as a dent will not be abated by the failure of the substance abuse or mental health problem, mitigating factor and may, for good cause complainant to sign a grievance, by settle- the Committee may refer the matter to the shown, dismiss the grievance. If the respon- ment, or compromise of a dispute between Lawyer Assistance Program Board. The dent fails to complete the rehabilitation pro- the complainant and the respondent, or by respondent must consent to the referral and gram or fails to cooperate with the Lawyer

42 SUMMER 2011 Assistance Program Board, the failure will be Regulations Governing the Administration Legal Specialization (the board) hereby des- reported to the chairperson of the Grievance of the Continuing Legal Education Program ignates criminal law (encompassing both Committee and the investigation of the The proposed amendments expand the federal and state criminal law), including grievance will resume. definition of professional responsibility/ the subspecialties of state criminal law and (l) (k) Referral to Trust Accounting ethics courses to include instruction on ethi- juvenile delinquency law, as a field of law for Supervisory Program - …. cal decision-making and recognize the CLE which certification of specialists under the Board’s authority to determine how CLE North Carolina Plan of Legal Specialization Proposed Amendments to Procedures credits are applied to satisfy a deficit. (see Section .1700 of this subchapter) is per- for the Administrative Committee mitted. 27 N.C.A.C. 1D, Section .0900 .1501 Scope, Purpose and Definitions Procedures for Administrative Committee (a) Scope…. .2502 Definition of Specialty In March, the Supreme Court approved (b) Purpose…. The specialty of criminal law is the prac- rule amendments to require a petitioner for (c) Definitions tice of law dealing with the defense or prose- reinstatement who has been inactive or sus- (1) “Accredited sponsor” shall mean …. cution of those charged with misdemeanor pended for one year or more to take 12 CLE (13) “Professional responsibility” shall and felony crimes in state and federal trial credit hours for each year of inactivity or sus- mean those courses or segments of cours- courts. Subspecialties in the field are identi- pension; and to further require a petitioner es devoted to a) the substance, underlying fied and defined as follows: who has been inactive or suspended for seven rationale, and practical application of the (a) State Criminal Law – The practice of years or more to pass the bar examination. Rules of Professional Conduct; b) the criminal law in state trial courts. Unfortunately, the rule on reinstatement professional obligations of the lawyer to (b) Juvenile Delinquency Law - The from inactive status contained two erroneous the client, the court, the public, and other practice of law in state juvenile delinquency references to the “period of suspension” lawyers; and c) moral philosophy and courts. The standards for the subspecialty rather than the “period of inactive status.” ethical decision-making in the context of are set forth in Rules .2508 - .2509. The proposed amendments correct this the practice of law; and d) the effects of error. stress, substance abuse, and chemical .2503 Recognition as a Specialist in dependency, or debilitating mental con- Criminal Law .0902 Reinstatement from Inactive ditions on a lawyer’s professional respon- A lawyer may qualify as a specialist by Status sibilities and the prevention, detection, meeting the standards set for criminal law or (a) Eligibility to Apply for Reinstatement treatment, and etiology of stress, sub- the subspecialties of state criminal law or …. stance abuse, chemical dependency, and juvenile delinquency law. If a lawyer quali- (b) Contents of Reinstatement Petition. debilitating mental conditions. This defi- fies as a specialist by meeting the standards The petition shall set out facts showing the nition shall be interpreted consistent with set for the criminal law specialty, the lawyer following: the provisions of Rule .1501(c)(4) or (6) shall be entitled to represent that he or she is (1) …. above. a “Board Certified Specialist in Criminal (6) [this provision shall be effective for all (14) “Professionalism” courses are …. Law.” If a lawyer qualifies as a specialist by members who are transferred to inactive meeting the standards set for the subspecialty status on or after January 1, 2011] if .1518 Continuing Legal Education of state criminal law, the lawyer shall be enti- seven years or more have elapsed between Program tled to represent that he or she is a “Board the date of the entry of the order transfer- (a) Annual Requirement. …. Certified Specialist in State Criminal Law.” If ring the member to inactive status and (e) The board shall determine the process a lawyer qualifies as a specialist by meeting the date that the petition is filed, the by which credit hours are allocated to the standards for the subspecialty of juve- member has obtained a passing grade on lawyers’ records to satisfy deficits. The allo- nile delinquency law, the lawyer shall be a regularly scheduled North Carolina bar cation shall be applied uniformly to the entitled to represent that he or she is a examination; provided, each year of active records of all affected lawyers and may not “Board Certified Specialist in Criminal Law licensure in another United States juris- be appealed by an affected lawyer. – Juvenile Delinquency.” diction during the period of suspension …. inactive status shall offset one year of sus- Proposed Amendments to The Plan of pension inactive status for the purpose of Legal Specialization .2507 Applicability of Other calculating the seven years necessary to 27 N.C.A.C. 1D, Section .2500, Requirements actuate this provision; and Certification Standards for the Criminal Law The specific standards set forth herein for (7) …. Specialty certification of specialists in criminal law, (c) Service of Reinstatement Petition The proposed amendments create juve- and the subspecialty of state criminal law and …. nile delinquency law as a subspecialty of the the subspecialty of juvenile delinquency law criminal law specialty. are subject to any general requirement, stan- Proposed Amendments to the Rules dard, or procedure adopted by the board Governing the CLE Program .2501 Establishment of Specialty Field applicable to all applicants for certification or 27 N.C.A.C. 1D, Section .1500 The North Carolina State Bar Board of continued certification.

THE NORTH CAROLINA STATE BAR JOURNAL 43 .2508 Standards for Certification as a (A) Representation of juveniles or the criminal law proceedings and who are Specialist in Juvenile Delinquency Law state during the applicant’s entire legal familiar with the applicant’s practice. Each applicant for certification as a spe- career in juvenile delinquency hearings (5) A reference may not be related by cialist in juvenile delinquency law shall concluded by disposition; blood or marriage to the applicant nor meet the minimum standards set forth in (B) Representation of juveniles or the may the reference be a partner or associ- Rule .1720 of this subchapter. In addition, state in juvenile delinquency felony ate of the applicant at the time of the each applicant shall meet the following cases; application. standards for certification: (C) Court appearances in other sub- (e) Examination - An applicant must (a) Licensure and Practice - An applicant stantive juvenile delinquency proceed- pass a written examination designed to shall be licensed and in good standing to ings in juvenile court; demonstrate sufficient knowledge, skills, practice law in North Carolina as of the (D) Representation of juveniles or the and proficiency in the field of juvenile date of the application. During the period state through transfer to adult court; delinquency law to justify the representa- of certification an applicant shall continue and tion of special competence to the legal pro- to be licensed and in good standing to prac- (E) Representation of juveniles or the fession and the public. tice law in North Carolina. state in appeals of juvenile delinquency (1) Terms - The examination shall be (b) Substantial Involvement - An appli- decisions. given annually in written form and shall cant shall affirm to the board that the appli- (c) Continuing Legal Education - An be administered and graded uniformly cant has experience through substantial applicant must have earned no less than 40 by the specialty committee. involvement in the practice of juvenile hours of accredited continuing legal educa- (2) Subject Matter – The examination delinquency law. tion (CLE) credits in criminal and juvenile shall cover the applicant’s knowledge in (1) Substantial involvement shall mean delinquency law during the three years pre- the following topics: during the five years immediately pre- ceding application. Of the 40 hours of (A) North Carolina Rules of Evidence; ceding the application, the applicant CLE, at least 12 hours shall be in juvenile (B) State criminal substantive law; devoted an average of at least 500 hours delinquency law, and the balance may be in (C) Constitutional law as it relates to a year to the practice of juvenile delin- the following related fields: substantive criminal procedure and juvenile delin- quency law, but not less than 400 hours criminal law, criminal procedure, trial advo- quency law; in any one year. “Practice” shall mean cacy, and evidence. (D) State criminal procedure; substantive legal work, specifically (d) Peer Review - (E) North Carolina Juvenile Code, including representation of juveniles or (1) Each applicant for certification as a Subchapters II and III, and related case the state in juvenile delinquency court, specialist in juvenile delinquency law law; and done primarily for the purpose of pro- must make a satisfactory showing of (F) North Carolina caselaw as it relates viding legal advice or representation, or qualification through peer review. to juvenile delinquency law. a practice equivalent. (2) All references must be licensed and (3) Examination Components - An (2) “Practice equivalent” shall mean: in good standing to practice in North applicant for certification in the subspe- (A) Service for one year or more as a Carolina and must be familiar with the cialty of juvenile delinquency law must state district court judge responsible competence and qualifications of the pass part I of the criminal law examina- for presiding over juvenile delinquency applicant in the specialty field. The tion on general topics in criminal law court for 250 hours each year may be applicant consents to the confidential and part IV of the examination on juve- substituted for one year of experience inquiry by the board or the specialty nile delinquency law. to meet the five-year requirement set committee of the submitted references forth in Rule .2508(b)(1) above; and other persons concerning the .2509 Standards for Continued (B) Service on or participation in the applicant’s competence and qualifica- Certification as a Specialist in Juvenile activities of local, state, or national tions. Delinquency Law civic, professional or government (3) Written peer reference forms will be The period of certification is five years. organizations that promote juvenile sent by the board or the specialty com- A certified specialist who desires continued justice may be used to meet the mittee to the references. Completed peer certification must apply for continued certi- requirement set forth in Rule reference forms must be received from at fication within the time limit described in .2508(b)(1) but not to exceed 100 least five of the references. The board or Rule .2509(d) below. No examination will hours for any year during the five the specialty committee may contact in be required for continued certification. years. person or by telephone any reference However, each applicant for continued cer- (3) An applicant shall also demonstrate listed by an applicant. tification as a specialist shall comply with substantial involvement during the five (4) Each applicant must provide for ref- the specific requirements set forth below in years prior to application unless other- erence and independent inquiry the addition to any general standards required wise noted by providing information names and addresses of ten lawyers and by the board of all applicants for continued that demonstrates the applicant’s signifi- judges who practice in the field of juve- certification. cant juvenile delinquency court experi- nile delinquency law or criminal law or ence such as: preside over juvenile delinquency or CONTINUED ON PAGE 48

44 SUMMER 2011 BAR UPDATES

Law School Briefs

All of the law schools located in North School’s chapter of the Phi Alpha Delta Law 9-11 and BP gulf oil spill “Pay Czar;” Justice Carolina are invited to provide material for Fraternity recognized Fourth Circuit Paul Martin Newby, Supreme Court of this column. Below are the submissions we appointees Judge Albert Diaz and Judge North Carolina; Judge Albert Diaz, US received this quarter. James A. Wynn Jr. as the 2011 recipients of Fourth Circuit Court of Appeals; and the Justice James Iredell Award. Thomas Perez, Assistant US Attorney Campbell University School of Law Since 1980 the James Iredell Award has General - Civil Rights Division. The final Campbell Law trial team sweeps competi- been presented each year to individuals who speaker for the spring will be Leon Fresco, tion, wins regional championship— have made significant contributions to the who serves as immigration counselor for Defeating teams from five law schools in a legal profession. Senator Charles E. Schumer at the United row, a Campbell Law School mock trial team States Senate. brought home the crystal championship tro- Charlotte School of Law phy from the regional American Association Sheryl Buske, an assistant professor at Duke Law School for Justice (“AAJ”) Student Trial Advocacy Charlotte School of Law, has been selected Duke Law establishes Robinson O. Competition held in Washington, DC on by the Fulbright Program as a 2011-2012 Everett Professorship—A new endowed March 3-6, 2011. Fulbright Scholar. Buske, the recipient of a professorship honors the late Professor In the preliminary rounds, the Campbell lecturing and research appointment from Robinson O. Everett, LLM ’59, a revered Law team defeated teams from West Virginia the Fulbright Program, will divide time in faculty member who taught at Duke for Law School, George Mason Law School, and Ghana teaching courses in children’s inter- more than 51 years and inspired thousands Richmond Law School, winning all nine national human rights at Kwame Nkrumah of Duke Law students and alumni with his judges’ ballots. They faced American Law University of Science & Technology, kindness, his service to the law and legal School in the semi-finals, again taking all Faculty of Law, and conducting a research profession, and his devotion to Duke Law three judges’ ballots. In the final round, the study. Her research will attempt to identify School. To date, more than $2.5 million has Campbell Law team faced an excellent team and explain strategies used by young been raised to fund the professorship. The from William & Mary Law School, but won “kayayoos,” a distinct group of Ghanaian Duke Endowment’s Strategic Faculty the judges’ vote 2-1 to bring home the win- street girls who work as head-load porters in Initiative contributed matching funds of ning trophy. the urban markets, to incorporate mother- $1.25 million to the chair, which will sup- Delta Theta Phi chapter hosts second ing into their lives on the street. port a distinguished legal scholar who also annual Judge Robinson O. Everett Awards Charlotte School of Law recently will teach classes for Duke University gala—The Campbell Law School chapter of became the third law school in the United undergraduates. Delta Theta Phi recently hosted its second States to have a Cooperative Legal Prolific emerging scholar Stephen E. annual Judge Robinson O. Everett Awards Education Program, joining the law schools Sachs joins Duke Law faculty—Stephen E. Gala naming Major General William K. at Northeastern and Drexel universities. Sachs will join the Duke Law faculty on Suter, Clerk of the Supreme Court of the The program is being piloted this spring July 1, 2011. An emerging scholar in the United States of America, as its 2011 with corporate counsel departments, areas of civil procedure, constitutional law, Recipient. including Compass Group, Family Dollar, Anglo-American legal history, and conflict The Judge Robinson O. Everett Award Rack Room, and TIAA-CREF, and the of laws, Sachs will teach Civil Procedure in for Legal Excellence is awarded to an individ- school plans to expand rapidly this summer the fall 2011 semester. ual who perpetuates the objectives of the to the national market. CharlotteLaw Sachs comes to Duke from Mayer Delta Theta Phi fraternity, including: Corporate Counsel Co-ops promote experi- Brown in Washington, DC, where he is an • The application of the highest standards ential learning by providing lawyers in associate in the litigation practice. He of personal integrity; training, many of whom have business clerked for Chief Justice John G. Roberts Jr. • Respect for law, rights, and property of backgrounds or interests, the unique oppor- during the 2009-2010 Supreme Court others; and tunity to be mentored and supervised by term. He clerked for Judge Stephen F. • The highest ethical and professional corporate attorneys. Williams on the U.S. Court of Appeals for standards of conduct in the study, practice, CharlotteLaw’s 2011 Legends and Leaders the DC Circuit in 2007-2008 prior to join- and teaching of the law. in the Law Speaker Series has welcomed ing Mayer Brown. Phi Alpha Delta Law presents 32nd renowned legal expects including Charles Law and Entrepreneurship LLM has annual James Iredell Award to fourth circuit Ogletree, the Jesse Climenko Professor at successful inaugural year—Duke Law’s appointees—On April 11, Campbell Law Harvard Law School; Kenneth Feinberg, the inaugural class of 14 Law and

THE NORTH CAROLINA STATE BAR JOURNAL 45 Entrepreneurship LLM students spent their Advocate awards; Silver Level Sponsor Opportunity held its annual conference on second semester immersed in legal work Smith Moore Leatherwood, LLP; and Elon March 28, 2011, “A North Carolina relating to early-stage enterprises within the University President and Mrs. Leo M. Summit: Progress and Economic Justice in Research Triangle and beyond. They pre- Lambert, who sponsored the competition's a Time of Crisis,” to address unemployment pared to hit the ground running in their top award, the Chief Justices' Cup. and budget concerns in the state. practicums with a rigorous first-semester Visit law.elon.edu/mootcourt for com- Dutch Ambassador Visits UNC—Renée curriculum focused on the fundamentals petition results. Jones-Bos, Ambassador to the United States and regulatory frameworks of entrepreneur- from The Netherlands, visited on March ship, accounting principles, and approaches North Carolina Central University 29, 2011, to discuss The Hague, the to equity valuation even as they had a School of Law International Criminal Court (ICC), and chance to shadow local entrepreneurs and The North Carolina Central University international human rights. advise student startups. (NCCU) School of Law is finishing up this Authors publish in Science journal— academic year with the exciting news that John Conley, William Rand Kenan Jr. Elon University School of Law US News and World Report ranked the law Professor of Law, and researchers from Elon hosts inaugural Billings, Exum & school amongst the Top Ten Most Popular UNC and Duke suggest a new legal model Frye National Moot Court Competition— Law Schools in the nation. This ranking is for DNA sample contributions in an article Seventeen law schools participated in the based on the percentage of students that published in the April 15 issue of Science. competition, held April 1 and 2, 2011, and actually accept offers of admission to a law Commencement—Teresa Roseborough David Gergen, chair of Elon Law's national school. The law school credits its growing ’86, deputy general counsel for MetLife, will advisory board and former adviser to four reputation in practical skills training, cou- serve as keynote speaker for the Class of US Presidents, delivered a keynote address. pled with its comparative affordability, as 2011’s commencement exercises on May 8. The competition honors Rhoda Bryan reasons for the ranking. Roseborough was the first African-American Billings, James G. Exum Jr. and Henry E. The law school has completed the first woman to serve as editor-in-chief of the Frye. Each has served as chief justice of the phase of its Technology Assisted Legal North Carolina Law Review. Prior to joining NC Supreme Court and in leadership posi- Instruction and Services (TALIAS) program MetLife, Roseborough served as partner with tions within the profession and in public by bringing online its satellite operations at the Atlanta office of Sutherland Asbill and life. All three are founding members of Elon Elizabeth City State University and North Brennan. She clerked for Justice John Paul Law’s national advisory board. Carolina A&T State University. This pro- Stevens of the US Supreme Court. George R. Johnson Jr., Dean of Elon gram, funded by a $1.8 million grant, is Law, said, “Our three chief justices are great designed to use technology to extend the Wake Forest University School of Law leaders who have been wonderful servants legal services of the NCCU School of Law The newest law journal at Wake Forest, to our law school, our profession, our state, Clinic. We are moving to bring online addi- the Journal of Law & Policy, has adopted the our nation. They have served with such dis- tional telepresence operations at Winston- “Losing to Win: Discussions of Race and tinction, yet such humility. These towering Salem State University, Fayetteville State Intercollegiate Sports” conference, which figures of North Carolina and the law do us University, and several Legal Aid offices in was held April 13-14 as its Spring 2011 really great honor by allowing us to use the state of North Carolina. The program symposium. Expert panelists speaking dur- their names for this competition, and we will offer legal services and instruction in ing the opening sessions of the two-day aca- thank them tremendously.” foreclosure prevention, Veterans’ claims demic conference on college sports and race More than 100 distinguished judges and before the US Veteran’s Administration, and detailed how lucrative sports competition— lawyers volunteered to serve as judges aid services for victims of domestic violence. men’s basketball and football—have led including Steven M. Colloton, Circuit North Carolina Central University many to ask whether student-athletes in Judge, US Court of Appeals for the Eighth School of Law is honored to have as those sports are exploited for their talent Circuit; five justices of the NC Supreme keynote speaker for its spring commence- while others profit immeasurably. The major Court, including Chief Justice Sarah Parker; ment the Honorable James A. Wynn Jr. interdisciplinary conference was sponsored four judges of the NC Court of Appeals; who was recently confirmed by the US by the Provost and organized by the law and two judges of the US District Court for Senate and appointed by President Barack the Middle District of North Carolina. Obama to serve on the US Court of CONTINUED ON PAGE 54 “Elon Law and its moot court board are Appeals for the Fourth Circuit. grateful for the tremendous support the competition received from alumni, attor- University of North Carolina School Thank You to Our neys, law firms, and distinguished jurists,” of Law said Alan Woodlief, an associate dean and LL.M. program—On January 25, 2011, Meeting Sponsor professor at Elon Law and director of the the ABA gave its “acquiescence” to the school’s moot court program. school’s new one-year master of laws degree Thank you to Lawyers Mutual Liability Sponsors included Gold Level Sponsor program (LL.M) in US law and procedure Company for sponsoring the Womble Carlyle Sandridge & Rice, PLLC, for foreign lawyers. Councilors’ Picnic. who sponsored the competition's Best Oral The Center on Poverty, Work, and

46 SUMMER 2011 BAR UPDATES

John B. McMillan Distinguished Service Award

Recent Award Recipients between prosecutors and defense lawyers. many civic activities has earned him the William D. (“Bill”) Kenerly—Mr. Members of the defense bar laud Bill Kenerly’s respect and admiration of the Bar and the Kenerly was licensed in 1973 and engaged in knowledge of the law, commitment to justice, broader community. the private practice of law in Salisbury. He then and unfailing courtesy to all involved in the Bruce T. Cunningham Jr.—Mr. served as the elected district attorney in District legal system. Cunningham was a Morehead Scholar at 19C from 1991 until his retirement in late James E. (“Jim”) Holshouser Jr.—Mr. Chapel Hill and earned his law degree from 2010. Lawyers and judges alike praise Mr. Holshouser is a native of Watauga County the University of Virginia in 1973. He has Kenerly for his exemplary service to the legal and graduated from Davidson College. After been a criminal defense lawyer in Moore profession, the state of North Carolina, and receiving his JD from UNC School of Law, he County for over 37 years. During that time, the United States through his service in the was admitted to the Bar in 1960. Mr. he acted as legal advisor to the North Carolina marine corps. As a lawyer, Mr. Kenerly is Holshouser served four terms in the North chapter of Families Against Mandatory known for his humility, professionalism, and Carolina House of Representatives before he Minimums and held several leadership posi- thorough preparation of cases. As a prosecutor, was elected as governor in 1972. When his tions in the North Carolina Advocates for Mr. Kenerly displayed a commitment to truth term expired in 1977, Mr. Holshouser began Justice (NCAJ). Mr. Cunningham promotes and a keen sense of fairness, which—as a men- practicing law in Moore County, where he is legal education by frequently speaking at tor and role model—he passed on to younger known for friendliness and humility despite seminars and CLEs about criminal practice. prosecutors. Mr. Kenerly was a founding his many accomplishments. He was a mem- He has contributed to legal scholarship by member of the North Carolina Innocence ber of the Committee on Court Study for the authoring several law review articles on Inquiry Commission, a significant reform that North Carolina Bar Association, and was criminal sentencing issues. He devotes con- bolstered public confidence in the justice sys- appointed by the chief justice of the NC siderable time to mentoring and advising tem. He served as an adjunct professor at Wake Supreme Court to serve on the Judicial less-experienced criminal defense lawyers in Forest University School of Law, lectured on Response Committee. Mr. Holshouser has his community and through the NCAJ list- professionalism at the New Prosecutors served on the boards of multiple colleges and serv. Mr. Cunningham recently presided as School, and taught annually at the Salisbury universities and currently serves on the “chief justice” in a mock Supreme Court Citizens Police Academy. As district attorney, Advisory Board of Elon University School of argument by tenth grade civics students at Mr. Kenerly welcomed the opportunity to Law. Jim Holshouser’s commitment to a local high school. The exercise promoted meet with the local criminal defense bar to enhancing the legal system, his service to the address policy changes and issues that arose state of North Carolina, and his leadership in CONTINUED ON PAGE 48

Seeking Distinguished Service Award Nominations

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

THE NORTH CAROLINA STATE BAR JOURNAL 47 BAR UPDATES

Client Security Fund Reimburses Victims

At its April 21, 2011, meeting, the North that was to complete the exchange was never ings in the estate to cover his misappropria- Carolina State Bar Client Security Fund deeded to the client. Taggart was disbarred on tion. The applicant was a charity that was the Board of Trustees approved payments of December 16, 2009. sole beneficiary of the estate. West was dis- $206,000.70 to eight clients who suffered 3. An award of $3,700 to a former client of barred on January 20, 2006. financial losses due to the misconduct of Mark Waple of Fayetteville. The board found 6. An award of $5,625 to a former client of North Carolina lawyers. that Waple was retained to represent a client in Lyle Yurko of Charlotte. The board found that The new payments authorized were: appealing the Department of Defense Yurko was retained to review the client’s sen- 1. An award of $400 to a former client of Disability Board’s disability rating for the tencing. Yurko abandoned his practice with- Fredrick Pierce of Raleigh. The board found client and to seek the client’s medical retire- out providing any valuable legal services for that Pierce was retained to represent a client in ment from active duty. Waple failed to provide the fee paid. The board authorized the reim- getting the client’s license reinstated. Pierce any valuable legal services for the fee paid prior bursement to be made to the client’s friend undertook the representation knowing his to a trustee being appointed to close Waple’s who had paid the fee to Yurko on the client’s stayed suspension was about to be activated. practice. The board previously reimbursed behalf. The board previously reimbursed three Pierce provided no valuable legal services prior two other Waple clients $18,500. of Yurko’s clients a total of $79,455. to being suspended and later disbarred. Pierce 4. An award of $3,650 to a former client of 7. An award of $9,500 to a former client of was disbarred on October 15, 2010. The Mark Waple. The board found that Waple Lyle Yurko. The board found that Yurko was board previously reimbursed five other Pierce was retained to represent a client in applying retained to review a client’s cases for possible clients a total of $4,400. for a change in his discharge status from the post-conviction relief. The client paid Yurko a 2. An award of $100,000 to a former client army. Waple failed to provide any valuable $5,000 fee and $4,500 in expected costs. of J. Scott Taggart of Greenville. The board legal services for the fee paid. Yurko abandoned his practice without provid- found that Taggart was retained to handle a 5. An award of $79,625.70 to an applicant ing any valuable legal services for the fee paid client’s real estate closing. Taggart actively par- who suffered a loss from an estate matter han- or expending any costs. ticipated with another in defrauding the client dled by Clifton West of Fayetteville. The 8. An award of $3,500 to a former client of by leading him to believe that $899,117 was board found that West was counsel for a per- Lyle Yurko. The board found that Yurko was retained in Taggart’s trust account to fund a sonal representative in an estate. The personal retained to review a client’s case for possible 1031 like-kind exchange when the purported representative was not competent to supervise post-conviction relief. Yurko abandoned his buyer of the client’s property had not provided West’s actions. West misappropriated much of practice without providing any valuable legal the funds necessary to close, and the property the decedent’s assets. West filed false account- services for the fee paid. n

Rule Amendments (cont.) nal procedure, trial advocacy, and evidence. Certification - If an applicant’s certification (c) Peer Review - The specialist must com- has been suspended or revoked during the ply with the requirements of Rule .2508(d) of period of certification, then the application (a) Substantial Involvement - The special- this subchapter. shall be treated as if it were for initial certifi- ist must demonstrate that for the five years (d) Time for Application - Application for cation under Rule .2508 of this subchapter. n preceding reapplication he or she has had continuing certification shall be made not substantial involvement in the specialty or more than 180 days nor less than 90 days subspecialty as defined in Rule .2508(b). prior to the expiration of the prior period of (b) Continuing Legal Education - The certification. Service Awards (cont.) specialist must have earned no less than 65 (e) Lapse of Certification - Failure of a spe- hours of accredited continuing legal educa- cialist to apply for continued certification in a public awareness about the legal system by tion credits in criminal law and juvenile timely fashion will result in a lapse of certifi- teaching students about the law and civil delinquency law with not less than six credits cation. Following such lapse, recertification debate. Bruce Cunnigham is known as a qui- earned in any one year. Of the 65 hours, at will require compliance with all requirements etly dedicated advocate for his clients, a pas- least 20 hours shall be in juvenile delinquency of Rule .2508 of this subchapter, including sionate opponent of the death penalty, and an law, and the balance may be in the following the examination. admired mentor and role model for criminal related fields: substantive criminal law, crimi- (f) Suspension or Revocation of defense lawyers in North Carolina. n

48 SUMMER 2011 BOARD OF LAW EXAMINERS

July 2011 Bar Exam Applicants

The July 2011 Bar Examination will be held in Raleigh on July 26 and 27, 2011. Published below are the names of the applicants whose applications were received on or before April 26, 2011. 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 Fred P. Parker III, Executive Director, Board of Law Examiners, PO Box 2946, Raleigh, NC 27602.

Kristin Abbott John Arco Richard Barnes Jr. Rachel Blunk Zachary Brintle Charlotte, NC Charlotte, NC Charlotte, NC Carrboro, NC Raleigh, NC Elliot Abrams Erik Armstrong Clare Barnett Atiya Boddie Steven Brittain Washington, DC Durham, NC Durham, NC Rocky Mount, NC Tarboro, NC Tracey Ackerly Law Armstrong III Fitz Barringer Mark Bolin Mark Brooks Durham, NC Greensboro, NC Durham, NC Raleigh, NC Pembroke, NC Naa Atsoi Adu-Antoh Elizabeth Arnold Lucy Barrios Jocelyn Bolton Whitney Brooks Angier, NC Winston-Salem, NC Carrboro, NC Cary, NC Charlotte, NC Davood Ahmadi-Torshizi Erik Ashman Lauren Bassett Dan Bolton III Robert Broughton Raleigh, NC Greensboro, NC Winston-Salem, NC San Antonio, TX Winston-Salem, NC Holley Akers Andrew Atkins Peter Batalon Portia Boone Justin Brown Jacksonville, FL Raleigh, NC Charlotte, NC Durham, NC Winston-Salem, NC Ryan Alber Tiffany Atkins Melanie Bates Jenna Borders Bianca Brown Champaign, IL Greensboro, NC Durham, NC Chapel Hill, NC Charlotte, NC Brian Alexander Melissa Atkinson Christopher Battles Gary Bowers Andrew Bruch Apex, NC Raleigh, NC Durham, NC Lexington, NC Raleigh, NC Kristen Alkire Ramyn Atri Christopher Beal Melissa Bowers Kenneth Bryan Greensboro, NC Durham, NC Greensboro, NC Raleigh, NC Chapel Hill, NC Brady Allen Matthew Autry Ashleigh Beamer Christopher Bowes James Bryan Jr. Raleigh, NC Raleigh, NC Durham, NC New York, NY Lansing, MI James Allen Bradley Aycock Melanie Beck Kelly Bowker Adrienne Bryant Clark Durham, NC Raleigh, NC Durham, NC Winston-Salem, NC Wilson, NC Rebecca Allen William Aycock II Catherine Bell Joseph Bowman Elizabeth Buckner Willow Spring, NC Chapel Hill, NC Macon, GA Columbia, SC Charlotte, NC Stacey Allred Najib Azam Helena Bell Sarah Bowman Kara Buczek Chapel Hill, NC Greensboro, NC New Bern, NC Lillington, NC Lake City, FL Malachi Alston Blair Bacisin Nabela Benaissa Tia Bowman Jonathan Bullock Charlotte, NC Raleigh, NC Cary, NC Cary, NC Durham, NC Africa Dalton Alston Christopher Badger Robert Benbow Leo Bradford Katie Burke Winston-Salem, NC Chapel Hill, NC Williamsburg, VA Provo, UT New York, NY Christopher Anderson Carl Badineaux Margo Bennett Matthew Bradley Michael Burnett Chapel Hill, NC Winston-Salem, NC Bedford, VA Grundy, VA Mebane, NC Jesse Anderson Powell Baggett Sarah Bennett Katelynn Bradley Shugart Burnett Winston Salem, NC Greensboro, NC Huntersville, NC Matthews, NC Charlotte, NC Justin Anderson Lynne Bahrami Maegan Berch Brian Brady Eric Burnette Raleigh, NC Durham, NC Sneads Ferry, NC Raleigh, NC Louisville, KY Lawrence Andrusyszyn Saba Baig Ariadne Berrios-Febles Joyce Brafford Jason Burton Cary, NC Raleigh, NC Charlotte, NC Raleigh, NC Greensboro, NC Christopher Anglin Earnest Bailey Denise Bessellieu Catherine Bragg Benjamin Busch Greensboro, NC Oak Ridge, NC San Antonio, TX Cary, NC Akron, OH Michael Ankrum Kelly Baird William Biggers II Scott Branam Meggan Bushee Wilmington, NC Roanoke Rapids, NC Carrboro, NC Columbus, OH Winston-Salem, NC Douglas Ansel Alexis Baker Mary Billings Alicia Bray Matthew Byerley Corpus Christi, TX Greensboro, NC Gastonia, NC Danville, VA Whitsett, NC Gerard Anthony James Baley Stephen Billy Jennine Brazell Rocky Cabagnot Raleigh, NC Gainesville, FL Harrisburg, PA Carrboro, NC Tallahassee, FL Christopher Appel David Ball Robert Blackmon Jonathan Brentnell Maria Caino Raleigh, NC Cary, NC Cary, NC Chapel Hill, NC Charlotte, NC Justin Apple Sarah Banks Benton Blaine Kelly Brewer Frank Calamita III Raleigh, NC Charleston, SC Charlotte, NC Chapel Hill, NC Richmond, VA Nicole Applefield Kristi Barbre Charles Blanton Morgan Brickley Jesse Caldwell IV Morgantown, WV Cedartown, GA Wilmington, NC Garner, NC Gastonia, NC Ramsay Archie Derrick Barger Ralph Blincoe III Marissa Bridges Anil Caleb Chapel Hill, NC Greensboro, NC Louisville, KY Charlotte, NC Fayetteville, NC

THE NORTH CAROLINA STATE BAR JOURNAL 49 Christopher Cambridge Brandon Coleman Tonya Davis Barber Ashley Earnhart Thomas Felling Raleigh, NC Durham, NC Goldsboro, NC Charlotte, NC Raleigh, NC Mark Donald Campbell William Collier III James Davis II Michelle Earp Lauren Felter Kings Mountain, NC Fort Washington, MD Mooresville, NC Chapel Hill, NC Chapel Hill, NC Thelma Campbell Kristen Comerford Thomas Davis V Kevin Eckhardt Alan Felts Charlotte, NC Chapel Hill, NC New Orleans, LA Charlotte, NC Charleston, SC Matthew Canady Joseph Cone Perrin de Jong Robert Ector Jason Fife Charlotte, NC Los Angeles, CA Asheville, NC Burlington, NC Flat Rock, NC Gregory Canali Jennifer Cone Maria Cerina De Ramos Jena Edelman Shannon Fitzpatrick Huntersville, NC Charlotte, NC Morrisville, NC Raleigh, NC Jacksonville, FL Jordan Cansler Christian Connolly Benjamin Dean Adrianne Edmonds Akisha Fleming Durham, NC Rehoboth, MA New York, NY Greensboro, NC Durham, NC John Carella Ross Cook Sarah Dean Douglas Edwards Kathryn Flinchum San Francisco, CA Chapel Hill, NC Pineville, KY Durham, NC Wadesboro, NC Marcus Carpenter Lauren Cook Michael DeLuca Antonette Edwards Sarah Flynn Bessemer City, NC Washington, DC Charlotte, NC Durham, NC Austin, TX Alexis Carr Tara Copeland Brian Dempsey Erin Edwards Sherrell Forbes Raleigh, NC Columbia, SC Winston-Salem, NC Louisburg, NC Carbondale, IL Taylor Carraway Robert Copple Christopher DeNittis Kriston Efird Ryan Foster Walstonburg, NC Asheboro, NC Athens, GA Charlotte, NC Arlington, VA Timothy Carraway David Corbett II Stephen Denmark Austin Eggers Andrew Fox Raleigh, NC Carrboro, NC Raleigh, NC Greensboro, NC Durham, NC Nicholas Carter Stephen Corby Buck Denton Effiong Ekanem Margaret Fox Portland, ME Charlotte, NC Spring Hope, NC Durham, NC Chocowinity, NC Zshakira Carthens Robert Core Lakota Denton Jane Elbert Casey Francis Durham, NC Vestavia Hills, AL Haydenville, MA Cary, NC Cary, NC Aishah Casseus Perry Coumas Erica Deray Michael Eller Mason Freeman Annville, PA Winston Salem, NC Nashville, TN Greenville, SC Chapel Hill, NC Yuli Castro Lezcano Patrick Craig Meghan Deutsch Reynolds Elliot Carson Freeman Durham, NC Carrboro, NC Chapel Hill, NC Chapel Hill, NC Durham, NC Jocelyn Cerrito Geoffrey Crawford Michele Di Donato Tanisha Elliott Jennifer Friedland Charlotte, NC Asheboro, NC Weddington, NC Washington, DC Charlotte, NC Sarah Chambers Janice Crisp Katherine Dickinson-Schultz Meredith Ellis John Fronk Mishawaka, IN Burlington, NC Durham, NC Charleston, SC Apex, NC Murphie Chappell Emily Crocker John Dickson Jr. Alexander Elmes Whitney Frye Durham, NC Durham, NC Chapel Hill, NC Chapel Hill, NC Pleasant Garden, NC Aubrey Charpentier John Crone IV Casey DiMeo Richard Elmore Jr. Joseph Fulk Winston Salem, NC Raleigh, NC Raleigh, NC Raleigh, NC Birmingham, AL Matthew Cherep Colin Cronin Thomas Dixon Edward Enarson David Galbavy Winston Salem, NC Charlotte, NC Roanoke Rapids, NC Raleigh, NC Charlotte, NC Whitney Cherry Thomas Crosby Ryan Dobrusin Michele English Sheri Gallagher Durham, NC Durham, NC Charlotte, NC Orlando, FL Matthews, NC Shin Jin Choi Amber Cross Niccoya Dobson George Eppsteiner Emily Gallimore Greensboro, NC Durham, NC Durham, NC St. Petersburg, FL Raleigh, NC Victoria Chopra Jillian Crowe Jeremy Doernberger David Erdmann Clarissa Galvin Charlotte, NC Winston-Salem, NC Washington, DC Tallahassee, FL Apex, NC Barbara Cini James Crutchley Alissa Dolan Brooke Ericson Matthew Gambale Greensboro, NC Topeka, KS Brighton, MA Washington, DC Alexandria, VA Howard Clark Regina Cucurullo Jessica Domke Kelli Espaillat Yang Gao Huntersville, NC Raleigh, NC Brownstown, MI Matthews, NC Durham, NC Graham Claybrook Hilary Cummings Nehmath Douglass Rachel Espey Brendan Garcia Little Falls, NJ Chicago, IL Raleigh, NC Cary, NC Winston Salem, NC Christopher Cleaveland Michael Curley William Dowling Jonathan Espinola Charles Garella Greensboro, NC Raleigh, NC Elizabeth City, NC Mount Holly, NC Charlotte, NC Jonathon Clements Megan Curran James Downey III Ross Evans Jonathan Garner Charlotte, NC Winston Salem, NC Matthews, NC San Antonio, TX Virginia Beach, VA Rebecca Clippinger Jennifer Dalman Sean Doyle Onyema Ezeh Brittany Garrison Virginia Beach, VA Stem, NC Raleigh, NC Morrisville, NC Morrisville, NC Matthew Cloninger Jacob Daniel Cara Dudek Anthony Ezeogu Alisa Garvey Bessemer City, NC Chapel Hill, NC Raleigh, NC Durham, NC Cary, NC Katherine Clothier Serfas Kevin Davis Matthew Dunand Julie Faenza Andrew Gatt Winston Salem, NC Winterville, NC Chapel Hill, NC Raleigh, NC Durham, NC Nathaniel Coats Kevin Davis James Duncan Brandi Farantatos Kaylan Gaudio Durham, NC Newark, DE Charlotte, NC Raleigh, NC Greensboro, NC Ryan Coffield Amy Davis Jonathan Dunlap Benjamin Faulkenberry Lauren Gebhard Arlington, VA Durham, NC Washington, DC Taylorsville, NC Chapel Hill, NC Daniel Cohen Margaret Davis Zachary Dussault Anthony Faulkner Rebecca Gedalius Charlotte, NC Durham, NC Chapel Hill, NC Cary, NC Durham, NC Neika Colbourne Morgan Davis Leila Early Merab Faulkner Elizabeth Gerber Charlotte, NC Chapel Hill, NC Durham, NC Carrboro, NC Columbus, OH Jeffrey Cole Tamaya Davis Eileen Earnhardt Lenneka Feliciano Laura Geriner Fayetteville, NC Greensboro, NC Williamsburg, VA Greensboro, NC Jacksonville, FL

50 SUMMER 2011 Lisa Gessler Shayla Guest Keith Helsabeck Jennifer Hoverstad Ryan Johnson Fairlawn, OH Chapel Hill, NC Asheboro, NC Raleigh, NC Raleigh, NC Kendra Gibson Brittany Guffey Patrick Henderson Margaret Howard Mark Johnson Wendell, NC Chapel Hill, NC Oxford, MS Jacksonville, FL Chapel Hill, NC Luke Gillenwater Alexandra Hagerty Frederick Henderson Jr. Barry Howard Patrick Johnson Winston-Salem, NC Lynchburg, VA Gastonia, NC Matthews, NC Clemmons, NC Tyler Gillis Kevin Hales Derrick Hensley Andrew Howell Amanda Johnson Raleigh, NC Durham, NC Durham, NC Raleigh, NC Winston-Salem, NC Samantha Gilman Clarissa Halks Christopher Hensley Laura Howell Christine Johnson Greensboro, NC Durham, NC Raleigh, NC Greensboro, NC Durham, NC Debra Gipson Julian Hall Kathleen Herr Brittany Howze Jennifer Johnson FT Bliss, TX Cary, NC Chapel Hill, NC Charlotte, NC Charlotte, NC Joanne Gleeson Carrie Hall Jodie Herrmann Katherine Hudson Natalie Johnson Wake Forest, NC Durham, NC McLean, VA Fayetteville, NC Mooresville, NC Chelsea Glover Hannah Hall Mark Hertzog Alvin Hudson II Tara Johnson Greensboro, NC Raleigh, NC Tucson, AZ Durham, NC Greensboro, NC Raymond Godfrey Craig Hallacher Brian Hiatt Marcus Hulbert Camesha Jones Fairmont, NC Holly Springs, NC Richmond, VA Raleigh, NC Durham, NC Lindsey Goehring Catherine Hallman Bradley Hicks Brian Hunt Cameron Jones Chapel Hill, NC Greensboro, NC Durham, NC Greensboro, NC Charlotte, NC Matthew Golden Mahsaman Hamadani Leila Hicks Jacqueline Hunt David Jones Raleigh, NC Chapel Hill, NC Chapel Hill, NC Asheville, NC Winston-Salem, NC Julie Goldfarb Benjamin Hambright Joshua Higgin Aymie Huntington Jesse Jones Greensboro, NC Charlotte, NC Apex, NC Fuquay-Varina, NC Wilmington, DE Wendy Gombert Joseph Hamer Kathlyn Hill Erin Hurd Jonathan Jones Chapel Hill, NC Clayton, NC Durham, NC Fuquay Varina, NC Durham, NC Natalie Gominger Andrea Hamilton Benjamin Hiltzheimer Blake Hurt Thomas Jones Durham, NC Durham, NC Silver Spring, MD Greensboro, NC Lynchburg, VA Peng Gong John Hamilton II Ashley Hines Casey Hyman Casey Jones Cary, NC Charlotte, NC Raleigh, NC Apex, NC Wilson's Mills, NC Maria Gonzalez-Guevara Blake Hamlin Philip Hinson Steven Immelman Meghan Jones Raleigh, NC Raleigh, NC Charlotte, NC Raleigh, NC Cary, NC Joshua Goodman Jennifer Hancock Regina Hinson Robert Ingalls Tamra Jordan Charlotte, NC Columbia, SC Durham, NC Charlotte, NC Nashville, TN Amy Goodman Charles Harmon Stephanie Hoffmann Ronald Ingle Jr. Sarah Josselyn Apex, NC Durham, NC Philadelphia, PA Kernersville, NC Durham, NC Alyn Goodson April Harrid Kyle Hoidal Benjamin Ipock Daniel Joyce Durham, NC Durham, NC Chapel Hill, NC Gastonia, NC Winston Salem, NC Allison Goodwin Jeffrey Harris Spencer Hoisington Amanda Isaac Ashley Joyce Durham, NC Durham, NC Charlotte, NC Raleigh, NC Sacramento, CA Allison Goodwin Naima Harris Christina Holcombe Jennifer Isham Catherine Juhas Sanford, NC Charlotte, NC Durham, NC Richmond, VA Charleston, SC Stephanie Gootnick Shanai Harris Kelly Holcombe Benjamin Isley Colin Justice Raleigh, NC Garner, NC Greensboro, NC Creve Coeur, MO Chapel Hill, NC Robert Gordie Jr. Anna Harrison Frank Holleman Seth Ivey Scott Kammlade Statesville, NC Charlotte, NC Greenville, SC Chapel Hill, NC Atlanta, GA Michael Gordon Byron Hartshorn Audrey Holloway Melissa Ivey Daniel Karb Chapel Hill, NC Springfield, MA Coral Gables, FL Raleigh, NC Charlottesville, VA Ilan Graff Joanna Hasapis Ashley Holmes Christopher Jackson Russell Katz Durham, NC Raleigh, NC Carrboro, NC Winston Salem, NC Winston-Salem, NC William Graham Michael Hatch Alexis Holt Tarik Jallad Justin Kay Kill Devil Hills, NC Columbia, SC Charlotte, NC Durham, NC Greensboro, NC Anissa Graham-Davis Rashad Hauter Matthew Holtgrewe Shameka Jamison Jenny Kazee Hillsborough, NC Henderson, NC Chapel Hill, NC Durham, NC Richmond, VA Elizabeth Gratale Jessica Hayes Adam Hopler John Jamison II Thomas Kelly Boston, MA Sterling, VA Durham, NC Pineville, NC Winston-Salem, NC Cornelius Graves Jarrett Hayes Dorrian Horsey Aphreka Jemison Caitlin Kelly High Point, NC Greensboro, NC Raleigh, NC Raleigh, NC Greensboro, NC Jennie Graves Richard Haywood Stephanie Horton Johanna Jennings Amy Kendall Chapel Hill, NC Richmond, VA Goldsboro, NC Durham, NC Charlotte, NC Laura Gray Michelle Hazelton Joseph Houchin Mary Jennings Malcolm Kerlin Wilmington, NC Charlotte, NC Oxford, MS Raleigh, NC Charlotte, NC Sarah Gray Leah Heaney Ashley Housaman Emily Jernigan Shahid Khan Grundy, VA Durham, NC Charlotte, NC Grundy, VA Durham, NC Khimmara Greer Daniel Heath Andrew Houser Robert Jernigan Elissa Kicinski Durham, NC Monroe, NC Thomasville, NC South Royalton, VT West St Paul, MN Elizabeth Gregory Gareth Hedges Amanda Houser Robert Jessup IV Thomas Kim Chapel Hill, NC Durham, NC Durham, NC Winterville, NC Durham, NC Paul Griffin William Hedrick Parisa Houshmandpour Markia Jeter Kami Kimber Cary, NC Wake Forest, NC Greensboro, NC Garner, NC Odgen, UT Tyson Grinstead Angel Heery Daniel Houston Craig Johannesmeyer Dwayne Kinney Jr. Snow Camp, NC Denver, NC Wake Forest, NC Fort Mill, SC Lexington, NC

THE NORTH CAROLINA STATE BAR JOURNAL 51 Martin Kintner Greensboro, NC Luke MacDowall Winston-Salem, Jennifer Moreno Hamden, CT Shannon Ledford Winston-Salem, NC Brandon McPherson Durham, NC Leslie Kirkman Clyde, NC Tiffany Mack Raleigh, NC Laura Morris Nashville, TN Sangeun Lee Durham, NC Ian McRary Raleigh, NC Edwin Kisiel Garden Grove, CA Jeremy Maddox Hickory, NC Meredith Morrison Germantown, MD Leon Legleiter Greensboro, NC Joseph McRoberts Concord, NC John Kivus Durham, NC Catherine Mader Knightdale, NC Ashley Morrison Durham, NC Kimberly Lehman Hillsborough, NC Landon Medley Chapel Hill, NC Maureen Klaum Cary, NC Kirton Madison Winston-Salem, NC Stephanie Moser Carrboro, NC Thomas Leitner Jr. Florence, SC Marc Meister Ada, OH Katherine Kliebert Oxford, MS Halerie Mahan Asheville, NC Mitchell Mosley Nashville, TN Timothy Lendino Durham, NC Charles Mellies Winston-Salem, NC Ashlee Knapton Raleigh, NC Potso Mahlangeni-Byndon Winston-Salem, NC William Moss Morgantown, WV Michael Lennox Durham, NC Jonathan Melton Chapel Hill, NC Ira Knight Carrboro, NC Margaret Marquez Durham, NC William Mossor Winston-Salem, NC Cory Lenz Shelby, NC Brian Mendenhall Grundy, VA Kaitlin Kober Durham, NC Matthew Marriott Winston-Salem, NC Nancy Mountcastle Chapel Hill, NC Rebecca Lenz Durham, NC Pauline Meola Raleigh, NC Dominique Koch Raleigh, NC Clay Martin Tucson, AZ Lawrence Moye IV Spotsylvania, VA Jeremy Leonard Raleigh, NC Lindsey Merikas Raleigh, NC Susan Kohlhausen Lewisville, NC Fred Martin III New York, NY Yuanyue Mu Raleigh, NC James Leslie Grundy, VA Larissa Mervin Chapel Hill, NC Larissa Koshatka Walton, KY Carmen Marzella Raleigh, NC Brooke Mulenex Bloomington, IN Jillian Leslie Cary, NC Christopher Meyer Chapel Hill, NC Emily Kota Lillington, NC Allison Mascorro Durham, NC Diane Mullard-Clements Davidson, NC Tiffany Lesnik Pinebluff, NC Shawn Middlebrooks Raleigh, NC George Kourtsounis Raleigh, NC Sarah Massagee Durham, NC Michael Munro Washington, DC Tameka Lester North Charleston, SC Jessica Middlebrooks Greensboro, NC Suzanne Kramer Durham, NC Louis Massard Durham, NC Michael Munson Charlotte, NC Ruth Levy Chapel Hill, NC Kevin Millard Chapel Hill, NC Matthew Krueger-Andes Cary, NC Carla Matinata Chapel Hill, NC Michelle Murphree Chapel Hill, NC Brian Lewis Islamorada, FL Robert Miller Concord, NC David Krusch Durham, NC Bradley Matthews Atlanta, GA Christian Murphy Chapel Hill, NC Jeffery Lewis Greensboro, NC Danielle Miller Durham, NC Magdalena Kudlacz Lucama, NC Mark Mayakis Kings Mountain, NC Paula Murray Myrtle Beach, SC Matthew Lewis Raleigh, NC Hannah Miller Raleigh, NC Elizabeth Kuhn Chapel Hill, NC Marjorie Maynard Hickory, NC Frederick Nance III Raleigh, NC William Lewis Chapel Hill, NC Lauren Miller White Lake, NC Ashley Kuly Durham, NC Chuanita McAlister Raleigh, NC Clifton Neal Grundy, VA Jennifer Lewis Durham, NC Rachel Miller Greensboro, NC Catherine Lafferty Durham, NC Christine McArthur Greensboro, NC Shawn Nee Chapel Hill, NC Kelly Lineberger Cary, NC William Mills IV Apex, NC Adebola Lamikanra Nashville, TN Richard McAvoy New York, NY Kristen Neely Bloomington, IN Charis Link South Bend, IN Minerva Mims Raleigh, NC Karen Lander Raleigh, NC Donald McCabe Jr. Durham, NC Nima Nematollahi Colfax, NC John Lithgow Lexington, SC Sidney Minter Raleigh, NC DeWarren Langley Jupiter, FL Richard McCotter Durham, NC Jennifer New Durham, NC Brian LiVecchi Winston-Salem, NC Rudolph Mintz III. Columbia, SC Marc Langston Willow Spring, NC Jeffrey McCraw Tulsa, OK Thanh Ngo Wichita, KS Jonathan Loch Charlotte, NC Benjamin Mitchell Winston-Salem, NC Stephen Lareau Olympia, WA George McCue Macon, GA Peggy Nicholson Carrboro, NC Justin Lockamy Madison, WI Catherine Mitchell Charlottesville, VA Raymond Large III Lincoln, NE Katherine McCurry Durham, NC George Nickel III. Greensboro, NC Daniel Locklear Winston Salem, NC Titichia Mitchell Cary, NC Steven LaRocque Carrboro, NC Gregory McDonough Durham, NC Dana Nicoletti Lansing, MI Jesse London Durham, NC Preston Mitchum Washington, DC Dirk Lasater Ithaca, NY Kyle McEntee Durham, NC Elizabeth Nixon Winston Salem, NC Ashley London Greensboro, NC Mona Mohajerani Columbia, SC Thad Lawrence III Gastonia, NC Jason McGuirt Cary, NC Samuel Noble Grundy, VA Liliana Lopez Chapel Hill, NC Joseph Monaghan Valparaiso, IN Mark Lawson Asheville, NC Amanda McIntyre Cranford, NJ Knut Nodeland Lewisville, NC Carolyn Lovejoy Charlotte, NC Parker Moore Charlotte, NC Alec Lawton Chapel Hill, NC Jennifer McLaughlin Greensboro, NC John Noor Chapel Hill, NC Lauren Lowry Indian Trail, NC Andrew Moore Chapel Hill, NC Joseph Leahy Charlotte, NC Christopher McLennan Washington, DC Meredith Norris Raleigh, NC Davidson Lucas Jacksonville, FL Hilary Moore Raleigh, NC Chelsea Leathers Bethany, CT Hugh McManus Jacksonville, NC Mason Nowaski Columbia, SC Nadia Luhr Raleigh, NC Lisa Moorehead Charlotte, NC Kyle LeBlanc Carrboro, NC David McMullen Charlotte, NC Kyle Nutt Charlotte, NC Abby Lund Antioch, CA Jefferson Moors Charlotte, NC Michael LeClair Carolina Beach, NC Kelly McNamara Chapel Hill, NC Ivy Oakley Cary, NC Daniel Lyon Charlotte, NC Francisco Morales Gibsonville, NC Peter Ledford Greensboro, NC Lauren-Maree McPhail Winston-Salem, NC Mark Oberlatz

52 SUMMER 2011 Charlotte, NC Allison Phillips Carrboro, NC Nora Ryan Greensboro, NC Daniel O'Brien Indian Land, SC Kevin Repper Cayce, SC Scott Silvers Shaker Heights, OH Rebecca Phillips Concord, NH Douglas Sackett Chapel Hill, NC Hunter O'Brien Raleigh, NC Anne Reuben Apex, NC Christian Simaan Raleigh, NC Shelley Pickering Winston-Salem, NC Brad Salmon Summerfield, NC Kevin O'Brien Houston, TX Benjamin Reynolds Lillington, NC Elizabeth Simmons Land O Lakes, FL Mercedes Pinckney Winston-Salem, NC Guhan Santhappan Raleigh, NC Courtney O'Brien Durham, NC Matthew Reynolds Chapel Hill, NC Ashley Sims Land O Lakes, FL Jacqueline Pires Charlotte, NC Joseph Sasser Charleston, SC David O'Bryan Naugatuck, CT Patricia Rhame Raleigh, NC Richard Sin Mooresville, NC Laura Pisoni Macon, GA Claire Sauls Raleigh, NC Ann Ochsner Durham, NC Natalie Rice Raleigh, NC Jonathan Sink Linden, NC Jarrette Pittman Raleigh, NC Steven Saunders Jr. Charlotte, NC Chinazo Odigbo Rocky Mount, NC Polly Rich Chapel Hill, NC Lindsey Sink Omaha, NE Marquita Pittman Raleigh, NC Scott Sautter Columbia, SC Sean O'Donnell Raleigh, NC Jacqueline Richardson Apex, NC Paxon Sinsangkeo Dublin, OH Justin Plummer Mount Pleasant, SC Matthew Savarese Nashville, TN Joy O'Donnell Grundy, VA Natasha Richardson Raleigh, NC Berkley Skinner IV Dublin, OH David Pond Raleigh, NC Robert Sawyer II Durham, NC Ashley Oldham Raleigh, NC Sharika Richardson Belmont, NC Samuel Slater Apex, NC James Ponder Durham, NC Whitney Scarborough Winston-Salem, NC Yoko Onishi Morrisville, NC Jennifer Richelson Raleigh, NC Vanessa Smart Yokohama, Daniel Portone Durham, NC Clayton Schaefer Durham, NC Amy Oraefo Raleigh, NC Taylor Riley Charlotte, NC Andrea Smaxwell Raleigh, NC John Post Raleigh, NC Lindsay Schaffer Raleigh, NC Shawn Orcutt Rock Hill, SC Rachele Rinas Durham, NC Alden Smith Charlotte, NC John Potter Raleigh, NC Molly Schertzinger Lexington, NC Maureen Osborne Fort Thomas, KY Sarah Riney Kinston, NC Joshua Smith Winston-Salem, NC Davis Powell Cary, NC Margaret Schildknecht Burlington, NC Nicholas Overby Winston-Salem, NC Megan Risen Charlotte, NC Raiford Smith Buies Creek, NC Andrew Power Greensboro, NC Katherine Schwartz Mooresville, NC Laura Owen Washington, DC Roger Rizo Fort Wayne, IN Richard Smith Thomasville, NC Phylicia Powers Burlington, NC Matthew Schwarz Stem, NC Carrie Oxendine Durham, NC David Roberts Winston-Salem, NC Roger Smith High Point, NC Stuart Pratt Charleston, SC William Scott Winston-Salem, NC Herbert Pace Chapel Hill, NC Bettina Roberts Flood Washington, DC Allison Smith Chicago, IL Ashley Pressly Raleigh, NC Erin Scott Winston-Salem, NC Justin Palu Greenville, NC Tanisha Robertson Andalusia, AL Ashley Smith Charlotte, NC Jackson Price Fayetteville, NC Patrick Sellers Raleigh, NC Tanisha Palvia Salisbury, NC Daniel Robinson Greensboro, NC Bridget Smith Greensboro, NC Celestia Price Rock Hill, SC Stephen Sellers Apex, NC Laura Parker Hamden, CT David Robinson Winston Salem, NC Natalie Smith Raleigh, NC Robert Prim V Raleigh, NC Adam Setzer Saint Paul, MN Whitney Parrish Chapel Hill, NC Mary Robinson Winston-Salem, NC Asher Smith Greensboro, NC Mary Prince Charlottesville, VA Eric Shaffer Cary, NC Adam Pastore Raleigh, NC Orlando Rodriguez Sandford, NC Beverley Smith Winston-Salem, NC Amy Puckett Raleigh, NC Liedeke Sharp Greensboro, NC Manisha Patel Winston-Salem, NC Carla Rogers Chapel Hill, NC Tara Smith Greensboro, NC Justin Puleo Greensboro, NC Thomas Shealy Chapel Hill, NC Yasha Patel Chapel Hill, NC Christopher Romeo Spartanburg, SC Edward Smith II Orlando, FL Michael Putney Birmingham, AL Tracey Sherpinskas Charlotte, NC Leah Patterson Oxford, NC Maxwell Rondon Wade, NC Eric Snider Chapel Hill, NC Annamaria Racota Chapel Hill, NC Angela Sherrill Kansas City, MO Caroline Paul Washington, DC Norma Roque-Harper Miami, FL Ashley Snyder Bahama, NC Cassandra Radloff Hendersonville, NC Leslie Sherrill Winston-Salem, NC Ellis Payne Fayetteville, NC Whitaker Rose Raleigh, NC Whitney Sorrell Raleigh, NC Kimberly Randolph Columbia, SC Marcus Shields Raleigh, NC Heather Payne Cary, NC Laura Ross Durham, NC Jennifer Sotack Chapel Hill, NC Jeremy Ray Raleigh, NC Kathryn Shields Raleigh, NC Ronald Payne II Kernersville, NC James Routh Raleigh, NC John Sotomayor Hickory, NC Nathalie Raymer Franklinville, NC Brian Shillito Cary, NC Joseph Pellington Cincinnati, OH Kelly Routh Winston-Salem, NC Maggie Souders Columbia, SC Liana Rebollo Thomasville, NC Colin Shive Polkville, NC Victoria Perez Chapel Hill, NC Evan Rowe Burlington, NC Julie Spahn Carrboro, NC Nicholas Regalia Charotte, NC Geri Shomo Charlotte, NC Jonathan Perkins Raleigh, NC William Royer Greensboro, NC Glenn Spitler III Concord, NC Conor Regan Raleigh, NC Ronald Shook II Winston-Salem, NC Andrew Perry Raleigh, NC Rosetta Royster Charlotte, NC Angela Spong Charlotte, NC Casey Rego Durham, NC Travis Short Chapel Hill, NC Elizabeth Peters Raleigh, NC Rachel Rule Winston Salem, NC Michael Sprague Durham, NC Hannah Reichel Lynchburg, VA Jonathan Shrader Greensboro, NC Alexander Pham Lynchburg, VA Matthew Rust Lafayette, CO Tanja Springsteen Greensboro, NC Erin Reis Durham, NC Joseph Sigmon Raleigh, NC

THE NORTH CAROLINA STATE BAR JOURNAL 53 Alka Srivastava Charlotte, NC Christina Trice Raleigh, NC Reginaldo Williams Cary, NC Amanda Tauber Chapel Hill, NC Jacob Warner Greensboro, NC Chiara St. Pierre Greensboro, NC Stephanie Trotter Virginia Beach, VA Dale Williams Jr. Neptune Beach, FL Andrew Taylor Lexington, SC Ashley Warner San Jose, CA Stephen Staley Charlotte, NC Jamie Turnage Virginia Beach, VA Jacquelyn Willingham Holly Springs, NC John Taylor Wilson, NC Megan Warren Winston-Salem, NC Catherine Stalker Chapel Hill, NC Henry Turner Charlotte, NC Christopher Wilms Greensboro, NC Yansea Taylor Chapel Hill, NC Nora Warren Raleigh, NC Lorea Stallard Belmont, NC Amanda Turner Virginia Beach, VA Catherine Wilson Chapel Hill, NC Andrew Taylor Columbia, SC Brittany Waters Chapel Hill, NC Nathan Standley Marietta, GA Laquanda Tysinger Raleigh, NC Lindsey Wilson Raleigh, NC Kevin Taylor Jr. Chapel Hill, NC James Watkins Macon, GA Ericca Starling Cary, NC Zachary Unger Raleigh, NC Alexander Wilson Raleigh, NC Natalie Thomas Greensboro, NC Julie Watson Durham, NC David Stephens Morgantown, WV Keri Upchurch Winston-Salem, NC Jeremy Wilson Elon, NC Valerie Thomas Lynchburg, VA Kelvin Watson Jr. Chapel Hill, NC Jennifer Stevens Winston-Salem, NC Emily Vance Greensboro, NC Lawrence Wilson Lynchburg, VA Eddie Thomas Jr. Hamilton, OH Adam Wehler Cary, NC Colby Stevenson Chapel Hill, NC Alexander Vang Alexandria, VA Douglas Wink Winston-Salem, NC Ashley Thompson Chapel Hill, NC Julianna Wenn Chapel Hill, NC Matthew Stilwell Kernersville, NC William Vasquez Raleigh, NC Ray Womble III Cary, NC Whitney Thompson Clayton, NC India Whedbee Raleigh, NC John Stone Mt. Pleasant, SC Meredith Vick Durham, NC John Wood Greensboro, NC Brett Thompson Raleigh, NC Matthew White Hickory, NC Holly Stott Morrisville, NC John Villalon Statesville, NC Rebecca Wood Coralville, IA Deanna Thorne Winston-Salem, NC Laura White Winston Salem, NC Emily Stratton Raleigh, NC Mihaela Villarroel Raleigh, NC Robert Wood III Athens, GA Jack Thornton Valparaiso, IN Joel White Philadelphia, PA David Strauss Lewisville, NC Judy Visoury Trinity, NC Bradley Wooldridge Durham, NC William Thorsen III Raleigh, NC Tiffany Whitfield Raleigh, NC Cooper Strickland Columbia, SC Joseph Vossen Fayetteville, NC Holly Wright Chapel Hill, NC Ryan Tiede Chapel Hill, NC Allycia Whitman Staley, NC William Strickland San Diego, CA Alison Wadsworth Durham, NC Jessica Yanez Penaloza Chapel Hill, NC Lauren Tierney Apex, NC Jamison Whittaker Greensboro, NC Ryan Stump Durham, NC Lindsey Wakely Charlotte, NC Aleksandr Yegiyants Raleigh, NC Aidan Toland Chapel Hill, NC Benjamin Wildfire Raleigh, NC Kenneth Stutts III Morrisville, NC Ursula Walder Durham, NC Paula Yost Salisbury, NC Mariana Toledo-Hermina Rural Hall, NC Nicole Wiley Charlotte, NC Elizabeth Styons Charlotte, NC Katharine Walker Orlando, FL Megan Youngblood Durham, NC Paul Tongsri Charlotte, NC Ross Wilfley High Point, NC Phil Su Durham, NC Ashley Wall Miami, FL Tyler Younts Las Vegas, NV Kevin Tonkin Garner, NC Michael Wilhelm Asheboro, NC Junaid Sulahry Burlington, NC Emily Wallwork Clayton, NC Elizabeth Zager Lewisville, NC Samuel Tonkin Chapel Hill, NC Jamie Wilkerson Fuquay Varina, NC Susan Sullivan Philadelphia, PA Mary Walrod Durham, NC Cynthia Zakary Winston-Salem, NC Nicholas Torrey Austin, TX Jonathan Williams Chapel Hill, NC Allison Summerville Hamden, CT Mary-Katherine Walston Winston-Salem, NC Brian Zawrotny Fayetteville, NC Lauren Tozzi Chapel HIll, NC Alicia Williams Winston Salem, NC Elizabeth Suttles Oak Hill, VA Thad Walton Raleigh, NC Vanessa Zboreak Hendersonville, NC Stefani Trapp Charlotte, NC Heather Williams Winston-Salem, NC Jeffrey Swing Sewickley, PA Donald Wanee Carrboro, NC Angelina Zon High Point, NC Ronald Traud Charlottesville, VA Lakisha Williams Casar, NC Isla Tabrizi Chapel Hill, NC Christopher Ward Durham, NC Paul Zucchino Charlotte, NC Daphne Trevathan Winston Salem, NC Susan Williams Raleigh, NC Andrew Tamayo Rocky Mount, NC Tiffany Ward Winston Salem, NC

Law School Briefs (cont.) collection of law review-style articles from lens and featured the perspectives of athletes, more than a dozen of the “Losing to Win” academics, administrators, lawyers, and conferees. “This issue will feature premier journalists, and initiated a direct and ongo- school’s Professor Timothy Davis and Wake authorship and analysis, with perspectives ing dialogue around the variables that Forest University Department of Sociology on race and intercollegiate athletics from an impact today’s student-athletes of color. In Professor Earl Smith. The Journal of Law & ESPN contributor and journalist, a univer- addition to Professor Davis, panelists from Policy is devoted to publishing both legal sity president, law professors, and a social the law school included Professor Ahmed and interdisciplinary scholarship, according psychology professor, among a variety of Taha, Professor Omari Simmons, and to Editor-in-Chief James Bauer. The Journal others,” Bauer said. The conference exam- Professor Beth Hopkins. To learn more editors will devote one issue, which is antic- ined the issues of race and intercollegiate about the conference, please visit http://los- ipated to publish in the winter of 2012, to a sports through a wide and comprehensive ingtowin.wfu.edu. n

54 SUMMER 2011

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