THE NORTH CAROLINA STATE BAR

SUMMER JOURNAL2019

IN THIS ISSUE It Was a Wonderful Life page 8 Fixing a Broken Election System page 12 Tort Claims for Alienation of Affections page 18

THE NORTH CAROLINA STATE BAR JOURNAL FEATURES Summer 2019

Volume 24, Number 2 8 It Was a Wonderful Life Editor By L. Thomas Lunsford II Jennifer R. Duncan 10 Ingenuity, Chicanery, and Deception: The History of the John B. McMillan Distinguished Service Award © Copyright 2019 by the North Carolina By Anthony S. di Santi State Bar. All rights reserved. Periodicals postage paid at Raleigh, NC, and additional 12 Fixing a Broken Election System—Our offices. Opinions expressed by contributors Democracy Depends On It are not necessarily those of the North By Tom Ross Carolina State Bar. POSTMASTER: Send address changes to the North Carolina State 15 Hurricane Florence: A Chance for Bar, PO Box 25908, Raleigh, NC 27611. Attorney Volunteerism The North Carolina Bar Journal invites the By Katherine Asaro submission of unsolicited, original articles, essays, and book reviews. Submissions may 18 Tort Claims for Alienation of be made by mail or email (jduncan@ Affections and Criminal Conversation ncbar.gov) to the editor. Publishing and edi- torial decisions are based on the Publications are Alive and Well in North Carolina Committee’s and the editor’s judgment of By G. Edgar Parker

the quality of the writing, the timeliness of 24 I Lost a Client the article, and the potential interest to the readers of the Journal. The Journal reserves By Bill Powers the right to edit all manuscripts. The North Carolina State Bar Journal (ISSN 10928626) is published four times per year in March, June, September, and December under the direction and supervision of the council of the North Carolina State Bar, PO Box 25908, Raleigh, NC 27611. Member rate of $6.00 per year is included in dues. Nonmember rates $10.73 per year. Single copies $5.36. The Lawyer’s Handbook $16.09. Advertising rates available upon request. Direct inquiries to Director of Communications, the North Carolina State Bar, PO Box 25908, Raleigh, North Carolina 27611, tel. (919) 828-4620.

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THE NORTH CAROLINA STATE BAR JOURNAL 3

DEPARTMENTS 32 IOLTA Update BAR UPDATES 5 President’s Message 33 Lawyer Assistance Program 46 In Memoriam 7 State Bar Outlook 34 Pathways to Wellbeing 47 Client Security Fund 27 Trust Accounting 36 Legal Specialization 48 Law School Briefs 28 The Disciplinary Department 38 Proposed Ethics Opinions 50 Distinguished Service Award 30 Legal Ethics 41 Rule Amendments 50 July 2019 Bar Exam Applicants

Officers 16: Dorothy Hairston Mitchell, 39: Rebecca J. Pomeroy, Lincolnton G. Gray Wilson, Winston-Salem Durham 40: Anna Hamrick, Asheville President 2018-2019 William S. Mills, Durham 41: H. Russell Neighbors, Marion C. Colon Willoughby Jr., Raleigh 17: Charles E. Davis, Mebane 42: Christopher S. Stepp, President-Elect 2018-2019 18: Charles Gordon Brown, Chapel Hill Hendersonville Barbara R. Christy, Greensboro 19: William C. Fields Jr., Raeford 43: Gerald R. Collins Jr., Murphy Vice-President 2018-2019 20: David F. Branch Jr., Lumberton Alice Neece Mine, Chapel Hill 21: Richard Buckner, Rockingham Public Members Secretary-Treasurer 22: Alan S. Hicks, Roxboro Thomas W. Elkins, Raleigh John M. Silverstein, Raleigh Matthew W. Smith, Eden Dr. Joseph E. Johnson, Greensboro Past-President 2018-2019 23: Thomas W. Anderson, Pilot Mohan Venkataraman, Morrisville Mountain Councilors 24: Patrice A. Hinnant, Greensboro Executive Director By Judicial District Stephen E. Robertson, Greensboro Alice Neece Mine 1: C. Everett Thompson II, Elizabeth 24H: Raymond A. Bretzmann, High City Point Assistant Executive Director 2: G. Thomas Davis Jr., Swan 25: Jay White, Concord Peter Bolac Quarter 26: David N. Allen, Charlotte 3: Charles R. Hardee, Greenville Robert C. Bowers, Charlotte Counsel 4: Debra L. Massie, Beaufort A. Todd Brown, Charlotte Katherine Jean 5: Kevin Joseph Kiernan, Clinton Mark P. Henriques, Charlotte 6: W. Allen Cobb Jr., Wilmington Dewitt McCarley, Charlotte Editor 7: Takiya Fae Lewis, Ahoskie Gena Graham Morris, Charlotte Jennifer R. Duncan 8: Charles S. Rountree III, Tarboro Eben T. Rawls, Charlotte 9: C. Branson Vickory III, Goldsboro 27: Jennifer Davis Hammond, Salisbury Publications Editorial Board 10: Heidi C. Bloom, Raleigh 28: John Webster, Albemarle Andrea Capua, Chair Walter E. Brock Jr., Raleigh 29: Richard Costanza, Southern Pines Stephen E. Robertson, Vice Chair Theodore C. Edwards II, Raleigh 30: H. Ligon Bundy, Monroe Phillip Bantz (Advisory Member) Katherine Ann Frye, Raleigh 31: George M. Cleland IV, Winston- Heidi C. Bloom Fred M. Morelock, Raleigh Salem Margaret Dickson (Advisory Member) Robert Rader, Raleigh Kevin G. Williams, Winston- John Gehring (Advisory Member) Donna R. Rascoe, Raleigh Salem Darrin D. Jordan (Advisory Member) Warren Savage, Raleigh 32: Kimberly S. Taylor, Taylorsville Ashley London (Advisory Member) 11: James Thomas Burnette, Oxford 33: Sally Strohacker, Mocksville L. Thomas Lunsford II (Advisory Member) 12: Eddie S. Winstead III, Sanford 34: John S. Willardson, Wilkesboro Christopher S. Stepp 13: Marcia H. Armstrong, Smithfield 35: Andrea N. Capua, Boone John Webster 14: Harold Lee Boughman Jr., 36: M. Alan LeCroy, Morganton Fayetteville 37: Clark R. Bell, Asheboro 15: Michael R. Ramos, Shallotte 38: Timothy L. Patti, Gastonia

4 SUMMER 2019 THE PRESIDENT’S MESSAGE

What Matters

B Y G. GRAY WILSON

My year started with a bang in January. of getting at facts directly, and having them ancient Greek culture (where jury trials were After the first quarterly Bar meeting at the passed on by men who understand the con- sometimes held in Athens, after a fashion), helm, which I survived thanks to our new troversies that they seek to solve. Every from which our own Socratic dialogue rears Executive Director Alice Mine and a stellar strongly contested case is replete with long its ugly head in law school. Alfred North cast of other supporting Bar staff, officers, arguments, interminable interruptions, and Whitehead once noted: “The safest general and councilors, I defended a company in a appalling waste.” characterization of the complicated commercial dispute in a highly- But did this public ordeal European philosophical tra- compressed, paperless, five-day business in January have any lasting dition is that it consists of a court jury trial in a rural county in the value for the participants? series of footnotes to Plato.” Piedmont. Opposing counsel, all four of Did this trial and this jury If so, everyone has some them (some not from around here), were make any difference in the commerce with his allegory well prepared and capable. The presiding universe of human inter- of the cave, which dismisses judge was superb in all respects. My client course? Did it matter? Or human perception as little and I managed to escape with a decent result, better yet, to broaden the more than knowledge gained but given my own deficiencies, I can only inquiry, what matters? As in, through the senses, unin- attribute the just outcome to 12 ordinary cit- what in this life has abiding formed by reason. To this izens who patiently sat in the jury box until value that transcends the day, the world abounds in they received the case just before close of daily grind? We all enjoy the cave dwellers. business on a Friday afternoon. Within min- occasional excursion into Head East (no, I am not utes they asked for a calculator (I am not pop philosophy, but no one relishes the referring to the arena rock group of “Never making this up), and later for a flip chart and tyranny of those who presume to pontifi- Been Any Reason” fame), and one encoun- marker. I decided we were well and truly cate on the imponderables at every private ters Asian philosophy. Take Buddhism, for cooked, but some time before 8 PM, the jury (or worse, public) opportunity, someone example, and there again lies that enticing returned with answers to a ten-interrogatory who might charitably be characterized as a rapture one seeks, Nirvana (release from suf- verdict sheet that were fair and reasonable, at veritable “tree of knowledge.” Yet I dare to fering and rebirth), although the roadmap least in my estimation. press this dialectical inquiry within the nar- for this sublime level offers a tortuous course, How did that happen? There were no row confines of this profession, more specif- namely, a boatload of abnegation and denial. professionals in the box, and only a couple ically the practice of litigation, and even I would rank hunger and boredom at the top had education beyond high school. The evi- more narrowly, jury trials. But first, a little of the list for this ordeal. Omphaloskepsis dence was tedious at times, and a few heads background from the ancients might help (Hinduism, primarily) is also in the mix, but could be seen nodding late in the afternoon. set the stage. there is only so much navel contemplation Jurors were permitted to take notes, but from Consider, for a start, the Christian tradi- one can do before the SI joints start to our vantage (with all the high-tech equip- tion. The book of Philippians instructs that scream. And don’t even ask me about Yoga (I ment the other side packed into the court- while a heap of praying is a good exercise, no am married to a diehard yogini), which is room, I could never see more than seven one should worry about anything; that wor- derived from “yoke,” for which there could jurors at any one time), the pads and pencils rying, in fact, is a sin. We are admonished to be no more appropriate etymology. Enough did not receive a lot of use. Lead counsel for do good works and trust in a higher power, already about the Asian Way (Tao). plaintiff argued almost the entire statutory in exchange for which we will receive “God’s Now delve into the arcane world of trial two-hour limit; I spent 22 minutes pressing peace,” or that sense of wellbeing which lies law, where I can announce without a mod- our case in closing. beyond the realm of human comprehension. icum of authority, but based on over 40 years In his autobiography, Clarence Darrow Some might argue that mild substance abuse of trial experience in the state, federal, and viewed the jury trial cynically: “It is extraor- can achieve the same state of bliss, but I appellate courts, that lawsuits don’t necessar- dinary that a system hoary with age, extrava- believe we are talking here about something ily matter, at least not all the time. Since my gant and wasteful to the greatest degree, more than proverbial lotus-eating. entire adult livelihood has depended on should not be supplanted by some method Which provides a great segway into the courtroom advocacy, let me explain, with the

THE NORTH CAROLINA STATE BAR JOURNAL 5 caveat that in no way am I suggesting that legal profession to administer. Law enforce- into the Slough of Despond until final there is any better adjudicatory system out ment, court personnel, judges, and juries atonement, punishment, or damnation, there than the one we currently have. We provide the vehicle, and statutory and com- depending on how karma happens to hang at would all likely agree that when litigation mon law the framework. But lawyers lubri- that particular moment. And lest we forget, leads to a just result, society is well served, cate the whole system and make it run for- perhaps the only thing more important in and we want to believe that this happens ward, if not smoothly, pushing and pulling this life than justice, is knowing (and doing) most of the time. Lawsuits and criminal against everyone and everything else because what is right. prosecutions that ultimately produce the cor- that is the soul of advocacy, the engine of I grow weary hearing opposing counsel rect legal solution or answer are commend- jurisprudence. They take their licks every day argue to a jury that the right to be tried by able and provide the glue of societal order, in the courtroom, then rise to fight again the one’s peers was first enshrined in the Magna not to mention civilized behavior. But what next day, bloody but unbowed (apologies to Carta in England in 1215. Drafted by the about the court case that goes off the rails, W.E. Henley), moving past the wrong rul- Archbishop of Canterbury (hardly a disinter- where the judge or jury goes rogue, deliver- ing, the rogue adversary, the jury of psy- ested author, since the sectarian trial by ing a verdict, judgment, or other ruling that chopaths, striving always to keep us all on ordeal overseen by the clergy collapsed that violates every principle of jurisprudence? that right side of life. year), that document only afforded a jury Is there some corrective mechanism in the Our own lawyer-author John Hart has trial to the rebel barons who forced it on cosmos that sooner or later rights the bal- written that, “The law is an ocean of dark- King John at Runnymede. King Henry II in ance? Take the plaintiff who recovers a wind- ness and truth.” I’m not exactly sure what the previous century did better than that, fall with no hint of entitlement, or is denied that means, but it sounds deep and beauti- creating what later became known as the a recovery that justice demands. Or the ful, and probably explains why his novels get grand jury, charged with sniffing out the defendant who escapes civil or criminal lia- published and mine do not. This was never facts for reported crimes to the county bility, walking away to commit another sim- intended to be a spiritual diatribe, much less assizes. Universal trial by a jury of free men ilar act or omission on an unsuspecting pub- an epistemological discourse on justice, but (women had to wait a few more centuries to lic. Are not the consequences of such a mis- for philosophical cover here, I return to the vote and serve on juries) for ordinary folk has carriage dire? No, not if you buy into the ancient Greeks once again. Aristotle (who only been around for about 350 years— notion of karma, in one form or another, for the life of himself could not get his sci- hardly that deep-rooted in antiquity. once again an Eastern belief in cause and ence right, leaving it to Lavoisier and others Lucky me, I had another jury trial in effect related to good or bad deeds and to clean up that whole earth, fire, air, and April, the week before our second quarterly intent. This means that, sooner or later, the water mess) devoted an entire book of the State Bar meeting. This time defending in bad actor gets caught or otherwise called to Nicomachean Ethics to the subject of justice. another rural county to the west, with excel- account, that the injured party deprived of Keying off Socrates and Plato, he posited lent opposing counsel and a wonderful trial justice recovers spiritually, if not monetarily, two kinds of justice, general and particular. judge, I found myself staring once again at and the judge and jury who botched the case The former was virtue expressed in relation a jury of total cyphers, no rocket scientists, find themselves in the same boat, sooner or to other people, or dealing fairly with them, no professionals, just another group of the later (for further enlightenment, see Final not taking advantage by lying or cheating. great unwashed who could not figure out Destination in any of its iterations on the sil- The latter, particular justice, contemplates the code words to use to avoid their civic ver screen). the correct distribution of just desserts to obligation. Once again we were dealing Karma takes time. C.S. Lewis recognized others. As to particular justice, Aristotle with a complex commercial dispute, and this in his writings, that ultimate justice is opined that an educated judge was needed none of the witnesses were prepared to not always dispensed by the courts, that the to make just rulings in cases; hence, the audition for villain status, much less saint- judicial branch of government is not infalli- scales of justice with the blindfolded judge hood. This jury, like the previous one, may ble, that rendering unto Caesar what belongs weighing the evidence and rendering a fair have cared about and embraced karma, but to him is not the whole ballgame. He says, decision every time. in this instance, there were two versions of “Justice means much more than the sort of Well, I am all about just desserts, from karma afoot when they began to deliberate. thing that goes on in law courts. It is the old baklava to syllabub to tiramisu, but I think This tangled mass of human debris (apolo- name for everything we should now call ‘fair- Big A’s dichotomy on justice could use a gies to Dante) made short shrift of the first ness’; it includes honesty, give and take, third dish, and that would be sauce for the two issues on liability, but then spent the truthfulness, keeping promises, and all that goose, AKA the Golden Rule. This ethic of better part of the next day battling over the side of life.” Toss in a belief in the afterlife, reciprocity strikes me as the ultimate recipe remaining issue, an affirmative defense that and it really is crickets for the malefactors for making justice a two-way street. So who- might have set my people free. (look what Patrick Swayze did to the bad guy ever—be it judge, juror, party, witness, or By mid-afternoon, they were hopelessly in Ghost). lawyer—strays from the assigned lane will deadlocked at 8-3 (one juror was excused for Well, if real (i.e., good or fair) justice is find himself or herself on the proverbial cause during deliberations because of a fam- meted out by the courts, and injustice is Road to Damascus, under the archetypal ily emergency), so everyone assumed, and addressed by karma, or whatever, what role Sword of Damocles, between Scylla and plausibly so, that the plaintiff was also in all of this is there for mere process? A lot, Charybdis, where the Ghost of Christmas I would venture, most of which falls to the Past might volley and thunder the offender CONTINUED ON PAGE 7

6 SUMMER 2019 STATE BAR OUTLOOK

The Passing of the Baton

B Y ALICE NEECE MINE

As you thumb through this issue of the while remaining humble human beings; and Boomer lawyers who are now moving into Journal, before you turn to The Disciplinary integrity was the hallmark of everything they their senior years of practice. Are we up to the Department article (to see if your name is did. task? n there, as the joke goes), take a minute to visit In the early 1990s, Don made a huge the In Memoriam sidebar on page 46. This is impression on a somewhat green State Bar Alice Neece Mine is the executive director of where the members of the State Bar who died ethics counsel when he asked her for an in- the North Carolina State Bar. during the preceding quarter are listed (your person consult because he had a particularly name should not be there). convoluted ethics dilemma Being of a certain age, there he was trying to untangle. I are now far too many names was initially intimidated by that I recognize in this sidebar this lawyer who clearly had so President’s Message (cont.) from quarter to quarter. This much more knowledge and issue of the Journal is dedicat- experience, not to mention holding the majority on this issue as well. ed to John McMillan whose prestige, than me. While I Opposing counsel immediately offered to name is on the In Memoriam struggled to appear up to the stipulate to a majority verdict, and of course list. John’s loss is particularly task, Don treated me as an some mental midget (moi) immediately poignant for anyone who has equal from the moment I refused. A mistrial was declared, and in short been closely affiliated with shook his hand. He deferred order the jury foreperson, who was firmly in the State Bar for the past 20 to my advice, encouraged me the plaintiff’s camp, informed me that the plus years. Plain and simple: to expand upon it, asked me majority of eight favored the defense on the he was a great lawyer and a probing questions, and lis- crucial issue that could not be resolved. So great human being. John practiced in Raleigh tened with the utmost attention and respect please excuse me while I go crawl under a and, while his good deeds impacted not only to my responses. I am not, to this day, sure rock and hide from Suzy Creamcheese and the State Bar and Raleigh but the entire state, that my advice to Don was worthy of this def- the Brain Police (with commendations to I’m sure there are many lawyers in other com- erence, but Don never did anything but treat Frank Zappa and the Mothers of munities who did not know him. If you read me as competent professional—the question- Invention—karma doesn’t hold a candle to Tom Lunsford’s tribute to John (page 8), you ing of my ability and worth was all on my that). Enough said. Exit stage left, pursued will wish that you had. side of the equation. By treating me in this by a bear... n John’s life and deeds are duly honored else- manner, Don helped me to move on in my where in this Journal. There are others on the career from self-doubt to self-assurance. G. Gray Wilson is a partner with the In Memoriam list who are also deserving of Through the gift of his respectful, understat- Winston-Salem firm of Nelson Mullins Riley & our attention, admiration, and homage. ed professionalism, I became a better lawyer. Scarborough LLP. Eleven of the lawyers on the list were licensed This is mentoring of the highest caliber. in 1968 or before, meaning that they were all At the January quarterly meeting of the lawyers for at least 50 years. Remarkable. State Bar Council, I spoke with one of our What is more remarkable is that many of past presidents about our shared grief over the Need to rent a law office located these lawyers were pillars of their local bars loss of John McMillan. Then we both within a law firm? Attorneys search and known, like John, by the lawyers in their remarked on the deaths of Don and Jack so for free in 40,000 zip codes. hometowns, and perhaps across the state, as quickly on the heels of John’s passing. The www.LawSpaceMatch.com Find the professionals of the highest caliber. loss of these pillars of the bar seemed insur- perfect amenities for renting a law Two of these senior lawyers were known mountable. Who will be our role models and office for your law practice instantly. to me personally: Don Cowan, who practiced mentors now? When we speak of “profession- And don’t forget to post your attorney in Greensboro and Raleigh, and Jack Stevens, alism,” who will we point to as our exem- profile on our site for more exposure. who practiced in Asheville. Both men were plars? We concluded that the baton has, gentlemen to their cores; exceptional lawyers indeed, passed to the generation of Baby

THE NORTH CAROLINA STATE BAR JOURNAL 7

It Was a Wonderful Life

B Y L. THOMAS LUNSFORD II

great lawyer

died recent-

ly. John B.

McMillan of the Wake CountyA Bar succumbed to cancer on February 6,

2019, at the age of 76, leaving behind a record of professional John McMillan and Tom Lunsford accomplishment, service, and leadership in North Carolina that has seldom been equaled and may never be surpassed.

John was, if anything, even more praise- tion of his imminent retirement. The guy on remember the day back in 2007 when, as a worthy as a public citizen, a family member, the left, John McMillan, is incidentally and new officer of the Bar Council, he advised me, and a personal friend. In the 37 years I was momentarily without something to comb. He with uncharacteristic and surprising blunt- privileged to work for and with North appears to be happy as well, in spite of his ness, that my office was a “dump,” entirely Carolina’s best lawyers on the State Bar’s gov- imminent retirement. When the picture was unworthy of the organized Bar. He said that erning council and its staff, I never encoun- taken, John well knew that his time was short, we would have to do something about it and, tered anyone who contributed more to the but he was intent on making the most of it— ultimately, he did. I don’t mean to suggest that common good. He was a lawyer’s lawyer, his being as alive as he could possibly be as a John was the only person responsible for get- own man, and the thoughtful conscience of lawyer in the company of lawyers. And, as was ting the thing out of the ground. Of course, anyone who had sense enough to be paying almost always the case where his involvement he wasn’t. Hank Hankins was president when attention. with the State Bar was concerned, I happened the planning began in earnest, and outstand- Upon my retirement as the State Bar’s to be standing by, basking in reflected glory. ing leadership was also provided by Bonnie executive director at the end of last year, I The second image associated with this Weyher, Jim Fox, Keith Kapp, Tony di Santi, received several wonderful gifts for which I essay is a lovely painting of the State Bar and John Silverstein, among many others. But will always be grateful. Two of the most treas- Building that was commissioned in my it wouldn’t have happened when it did and ured are being published with this article. honor. Though ostensibly referent to me, the how it did and as well as it did without the One is a photograph of a couple of good- painting has much more to do with John involvement of John McMillan. He concep- looking gentlemen at a bar meeting who seem McMillan. He, more than anyone else, was tualized the undertaking, he facilitated acqui- remarkably well reconciled to their hair loss. responsible for the initiative that resulted in sition of the site, he cannily addressed every The one of the right is yours truly, genetically what is now recognized as one of North political issue, and he was central to the pri- and perennially bald but happy in contempla- Carolina’s finest public buildings. I can well vate fundraising effort that generated three

8 SUMMER 2019 million dollars toward the construction and Those of us who were privileged to know him review of the State Bar’s programs, the inclu- furnishing of the building. Just as Yankee personally, have a great responsibility to tell sion in our code of ethics of a black-letter rule Stadium might never have come to be in the his story, especially among persons who are promoting pro bono service, and the creation absence of Babe Ruth, you can make the case new to the legal profession. They will need to of the Distinguished Service Award, now quite convincingly that the profession’s home understand what it takes to be a great lawyer known as the John B. McMillan in downtown in Raleigh is the “House that and what it means to be a great human being. Distinguished Service Award, which is the John Built.” There is, of course, a fairly detailed record only award that has ever been bestowed by the I would hasten to note that John of John McMillan’s service to the legal profes- State Bar Council. And all of this was under- McMillan did not limit his construction sion in the pages of the State Bar Journal. taken as he masterminded and helped orches- activities to matters law related. For instance, Indeed, it would be quite difficult to find any trate the process whereby the State Bar’s new were it not for his leadership and ability to issue of the magazine from the last 35 years headquarters building would be constructed. attract funding, dinosaurs might still be that did not reference directly or indirectly Following his service as an officer, John homeless and extinct in North Carolina. some aspect of John’s work on behalf of the continued his involvement with the State Bar Several years ago, John was instrumental in State Bar. For many years he dispensed justice in a variety of key roles. For many years he was raising money for the expansion of the to misbehaving lawyers as a member, and ulti- a member of IOLTA’s Board of Trustees and, Museum of Natural Sciences. In the process, mately chair, of the Disciplinary Hearing inevitably, became its chair. While on the he personally led a delegation from the muse- Commission. Incidentally, he schooled board, he championed the so-called “compa- um that successfully negotiated the purchase dozens of lawyers, like me, who appeared rability rule,” which had the effect of pro- of the fossilized Acrocanthasaurus that now before the hearing panels upon which he sat, hibiting banks from discriminating against occupies the facility’s third-floor dome. The on the finer points of trial advocacy and pro- IOLTA accounts in terms of interest paid. giant reptile, which is arguably the museum’s fessionalism, subjects in regard to which he Implementation of the rule had the effect of greatest treasure, annually thrills and terrorizes was a leading authority. He was subsequently sustaining the program’s revenues in a time of thousands of schoolchildren who have John elected by the lawyers from the 10th district as great economic uncertainty. The additional McMillan to thank, though they will proba- one of their representatives on the council. income engendered thereby, almost of all bly never know it. The dinosaur also keeps Over nine years and three terms, he served on which has been used to fund legal services for watch on the people working across the street and chaired numerous committees, including the poor, has increased access to justice in at the General Assembly, waiting to pounce if the Grievance Committee, where he excelled North Carolina—a particular passion of anyone ever tries to dismantle the sensible and in doing the right thing. As his eligibility to John’s—by a very significant amount. humane legislation for which John successful- serve as a councilor expired, the sages on the During the same period, John also served ly advocated as an incredibly effective lobbyist council’s Nominating Committee made the as chair of the North Carolina State Bar for many years. Unlike the schoolchildren, the easiest and best decision ever made by such a Foundation’s Board of Trustees. The founda- representatives and senators know that they group, and nominated him for service as an tion was created at John’s behest to raise and their constituents have a lot for which to officer of the State Bar. During the next three money to build and maintain the new State thank him. years which culminated in his presidency, Bar Building. As noted above, the fundraising Many other institutions essential to the John took a leading role in, among other fabric of our state would be ill-housed and ill- things, the initiation of a comprehensive CONTINUED ON PAGE 26 fed were it not for John McMillan. The roster of his known causes and charities is beyond impressive. John’s involvement was critical to the North Carolina Symphony, the North Carolina Zoo, the Nature Conservancy, the Boy Scouts, the University of North Carolina and its School of Law, the Clean Water Management Trust Fund, Legal Services of North Carolina, the Democratic Party, and, of course, the State Bar, just to name a few. I make reference to his “known” affinities quite advisedly, understanding that his modesty and humility have made it virtually impossi- ble for anyone to readily compile a complete inventory of his service and beneficence. His obituary, though quite comprehensive in its

listing of his engagements, was necessarily Rick Grayson abridged. If ever a man deserved a well- researched biography, it was John McMillan. In its absence, we are fortunate to have a sig- nificant amount of oral history to share.

THE NORTH CAROLINA STATE BAR JOURNAL 9

Ingenuity, Chicanery, and Deception: The History of the John B. McMillan Distinguished Service Award

B Y ANTHONY S. DI SANTI

his article reveals how the Distinguished Service Award much attention to himself. However, I remembered the protocol that required the council to meet briefly on Thursday at noon became the John B. McMillan Distinguished Service Award.1 to officially elect the officers who would be installed that evening. As the incoming pres- ident, one of my duties that Thursday was to It required ingenuity, chicanery, deception, and the stretching host the 50 Year Lawyers Luncheon and greet the honorees beforehand, which would preclude me from attending the short coun- of the rules, a strange process for the State Bar Council. cil meeting at which, presumably, I would be elected, and at which I might present my proposal. To assure that John did not attend T this meeting, I told him that I had an urgent I became vice-president of the State Bar in deserved that honor. I decided that my first matter that I needed to address with the October 2008, the same time that John act when I became president would be to council, and asked if he would greet the 50 McMillan became president of the State Bar. present to the State Bar Council the proposi- Year Lawyers before the luncheon on my I had worked with John on numerous mat- tion of changing the name of the award to the behalf. Of course, John readily agreed to do ters after my election by the 24th Judicial John B. McMillan Distinguished Service so. When the council meeting was called to District (now the 35th Judicial District) as its Award. Now to the ingenuity, chicanery, order, the election was conducted and I councilor in December of 1999. However, deception, and the stretching of the rules. made the proposal to the council that the working together as officers of the State Bar To change the name of the award Distinguished Service Award be renamed in for a number of years provides an opportuni- required the affirmative action of the State honor of John B. McMillan, and that I be ty to interact on a professional, social, and Bar Council. The entire council generally authorized to present the first John B. casual basis that really enables one to learn the only meets on the Friday morning of each McMillan Distinguished Service Award to true character of a person, and in certain quarterly meeting. I was being installed as John himself at the installation dinner that instances develop a true and lasting friend- president on the Thursday evening before, evening. The request was unanimously and ship. Fortunately for me, working with John and it was my goal to announce the name enthusiastically approved by the council, but those many years allowed us to establish that change during my presentation after taking as I was proposing to adjourn the meeting, a true and lasting friendship. I had earlier the oath of office from then Chief Justice member of the council requested the floor to learned the true character of John, and ana- Sara Parker. Also, I knew if I placed the issue raise a point of order: a criteria of the State lyzing him as a friend in conjunction with the on the agenda for Friday’s council meeting, Bar awarding the Distinguished Service award criteria established for the John would be aware of the proposed Award is that each recipient must have a Distinguished Service Award, it was obvious change, and knowing him as I did, he would criminal background check conducted that he was the epitome of the lawyer who not allow the honor as it would bring too before its presentation. It was obvious that

10 SUMMER 2019 The above photo, part of the State Bar’s art collection, was taken by John McMillan during his several years of camping safaris in Kenya, Tanzania, Botswana, and Zambia. the council considered the point of order to simply seeing his usual smile, but with subtle of our state. His standard will be recognized be ridiculous with regard to John, but, as tears in his eyes, made the chicanery, decep- in the future as the North Carolina State Bar chair of the meeting, I knew the councilor tion, and stretching of the rules worthwhile. considers and awards the John B. McMillan who had raised the issue was correct. To After a courageous battle against cancer, Distinguished Service Award to the lawyers of resolve the issue, relying on my limited John died February 6, 2019. At the last quar- our state who practice and live by the stan- knowledge of Roberts Rules of Order, I ruled terly meeting of the State Bar Council in dard set by John. n that the speaker was out of order, refused to January 2019, Tom Lunsford, who recently concede the floor to the speaker, and retired after many years as executive director Anthony di Santi, former president of the declared the meeting adjourned, thus com- of the State Bar, was honored at a dinner in North Carolina State Bar, is a partner with the pleting the chicanery, deception, and stretch- Raleigh, which John attended. Regardless of Boone firm of di Santi Watson Capua Wilson & ing of the rules, albeit with the enthusiastic how ill he was, when he joined my wife, Garrett, PLLC. He was presented with a John endorsement of the council. Debbi, and me at our table, he met us with B. McMillan Distinguished Service Award in At the installation dinner that evening, the same infectious smile that I saw when I May 2019. after Chief Justice Parker administered my met John at my first council meeting in oath of office, I officially announced that January 2000. As we talked, he would not Endnote henceforth, the North Carolina State Bar address his health situation, and would only 1. The John B. McMillan Distinguished Service Award is Distinguished Service Award would be the discuss the status of our health, our recent trip the highest, and only, award presented by the North North Carolina State Bar John B. McMillan to Colorado to visit with our daughter’s fam- Carolina State Bar to its members. In January 2007, State Bar Vice-President John B. McMillan presented an Distinguished Service Award, and that it was ily, which includes our two young grandsons, idea to the Issues Committee to implement a program my honor to present the first John B. and his love for Blowing Rock and the North by which the State Bar recognized the positive achieve- McMillan Distinguished Service Award to Carolina mountains where we live and where ments of lawyers for their work in the profession, their John B. McMillan. John’s reaction was the he loved to visit. community, and the state. As a result of the idea, the Distinguished Service Award program was approved by complete surprise that I anticipated, and One of my proudest achievements as State the council in April 2008. For an excellent article regard- when he joined me at the podium to accept Bar president was the naming of the John B. ing the initiation, implementation, and award criteria of the award, as I also anticipated, he expressed McMillan Distinguished Service Award and the Distinguished Service Award program, Who Inspires his thanks and stated how humbly honored the presentation of the first to John. In my You by Suzanne S. Lever, assistant ethics counsel and staff liaison to the Distinguished Service Award Committee he was, but chided me for the chicanery, opinion, he set the standard not only for the in the Summer 2018 edition of The North Carolina deception, and stretching of the rules that award, but for his life as a lawyer, husband, State Bar Journal can be accessed via the State Bar’s web- enabled us to share that moment. For me, friend, member of his community, and leader site, ncbar.gov, via its News and Publications Section.

THE NORTH CAROLINA STATE BAR JOURNAL 11

Fixing a Broken Election System—Our Democracy Depends On It

B Y TOM ROSS

“Something must be done or we shall disappoint not only America, but the whole world…We must make concessions on both sides.” — Elbridge Gerry

he above quote came from the boundaries of one of the newly drawn Elbridge Gerry—signer of voting districts and determined it looked like the Declaration of a mythical salamander. The cartoonist Independence, framer of dubbed the resulting contorted voting district the US Constitution, a “gerrymander.” drafterT of the Bill of Rights, governor of Two hundred years later, we’re still using Massachusetts, US congressman, and fifth the term because gerrymandering is still vice-president of the United States of plaguing our democracy. In fact, because of America—in 1787 at the Constitutional advanced software, sophisticated algorithms, Convention. This was a time of crisis in our and troves of big data, voting district maps nation’s history, when there was a need for can profile and select which voters should be leaders to come together to fix a broken gov- in certain districts to maximize a political erning system that was crippling the nation. party’s likelihood of winning elections. Such The Articles of Confederation had proved to precise manipulation allows politicians to be ineffective, and our young country needed choose their voters instead of voters choosing a new governing document to guide it. their politicians. When politicians can decide Elbridge Gerry (pronounced “Gary”), of the types of voters they do (or do not) want rymandered world. Citizens are losing confi- course, is not remembered for fixing the in their districts, our democracy is under- dence in their government. The practice of broken system that existed under the mined. People’s votes are diluted and increas- partisan gerrymandering has broken our sys- Articles of Confederation, but rather for ingly made meaningless by this practice. tem. We need to fix it. And we need to fix it being the namesake of gerrymandering, a Political polarization is exacerbated by this now. Our democratic form of government term used to describe the practice of manip- practice, in part because the only challenge depends on it. ulating voting district lines to favor one incumbents in gerrymandered districts fear is party over another. from the more extreme elements within their How Technology is Used in the Process The semi-eponymous term “gerryman- own party. Working across the aisle is seen as Once every ten years, after the US Census der” was coined in 1812 when Gerry was an ideological weakness. There is a disincen- is completed, our voting district lines must governor of Massachusetts. Governor Gerry tive to compromise and, thus, finding solu- be redrawn to account for changes in popu- approved a redistricting plan that was drawn tions to difficult problems becomes nearly lation, so as to ensure that each voting dis- in such a way that favored his Democratic- impossible. The long history of gerryman- trict contains an equal number of people, so Republican Party candidates over the dering by both major political parties has put as to comply with the “one person, one vote” Federalist Party’s candidates. A political car- our democracy at serious risk. Our govern- standard enunciated by the US Supreme toon emerged shortly thereafter that traced ment functions poorly or not at all in a ger- Court in Baker v. Carr. It is important that

12 SUMMER 2019

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each vote have equal value and carry the How Votes are Diluted How Polarization is Increased same weight if we are to have a government Traditionally, the party in the majority The creation of safe districts has led to that is truly of the people, by the people, and holds the pen that is used to draw the new the polarization of our politics. Safe districts for the people. In the past, new voting dis- voting districts and controls the redistricting push candidates on both sides of the aisle to trict lines in North Carolina for members of process. No matter which party is in control, the extremes of their respective parties. the US Congress and for members of the at the time of redistricting two principal tac- When a voting district is overwhelmingly North Carolina Senate and House have been tics are used to leverage the information stacked for one party, candidates become drawn by the General Assembly. City about how people will vote: cracking and more ideological in their views. Council, County Commission, and School packing. Cracking dilutes the power of citi- Furthermore, a representative elected in a Board districts have traditionally been drawn zen’s votes by spreading like-minded voters safe district is all but guaranteed to be re- locally. In drawing new voting districts, the out across multiple voting districts, to ensure elected, and therefore has no incentive to be General Assembly and local officials must that they do not have a concentrated majority truly accountable to all the voters—he or comply with the Voting Rights Act of 1965, at the voting district level. Packing dilutes the she need only appeal to those in his or her which attempts to protect minority voters power of citizen’s votes by concentrating like- party whose votes really matter (the “base” from having their votes diluted or dimin- minded voters in a few districts to diminish voters) in the safe district to ensure re-elec- ished. Once population headcounts and their voting power in other voting districts. tion. And, if the representative does some- racial information have been taken into The idea behind these gerrymandering redis- thing to upset the base of voters, then he or account, the practice recently has been to use tricting schemes is to maximize the number she risks being subjected to a primary by a sophisticated software that includes informa- of districts the majority party wins and to candidate that is most likely a more extreme tion on voting history, political affiliation, minimize their number of losses. This is why member of the party. income level, age, social media information, we see voting district lines that zig and zag online shopping data, as well as magazine or across streets, neighborhoods, and communi- How Compromise is Discouraged newspaper subscription information. All of ties. The real harm, however, is that these In this polarized environment, representa- these data points are fed into advanced algo- methods are designed to waste people’s tives are disincentivized to work across the rithms that are essentially able to predict how votes—creating “safe” districts” that ensure a aisle for common sense solutions to the many people will vote, down to the city-block certain party will win just because of the way problems we face. If they compromise with level. the district lines are drawn. the opposite party, they are seen as ideological-

THE NORTH CAROLINA STATE BAR JOURNAL 13 ly weak and subject themselves to having their General Assembly. Although no process will would be more difficult for subsequent legis- own party put forth an opposition candidate ever be perfect, I believe that the panel’s work latures (controlled by either party) to change in the primary. In safe districts, voters often clearly demonstrates how removing partisan them. Second, we need both Republicans feel their vote no longer matters—that the information from the redistricting process and Democrats to support this bill to get it incumbent or nominee of the party in control can produce voting districts that more accu- on the ballot in 2020—in North Carolina, a of the district will win regardless of whether or rately reflect the voters of North Carolina, constitutional amendment must be passed not they vote. Over time, this situation has and in turn better serve our needs. by 60% of both the North Carolina House resulted in more and more North Carolinians Since the redistricting simulation in 2016, and Senate before it can be put to the people feeling disengaged from their democracy. I have worked with a bipartisan group of for a vote. Who is to blame? Both major political parties North Carolinians to found a nonprofit If we are successful in getting our initiative are guilty, and as a former superior court called North Carolinians for Redistricting on the ballot, we are confident that the voters judge, I know guilty when I see it. Reform (ncredistrict.org), which I co-chair of North Carolina will pass it. The broken We have serious issues facing our state— with Representative Chuck McGrady (R – system we are now living with hurts all of us, issues around the economy, education, envi- HD 117). We have brought together a Board and therefore redistricting reform is an issue ronment, crime, and heath care. To be solved, of Directors comprised of North Carolinians that Republicans, Democrats, and these issues require our elected officials to who are Democrats, Republicans, and inde- Independents should support. work together to find solutions that the peo- pendents. Our effort is singularly focused on Furthermore, we believe that now is the ple of North Carolina so desperately desire, fixing the broken redistricting process in right time for redistricting reform in North need, and deserve. However, our gerryman- advance of the voting district lines being Carolina. There is so much uncertainty right dered system has become so dysfunctional redrawn in 2021. Together, our group has now, including uncertainty as to how the US that it prevents our representatives from studied, discussed, and drafted a solution: Supreme Court will rule in Common Cause v. being accountable to the voters and doing The Fairness and Integrity in Redistricting Rucho, the partisan gerrymandering case per- what is needed to move our state forward. (FAIR) Act. taining to North Carolina congressional dis- The FAIR Act, or House Bill 140, intro- tricts, and uncertainty as to how Common How We Should Fix It duced by Representative McGrady, seeks to Cause v. Lewis, the case on partisan gerryman- In 2016, as a Terry Sanford distinguished bring transparency and clear, nonpartisan dering as it pertains to our North Carolina fellow at the Sanford School of Public Policy, rules to the redistricting process by means of legislative districts, will be resolved. There is I was on a mission to figure out how to end a constitutional amendment. Our solution also a great deal of political uncertainty as we partisan gerrymandering in North Carolina. I proposes that legislative staff draw the voting approach the 2020 election cycle, and no one gathered together ten former North Carolina districts, subject to the process and guidelines knows which party will emerge victorious. judges who agreed to serve as part of a redis- prescribed by the constitutional amendment, This uncertainty creates an opportunity tricting experiment to draw nonpartisan vot- and that the General Assembly then votes on for North Carolina—an opportunity for real ing districts. The judges—five Democrats those maps. The process and guidelines that reform that will allow our government to and five Republicans—included five former are set forth in the FAIR Act’s constitutional function more like the Founding Fathers chief justices of the North Carolina Supreme amendment are as follows: the population of intended. We have an opportunity, in this Court, a former associate justice, two court of each district must be equal, county and geo- moment in our history when our democracy appeals judges, and two superior court graphic boundaries must be respected to the is in crisis, for our political leaders in both judges. The panel was tasked with creating extent practicable, and districts must be com- major parties to come together to fix a broken North Carolina congressional districts with- pact and contiguous. Also, the following data system that is crippling our state and our out using political party registration or voting is prohibited from being used in the legisla- nation. Both parties have been the victims of history, while insuring that the districts they tive drafting process: prior voting history, sophisticated gerrymandering and both par- drew had essentially equal populations and party affiliation, residence of the incumbent ties have enjoyed its political spoils. The con- complied with the Voting Rights Act of 1965. or declared candidate, demographic informa- sistent loser no matter which party is in con- We gave them access to map drawing soft- tion (except to comply with state and federal trol has been the voters, the citizens of North ware and election law attorneys. After four law), and any data that could be used with Carolina. It is going to take all of us, no mat- months, the judges completed their work and reasonable certainty to identify how a group ter our political leanings, coming together to the congressional map they drew was tested of people votes. Additionally, all data and accomplish the reform our democracy so des- for political competitiveness using voting his- methodology that is used in the legislative perately needs. tory data from prior elections. The resulting drafting of voting districts would be required Despite the jokes we all endure, I believe maps drawn by the judges yielded the follow- to be disclosed five days prior to the introduc- lawyers are still respected by the overwhelming ing results: 6 of the 13 voting districts were tion of the redistricting plan. majority of North Carolinians. The opinions likely to be won by a Republican, 4 of the 13 Our board believes that enshrining these of lawyers matter to their fellow citizens. voting districts were likely to be won by a guidelines into the North Carolina Lawyers have an outsized voice in the public Democrat, and 3 of the 13 voting districts Constitution is critically important to get arena. Lawyers have influence. The time has were likely toss-up districts. These results both Republicans and Democrats to the come to use your privileged status as a member were markedly different from the results of table on this issue. First, if the FAIR Act’s the elections held using maps drawn by the principles are “constitutionalized,” they CONTINUED ON PAGE 17

14 SUMMER 2019

Hurricane Florence: A Chance for Attorney Volunteerism

B Y KATHERINE ASARO

On September 14, 2018, Hurricane Florence made landfall in the Carolinas. The storm brought winds over 90 miles per hour and over three feet of rain in some locations. With $44 billion in estimated damages and lost output, Florence is one of the ten costli- est hurricanes in United States history. Disasters leave in their wake myriad civil legal issues that, if not addressed early on, can lead to even more costly problems in the long run, particularly for the more than 639,093 residents eligible for civil legal aid in the 34 North Carolina counties designated as disas- ter areas due to Florence. Lawyers are uniquely equipped to resolve many of these disaster-related problems, returning survivors to productivity and preventing future reliance on the state and federal government. The North Carolina Pro Bono Resource Volunteer paralegals check in clients at the Morehead City FEMA Appeal and Reconsideration Clinic. Center (PBRC), a program of the North Carolina Equal Access to Justice Commission, was launched to assist lawyers in fulfilling their professional responsibility the IOLTA Board of Trustees were able to • guidance regarding disaster recovery to provide pro bono legal services. The PBRC offer a special grant cycle dedicated to pro- assistance and programs for survivors, partners with legal aid, local bars, law viding legal assistance to hurricane survivors. • clarification of any written correspon- schools, community groups, and other stake- The PBRC sought and received funding dence received from FEMA, holders to connect attorney volunteers to pro from IOLTA, Ellis & Winters, Kilpatrick • housing assistance and rental resource bono opportunities that address unmet legal Townsend & Stockton, Nelson Mullins information, needs like those caused by Hurricane Riley & Scarborough, and Troutman • answers to questions, resolution to Florence. Sanders for a staff attorney to lead the pro problems, and referrals to agencies that may In anticipation of the damage Hurricane bono efforts surrounding hurricane legal provide further assistance, Florence would cause, PBRC Director Sylvia assistance. Katherine Asaro was hired in • status of applications being processed by Novinsky connected with the North October to serve as the staff attorney in FEMA, Carolina Bar Association’s Young Lawyers charge of these efforts. • Small Business Administration (SBA) Division (YLD), the North Carolina Bar One of Katherine’s first priorities became program information regarding assistance, Foundation, and Legal Aid of North providing legal information to hurricane sur- and Carolina to discuss how pro bono attorneys vivors at FEMA Disaster Recovery Centers • legal assistance. might provide needed legal assistance on the (DRCs). Some of the services provided at The PBRC, along with Legal Aid of NC ground in the affected areas. Given the DRCs included: and the NC Bar Association’s YLD, organ- urgent need for this legal assistance, NC • information about FEMA or other dis- ized attorneys to staff tables at DRCs. The IOLTA Executive Director Mary Irvine and aster assistance programs, PBRC and its volunteers staffed the New

THE NORTH CAROLINA STATE BAR JOURNAL 15 Bern DRC on Fridays in two shifts—one in site FEMA Appeal and Reconsideration with information about the clinic, the PBRC the morning and one in the afternoon—with Clinics in partnership with Legal Aid of targeted organizations that would have large attorneys signing up to volunteer for three North Carolina and the North Carolina Bar networks of people affected by the storm: the hours. The DRC in New Bern remained Foundation. largest employers in Craven County, social open until late-December 2019, and the In December, planning for this next service agencies, and places of worship. After PBRC recruited and oversaw pro bono attor- phase began. After consulting with Legal Aid communicating with these various local neys there until the last day it was open. In and capitalizing on PBRC’s experience in organizations, the first clinic was full with a addition, pro bono attorneys staffed the New Bern and an understanding of the com- long waitlist. Nevertheless, as was the case at Fayetteville DRC on Wednesdays from mid- munity, the PBRC scheduled the first clinic each of the four clinics, pro bono attorney, November until it closed in December. Over for January 12 in New Bern. As a prelimi- paralegal, and law student volunteers ensured the course of the PBRC DRC work, 35 nary step, the PBRC approached Michael no client was ever turned away. attorneys volunteered, helping 49 survivors Morgan, commission member and associate The planning phase for the New Bern with brief advice and counsel on a variety of justice of the Supreme Court of North clinic offered a chance to create an effective issues related to Hurricane Florence. An issue Carolina—a New Bern native—for advice model that would be replicated in the subse- that consistently emerged from these client on where to hold the first clinic. Justice quent clinics. The New Bern event began conversations was the need for help with Morgan had many ideas for potential loca- with introductory remarks by Justice appealing FEMA decisions. As a result, the tions, but his suggestion to reach out to the Morgan. After that, Lesley Albritton, head PBRC took the next step of organizing on- local community college proved to be a of Legal Aid of NC’s disaster relief efforts, stroke of genius. The first clinic was held at presented on FEMA policy and procedure. Craven Community College and the subse- This presentation was repeated in the after- quent clinics were all also held at local com- noon at each clinic. Lesley’s information ses- munity college campuses—Cape Fear sions were open to the public, and atten- Community College in Wilmington, dance was required prior to an attorney Carteret Community College in Morehead meeting. After the session, clients went to a City, and Lenoir Community College’s Jones waiting room until they were called for their County Center in Trenton. Partnering with a attorney meeting. Lesley also served as the community college fulfilled many of the subject matter expert for the attorneys as needs of each legal clinic perfectly—excellent they met with survivors. Legal Aid attorneys facilities, technologically advanced capabili- Richard Klein and Brad Piland also helped ties, parking, and an air of legitimacy for the as subject matter experts. clinic participants. The backing of their local The New Bern clinic was a resounding community college—a place the public success. Nineteen attorneys, three law stu- knows and trusts—was a great strength to dents, and two paralegals met with 49 sur- the success of the clinics. vivors. The information sessions were held With the location in place, preparation in a large room in the school’s student cen- began for the New Bern clinic itself. ter, and the attorney meetings were held in Attorneys, law students, and paralegals were several computer labs across campus. Of recruited to volunteer at the clinic. Attorney course, the event was not without its volunteers ranged from current working “bumps.” Originally, FEMA Appeals were attorneys to retired attorneys, and they came to be drafted using an online portal that from all over North Carolina to the eastern crashed upon submission of the client’s mat- part of the state to help those impacted by ter. But everyone persevered. The attorneys Florence. In addition, paralegals were pivoted and reentered the clients’ informa- absolutely instrumental to the success of the tion in an appeal template in Microsoft clinics. Rachel Royal, pro bono chair of the Word and drafted the appeals that way. NC Bar Association’s Paralegal Division, Despite the initial lost time and effort, at the We add value to your recruited paralegals for each clinic. They con- end of the day the volunteers and survivors ducted check in and check out, and did all left happy and hopeful. Ben Williams, an practice by extending your onsite intakes for walk-in clients. Volunteers attorney volunteer, reflected on the clinic expertise and helping your were supported by Legal Aid of North with this: “The Pro Bono Resource Center’s clients reach their Carolina’s and New York Legal Assistance Appeal Clinic was an inspiring event. It was philanthropic goals. Group’s training materials, developed during great to see so many advocates from around a prior emergency’s FEMA appeals process. the state come together and dedicate a day Similarly, Hurricane Florence survivors to helping fellow Tar Heels who had their CALL 800.532.1349 were invited to sign up for free appointments lives upended by Florence. I left the event NCCOMMUNITYFOUNDAATTION.ORG for legal advice and counsel. In addition to amazed by the persistence and optimism of contacting local legislators and news outlets the people we helped.”

16 SUMMER 2019 Left: A pro bono attorney and a UNC law stu- dent speak with clients at the Morehead City FEMA Appeal and Reconsideration Clinic. Below: A client sorts through records to prepare FEMA appeal paperwork. (Photo Credit: Donn Young)

After New Bern, the second clinic was ran check-in, check-out, held on February 9 in Wilmington. Twenty- and walk-in intake. two attorneys, seven paralegals, and six law The PBRC is honored students served 57 survivors over the course to have been able to facilitate these pro bono to help.” When asked about the best part of of the day-long event. Wilmington was the volunteer experiences and is grateful to NC the clinic, another survivor wrote, “[H]aving busiest clinic in terms of volume of clients IOLTA for funding these needed disaster a compassionate, sympathetic, and knowl- served. The third clinic was held on relief efforts and to partners for their sup- edgeable person to help us through this February 23 in Morehead City. This clinic port. After each clinic, attorneys submitted process. We had more help from our volun- featured introductory remarks by North evaluations to the PBRC regarding training teer professional than we did from [anyone Carolina State Senator Norman Sanderson, and clinic experiences. Most told the PBRC so far].” n who represents Carteret County. At the that they were grateful to be able to help Morehead City clinic, a large group of law North Carolinians in need in a way that cap- Katherine Asaro is the staff attorney for the students from UNC and several from Duke italized on their skills—their legal skills. One North Carolina Pro Bono Resource Center. made it possible for each attorney to have a attorney said, “I volunteered because it was a law student help them during the clinic. great way to effectuate my good intentions. Fifteen attorney/law student pairs served 42 After the storm, I spent days hauling soaked clients in Morehead City. Two more law stu- drywall and ductwork, too. Both were grati- dents sat with survivors and interviewed fying, but volunteering for pro bono clinics Fixing a Broken Election them about their experiences since put my more unique skill set to use. There is Hurricane Florence made landfall. In addi- nothing like the satisfaction of feeling like System (cont.) tion, nine paralegals ran the administrative you provided much needed assistance. The end of the second event. camaraderie with the other volunteer legal of the Bar and as a professional to support At the first clinic in New Bern, a survivor staff and the good people from NC Pro meaningful reform of our redistricting process. spoke to the PBRC about hosting a clinic in Bono was a lovely extra.” I call on each of you to join me and North her community, Trenton, North Carolina. The PBRC is also grateful to the survivors Carolinians for Redistricting Reform in advo- Jones County, where Trenton is located, was who came to the clinics for help. Clients cating for a nonpartisan redistricting process hit especially hard by Hurricane Florence— shared deeply personal experiences of loss that will restore fairness to our election dis- many buildings, including the court house and resiliency. Many cried when describing tricts. The security and health of our democ- and public schools, are still closed due to what happened to them and what racy, as well as the future of our beloved Old flood and storm damage. The PBRC was Hurricanes Florence and Michael have left North State, depend on how each of us able to hold its fourth and final clinic in behind. Many also left empowered with legal responds. Trenton on March 6. The Trenton clinic was information and assistance. Volunteer attor- different than the first three in that it was neys played a significant role in helping to Tom Ross is co-chair of North Carolinians held on a weeknight with a single informa- explain a process that can be confusing and for Redistricting Reform, a North Carolina tion session. The Trenton clinic was the intimidating. When asked about their expe- bipartisan non-profit focused on moving North busiest in terms of walk-ins and clients seen rience overall, one client gave this feedback Carolina to a nonpartisan redistricting process. by attorneys. In Trenton, nine attorneys saw about the clinic: The best part was “the com- He also serves as president of the Volcker 18 clients, and Legal Aid completed intake passion everyone showed for the folks affect- Alliance, a New York non-partisan focused on for 20 survivors. In addition, five paralegals ed by the hurricane. They genuinely wanted advancing effective management of government.

THE NORTH CAROLINA STATE BAR JOURNAL 17

Tort Claims for Alienation of Affections and Criminal Conversation are Alive and Well in North Carolina

B Y G. EDGAR PARKER

hile most states have abol-

ished the common law tort

claims of alienation of affec-

tions and criminal conversa- tion, and while thereW have been many attempts by North Carolina attorneys to abolish them, ©iStockphoto.com/apeyron these tort claims continue to flourish in North Carolina.1

The recent attempts by North Carolina court of appeals to which this case was opponents of alienation of affections and assigned has acted under a misapprehen- criminal conversation to abolish the torts sion of its authority to overrule decisions through legislative and judicial means is not of the Supreme Court of North Carolina new. The first serious challenge to the torts and its responsibility to follow these deci- North Carolina General Assembly to elimi- was by the North Carolina Court of Appeals sions, until otherwise Ordered by the nate and abolish these torts. Each year, legisla- in the case of Cannon v. Miller, 71 N.C. App. Supreme Court. tive committees discussed and debated these 460 (1984), vacated 313 N.C. 324 (1985). It is therefore Ordered that the Petition for bills; and each year the bills were defeated In a 37-page opinion, the court of appeals Discretionary Review is allowed for the resulting in alienation of affections and crim- held that alienation of affections and crimi- sole purpose of vacating the decision of inal conversation continuing to be recognized nal conversation were unconstitutional. In a the court of appeals purporting to abolish and enforced. one-page opinion, the North Carolina the causes of action for Alienation of In 2009 the North Carolina General Supreme Court vacated the court of appeals Affections and Criminal Conversation. Assembly enacted a statute with reference to decision stating: Every year from approximately 1999 these torts. The statute, N.C.G.S. § 52-13 It appears that the panel of judges of the through 2008, bills were introduced into the provided:

18 SUMMER 2019 (a) No act of the Defendant shall give rise defendant’s Rule 12(b)(6) motion to dismiss strong. As explained above, these torts to a cause of action for alienation of affec- on the ground that these torts are facially deter conduct that causes personal injury; tions or criminal conversation that occurs unconstitutional. In reversing the trial court’s they protect promises made during the after the plaintiff and the plaintiff’s order, the court of appeals in Malecek held marriage; and they help preserve the insti- spouse physically separate with the intent that the torts of alienation of affections and tution of marriage, which provides innu- of either the plaintiff or the plaintiff’s criminal conversation are constitutional and merable benefits to our society. spouse that the physical separation further stated: ***… our state’s common law causes of remain permanent. action for alienation of affections and (b) An action for alienation of affections *** criminal conversation do not violate the or criminal conversation shall not be com- Fourteenth Amendment. menced more than three years from the ***It is well-settled that alienation of affec- last act of the defendant giving rise to the tions and criminal conversation seek to *** cause of action. remedy an injury to a person. Misenheimer (c) A person may commence a cause of v. Burris, 360 N.C. 620, 624, 637 S.E.2d Dr. Williams (defendant in the case) next action for alienation of affections or crim- 173, 176 (2006). Moreover, although the argues that alienation of affections and inal conversation against a natural person Supreme Court in Lawrence (Lawrence v. criminal conversation violate his rights to only. Texas, 539 U.S. 558 (2003) did not free speech, expression, and association The act was effective October 1, 2009, explain what it meant by an “institution guaranteed by the First and Fourteenth and is applicable to all actions arising from the law protects,” the institution of mar- Amendments. acts occurring on or after that date. riage seems an obvious choice. Marriage We agree with Dr. Williams (defendant in In the opinion of the undersigned, the is, after all, perhaps the most important the case) that, even where the challenged new statute merely cleared up a few issues institution in human history. “The cen- causes of action are based solely on the that many practitioners, whether representing trality of marriage to the human condition existence of an extra-marital sexual rela- plaintiffs or defendants, had struggled with in makes it unsurprising that the institution tionship, they can implicate protected prosecuting and defending against these has existed for millennia and across civi- speech and expression. actions over the years. The statute did not lizations.” Obergefell v. Hodges, ___ US change the substantive law of and the ele- ___, ___, 135 S. Ct. 2584, 2594 (2015). *** ments required to prove alienation of affec- “Its dynamic allows two people to find a tions and criminal conversation. Under the life that could not be found alone, for a …we agree with Dr. Williams (defendant new statute, the acts must occur before the marriage becomes greater than just the in the case) that facing liability for engag- spouses separate with intent by one of them two persons. Rising from the most basic ing in intimate sexual relations with a to separate permanently. In other words, the human needs, marriage is essential to our married person can implicate the First and act giving rise to a cause of action for alien- most profound hopes and aspirations.” Id. Fourteenth Amendment rights to free ation of affections and criminal conversation “Importantly, marriage is a commitment. speech and expression. must occur pre-separation. Second, the Among the most central vows in a mar- But, as with the substantive due process statute clarified the statute of limitations riage is the promise of fidelity.” Id. at claim discussed above, the mere fact that related to the two torts. A third clarification, 2608. In most marriages, this means a these common law claims can burden the which most practitioners thought was the promise of monogamy; an agreement to right to free speech and expression does North Carolina law without the need for a share romantic intimacy and sexual rela- not mean they must be struck down. In statute, stated that a person may only sue a tions only with one’s spouse. *** …the most applications of these torts, the state is natural person and cannot sue the person’s state has a legitimate interest (indeed, a not concerned with the content of the inti- employer for alienation of affections and substantial interest) in protecting the insti- mate speech or expression that occurs in criminal conversation. tution of marriage, ensuring that married an extra-marital relationship. Instead, the Over the years, many attorneys represent- couples honor their vows, and deterring state seeks to deter and remedy the harm- ing defendants in these actions have alleged as conduct that would cause injury to one of ful effects that result from acts that cause an affirmative defense that the tort claims vio- the spouses. people to break their marriage vows, late the rights of the defendants under the US We thus turn to the critical question pre- inflict personal injury on others, and dam- and North Carolina Constitutions. As of this sented here: is the state’s need to protect age the institution of marriage. Put anoth- date, no attack on the constitutionality of these interests sufficient to justify private er way, these torts may restrict certain these torts has prevailed. tort actions that restrict one’s right to forms of intimate speech or expression, The most recent constitutional attack on engage in intimate sexual conduct with but they do so for reasons unrelated to the alienation of affections and criminal conver- other consenting adults? content of that speech or expression. sation was in 2016 in Malecek v. Williams, We hold that it is.*** _____ N.C. App. ____, 804 SE2d 592 ***These causes of action do not demean *** (2017), review denied, a Forsyth County the existence of any group of people. They alienation of affections and criminal conver- apply evenly to everyone. Moreover, the These common law torts are facially valid sation action in which the trial judge granted state’s interest in preserving these torts is under this standard. They further the

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state’s desire to protect a married couple’s rights does not render these torts facially criminal conversation have evolved without vow of fidelity and to prevent the personal unconstitutional. the need to change the elements of the torts. injury and societal harms that result when We emphasize that our holding today They have stood the test of time. The ele- that vow is broken. As explained above, does not mean that every application of ments of these torts are clear and well- preventing these personal injuries and these common law torts is constitutional. defined. Alienation of affections and criminal societal harms is a substantial governmen- There may be situations where an as- conversation are as applicable today as they tal interest. Moreover, the state’s interest is applied challenge to these laws could suc- were in the common law years ago. unrelated to the content of the protected ceed. Take, for example, one who counsels At the present time in North Carolina, the First Amendment right. If the defendant’s a close friend to abandon a marriage with court of appeals is deciding approximately the actions deprived a married person of the an abusive spouse. But this case, as the same number of alienation of affections and love and affection of his or her spouse, the parties concede, is not one of those cases. criminal conversation appeals as it has deter- state will impose liability regardless of It was decided as a facial challenge on a mined in the past 20 to 30 years. In recent what the defendant actually said or did. motion to dismiss at the pleadings stage. years, the Supreme Court has not determined Cf. City of Cincinnati v. Discovery Network, In the future, courts will need to grapple any appeals in these types of cases. In 2015 Inc., 507 U.S. 410, 429 (1993). *** with the reality that these common law the court of appeals heard two appeals; in torts burden constitutional rights and like- 2016 three appeals; in 2017 one appeal; and Simply put, these torts are intended to ly have unconstitutional applications. For as of December 14, 2018, two appeals. remedy harms that result when marriage now, we hold only that alienation of affec- Prior to the Falls v. Noah trial in 1997 in vows are broken, not to punish intimate tions and criminal conversation are not Forsyth County, North Carolina, there were extra-marital speech or expression because facially invalid under the First and no jury verdicts that exceeded a million dol- of its content. And, because the availabili- Fourteenth Amendments. ____ N.C. App. lars. Since the Falls v. Noah case, there have ty of a tort action to the injured spouse at 1-15 (2017); emphasis added. been several jury verdicts and bench trial ver- provides both a remedy for that harm and Compared to many other areas of North dicts exceeding a million dollars. a deterrent effect (one that benefits the Carolina law in which there have been sub- Examples of some of the jury verdicts, state and society without punishing any stantial changes and modifications over the judgments, and settlements favorable to speech or expression that does not cause years, until the enactment of N.C.G.S. §52- plaintiffs since the Falls v. Noah case include these harms), the torts are narrow enough 13 in 2009, neither the North Carolina the following: to survive constitutional scrutiny under Legislature nor the North Carolina Appellate the O’Brien test. Courts made any changes or modifications to 1. Falls v. Noah Dr. Williams (defendant in this case) also the common law torts of alienation of affec- 131 N.C.App. 152 (1998) argues that these torts are facially uncon- tions and criminal conversation in over 200 Forsyth Cty. stitutional because they violate the First years. Moreover, as of the present time, nei- $185,000 A/A Compensatory Amendment right to free association. ther the North Carolina Legislature nor the $300,000 A/A Punitive ***… his argument collapses back to argu- North Carolina Appellate Courts have $185,000 C/C Compensatory ments about rights to intimate speech and declared the common law torts of alienation $500,000 C/C Punitive expression. For the reasons discussed of affections and criminal conversation $1,100,000 above, the incidental burden on those unconstitutional. Alienation of affections and Jury Verdict

20 SUMMER 2019 2. Hutelmyer v. Cox $1,250,000.00 A/A Punitive Jury Verdict 133 N.C.App. 364 (1999) $1,299,400.00 C/C Compensatory Alamance Cty. $1,250,000.00 C/C Punitive 18. King v. Huizar $500,000 A/A & C/C Compensatory $5,896,943.15 Durham County (7/2018) $500,000 A/A & C/C Punitive Bench Trial Judgment A/A, C/C, Assault & Battery; and Infliction $1,000,000 of Emotional Distress: Jury Verdict 10. McCoy v. Freeman $2,215,312 A/A & C/C Compensatory Rowan Cty. (2011) $6,645,936 A/A & C/C Punitive 3. Oddo v. Pressler $425,000 A/A Compensatory Plus costs including $25,000 in expert wit- 358 N.C. 128 (2004) $175,000 A/A Punitive ness fees Mecklenburg Cty. $850,000 C/C Compensatory Bench Trial $910,000 A/A & C/C Compensatory $850,000 C/C Punitive $500,000 A/A & C/C Punitive $2.3 Million Lawyers that handle these cases represent $1,410,000 Jury Verdict plaintiffs and defendants, just as lawyers in Jury Verdict domestic cases represent wives and husbands. 11. Filipowski v. Oliver Except for three verdicts that totaled more 4. Cooper v. Chvaly $107,500 A/A & C/C than a million dollars in “contested” jury tri- Guilford Cty. (11/01) Settlement after Non-Jury Trial als (Falls v. Noah, Forsyth County, $1,000,000 A/A& C/C Compensatory $1,100,000; Hutelmyer v. Cox, Alamance $1,000,000 A/A & C/C Punitive 12. Puryear v. Devin County, $1,000,000, 133 N.C. App. 364 $2,000,000 Wake Cty. (5/14) (1999); and Oddo v. Presser, Mecklenburg Jury Verdict (D did not appear for trial but had two attor- County, $1,410,000, 158 N.C. App. 360 neys appear separately) (2003)), most North Carolina jury verdicts 5. Kinlaw v. Dr. John Harris $10,000,000 – A/A & C/C Comp. have ranged from nominal amounts to sub- Robeson Cty. (2004) $20,000,000 – A/A & C/C Punitive stantial amounts. $100,000 A/A Compensatory $30,000,000 In the opinion of the undersigned, there $ 67,000 C/C Compensatory Bench Trial Judgment have been misconceptions and misrepresenta- $400,000 A/A & C/C Punitive tions by opponents of alienation of affections $567,000 13. Malecek v. Williams and criminal conversation tort claims: Jury Verdict ____ N.C. App___ a. That the actions are outdated and anti- 804 SE2d 592 (2017) quated. The reason most often cited by 6. Patterson v. Basurto (Set forth in this article) opponents of these tort claims is that the Hoke Cty. (5/05) cases did refer to women as “chattels” (or $500,000 – A/A & C/C 14. Hayes v. Waltz property), which was, unfortunately, the Jury Verdict 246 N.C. App. 438 (2016) status of women in the 1800s, when the $82,500 – A/A Compensatory earliest of these tort actions were tried. 7. Sitterson v. Miller $47,700 – A/A Punitive For many years, at least 50% of these Rowan Cty. (5/05) Jury found in favor of defendant on criminal torts have been instituted by women. $400,000 A/A Compensatory conversation claim This notion should require no further $100,000 C/C Compensatory Jury Verdict comment, and it is an insult to women $250,000 A/A & C/C Punitive for opponents of these torts to argue this $750,000 15. Rodriguez v. Lemus as a basis for North Carolina eliminating Jury Verdict 817 S.E.2d 201 (2018) the torts. Catawba County b. That alienation of affections and crim- 8. Shackelford v. Lundquist $65,000 A/A & C/C Compensatory inal conversation claims are brought for 07 CvD 12047 Non-Jury Trial Judgment the purpose of “blackmail.” Alienation of Guilford Cty. (3/19/2010) affections and criminal conversation are (D did not appear) 16. Unnamed Parties independent tort claims and have no $5 Million A/A & C/C Compensatory Guilford County (2017) legal relationship with the domestic cases $4 Million A/A & C/C Punitive $10,000 of the innocent spouse involved. If the $9 Million Settlement purpose of a plaintiff is to attempt to Jury Verdict blackmail or obtain an unfavorable set- 17. _____ v. ______tlement in his or her domestic case, the 9. Arcare v. Pecorare Iredell County (11/2/17) defendant would have a remedy, the fil- 07 CvS 1450 $750,000 – A/A & C/C Comp. ing of a Rule 11 motion for sanctions Pitt Cty. (8/11/) $350,000 – A/A & C/C Punitive against the plaintiff for filing the action $2,097,543.15 A/A Compensatory $1,100,000 for an improper purpose.

THE NORTH CAROLINA STATE BAR JOURNAL 21 c. That the damages are difficult to prove punitive damages. Judges instruct juries costly for a plaintiff to bring as well. and are misleading. This is simply untrue. that the two purposes for their awarding Whether a defendant has any assets is a The NC Pattern Jury Instructions for the punitive damages, if any, are (1) to punish consideration in any tort action. These torts clearly set forth the damage elements the defendant, and (2) to act as a deterrent torts should not be abolished simply to as follows: for adultery by other people in our state protect the wealthy and provide them In awarding damages, you may consider with married individuals who are not rep- immunity from the consequences of their the loss of companionship, mental resented. Family law and domestic hear- wrongful acts. anguish, humiliation, injury to health, ings are rarely publicized; however, alien- In conclusion, notwithstanding attempts family honor, suspicion cast on the legit- ation of affections and criminal conversa- by North Carolina family law attorneys to imacy of offspring, and loss of support tion verdicts are often reported in newspa- convince the North Carolina Legislature to (being the loss of the income by the pers, on television, and via other media. declare the torts of alienation of affections plaintiff of plaintiff’s spouse’s income). Because of the deterrent effect, experi- and criminal conversation unconstitutional, Moreover, NC case law clearly spells out enced lawyers who defend defendants in and notwithstanding defendants in these compensatory and punitive damages these cases share with their clients the actions have filed numerous affirmative which can be awarded. stress and fear of adverse monetary ver- defenses in their answers to complaints, the d. That the torts hurt children. This is no dicts, whether compensatory or punitive. tort claims for alienation of affections and more accurate than when children are f. The two torts are gender neutral. In criminal conversation continue to be filed, lit- involved in other types of civil or criminal present-day society, women and men have igated, mediated, and determined by NC cases. In my 47 years of trying these tort equal standing under the law, and both Superior Courts (and occasionally district cases, I can’t recall even one time a child men and women bring these actions. courts), juries, and/or judges (in non-jury tri- was involved. It is the domestic litigation Experienced attorneys handling these als) at the same consistency as they have pro- that hurts children, i.e., when children are cases represent husbands and wives, just as ceeded in the past many decades. n subpoenaed to testify in open court in they do in their domestic cases. front of their parents. g. That wealthy people are the targets. The author is a senior partner in the law e. That the tort claims are not a deterrent. Opponents argue that these cases are cost- firm of Crumpler Freedman Parker & Witt A jury award for compensatory and/or ly to defend, and that wealthy people are located in Winston-Salem, North Carolina, punitive damages is definitely a deterrent. the targets of these actions. To the con- where he has practiced since 1972. He was a North Carolina law provides that when trary, these contentions apply to all tort member of the first group of North Carolina there is proof of adultery in alienation of cases, and are not valid reasons for doing State Bar Board Certified Family Law affections or criminal conversation claims, away with the laws. These cases are typi- the plaintiff’s case goes to the jury on cally not contingency cases, and they are CONTINUED ON PAGE 29

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I Lost a Client

B Y BILL POWERS

et’s call him Andrew. We spent some time together

last week. Quick to smile, self-deprecating, and

genuinely appreciative as a client, I’ve liked him

from the start. I could immediately see Andrew was agitated, but Lmost people wouldn’t have picked up on that. I gave him a head nod, and we ©iStockphoto.com/kodachrome25 silently walked out of the courtroom and into the hallway to talk.

Andrew didn’t start this conversation forgotten jurists still passing judgment, if with his usual smile. He was polite as ever, only through oil on canvas. immediately apologizing for the purpose of Nearby, a woman insentient from a our being there. This time, things were dif- heroin-Fentanyl concoction, slumped over ferent. in a mouth agape stupor. Periodically, voic- Andrew was more distracted than nor- es raised in anger briefly disturbed the needed to talk to Andrew face to face. I was mal. He fidgeted, barely able to stand in one already cacophonous surroundings, requir- going to court, come hell or high water. spot. ing intervention by deputies to avoid an I’m generally not a touchy-feely guy, at It didn’t help that it was a madhouse on all-out donnybrook. least while standing there in the hallway of the fourth floor of the Mecklenburg County Court that morning was loud, bustling, criminal court, surrounded—if not Courthouse. Courtrooms are generally ster- and for the uninitiated, completely discom- engulfed—by troubles. I wanted to reach out ile, uncomfortable public spaces within. The bobulating. For this 26 year veteran of the and connect with Andrew. Given my hallways outside courtrooms are pandemo- courtroom, it was Tuesday. Sasquatch-like frame and his more slight nium, where the river of humanity and We quickly got to the point. Andrew had build, hugging Andrew would have freaked problems overflow. just been busted again, and in my mind, this him out. He could barely stand still, rocking That’s where we met, in the middle of arrest was ominous. It was emblematic of a back and forth, eyes darting and rarely mak- the panoply of psychosis, substance abuse, person hurtling towards more and more ing contact. Instead, I drew close, waiting for bad choices, and angst. I would have pre- pain. the chance for Andrew to hear me. ferred a conference room. There were none While only a misdemeanor, when I heard I think he did. available. my paralegal and associates talking about his Andrew’s dad, I’ll call him Tom, stood I saw but hardly noticed the ubiquitous newest set of charges, I told them I’d handle there with us, saying almost nothing. That’s tears on random cheeks and faces buried in the appearance myself. It didn’t matter how Tom: never volunteering much, but always hands. Several young mothers played with apparently minor it was on the depth chart by Andrew’s side supporting him. Tom their babies, encircled by paintings of long- of criminal offenses. This one worried me. I looked tired, heartbroken—it had been a

24 SUMMER 2019 long time since he worried about the embar- pass out. A full-time job isn’t necessarily conducive rassment of it all. If one drink is good, ten is better. It’s not to recovery. Andrew was fine when he was Tom is a loving father. He’s caring with- about the taste or the buzz or getting a bit with people and in meetings. He suffered out being an enabler. If only more parents crazy. The whole point of the exercise is to when he was by himself, when he couldn’t were like that instead of the near maniacal shut down. shut down or sleep. It was only a matter of helicopter moms and dads we manage in I understand that type of substance abuse. time before he looked for ways to turn off the most cases nowadays. It’s one reason I don’t drink anymore. I too noise. For them, it’s only about shame—their have trouble turning off my brain. Frankly, Andrew wasn’t some “lowlife drug addict” shame—because it always has been and will it’s a common problem with a lot of court- or whatever judgmental, ignorant idiots call remain about them, not their kids. They room lawyers I know and love. It doesn’t people like him. Andrew was a nice kid, who focus on the symptom, not the cause. matter whether they’re defense attorneys or felt terrible for his parents and apologized to With no patience for Kabuki theatrics, I prosecutors. his lawyer for being a difficult client. bluntly asked, “What’s up with this huffing What makes them good in court can be I shared my walk in life with Andrew, stuff?” If you know nothing about huffing, difficult to live with. It’s not OCD, or ADD, making sure to point out it was my walk, not good for you. Pray no one you love gets or some other acronym. It’s different. his. I stressed he had to find his own path. I hooked on it. In my legal journey, I deal with the inabil- begged of Andrew one thing, “Please, please, Huffing today is when kids inhale key- ity to stop thinking, processing, and working don’t make me go to another funeral. I just board cleaner to get a temporary but intense through problems. I see myself as a problem can’t. Not for you.” high. Yes, keyboard cleaner. It comes in an solver and a lawyer who, above all, truly I shook Tom’s hand and held it a bit aerosol spray bottle. They call it “air duster.” wants to help people. longer than normal. I said nothing and just You can get it by the case at any Office Unfortunately, some cases don’t have looked him in the eye. In retrospect, it was a Depot. answers. Some matters can’t be won and courthouse hug. It likely made him a bit Huffing, purposely abusing inhalants, some clients can’t be saved. That drives me uncomfortable. displaces oxygen in the lungs, causing hypox- nuts. I take losses hard. I don’t remember how I reached out and ia. It is chemical suffocation. You normally That’s great for the client. No one will touched Andrew. It probably was something pass out. Maybe you wake up. outwork or “out-prepare” that type of lawyer. lame like a fist-bump. I truly try to connect It’s dirt cheap and easily obtained. There Mix in any sense of empathy for your fellow with these kids I call clients. are no dealers. There are no secret ren- human and you have the makings of a true Despite my obviously inept approach, I dezvous. Walmart sells it. advocate for justice. hope they understand I’m trying to speak And no one pays attention when you Sometimes that level of dedication and their language of love and friendship. I strive plop a can down on the counter, although intensity can be confused as ego. Trust me, to meet them at their point of need. I want they should. It’s against the law to sell it if it’s anything but that. Indeed, it’s the exact them to know I relate with and care for you have reasonable cause to suspect it’s for opposite of what you might expect, which is them. huffing. the very definition of irony. I sent Andrew a couple follow-up texts, In the thousands of legal matters I’ve han- At 53, I have found ways to slow down asking for an update on treatment. I didn’t dled during my career, I’ve never seen or and turn off my brain with mindful medita- get a response. heard of a single criminal prosecution for tion, working out, and faith. During our So when I got an email Thursday night illegally selling inhalants. meeting last week, I shared that and more from Tom, letting me know Andrew had Describing users, I use the term “kids” with Andrew. been killed in a car accident most certainly purposely because no one is a life-long huf- He gave me a knowing look. Despite the caused by impairment, I was both heartbro- fer. You don’t live long enough. In my hum- noise around us, I felt we had a genuine con- ken and unsurprised. ble but educated opinion on drug addiction, nection. He opened up, and to some extent I went downstairs and hugged Mookie, huffing almost always ends with a funeral. he shared his pain. my 17-year-old daughter. I wanted to cry, It was for that reason I had to see Andrew. I’m no Pollyanna. I didn’t expect immedi- but she already has to live with a man who We all knew he was a poly-substance abuser. ate change. I tend to be a worrier. It’s both in shares too much about the dangers of youth I’d previously asked him, “What are your my nature and comes from years of experi- and life. drugs of choice? Cocaine, crack, bars ence as a criminal lawyer. This isn’t the first client I’ve lost and it (Xanax), Molly (ecstasy), weed, booze?” His Recognizing an issue is not the same as most certainly won’t be the last. And while answer was basically, “Yes.” addressing an issue. Andrew and I knew and I’m not a “hugger” around the courthouse or Andrew’s arrest record reflected his hydra- recognized his problem. He promised noth- even among friends, I am with my family. I headed addictions. I knew immediately he ing, other than telling me, “I’ll try.” wanted to hold her close and never let her go. was trying to, what I call, “turn off your Andrew at 27 years old found treatment I’m not big on sleeping. Apparently, nei- brain.” He couldn’t stop thinking. “Some” of to be a hassle and to some extent useless. ther is my DA friend who is a wonderful per- an intoxicant was never enough. He was ashamed of taking anything more son in addition to being a fabulous trial Whether it was alcohol or a benzodi- from his dad. He felt compelled to work, to lawyer. She most certainly is included in my azepine, Andrew consumed not just until he take care of himself, and to stop hurting his “best lawyers I know” list. would pass out, but consumed so he could parents. So at 3:15 a.m. I shared Andrew’s death

THE NORTH CAROLINA STATE BAR JOURNAL 25 with her via email. She and one of her co- Just this week I reacted to something in happening, I’m going to do something other workers immediately responded, telling me anger, without knowing all the facts. I’d for- than practice law. they’d dismiss Andrew’s cases in short order. gotten my favorite motto, one often repeated I lost a client. His name was Andrew. That was completed the same day. The value by my maternal grandfather, RL: It’s nice to The way I’m going to settle my mind of their compassion cannot be overstated; be nice. I’ve added to his mantra: Apologize with this tragedy, because there truly is no nor will it ever be forgotten. immediately and mean it. I did and do. solution to this problem, is to talk about it, I understand this article may come as a Mind you, I am not complaining about to hopefully teach and thank others as appro- surprise to some, but if you’re a courtroom being a lawyer. It’s the best way I personally priate, and to apologize if I ever forget to be lawyer with any level of experience, it’s a know how to help people. It is deeply fulfill- nice. familiar tale. ing work for me, but I didn’t always see it I’m also going for a long walk right now. Lawyers survive in an adversarial process that way. I am an accidental advocate. My deepest condolences are with Tom through kindness, professionalism, and last- If you want to know what it’s really like to and his family. n ing friendships, especially those shared with be a lawyer, go to a treatment center, talk to your adversary across the aisle in the court- someone facing their life struggle, and just Bill Powers, a former president of the North room. If you think being an attorney is all listen without judgment. Carolina Advocates for Justice and courtroom about posturing, arguing, and self-aggran- I dread going to Andrew’s funeral this lawyer who focuses on DWI, criminal defense, dizement, please don’t go to law school. Do Monday. I don’t want Tom to have to see me, and family law litigation, is dedicated to help- something else to feed your ego. knowing I am nothing more than a reminder ing attorneys address mental health and sub- The legal practice for folks who handle of Andrew’s suffering. stances abuse issues. He is available for CLE criminal and family law cases is a tremen- But just like court, I feel compelled to be presentations on issues involving work-life bal- dously difficult way to make a living. I don’t there for Andrew and his family. Andrew’s ance and addressing substance abuse in the always get it right. loss is my loss. I’ve decided when that stops profession.

It Was a Wonderful Life (cont.) General Assembly, it was no more valuable write this essay told me that their highest than his good counsel concerning legislative professional aspiration was to “be” John effort was enormously successful, allowing matters. On numerous occasions in recent McMillan. the inclusion of many features that make the years, his political wisdom effectively guided So, he was a rich man. Of that there can building extraordinary, including the acqui- decisions made and actions taken by the be no doubt. But he was also an essential sition and installation of a collection of council in reference to legislation concerning man. Like George Bailey, John did a great North Carolina art that would rival anything the State Bar’s regulatory charter. Now that many fine things that almost certainly would found in our state’s museums. Included in he is longer available to consult, I trust that not have been done had he not been around that collection, by way of donation not pur- those who continue to wrestle with such to do them. But his importance can’t be chase, was a set of amazing large-format pho- matters will occasionally pause in their delib- measured merely in terms of the good deeds tographs of wildlife taken by Mr. McMillan erations to ask themselves, “What would for which he alone was responsible. His real while on some of his many trips to east John have to say about this?” significance inhered in the value he added to Africa. The images are among the most pop- Among the themes offered by Frank whatever he undertook. Just as Bedford Falls ular works of art in the collection. Of course, Capra in his immortal film It’s a Wonderful would have been Pottersville in the absence John McMillan didn’t think of himself as an Life were the notions that a person may be of George Bailey, North Carolina would be artist, but he was. fairly reckoned as rich if he or she has an a much different and much diminished John also carried a lot of water for the abundance of true friends, poverty notwith- place had John McMillan never been born. organized Bar in the legislature. An acknowl- standing; and that an ordinary person’s life The symphony’s music wouldn’t be as sweet, edged expert in the practice of government can positively and profoundly affect the the animals at the zoo wouldn’t be as inter- relations, he unofficially represented the world in which he or she lives, if that person esting, the water we drink wouldn’t be as State Bar’s interests for many years in regard is good. John McMillan lived a much larger clean, the justice we need wouldn’t be as to a host of matters, not because he needed life than Capra’s fictional hero, George accessible, and the State Bar’s new executive another pro bono client, but because he Bailey, but I submit that the central precepts director might still be working in a dump. believed in the State Bar and professional of the story well apply in his case, too. If, The point is that the people of our state, and self-regulation. Because his personal views indeed, friends are wealth in its purest form, especially the members of the State Bar, are generally aligned with the policies of the John accumulated a great fortune. Everyone much better off today than they would have council, he typically appeared in matters of who knew him liked him and wanted him to been if John McMillan hadn’t had a such a interest to the State Bar on his own behalf as like them. More than that, he was genuinely wonderful life. n a member of the Bar, never asking for or admired by most of the people who knew accepting compensation. As important as his him well. In fact, several distinguished L. Thomas Lunsford II is executive director advocacy for the profession was in the lawyers with whom I spoke as I prepared to emeritus of the North Carolina State Bar.

26 SUMMER 2019 TRUST ACCOUNTING

To Wire or Not to Wire

B Y LEANOR BAILEY HODGE, TRUST ACCOUNT COMPLIANCE COUNSEL

…that is the question, or it should be. As to ask the home buyer for funds to be sent In 2018 IC3 received 20,373 BEC com- trust account compliance counsel, I receive to a fraudulent account; plaints with adjusted losses in excess of $1.2 the reports of trust account fraud that • Data and W-2 Theft: Criminals, using billion dollars. Significantly, North Carolina lawyers make to the State Bar. Lawyers are a compromised business executive’s email ranks among the top five states when it required to make these reports pursuant to account, send fraudulent requests for W-2 comes to victim monetary loss, with losses Rule of Professional Conduct 1.15-2(p). I information or other personal identity infor- receive, on average, at least one such report mation to an entity in an organization that CONTINUED ON PAGE 37 each week. This means that at a minimum, routinely maintains such information; there are 52 reported instances a year of • Supply Chain: Criminals send fraudu- fraud on lawyers’ trust accounts. I am confi- lent requests to redirect funds during a dent that this figure is not indicative of the pending business deal, transaction, or total number of such occurrences each year. invoice payment to an account controlled by Escrow Consulting In 2018 the FBI’s Internet Crime a money mule or bad actor; & Accounting, LLC Complaint Center (IC3) received 351,936 • Law Firms: Criminals find out about Protecting Yoour Trust Accounts complaints about internet crime. According trust accounts or litigation and impersonate to IC3, these complaints were associated a law firm client to change the recipient with losses that exceeded $2.7 billion dol- bank information to a fraudulent account.2 Are Your Trust Accounts in lars. Cybercrime is clearly big business. The It is helpful to understand how BEC Accordance with Rule 1.15? complaints to IC3 include reports about scams are conducted. Accordingly, my col- Protectinggy your business byy.y... internet scams such as Business Email umn last quarter highlighted the BEC scam Compromise (BEC), extortion, tech sup- commonly seen among the lawyer popula- ࠮*VUMPYTPUN 4VU[OS` HUK 8\HY[LYS` port fraud, and payroll diversion. The tion, one in which the scammer tricks the 9LJVUJPSPH[PVUZ4LL[ 5* )HY 9\SLZ reports of fraud I receive from lawyers sug- lawyer into believing that a party to a real ࠮=HSPKH[PUN *SPLU[ ;Y\Z[ 3LKNLYZ (YL gest that BEC is the scam that is most fre- estate transaction has changed wire instruc- -\SS`-\UKLK quently perpetrated against North Carolina tions. Although there is benefit in knowing lawyers. IC3 defines BEC as a scam target- how the scam usually operates, the true ࠮,UZ\YPUN ;Y\Z[ (JJV\U[Z (YL PU *VTWSPHUJLHUK 4HRPUN 5LJLZZHY`  ing, among other things, businesses regular- value is in awareness that you may be a 3LKNLY*VYYLJ[PVUZ ly performing wire transfers. This likely potential target. This is because scammers explains the prevalence of the BEC scam are always updating their scams. In fact, sev- ࠮:LY]PJLZ ]HY` MYVT H VUL[PTL YL]PL^ among the lawyer population. According to eral recent reports suggest that in North VMJSPLU[ WYLWHYLK YLWVY[Z [V ,*( IC3, BEC scams are sophisticated scams Carolina, buyers in real estate transactions YLJVUJPSPUN[OL [Y\Z[ HJJV\U[Z VU H TVU[OS`IHZPZ that are conducted by criminals who com- are being tricked into believing that a promise email accounts through social engi- spoofed email is actually an email from the neering or computer intrusion techniques to lawyer with new wire instructions for the conduct unauthorized transfers of funds.1 buyer. The constant changes to the manner According the FBI, the following are the in which internet scams are conducted mean most frequent BEC scenarios: that it will always be important to be atten- • Business Executive: Criminals spoof or tive and vigilant when you wire funds from compromise email accounts of high-level your trust account. The goal is to ensure that business executives, including chief informa- the funds are wired to the intended recipient DDawn Cash Sala tion officers and chief financial officers, and not to the criminals. The most effective which results in the processing of wire trans- way to achieve this goal is to always be cer- 252.531.42411 fer to a fraudulent account; tain that the wire instructions you use are TrustComplianceNC. • Real Estate Transactions: Criminals those actually provided to you by the client Over 20 years of pr fi l i i impersonate sellers, realtors, title companies, and not instructions sent by a cybercriminal or law firms during a real estate transaction using a spoofed email address.

THE NORTH CAROLINA STATE BAR JOURNAL 27 THE DISCIPLINARY DEPARTMENT

Grievance Committee and DHC Actions

NOTE: More than 29,000 people are eligible doned her law practice for several months, felony. Elkins was sentenced to 24 months in to practice law in North Carolina. Some share did not provide legal services for which she prison followed by supervised release, and the same or similar names. All discipline reports was retained, did not communicate with her was ordered to make restitution in the may be checked on the State Bar’s website at clients, collected excessive fees, did not pro- amount of $545,738.90. ncbar.gov/dhcorders. tect her client's interests, misrepresented the The chair of the DHC entered an inter- services she would provide, engaged in con- im order suspending the law license of Disbarments duct prejudicial to the administration of jus- Mayodan lawyer Hayley C. Sherman. Mary March Exum of Asheville surren- tice, aided a paralegal in the unauthorized Sherman pled guilty to the state felony dered her law license and was disbarred by practice of the law, and violated trust account offenses of possession of marijuana with the Disciplinary Hearing Commission. In rules. The DHC suspended her for three intent to manufacture, sell, or deliver in vio- June 2017 the DHC suspended Exum for years. The suspension is stayed for three years lation of N.C. Gen. Stat. § 90-95(a) (three five years after concluding that she engaged upon Ezzell’s compliance with enumerated counts); sale or delivery of marijuana in vio- in a variety of misconduct, including mis- conditions. lation of N.C. Gen. Stat. § 90-95(a) (two handling entrusted funds. While she was sus- James Goard of Charlotte was twice con- counts); conspiracy to sell or deliver marijua- pended, Exum held herself out to the public victed of driving while impaired and com- na in violation of N.C. Gen. Stat. § 90-98 and to former clients as able to practice law mitted a third driving while impaired offense (two counts); maintaining a store, dwelling, through Exum Consultants. Exum collected involving a collision, advised and assisted an vehicle, boat, or other place for use, storage, fees for legal services she said would be per- individual in drafting an affidavit while his or sale of controlled substances in violation formed through attorneys hired and super- law license was suspended, made misrepre- of N.C. Gen. Stat. § 90-I08(a)(7) (three vised by Exum Consultants. sentations to a client, and made misrepresen- counts); and one count of possession of a John O. Lafferty Jr. of Lincolnton sur- tations during a disciplinary inquiry. The Schedule IV substance with intent to manu- rendered his law license and was disbarred DHC suspended him for five years. After facture, sell, or deliver in violation of N.C. by the DHC. Lafferty acknowledged that he serving two years active suspension, Goard Gen. Stat. § 90-95(a); and to the state mis- did not file federal and state tax returns and will be eligible to apply for a stay of the bal- demeanor offense of possession of marijuana did not pay federal and state income taxes ance upon showing compliance with enu- paraphernalia in violation of N.C. Gen. Stat. for 17 years. merated conditions. § 90-113.22(a) (two counts). Darin P. Meece of Durham surrendered Carl D. Lee of Glendale, Arizona, mis- his law license and was disbarred by the managed entrusted funds, did not reconcile Censures Wake County Superior Court. Meece admit- his trust account, and did not maintain The Grievance Committee censured ted that he misappropriated fiduciary funds required trust account records. The DHC Asheville lawyer Jennifer Nicole Foster. totaling $15,000. suspended him for one year. The suspension Foster made false and misleading social James M. Zisa of Wilmington surren- is stayed for two years upon Lee’s compliance media postings concerning the local district dered his law license and was disbarred by with enumerated conditions. attorney and the court-appointed criminal the Wake County Superior Court. Zisa Christopher A. Stella of Winston-Salem defense attorney for one of her friends, and admitted that he had sex with two clients, committed criminal acts by patronizing a communicated and met with the friend in disclosed confidential client information, prostitute and filing a false police report prison while misrepresenting herself to charged excessive fees, did not act with dili- about the incident. The DHC suspended prison personnel as his attorney. gence and did not communicate with multi- him for three years. After serving 18 months Larry G. Hoyle of Gastonia made false ple clients, made a false statement to the of active suspension, Stella will be eligible to statements to the court and engaged in con- State Bar, and did not respond to the apply for a stay of the balance upon showing duct that was dishonest and prejudicial to Grievance Committee. compliance with enumerated conditions. the administration of justice by submitting an improper designation of secured leave. Suspensions & Stayed Suspensions Interim Suspensions Hoyle also falsely represented to the court Gavin A. Brown of Waynesville forged a The chair of the DHC entered an interim that a defendant for whom he took action notary’s signature and affixed the notary’s seal order suspending the law license of in a criminal case at the behest of a bail to a deed without authorization. He was sus- Hendersonville lawyer H. Trade Elkins. bondsman was his client. He was censured pended by the DHC for two years. Elkins pled guilty to one count of wire fraud by the DHC. Meredith Ezzell of Wilmington aban- in violation of 18 U.S.C. § 1343, a class C The Grievance Committee censured

28 SUMMER 2019 Tonza D. Ruffin of Windsor. Ruffin did not Sean Dillenbeck of Gastonia. Dillenbeck entrusted funds. On April 8, Simmons with- timely obtain a client’s informed consent to a neglected and did not communicate with his drew his petition for reinstatement. conflict of interest, made a misleading state- client and did not respond timely to the ment to opposing counsel, and engaged in Grievance Committee. Orders to Show Cause conduct prejudicial to the administration of The Grievance Committee reprimanded In February 2016 the DHC suspended justice by taking action that was intended Rachel Kiblen of Mooresville. While she was Katherine Pekman of Hickory. Pekman solely to delay trial and ensure that a different representing a client in a domestic case, neglected and did not communicate with a judge presided over her client’s case. Kiblen left her law firm without notifying client, did not promptly refund an unearned Ryan Shoaf of Raleigh facilitated the her client and without providing her client fee, did not account for entrusted funds, and unauthorized practice of law by a domestic new contact information. She did not make did not respond to the Grievance limited liability company. He was censured reasonable efforts to serve the opposing Committee. The suspension was stayed for by the DHC. party. Kiblen did not maintain regular com- three years. The DHC concluded that Leslie Van Der Have of Greenville was munication with her client, resulting in a Pekman did not comply with the conditions censured by the Grievance Committee for missed opportunity to settle the client’s case, of the stay and therefore granted the State her conduct as guardian of an estate, in did not respond for extended periods to her Bar’s motion to lift the stay and activate the which capacity she improperly allowed the client’s requests for status updates, and did suspension. After serving six months of guardian of the person access to fiduciary not respond to the Grievance Committee. active suspension, Pekman may apply for a funds, allowed the guardian of the person to The Grievance Committee reprimanded stay of the balance upon demonstrating write checks to cash and to use a debit card Jeffrey Patton of Winston-Salem. Patton compliance with enumerated conditions. on an account containing fiduciary funds, pursued frivolous claims, misrepresented In November 2016 the DHC suspend- did not timely file annual accounts, and facts, and filed an amended complaint for an ed Darryl G. Smith for three years for vio- established financial arrangements that made improper purpose. lating trust account rules. The suspension it impossible to account accurately for fidu- The Grievance Committee reprimanded was stayed for three years. The State Bar ciary funds. Steven Wright of Wilmington. In 2015, filed a petition alleging that Smith did not The Grievance Committee censured Wright told his client that the client’s misde- comply with the conditions of the stay and Steven Wright of Wilmington. In one case, meanor charge was dismissed. In 2017, his seeking to lift the stay and activate the sus- Wright did not reasonably communicate client learned, while applying to increase his pension. The DHC entered a consent with his client and with court officials and security clearance, that the charge had not order continuing the stayed suspension did not comply with the court’s scheduling been dismissed and that a warrant for his under a plan of compliance that is accept- order. In another case, Wright did not prop- arrest was outstanding for failing to appear able to the State Bar. n erly wind down his practice when his law on the charge. When the state eventually dis- license was administratively suspended. missed the charge, Wright agreed to deliver Wright misrepresented to the State Bar that documentation of the dismissal to his client he was paid in full by his client before the but did not do so, knowing that his client effective date of his suspension when he actu- had a short timeframe in which to submit ally accepted installment payments of his fee the documentation. Alienation of Affections (cont.) during the suspension. Wright’s website rep- resented that he was admitted to practice law Reinstatements from Disability Specialists. He has represented Plaintiffs and in the state of Vermont at a time when his Inactive Status Defendants in Alienation of Affections and Vermont law license was administratively In June of 2017 the chair of the Criminal Conversation cases since the early suspended. Grievance Committee entered a consent 1970s. He has tried many Superior Court jury order transferring Elisabeth Murray- trials of these tort claims, and has sub-specialized Reprimands Obertein of Morganton to disability inactive in representing plaintiffs and defendants in Richard Batts of Edgecombe and Nash status. In December 2018 the DHC entered alienation of affections and criminal conversa- Counties did not communicate with his an order that would reinstate her to active tion cases. He represented the plaintiff in the client, did not notify his client of her duly- status if she satisfied enumerated conditions. Forsyth County alienation of affections and noticed deposition, did not cooperate in She was reinstated to active status on March criminal conversation case of Falls v. Noah, scheduling mandatory mediation, did not 11, 2019. which was appealed by the defendant and appear at a scheduled court hearing, did not affirmed by the court of appeals, N.C. App. 152 respond timely to discovery requests, and did Reinstatements from Disbarment (1998), unpublished, which was the first verdict not comply with discovery orders. He was Theodore G. Hale of Wilmington was in these types of cases in North Carolina totaling reprimanded by the DHC. disbarred in 2004 for misappropriating more than one million dollars. Jerry Braswell of Goldsboro was repri- entrusted funds. After a hearing on February manded by the Grievance Committee for 7, the DHC denied his petition for rein- Endnote providing legal advice while his law license statement. 1. The other states having alienation of affections and was suspended. Geoffrey H. Simmons of Durham was criminal conversation laws are Hawaii, Mississippi, The Grievance Committee reprimanded disbarred in 2013 for misappropriating New Mexico, South Dakota, and Utah.

THE NORTH CAROLINA STATE BAR JOURNAL 29 LEGAL ETHICS

Dealing with Client Perjury

B Y THOMAS SPAHN AND ALICE NEECE MINE

What should a lawyer do when…? Trilemma, 1 Litigation 26 (No. 1, Winter as an advocate in an adjudicative pro- • Before trial, the client’s version of the 1975). ceeding has an obligation to present the facts continually changes. Professor Freedman answers “yes” to the client’s case with persuasive force. • The client testifies in a deposition to “trilemma” question of whether it is proper Performance of that duty while main- something the lawyer never heard before. for a criminal defense lawyer to put a witness taining confidences of the client, howev- • The client tells the lawyer her answers in on the stand who the lawyer knows will er, is qualified by the advocate’s duty of a deposition were “based on what I under- commit perjury because the duty of confi- candor to the tribunal. Consequently, stood to be best for me at the time.” dentiality although a lawyer in an adjudicative pro- • The client tells the lawyer he lied on the does not permit him to disclose the facts ceeding is not required to present an witness stand about an immaterial matter. he has learned from his client which form impartial exposition of the law or to • The client tells the lawyer he lied on the the basis for his conclusion that the client vouch for the evidence submitted in a witness stand about a material matter. intends to perjure himself. What that cause, the lawyer must not allow the tri- Responding to client perjury, or the means—necessarily, it seems to me—is bunal to be misled by false statements of prospect that a client intends to commit per- that, at least the criminal defense attor- material fact or law or evidence that the jury, is one of the most difficult ethical ney, however unwillingly in terms of per- lawyer knows to be false. dilemmas a lawyer can face. NC Rule 3.3, sonal morality, has a professional respon- NC Rule 3.3, cmt. [2]; ABA Model Rule the key rule on client perjury, provides some sibility as an advocate in an adversary sys- 3.3, cmt. [2]. guidance, but not definitive instructions for tem to examine the perjurious client in professional conduct. Monroe Freedman,1 a the ordinary way and to argue to the jury, North Carolina Rule 3.3(a)(3) law professor and nationally recognized as evidence in the case, the testimony pre- NC Rule 3.3(a)(3) states that: scholar on professional responsibility, sented by the defendant. [a] lawyer shall not knowingly…offer describes it as a “trilemma.” Freedman Id. evidence that the lawyer knows to be observes that there are three conflicting obli- Although there is a continuing academic false. If a lawyer, the lawyer’s client, or a gations of a lawyer in the adversary system. debate on whether a lawyer—and specifically witness called by the lawyer has offered First, there is the duty to represent the client a criminal defense lawyer—may offer per- material evidence and the lawyer comes competently which requires thorough inves- jured testimony, the NC Rules, the ABA to know of its falsity, the lawyer shall take tigation including learning everything the Model Rules, and the rules of most jurisdic- reasonable remedial measures, including, client knows about the case. Second, there is tions have resolved the issue in favor of pro- if necessary, disclosure to the tribunal. A the duty to hold in confidence what the hibiting a lawyer from offering perjured tes- lawyer may refuse to offer evidence, other client reveals which, coupled with assurances timony and, upon learning that perjured tes- than the testimony of a defendant in a to the client that the lawyer will do so, timony has been offered, requiring the criminal matter that the lawyer reason- encourages the client to trust the lawyer and lawyer to take reasonable remedial measures ably believes is false. be forthcoming with the information needed including, if necessary, disclosure to the First, note that the provision contains dis- to represent the client. And third, there is the court. tinct professional obligations that take place duty to act with candor toward the tribunal NC Rule 3.3(a)(3) and ABA Model Rule at different junctures in litigation. so that the lawyer does not participate in a 3.3(a)(3) provide one of the few instances in Before testimony is offered, the lawyer is judicial system that makes decisions on the the Rules of Professional Conduct that is admonished not to offer evidence that the basis of false testimony. “anti-client” in the sense that the duty of lawyer knows to be false, and is advised that [a]s soon as one begins to think about confidentiality to the client is trumped by he may refuse to offer evidence that he rea- these responsibilities, it becomes apparent the duty of candor to the court. As stated in sonably believes is false other than the testi- that the conscientious attorney is faced the comment to NC Rule 3.3 and ABA mony of a criminal defendant. After testimo- with what we may call a trilemma—that Model Rule 3.3, ny is offered, upon learning that the lawyer is, the lawyer is required to know every- [t]his Rule sets forth the special duties of offered false evidence (presumably “unknow- thing, to keep it in confidence, and to lawyers as officers of the court to avoid ingly” at the time), the lawyer is required to reveal it to the court. conduct that undermines the integrity of “take reasonable remedial measures, includ- Monroe H. Freedman, Perjury: The Lawyer’s the adjudicative process. A lawyer acting ing, if necessary, disclosure to the tribunal.”

30 SUMMER 2019 Second, note that the meanings of terms inferred from the circumstances. Comment lawyer concludes that the client will persist in in the rule are critical to its interpretation [8] states that a course of action that the lawyer believes is and application. [a] lawyer’s reasonable belief that evidence criminal or fraudulent, the lawyer may seek The rule governs the conduct of a lawyer is false does not preclude its presentation permission of the court to withdraw. NC who is representing a client in the proceed- to the trier of fact...[but] although a Rule 1.16(b)(3). ings of a “tribunal.” NC Rule 1.0(n) defines lawyer should resolve doubts about the If the lawyer must call the client as a wit- “tribunal” as veracity of testimony or other evidence in ness, as in the case of a criminal defendant a court, an arbitrator in a binding arbitra- favor of the client, the lawyer cannot who insists upon testifying, the lawyer tion proceeding, or a legislative body, ignore an obvious falsehood. should structure the examination to elicit as administrative agency, or other body act- NC Rule 3.3, cmt. [8]. One standard for little false testimony as possible. Note that ing in an adjudicative capacity. A legisla- evaluating whether knowledge can be the comment does not recommend the use tive body, administrative agency, or other inferred from the circumstances is to ask of the “narrative approach” to testimony by a body acts in an adjudicative capacity whether a reasonable lawyer would believe client that may be perjured. The narrative when a neutral official, after the presenta- the evidence in light of the other evidence approach allows the client to testify in a nar- tion of evidence or legal argument by a known to the lawyer. See, e.g., Patsy’s Brand, rative fashion without benefit of direct exam- party or parties, may render a binding Inc. v. I.O.B. Realty, Inc., No. 98 CIV 10175 ination questions from the lawyer, but the legal judgment directly affecting a party’s (JSM) 202 WL 59434 (S.D.N.Y. Jan. 16, lawyer is prohibited from using the testimo- interests in a particular matter. 2002)(law firm sanctioned by court for per- ny in closing argument. Annotated Model If the body does not have the authority to mitting client to submit false affidavit). Rules of Professional Conduct (Sixth Ed.), p. “render a binding legal judgment” affecting a Actual knowledge is not required, howev- 317. The narrative approach is rejected by party’s interests, it is not a “tribunal” and NC er, for a lawyer to refuse to offer testimony if the Model Rules and in ABA Formal Ethics Rule 3.3 would be inapplicable. the lawyer reasonably believes the testimony Opinion 87-353 (1987) (since Nix v. The prohibition on offering false evi- will be false. However, this discretion does Whitesides, lawyer can no longer use narrative dence in NC Rule 3.3(a)(3) hinges on a dou- not allow a lawyer to decline to offer the tes- approach to insulate himself from charge of ble knowledge requirement. The lawyer is timony of a criminal defendant because of assisting a client’s perjury). Id. Nevertheless, prohibited from “knowingly” offering evi- the defendant’s due process right to testify in the narrative approach is not specifically pro- dence that he “knows to be false.” The duty his own behalf. See Nix v. Whitesides, 474 hibited by the North Carolina Rules or for- to take remedial measures only arises if the U.S. 157 (1986). Even if a criminal defense mal ethics opinions and it may be “one of the lawyer “comes to know” that the offered evi- lawyer reasonably believes that the client’s imperfect options available in the client per- dence was false. NC Rule 1.0(g) defines testimony will be false, the lawyer must allow jury dilemma.” Id. “knowingly,” “known,” and “knows” as the defendant to testify unless the lawyer denoting “actual knowledge of the fact in “knows” that the testimony will be false. NC After the Client Testifies: Reasonable question,” but that “a person’s knowledge Rule 3.3, cmt. [9]. Remedial Measures may be inferred from the circumstances.” Rule 3.3(a)(3) requires a lawyer to take The obligation to protect confidential client What to Do Before and During Client remedial measures upon discovering that information remains unless the lawyer Testimony materially false evidence has been offered by “knows” the testimony is false. NC Rule 3.3(a)(3) prohibits a lawyer the lawyer, by the client, or by a witness Third, note that the duty applies not only from knowingly offering any false evidence called by the lawyer during either direct in litigation, but also in other matters under regardless of its materiality. If a lawyer knows examination or cross examination by oppos- the jurisdiction of a tribunal, including ancil- that the client intends to testify falsely, the ing counsel. If the false evidence is immateri- lary proceedings conducted pursuant to the comment to NC Rule 3.3 provides the fol- al, the lawyer is not required to take action. tribunal’s authority, such as a deposition. lowing guidance: Reasonable remedial measures do not Comment [1] specifies the lawyer should seek to persuade the have to be taken as soon as the lawyer learns [this rule] applies when the lawyer is rep- client that the evidence should not be that the offered evidence was false, but they resenting a client in an ancillary proceed- offered. If the persuasion is ineffective must be taken before a third party relies ing conducted pursuant to the tribunal’s and the lawyer continues to represent the upon the false evidence to his detriment. As adjudicative authority, such as a deposi- client, the lawyer must refuse to offer the explained in comment [10] to NC Rule 3.3, tion. Thus, for example, paragraph (a)(3) false evidence. If only a portion of a wit- [t]he lawyer’s action must also be season- requires a lawyer to take reasonable reme- ness’s testimony will be false, the lawyer able: depending upon the circumstances, dial measures if the lawyer comes to know may call the witness to testify but may not reasonable remedial measures do not have that a client who is testifying in a deposi- elicit or otherwise permit the witness to to be undertaken immediately; however, tion has offered evidence that is false. present the testimony that the lawyer the lawyer must act before a third party NC Rule 3.3, cmt. [1] knows is false. relies to his or her detriment upon the NC Rule 3.3, cmt. [6]. false testimony or evidence. The Knowledge Requirement In seeking to persuade the client not to NC Rule 3.3, cmt. [10]. Note that the com- As noted above, “knowingly” means that offer false evidence, the lawyer may advise ment to ABA Model Rule 3.3 does not the lawyer “actually knows” that the offered the client that he will seek to withdraw from evidence is false, but knowledge can be the representation if the client persists. If the CONTINUED ON PAGE 37

THE NORTH CAROLINA STATE BAR JOURNAL 31 IOLTA UPDATE

IOLTA Releases 2018 Annual Report

Annual Report state. In 2018, IOLTA reviewed 16 banks be utilized from October 1, 2019 through IOLTA is pleased to release our 2018 that hold IOLTA accounts to ensure compli- December 31, 2021. Annual Report, Opening Doors: ance with State Bar rules regarding IOLTA. Funded projects employ a range of com- Supporting Access to Justice for All. The As part of the review, banks submit materials munity redevelopment legal assistance Annual Report contains an overview of regarding their current available products strategies including: grantmaking, data and stories about the and, if necessary, update their IOLTA com- • Support to nonprofits regarding forma- impact of IOLTA grantees, a summary of pliance certification statement. tion, governance, transactional, and other 2018 financials, and a recognition of Prime While IOLTA income is still well below issues; Partner Banks, those banks that go above that in 2008, when income from participant • Research, technical assistance, and sup- and beyond the IOLTA eligibility require- accounts exceeded $5 million, this positive port to community groups seeking to ensure ments in their commitment to improving income trajectory will enhance future avail- equitable and inclusive economic develop- access to justice in their communities. ability of funds for grantmaking, if main- ment and revitalization; Visit nciolta.org to read IOLTA’s 2018 tained. • Legal assistance to homeowners in tar- Annual Report and learn more about our The IOLTA trustees approved a 2018 geted neighborhoods regarding title issues, impact. year-end contribution of $800,000 to the heirs property, eligibility for home repair reserve fund. The fund now totals programs, and property tax relief; Income $1,178,836.57. Since 2009, IOLTA has • Community education on legal barriers Interest income from participating banks drawn from the reserve fund nearly every to economic opportunity, predatory finan- that hold lawyers’ trust accounts continues year to supplement available funds for grant- cial products and practices, wealth building, to be the primary source of income for the making. The reserve fund was established in state and local policy impacting economic IOLTA program. Income in 2018 from par- 1995 to moderate the impact of drastic development, and other issues; ticipant accounts totaled over $3 million, a swings in income. • Minority business support through 67% increase compared to 2017. Increases training, technical assistance, and support in income in 2018 are due both to positive Grants for Historically Underutilized Business interest rate adjustments and larger balances At its meeting on April 23, the IOLTA (HUB) certification; held in lawyers’ trust accounts. Board of Trustees approved Community • Support to nonprofits, farm-based IOLTA will continue efforts initiated last Redevelopment Grant awards to six spring to review eligible banks across the grantees. Awards total $2,778,750 and will CONTINUED ON PAGE 40

112 Employment In 2018, NC IOLTA grantees 241 Education addressed civil legal issues for 758 Health clients in a range of areas. 1,068 Civil Rights

2018 Annual 2,005 ΖQFRPHDQG3XEOLF%HQHȴWV Report now 2,987 Consumer available! 4,829 Other 7,957 Visit www.nciolta.org Housing to read our annual 9,220 Family report and learn more about our impact. Total cases closed: 29,177

32 SUMMER 2019 LAWYER ASSISTANCE PROGRAM

The Power of Perspective to Heal and Transform

B Y ROBYNN MORAITES

Most of the great problems of life are never depth conversation I had with a FRIENDS resolved. They’re just outgrown. volunteer who was recovering from depres- — Carl Jung sion. He expressed how his recovery had opened his eyes to what he could only The truth of this Carl Jung quote res- describe as a three- (or maybe four-) dimen- onated when I first read it. The process of sional world, and it shattered his prior linear- recovery (from anything) seems to follow a frame-of-mind way of thinking. While he certain similar path for most people. It is a used different words and concepts to frame paradox that while our individual journeys his experience, I too had a similar ‘shift in are totally unique and never duplicated, perspective’ or ‘awakening’ or ‘opening’ expe- there are some big themes that seem univer- rience (whatever one chooses to call it) in my sal. It is also paradoxical that while our indi- recovery that very much paralleled his. I lis- vidual journeys are never linear (they tend to tened to him and was struck by the similarity jump around a lot), there are similar stages of his path and process to those who are of recovery for all. One of the reasons edu- recovering from alcoholism. cation about our condition is so crucial in Often the shift in perspective can only be any kind of treatment or counseling (for measured or observed in hindsight. And as had wrought). alcoholism, depression, anxiety, trauma, Carl Jung so astutely points out, much of the Another lawyer observed, with some dis- anger, etc.) is that having a basic under- shift involves outgrowing a certain perspec- belief and wonder, that the problems, fears, standing of the process of dis-ease (hyphen tive, or moving to a higher level of under- and concerns that consumed him upon intentional) empowers us to make better standing and insight. Over the years in LAP, entry to LAP a mere six months prior, now choices and informs our recovery process for I have heard lawyers share some profound seemed laughable in hindsight. He could the rest of our lives. For example, knowing things. These may not seem profound in the not fathom that “those problems” had him that depression and alcoholism thrive in iso- retelling, but given the stalwart defense so wound up. He laughingly observed that lation (and the contributing psychological, mechanisms of our egoic structures, these are he now had a different set of problems, fears, physical, and sociological causes and effects) monumental shifts in insight and indicators and concerns that consumed him, but he helps empower someone to say “yes” when of a lot of personal growth. suspected that one day down the road, these asked to join a discussion group or engage One lawyer observed that during his early problems might also seem laughable. There socially (when that may be the last thing sobriety, had he been given a polygraph test is something magical and freeing about the someone wants to do). There are so many asking whether he was an alcoholic, he big lesson in perspective—on some level we big themes in recovery. One of the big would have answered, “No,” and he would know that whatever problems are consum- themes in recovery involves perspective. have passed the test with flying colors— ing our thoughts and energy today, they will It is not uncommon to hear discussed despite the fact he was a severe alcoholic. He be seen and understood with a different lens “the disease of perception” in an AA meeting. observed that recovery slowly opened his down the road. Seen with a lens informed by It is always so fascinating to hear the various eyes. The unfolding process of self-honesty growth and expanded perspective. We begin experiences people have had with major was more of a journey of growing self-aware- to intuitively understand and believe in our shifts in perception and perspective, and the ness—the more self-aware he became, the hearts (not just our heads) that “this too relief and personal growth that occur as a more honest he could become. And through shall pass.” And we can begin to trust the result. Or maybe it is the other way education and hearing the experiences of unfolding process of recovery, life, aware- around—maybe the growth happens first others, he gradually came to see that he ness, and growth. and then the shift in perspective results. It is indeed was an alcoholic. And as the years Another lawyer recently sent a note to a classic chicken-egg mystery. passed, he could look back with increasing LAP staff thanking them for insisting that he One of the great gifts in LAP is the clarity. He joked that at 25 years sober he do certain things for his recovery. He had ini- opportunity to see this growth and shift in seemed like a much worse alcoholic than he tially been very resistant to all suggestions perspective as a lawyer’s recovery unfolds. I did at one year sober (at which time he was recall early in my tenure at LAP the first in- still reeling from the consequences his disease CONTINUED ON PAGE 35

THE NORTH CAROLINA STATE BAR JOURNAL 33 PATHWAYS TO WELLBEING

Lawyer Wellness Takes Center Stage at North Carolina Bar Association Annual Meeting

B Y LAURA MAHR

Jackie Grant is promoting lawyer well- on the “backend” of ness as president of the North Carolina Bar stress—once you’ve Association (NCBA). Under her leadership, already succumbed the NCBA annual meeting being held at the to it and are dealing Biltmore Estate this month focuses entirely with mental health on wellbeing in our profession. I sat down or substance abuse ©iStockphoto.com/Juergen Sack with Jackie in a beautiful conference room issues. I’m interested overlooking downtown Asheville at Roberts in catching stress on & Stevens PA, where she is partner. I asked the “front end,” so her about her perspective on lawyer wellbe- that people learn the ing and on choosing wellness as the annual tools to manage meeting theme. stress and anxiety so Laura: What inspired you to include that it doesn’t get lawyer wellness as part of your platform as out of control. I’d NCBA president? like our profession Jackie: Incoming Bar presidents are to learn what we can tasked to address the most pressing issues in do to keep ourselves well so that we don’t that somebody else wants you to do. our profession. During my year as president- have to turn to substances to get through the Laura: What do you do to support your elect at the NCBA, I attended several ABA day, or need to take time away from lawyer- own wellbeing? meetings and the National Conference of ing to recover from chronic stress. Jackie: [Chuckling] Well, I will say that Bar Presidents meetings. In each one of Laura: What do you see as some of the over these past two years I haven’t had a lot those meetings, rising stress among lawyers major challenges in our field to lawyer well- of free time. I’m a bit embarrassed to admit and administrative staff was a recurring being? this, but I have to schedule an appointment theme. This theme emerged locally as well; Jackie: There are a number of issues that with myself to work out! I try to work out at our NCBA Leadership Academy survey account for why lawyers are under more least three times a week, and every other revealed that lawyers entering the academy stress, including billable hours, the increas- month or so I spend a couple of hours at a are experiencing increasingly higher levels of ing complexity of the law, and the heavy spa. That is my opportunity to have com- stress. I chose to build wellness into my plat- workload for lawyers on account of fewer plete quiet, unwind, get a massage, and read form because this is a perfect time to address new lawyers entering the profession. a book. We have to unplug; if we are always lawyer wellbeing. It is important for lawyers Technology has also changed the expecta- plugged in, we become exhausted and we to be well in order to provide good service to tions for lawyers. When I started practicing burn out. We have to find other things our clients. To be of value to the public, we law, we did not have cell phones or the abil- beyond work that we enjoy doing, even if it’s have to be well; if we are not well, we can’t ity to work remotely. Now, we can work just reading a book that gives us a break take care of others. anytime and anywhere, making it difficult from thinking about the law. Laura: What is unique about your per- to “unplug.” In addition, there are a lot of Laura: What kinds of things do you spective of wellness? lawyers who have high expectations for think firms should do in-house to promote Jackie: In my experience at ABA or themselves, and want to “do it all”—gradu- and support lawyer wellbeing? Is there any- National Conference of Bar Presidents ate law school, get married, start families, get thing specific you are doing at Roberts & meetings, when people talk about wellness, on the partnership track, and be involved in Stevens that promotes lawyer wellness? they talk a lot about the stress our profession community and professional activities. I’m Jackie: Law firms should have a culture is under, but rarely about solutions to stress. not saying that you cannot do it all, but you that supports attorneys’ wellbeing, including While there are some great programs to help need to find the time to do things that you encouraging them to disengage from work lawyers—including our NCBA BarCARES enjoy and make sure that you’re doing what by taking vacations, and not expecting them program—most of the programs catch you you want to do, and not just doing things to be available 24/7. Firms should also offer

34 SUMMER 2019 more mindfulness courses and encourage they go forth thinking, “I’m going to spend think clearly. n younger lawyers to participate in enjoyable a little more time doing this; I’m going to things. Here at Roberts & Stevens, we have work in some time to do that...so that I can Laura Mahr is a NC lawyer and the founder a more relaxed atmosphere than some firms. be of value to my clients, my firm, my prac- of Conscious Legal Minds LLC, providing We do fun things during the work day like tice, and my community.” mindfulness-based coaching, training, and con- celebrate people’s birthdays; this gives us a sulting for attorneys and law offices nationwide. few minutes away from our desks and time * * * Her work is informed by 11 years of practice as to socialize together. We also have a firm a civil sexual assault attorney and 25 years as a picnic at the baseball game and holiday If you’d like to participate in this first-of- student and teacher of mindfulness and yoga, events with the whole staff. Although we its-kind NCBA Annual Meeting, find out and a love of neuroscience. Find out more about have an expectation when it comes to bill- more at ncbar.org/members/annual-meet- Laura’s work at consciouslegalminds.com. able hours, we focus more on the quality of ing. If you are unable to attend the meeting, If you would like to connect with other work. When deciding compensation, we take a moment to reflect on Jackie’s com- lawyers who are curious about how mindfulness take into account things such as activities in ments. Ask yourself or talk with a colleague and meditation builds resilience in the practice professional organizations and community about how the legal field has changed since of law, join Laura as she presents at these involvement. This helps our lawyers under- you started practicing: upcoming events: stand that we want them to have outlets · What shifts, large and small, have you North Carolina Association of Defense that give them joy and support their overall experienced that have either supported or Attorneys Annual Meeting, June 15, 2019, wellbeing. challenged your wellbeing? Asheville, NC, “Love Your Work. Love Your Laura: The NCBA Annual Meeting’s · What changes would you like to see at Life: Five Mindfulness Tools” ncada.org/event- theme this year is “wellness.” What do you your workplace in the next two years to sup- 3034906 hope the participants experience during the port you and move our profession toward Charlotte Chapter of the Association of conference and take with them when they greater wellness? Legal Administrators Meeting, June 19, 2019, leave? If you do attend the meeting, I’ll be Charlotte, NC, “What Every Legal Jackie: I hope participants have a mind- delighted to see you there on Saturday, June Administrator Needs to Know about altering experience. What I mean by that is: 22, when I’ll present a brand-new CLE Mindfulness” alacharlotte.com/form.php?form_ I hope they literally leave with the tools they called “Tapping into the Intelligence of the id=13 need in order to better manage their time, Body to Optimize Your Life.” During the North Carolina Bar Association Annual their stress, and any other issues they may be presentation I will teach three tools designed Meeting, June 22, 2019, Asheville, NC, having. I’m envisioning a lightbulb coming to help you work from an optimal state of “Tapping Into the Intelligence of the Body to on for folks who have never thought about physical calm and cognitive clarity. One tool Optimize Your Life” ncbar.org/members/annu- wellbeing before. I envision them saying, will involve connecting with your nervous al-meeting “OMG, I’m ready to take this on…I’m system to feel calmer, another will focus on Mindfulness for Lawyers: Building ready to do this!” I want people to leave the tapping into your body’s wisdom to build Resilience to Stress Using Mindfulness, annual meeting feeling relaxed, with a reju- your resilience, and a third will help you re- Meditation, and Neuroscience (online, onde- venated mind and a rejuvenated outlook so wire your brain to optimize your ability to mand CLE), consciouslegalminds.com/register

Lawyer Assistance Program This kind of shift in perspective is much ery effort can attest to this shift in priorities, bigger and more profound than the trite glass ideas, emotions, and attitudes—and to a (cont.) half-empty, glass half-full metaphor we often change in perception and perspective that hear. It is the manifestation of inner growth, recovery brings. And, oh what a relief it is. n made. It was a sobering note because he accompanied as always by a shift in inner pri- reported that he had stayed in touch with orities, which leads to a different view of the The North Carolina Lawyer Assistance everyone with whom he had been in treat- world and our place in it. As William D. Program is a confidential program of assistance ment, and they all had relapsed. He was the Silkworth observed, part of this shift in per- for all North Carolina lawyers, judges, and law sole survivor who was still sober a few years spective “appears to be in the nature of huge students, which helps address problems of stress, later. In his note, which was the inspiration emotional displacements and rearrange- depression, alcoholism, addiction, or other for this article’s theme, he said that he was ments. Ideas, emotions, and attitudes which problems that may impair a lawyer’s ability to beginning to haltingly glimpse the bigger were once the guiding forces of the lives of practice. If you would like more information, go picture, and in so doing, his perspective had these [lawyers] are suddenly cast to one side, to nclap.org or call: Cathy Killian (western areas changed radically from feeling imposed and a completely new set of conceptions and of the state) at 704-910-2310, or Nicole upon to feeling immensely grateful for the motives begin to dominate them.” Anyone Ellington (for eastern areas of the state) at 919- very things he had resisted and resented. engaged in a genuine and committed recov- 719-9267.

THE NORTH CAROLINA STATE BAR JOURNAL 35 LEGAL SPECIALIZATION

Linda Johnson, Board Certified Specialist in Estate

Planning and Probate Law

B Y DENISE E. MULLEN, ASSISTANT DIRECTOR FOR THE BOARD OF LEGAL SPECIALIZATION

recently had an opportunity to talk with Linda Johnson, a board certified spe- my practice areas allows me to draft docu- ments in the planning process that improve the outcome during the administration cialist in estate planning and probate law, who practices with Senter, process. Poorly drafted documents can add unnecessary complications and delays. Q: Are there any hot topics in your special- Stephenson, Johnson, PA, in Fuquay-Varina. Linda began her education as a ty area right now? Yes. We are waiting on information and decisions about possible exemption changes business major at Fairfield University in Fairfield, Connecticut, completing a that can affect the advice we give to clients. We are also seeing changing recommenda- tions for gifts and sales of property, transfer Ibachelor of science in business management with a minor in German. She received her law and protection of assets, and the use of trusts in order to take advantage of options in basis planning for income taxes. degree from Quinnipiac College School of Law. She is licensed in Connecticut, Q: How do you stay current in your field? I attend extensive CLE Hawaii, and North Carolina. nationally through the University of Miami School of Law, the Hawaii Tax Institute, and the National Academy of After graduating from law school, Linda it is very important for me profes- Elder Law Attorneys. I most worked in the tax departments of regional sionally to know that I have edu- recently attended The American certified public accounting firms complet- cated myself to the top of my Johnson College of Trust and Estate ing tax work for decedent’s estates including, practice area. The specialty certifi- Counsel (ACTEC) national but not limited to, estate tax returns, estate cation and its ongoing continuing legal edu- meeting. I also attend several excellent pro- and trust income tax returns, and final indi- cation requirements enable me to achieve grams locally through the Wake County Bar, vidual tax returns. She transitioned from this goal. the North Carolina Bar Association, and the corporate employment to private practice, Q: Has earning board certification been Duke School of Law. I continue to teach joining the Aguirre Law Office in 1997. helpful to your career? courses on estate planning as well. Becoming a certified specialist has helped Yes, it has. Studying for and passing the Q: How does specialization benefit the her become a trusted resource for clients and estate planning and probate law certification public? other lawyers. Linda served two consecutive exam, and meeting the on-going require- The public is benefited by having the terms on the State Bar’s Estate Planning ments to stay certified, assist me in staying ability to obtain the services of a specialist, Specialty Committee, chairing the commit- on top of my game professionally and pro- usually with very little difference in the cost. tee for the last two years of her service. Her viding the most knowledgeable legal advice Clients benefit from the high caliber of work comments on her legal career and specialty to my clients. product. certification follow below. Q: How does your certification benefit the Q: Are there any volunteer organizations or Q: Why did you pursue board certification estate planning and probate process? other groups with which you enjoy work- with the State Bar? A specialist must learn and know the ing? As someone who has dedicated my legal specifics as well as some of the more obscure Yes, I am active with the NC Bar career to estate planning and administration, points of law. Being that well educated in Association as I just finished chairing the

36 SUMMER 2019 Estate Planning and Fiduciary Law Section, would pass by the quality of their answers. I was co-chair of the Legislative Committee, At the board retreats and annual luncheons, I still chair subcommittees of the Legislative I always was impressed by how passionate all Committee and co-chair the Ad Hoc the attorneys are about improving the spe- Committee. I also serve as a Hospice volun- cialization system and all of the practice teer attorney and co-chair the Grief Share areas. program at my church. Q: How do you see the future of specializa- Q: What was the best part about serving on tion/board certification? the Estate Planning Specialty Committee? I think it will continue to grow and I really enjoyed the in-depth education- expand to other practice areas. al experience in drafting and grading Q: What would you say to encourage other exams. I also appreciated the opportunity lawyers to pursue certification? to make friends with the other committee It will improve your practice of law. You members. will be a better attorney. You will meet great Q: What do you remember most about attorneys in all practice areas. n working on the exams, or attending the board retreat/annual luncheon? For more information on how to become I was always excited by the thrill of grad- certified, visit our website at nclawspecialists. ing an exam and knowing that the candidate gov.

To Wire or Not to Wire (cont.) this column will encourage you to pause and devote some serious thought to this question each time you consider sending a in excess of $100 million dollars, though wire. n North Carolina is not among the top ten states with the most victims. When you Endnotes consider that the number one cybercrime 1. All statistical information and definitions contained in type when ranked by victim loss is the BEC this paragraph were derived from the Federal Bureau of scam (which often targets North Carolina Investigation Internet Crime Complaint Center 2018 Internet Crime Report. lawyers), thoughtful consideration about 2. fbi.gov/news/stories/international-bec-takedown- whether to wire funds is warranted. To wire 061118. or not to wire…that is the question. I hope

Dealing with Client Perjury tribunal. n

(cont.) This column is an excerpt from an article written by Thomas Spahn and Alice Neece include this statement and, presumably, the Mine and is reprinted with permission. duty under the Model Rule is to take reme- Tom Spahn practices as a commercial litigator dial action as soon as the lawyer knows that in the Northern Virginia office of McGuire- material false evidence has been offered. Woods. He has served on the ABA Standing Reasonable remedial measures include Committee on Ethics and Professional Respon- remonstrating with client privately and sibility, is a member of the American Law Insti- seeking client’s cooperation regarding the tute, and is a fellow of the American Bar Foun- correction of the false evidence. NC Rule dation. 3.3, cmt. [10]. The lawyer may threaten to Alice Neece Mine is the executive director of withdraw if the client will not cooperate. the North Carolina State Bar. Withdrawing from the representation may be the next logical remedial measure, but Endnote only if withdrawal will undo the effect of 1. Monroe Freedman died on February 26, 2015, not the false evidence and is permitted by the long after this article was originally written.

THE NORTH CAROLINA STATE BAR JOURNAL 37 PROPOSED OPINIONS

Committee Publishes Proposed Opinions on Ex Parte Communications and Accessing Social Network Presence of Represented or Unrepresented Persons

Council Actions reviewed by the State Bar Council over the At its meeting on April 26, 2019, the State next quarter. The committee also considered Bar Council adopted the ethics opinions comments submitted by a member of the Bar summarized below: concerning a previously published proposed Rules, Procedure, 2019 Formal Ethics Opinion 1 formal ethics opinion. Lastly, the committee Comments Lawyer as an Intermediary approved two new opinions for publication, Opinion rules that a lawyer may not joint- which appear below. All opinions of the Ethics Committee are ly represent clients and prepare a separation predicated upon the North Carolina agreement. Proposed 2018 Formal Ethics Rules of Professional Conduct. Any 2019 Formal Ethics Opinion 2 Opinion 5 interested person or group may submit a Conditions Imposed on Lawyer by Client’s Accessing Social Network Presence written comment – including comments ERISA Plan of Represented or Unrepresented in support of or against the proposed Opinion rules that a lawyer may not agree Persons opinion – or request to be heard concern- to terms in an ERISA plan agreement that April 25, 2019 ing a proposed opinion. The Ethics usurp a client’s authority as to the representa- Proposed opinion reviews a lawyer’s profes- Committee welcomes and encourages tion. sional responsibilities when seeking access to a the submission of comments, and all 2019 Formal Ethics Opinion 3 person’s profile, pages, and posts on a social net- comments are considered by the com- Engaging in Intimate Relationship with work to investigate a client’s legal matter. mittee at the next quarterly meeting. Opposing Counsel Any comment or request should be Opinion rules that an ongoing sexual rela- Introduction: directed to the Ethics Committee c/o tionship between opposing counsel creates a Social networks are internet-based com- Lanice Heidbrink at lheidbrink@ conflict of interest in violation of Rule 1.7(a). munities that individuals use to communi- ncbar.gov no later than June 28, 2019. cate with each other and to view and Ethics Committee Actions exchange information, including photo- The Ethics Committee considered a total graphs, digital recordings, and files. of 11 inquiries at its meeting on April 25, Examples of currently popular social net- 2019. Four of those inquiries were sent or works include, but are not limited to, Public Information returned to subcommittee for further study, Facebook, Twitter, Instagram, and including inquiries on a lawyer’s participation LinkedIn. On some forms of social media, The Ethics Committee’s meetings are in online self-laudatory professional organiza- such as Facebook, users create a profile page public, and materials submitted for con- tions, a lawyer’s ability to receive Bitcoin and with personal information that other users sideration are generally NOT held in other cryptocurrency in connection with a may access online. Websites that host the confidence. Persons submitting requests law practice, attorney’s eyes only discovery social networks often allow the user to for advice are cautioned that inquiries agreements, and a lawyer’s ability to offer an establish the level of privacy for the profile should not disclose client confidences or incentive for interaction with a law practice page and postings thereon, and to limit sensitive information that is not necessary social media account. The committee also those who may view the profile page and to the resolution of the ethical questions published two ethics decisions to the State postings to “friends”—those who have presented. Bar Council concerning a lawyer’s ability to specifically sent a computerized request to contest opposing counsel’s fee request at the view the profile page which the user has Industrial Commission, and a lawyer’s ability accepted. NYCBA Formal Op. 2010-2 matter. However, the use of social networks to represent parents in DSS matters while (September 2010). has ethical implications. Several rules restrict simultaneously serving as a foster parent. Lawyers increasingly access social net- a lawyer’s communications with people These proposed ethics decisions will be works to prepare or to investigate a client’s involved in a client’s matter. Rule 4.2 restricts

38 SUMMER 2019 a lawyer’s communications with persons rep- client in a matter view the public portion of a Opinion #2: resented by counsel. Rule 4.3 restricts a person’s social network presence? No. Lawyers must never use deception, lawyer’s communications with unrepresented dishonesty, or pretext to gain access to a per- persons. Furthermore, all communications by Opinion #1: son’s restricted social network presence. Rules a lawyer are subject to Rule 4.1’s prohibition Yes. The public portion of a person’s social 4.1 and 8.4(c). When seeking access to a per- on knowingly making a false statement of network presence refers to any information or son’s restricted social network presence, a material fact or law to a third person and to posting that is viewable by anyone using the lawyer must not state or imply that he is Rule 8.4(c)’s prohibition on conduct involv- internet or anyone who is a member of the someone other than who he is or that he is ing dishonesty, fraud, deceit, or misrepresen- social network. Such information is no differ- disinterested. Furthermore, lawyers may not tation that reflects adversely on the lawyer’s ent than other information that is publicly instruct a third party to use deception. fitness as a lawyer. available. Nothing in the Rules of The technology and features of social Professional Conduct prohibits a lawyer from Inquiry #3: networks are constantly changing. It is accessing publicly available information. May a lawyer, using his true identity, impossible to address every aspect of a As noted by the Colorado Bar request access to the restricted portions of lawyer’s ethical obligation when utilizing a Association, “[a] lawyer’s conduct in viewing an unrepresented person’s social network social network to prepare or to investigate a [the public portion of a person’s social media presence? client’s legal matter. Every lawyer is required profile or any public posting made by an indi- by the duty of competence to keep abreast of vidual] does not implicate any of the restric- Opinion #3: the benefits and risks associated with the tions upon communications between a Yes. A lawyer’s duty of competent and technology relevant to the lawyer’s practice, lawyer and certain others involved in the legal diligent representation under Rules 1.1 and including social networks. Rule 1.1, cmt. system.” Colorado Formal Op. 127 1.3 encompasses the use of readily available [8]. Further, when using a social network as (September 2015). forms of informal discovery. A lawyer who an investigative tool, a lawyer’s professional Some social networks automatically noti- seeks informal discovery may request the conduct must be guided by the Rules of fy a person when his or her presence has been same access to an unrepresented person’s Professional Conduct. viewed. The person whose presence is viewed social network presence that is available to This opinion will address ethical issues may receive information about the individ- any nonlawyer, as long as the lawyer uses his that arise when lawyers, either directly or ual who viewed the presence. Under these true identity and does not engage in decep- indirectly, seek access to social network pro- circumstances, when a lawyer views a per- tion or dishonesty. The person contacted is files, pages, and posts (collectively referred to son’s public social network presence, it is the free to accept, reject, or ignore the request, or as “social network presence”) belonging to social network sending a communication, to ask for additional information. If the another person. Throughout the opinion, not the lawyer. Therefore, the notification unrepresented person asks the lawyer for “person” refers to opposing parties and to generated by the social network is not a pro- additional information, the lawyer must witnesses. hibited communication by the lawyer. See, accurately provide the information or with- This opinion does not obviate comment e.g., ABA Formal Op. 466 (2014) (commu- draw the request. [1] to Rule 8.4. The comment explains that nication generated because of technical fea- Rule 4.3(b) provides that a lawyer, in deal- the prohibition in Rule 8.4(a) against know- ture of electronic social media service is com- ing on behalf of a client with a person who is ingly assisting another to violate the Rules of munication by the service, not the lawyer). not represented by counsel, shall not “state or Professional Conduct or violating the Rules However, a lawyer who engages in repetitive imply that the lawyer is disinterested.” In of Professional Conduct through the acts of viewing of a person’s social network presence addition, when the lawyer “knows or reason- another does not prohibit a lawyer from so as to generate multiple notifications from ably should know that the unrepresented per- advising a client or, in the case of a govern- the network may be in violation of Rule son misunderstands the lawyer’s role in the ment lawyer, investigatory personnel, of 4.4(a). That rule prohibits a lawyer from matter, the lawyer shall make reasonable action the client, or such investigatory per- using means that have no substantial purpose efforts to correct the misunderstanding.” sonnel, is lawfully entitled to take. See 2014 other than to embarrass, delay, or burden a By simply requesting access, the lawyer FEO 9 (use of tester in investigation that third person, and from using methods of does not violate Rule 4.3. A lawyer who serves a public interest). obtaining evidence that violate the legal requests access is not making any statement, For guidance on communicating with a rights of such a person. nor is he implying disinterest. See Oregon judge on a social network, see 2014 FEO 8. Lawyers may view the public portion of a State Bar, Formal Opinion No. 2013-189 For the restrictions on communicating with person’s social network presence. However, (2016 Revision) (“A simple request to access a juror or a member of the jury venire, see the lawyer may not engage in repetitive view- nonpublic information does not imply that Rule 3.5. ing of a person’s social network presence if Lawyer is ‘disinterested’ in the pending legal doing so would violate Rule 4.4(a). matter.”). The person contacted has full Inquiry #1: control over who views the information on Regardless of the privacy setting estab- Inquiry #2: her social network site. A grant of the lished by a user, some social network sites May a lawyer use deception to access a lawyer’s request, without additional inquiry, allow public access to certain limited user restricted portion of a person’s social network does not indicate a misunderstanding of the information. May a lawyer representing a presence? lawyer’s role.

THE NORTH CAROLINA STATE BAR JOURNAL 39 Inquiry #4: social network presence and can provide without notice to that party, and [3] outside May a lawyer, using his true identity, helpful information to the lawyer’s client, the the record.” Rule 3.5(d). request access to the restricted portions of a lawyer is not prohibited from requesting • Comment [4] to Rule 8.4(d) has been represented person’s social network presence? such information from the third party or amended to clarify the type of conduct that is accepting information volunteered by the “prejudicial to the administration of justice.” Opinion #4: third party. Similarly, a lawyer may accept Under these revised rules, ex parte com- No. During the representation of a client, information from a client who has access to munications continue to be generally prohib- a lawyer shall not communicate about the the opposing party’s or a witness’s restricted ited, regardless of their form. In addition to subject of the representation with a person social network presence. the revised Rules, many such communica- the lawyer knows to be represented by anoth- However, the lawyer may not direct or tions are also subject to restrictions estab- er lawyer in the matter, unless the lawyer has encourage a third party or a client to use lished by law or court rule, including rules of the consent of the other lawyer or is author- deception or misrepresentation when com- evidence and rules of procedure. Pursuant to ized to do so by law or by court order. Rule municating with a person on a social network N.C. Gen. Stat. § 84-36, the Rules of 4.2(a). Rule 4.2 contributes to the proper site. See Opinion #2. Professional Conduct are not meant to dis- functioning of the legal system by protecting able or abridge “the inherent powers of the a person who has chosen to be represented by Proposed 2019 Formal Ethics court to deal with its attorneys,” which a lawyer in a matter against possible over- Opinion 4 include the manner in which attorneys com- reaching by other lawyers who are participat- Ex Parte Communications with a municate with the court. Therefore, regard- ing in the matter, interference by those Judge Regarding Scheduling or less of form, and except as prohibited by law lawyers with the client-lawyer relationship Administrative Matter or court rule, including rules of evidence and and the uncounseled disclosure of informa- April 25, 2019 rules of procedure, communications that do tion relating to the representation. Rule 4.2, Proposed opinion rules that, except as pro- not fall within the definition of “ex parte comment [1]. hibited by law or court rule, including rules of communications” are within the discretion Unless the lawyer has obtained express evidence and rules of procedure, communica- and preference of the tribunal and the presid- consent from the represented person’s lawyer, tions with judicial official are within the discre- ing judicial official. the request interferes with the attorney-client tion and preference of the tribunal and the pre- To the extent this opinion conflicts with relationship and could lead to the uncoun- siding official. 98 FEO 13, it is overruled. n seled disclosure of information relating to the Relying on previous versions of Rules 3.5 representation. Therefore, requesting access and 8.4 that prohibited ex parte communica- to the restricted portions of a represented per- tions with judicial officials and conduct prej- son’s social network presence is prohibited udicial to the administration of justice, 98 unless the lawyer obtains consent from the FEO 13 expanded the prohibition on com- IOLTA Update (cont.) person’s lawyer. Furthermore, the lawyer may munications with judges to include certain not direct a third party to request access to “informal written communications” even if businesses, and farmers on business issues, restricted portions of a represented person’s they did not fall within the definition of ex access to USDA Rural Development pro- social network presence. See Rule 8.4(a). parte communications. The rationale for the grams, and business planning; expanded prohibition was that certain writ- • Participation in state, regional, and local Inquiry #5: ten communications with a judge “may be taskforces and coalitions working to address May a lawyer request or accept informa- used as an opportunity to introduce new evi- community redevelopment needs. tion from a third party with access to dence, to argue the merits of the case, or to Community Redevelopment Grants were restricted portions of a person’s social net- cast the opposing party or counsel in a bad made with funds from the national Bank of work presence? light.” America settlement received in 2015 and Since the adoption of 98 FEO 13, several 2016. IOLTA intends to spend down nearly Opinion #5: Rules underlying the opinion have been all remaining funds received from the Bank Yes. Nothing in the Rules of Professional revised: of America settlement over the next several Conduct prevents a lawyer from engaging in • Rule 1.0 has been amended to include a years. lawful and ethical informal discovery such as definition of “writing” or “written” that now communicating with third party witnesses to encompasses email, text messages, and any State Funds collect information and evidence to benefit a other form of electronic communication. In addition to its own funds, NC IOLTA client. Witnesses who have obtained infor- • Rule 3.5 has been amended to simply administers the state funding for legal aid mation from the restricted portions of a per- state that ex parte communications with a under the Domestic Violence Victim son’s (represented or unrepresented) social judicial official are prohibited, unless author- Assistance Act on behalf of the NC State Bar. network presence are no different in this ized by law or court order. The revision also To date, NC IOLTA has administered regard than any other witness with informa- clearly defines an ex parte communication as $784,615 in domestic violence state funds tion relevant to a client’s matter. Therefore, “a communication on behalf of a party to a for 2018-2019. $100,000 was appropriated when a lawyer is informed that a third party matter pending before a tribunal that occurs to Pisgah Legal Services for legal services for has access to restricted portions of a person’s [1] in the absence of an opposing party, [2] veterans again in 2018-2019. n

40 SUMMER 2019 RULE AMENDMENTS

Amendments Approved by the Supreme Court

On March 27, 2019, the North Carolina Standards for the Immigration Law Specialty;

Supreme Court approved the following Section .2700, Certification Standards for the amendments. Workers’ Compensation Law Specialty; Section .2800, Certification Standards for the Highlights Amendments to the Rules on Discipline Social Security Disability Law Specialty; • Upon the recommendation of the and Disability of Attorneys Section .2900, Certification Standards for the special committee appointed to study 27 N.C.A.C. 1B, Section .0100, Elder Law Specialty; Section .3000, the Rules Governing the Practical Discipline and Disability of Attorneys Certification Standards for the Appellate Training of Law Students, the Council Amendments to Rule .0113 establish a Practice Specialty; Section .3100, Certification is publishing proposed rule amend- procedure for imposition of censures that is Standards for the Trademark Law Specialty; ments that will enable North Carolina consistent with the procedures for imposition Section .3200, Certification Standards for the law schools to provide more opportu- of reprimands and admonitions. New Rule Utilities Law Specialty; and Section .3300, nities for law students to engage in .0135 establishes a procedure to suspend the Certification Standards for the Privacy and practical training. license of a licensee who is not in compliance Information Security Law Specialty • Amendments to CLE rules that with demands of the Grievance Committee The amendments reduce the number of eliminate the annual 6.0 cap on online for information or evidence relating to a peer references required for recertification as a CLE credit hours will be sent to the grievance investigation. specialist from ten to six for all specialties. NC Supreme Court following the Council’s July meeting. If approved Amendments to the Minimum Standards Amendments to the Rules of Professional by the Court, elimination of the cap for Continued Certification of Specialists Conduct will be effective for the 2020 CLE and to the Recertification Standards for 27 N.C.A.C. 2, Rule 1.15, Safekeeping compliance year. All Specialties Property; Rule 3.5, Impartiality and 27 N.C.A.C. 1D, Section .1700, The Plan Decorum of the Tribunal; and Rule 5.4, for Legal Specialization; Section .2100, Professional Independence of Lawyer Certification Standards for the Real Property The amendments to the official comment that the gift or loan was made to influence Law Specialty; Section .2200, Certification to Rule 1.15 explain the due diligence official action. The amendments to Rule 5.4 Standards for the Bankruptcy Law Specialty; required if a lawyer uses an intermediary add an exception to the prohibition on fee Section .2300, Certification Standards for the (such as a bank, credit card processor, or liti- sharing with a nonlawyer which allow a Estate Planning and Probate Law Specialty; gation funding entity) to collect a fee. The lawyer to pay a portion of a legal fee to certain Section .2400, Certification Standards for the amendments to Rule 3.5 revise the official third parties if the amount paid is for admin- Family Law Specialty; Section .2500, comment to specify that gifts or loans to istrative or marketing services and there is no Certification Standards for the Criminal Law judges are only prohibited if made under cir- interference with the lawyer’s independent

Specialty; Section .2600, Certification cumstances that might give the appearance professional judgment.

Amendments Pending Supreme Court Approval

At its meeting on April 26, 2019, the Proposed Amendments to the Rules on when it is not practicable or reasonable to North Carolina State Bar Council voted to Election, Succession and Duties of convene a meeting of the council. Actions adopt the following rule amendments for Officers taken pursuant to this authority are subject transmission to the North Carolina Supreme 27 N.C.A.C. 1A, Section .0400, Election to ratification at the next meeting of the Court for approval. (For the complete text of Succession, and Duties of Officers council. the proposed rule amendments, see the The proposed amendments expressly Spring 2019 edition of the Journal or visit authorize the president to act in the name of the State Bar website.) the State Bar under emergent circumstances

THE NORTH CAROLINA STATE BAR JOURNAL 41 Proposed Amendment to the Rule on operate the Attorney Client Assistance claim that has been paid in full; provide that, Standing Committees and Boards of the Program and the Fee Dispute Resolution ordinarily, a fee dispute will be processed State Bar Program. before a companion grievance; and modern- 27 N.C.A.C. 1A, Section .0700, ize existing language of Section .0700. Standing Committees and Boards of the Proposed Amendment to the Rules on State Bar Discipline and Disability of Attorneys Proposed Amendments to the Rules and The proposed amendment eliminates the 27 N.C.A.C. 1B, Section .0200, Rules Regulations Governing the requirement that the Grievance Committee Governing Judicial District Grievance Administration of the Continuing Legal establish and implement a disaster response Committees Education Program plan to assist victims of disasters in obtaining The proposed amendment reflects the 27 N.C.A.C. 1D, Section .1500, Rules legal representation and to prevent the elimination of judicial district bar fee dispute Governing the Administration of the improper solicitation of victims by lawyers. programs. Continuing Legal Education Program; and Section .1600, Regulations Governing the Proposed Amendment to the Rules Proposed Amendments to the Rules on Administration of the Continuing Legal Governing the Organization of the North Standing Committees and Boards of the Education Program Carolina State Bar State Bar The proposed amendments to both sec- 27 N.C.A.C. 1A, Section .1000, Model 27 N.C.A.C. 1D, Section .0700, tions of the rules that govern the administra- Bylaws for Use by Judicial District Bars Procedures for Fee Dispute Resolution tion of the CLE program eliminate the The proposed amendments reflect the The proposed amendments to numerous annual 6.0 cap on online CLE credit hours. elimination of judicial district bar fee dispute rules in Section .0700 accomplish the follow- programs. ing: eliminate judicial district bar fee dispute Proposed Amendments to the Rules of programs; eliminate language that would Professional Conduct Proposed Amendments to the Rules on allow a third-party payor of legal fees or 27 N.C.A.C. 2, Rule 1.5, Fees Discipline and Disability of Attorneys expenses to file a fee dispute petition; state The proposed amendments to Rule 1.5 27 N.C.A.C. 1B, Section .0100, that the fee dispute program does not have expand the information a lawyer must com- Discipline and Disability of Attorneys jurisdiction over disputes regarding fees or municate to a client before the lawyer may The proposed amendments acknowledge expenses that are the subject of a pending initiate legal proceedings to collect a disputed the Grievance Committee’s authority to Client Security Fund (CSF) claim or CSF fee.

Proposed Amendments

At its meeting on April 26, 2019, the law students in N.C. Gen. Stat. §84-7.1. the terms used in this section: council voted to publish the following pro- (a) Clinical legal education program – posed rule amendments for comment from .0201 Purpose Experiential educational program that the members of the Bar. The following rules in this subchapter are engages students in “real world” legal mat- adopted for the following purposes: to ters through supervised practice experience. Proposed Amendments to the Rules encourage support the development of clini- Under the supervision of a faculty member Governing the Practical Training of Law cal legal education programs at North or site supervisor who is accountable to the Students Carolina’s law schools to in order that the law school, students assume the role of a 27 N.C.A.C. 1C, Section .0200, Rules law schools may provide their students with lawyer either as a protégé, lead counsel, or a Governing the Practical Training of Law supervised practical training of varying kinds member of a lawyer team. Students during the period of their formal legal educa- (1) (b) Eligible persons - Persons who are The proposed rule amendments will facil- tion; and to enable law students to obtain unable financially to pay for the legal advice itate compliance by North Carolina’s law supervised practical training while serving as or services of an attorney, as determined by a schools with the ABA accreditation standards legal interns for government agencies; and to standard established by a judge of the for law schools by supporting the develop- assist law schools in providing substantial General Court of Justice, a legal services cor- ment and expansion of supervised practical opportunities for student participation in poration organization, government entity, training of varying kinds for law students pro bono service. or a law school clinical legal aid clinic provid- including clinics, field placements, and pro History Note: Statutory Authority G.S. ing representation. education program. bono activities. The proposed rule amend- 84-7.1 and G.S. 84-23 “Eligible persons” includes may include ments will also ensure that the clinical legal minors who are not financially independ- education programs at the state’s law schools .0202 Definitions ent; students enrolled in secondary and satisfy the requirements for legal practice by The following definitions shall apply to higher education schools who are not finan-

42 SUMMER 2019 cially independent; non-profit organizations (6)(h) Legal services corporation organi- (4)(c) be introduced by an attorney serving low-income communities; and other zation - A nonprofit North Carolina corpora- admitted to practice in the tribunal or organizations financially unable to pay for tion organized exclusively organization oper- agency to every judicial official who will pre- legal advice or services. ating as a public interest law firm pursuant side over a matter in which the student will (c) Field placement – Practical training to N.C. Gen. Stat. 84-5.1. appear, to the court in which he or she is opportunities within a law school’s clinical (i) Pro bono activity – An opportunity appearing by an attorney admitted to practice legal education program that place students while in law school for students to provide in that court and, pursuant to Rule .0206(c) in legal practice settings external to the law legal services to those unable to pay, or oth- of this subchapter, obtain the tribunal’s or school. Students in a field placement repre- erwise under a disability or disadvantage, agency’s consent to appear subject to any sent clients or perform other lawyering roles consistent with the objectives of Rule 6.1 of limitations imposed by the presiding judicial under the supervision of practicing lawyers the Rules of Professional Conduct. official; such introductions do not have to or other qualified legal professionals. Faculty (j) Rules of Professional Conduct – The occur in open court and the consent of the have overall responsibility for assuring the Rules of Professional Conduct adopted by judicial official may be oral or written; educational value of the learning in the field. the Council of the North Carolina State Bar, (5)(d) neither ask for nor receive any com- Supervising attorneys provide direct feed- approved by the North Carolina Supreme pensation or remuneration of any kind from back and guidance to the students. Site Court, and in effect at the time of applica- any client eligible person for to whom he or supervisors have administrative responsibili- tion of the rules in this subchapter. she renders services, but this shall not prevent ty for the legal intern program at the field (k) Site supervisor – The attorney at a an attorney, legal services corporation organ- placement. Such practical training opportu- field placement who assumes administra- ization, law school, or government agency nities may be referred to as “externships.” tive responsibility for the legal intern pro- from paying compensation to the law student (2)(d) Government agencies - The federal gram at the field placement and provides or charging or collecting a fee for legal services or state government, any local government, the notices to the State Bar required by Rule performed by such law student; and or any agency, department, unit, or other .0205(b) of this subchapter. A site supervi- (6)(e) certify in writing that he or she has entity of federal, state, or local government, sor may also be a supervising attorney at a read and is familiar with the North Carolina specifically including a public defender’s field placement. Revised Rules of Professional Conduct and is office or a district attorney’s office. (7)(l) Supervising attorney - An active familiar with the opinions interpretive there- (3)(e) Law school - An ABA accredited member of the North Carolina State Bar who of. law school or a law school actively seeking satisfies the requirements of Rule .0205 of History Note: Statutory Authority G.S. accreditation from the ABA and licensed by this Subchapter, or an attorney who is 84-7.1 and G.S. 84-23 the Board of Governors of the University of licensed in another jurisdiction as appropri- North Carolina. If ABA accreditation is not ate for the legal work to be undertaken, who .0204 Certification as Legal Intern Form obtained by a law school so licensed within has practiced law as a full-time occupation and Duration of Certification three years of the commencement of classes, for at least two years, and who supervises one Upon receipt of the written materials legal interns may not practice, pursuant to or more legal interns pursuant to the require- required by Rule .0203(3)(b) and (6)(e) and these rules, with any legal aid clinic of the ments of the rules in this subchapter. Rule .0205(6)(b), the North Carolina State law school. History Note: Statutory Authority G.S. Bar shall certify that the law student may (4) Legal aid clinic - A department, divi- 84-7.1 and G.S. 84-23 serve as a legal intern. The certification shall sion, program, or course in a law school that be subject to the following limitations: operates under the supervision of an active .0203 Eligibility (a) Duration. The certification shall be member of the State Bar and renders legal To engage in activities permitted by these effective for 18 months or until the services to eligible persons. rules, a law student must satisfy the following announcement of the results of the first bar (f) Law school clinic - Courses within a requirements: examination following the legal intern’s grad- law school’s clinical legal education program (1)(a) be enrolled as a J.D. or LL.M. stu- uation whichever is earlier. If the legal intern that place students in a legal practice setting dent in a law school approved by the Council passes the bar examination, the certification operated by the law school. Students in a of the North Carolina State Bar; shall remain in effect until the legal intern is law school clinic assume the role of a lawyer (2) have completed at least three semesters sworn-in by a court and admitted to the bar. representing actual clients or performing of the requirements for a professional degree (b) Withdrawal of Certification. The cer- other lawyering roles. Supervision of stu- in law (J.D. or its equivalent); tification shall be withdrawn by the State Bar, dents is provided by faculty employed by the (3) (b) be certified in writing by a repre- without hearing or a showing of cause, upon law school (full-time, part-time, adjunct) sentative of his or her law school, authorized receipt of who are active members of the North by the dean of the law school to provide such (1) notice from a representative of the Carolina State Bar or another bar as appro- certification, as being of good character with legal intern’s law school, authorized to act priate for the legal matters undertaken. requisite legal ability and training legal edu- by the dean of the law school, that the (5)(g) Legal intern - A law student who is cation to perform as a legal intern, which legal intern has not graduated but is no certified to provide supervised representation education shall include satisfaction of the longer enrolled; to clients under the provisions of the rules of prerequisites for participation in the clinic or (2) notice from a representative of the this Subchapter subchapter. field placement; legal intern’s law school, authorized to act

THE NORTH CAROLINA STATE BAR JOURNAL 43 by the dean of the law school, that the the activities permitted by these rules and intern program at a field placement shall legal intern is no longer in good standing review such activities with the legal intern, notify the North Carolina State Bar in at the law school; all to the extent required for the proper writing promptly whenever the supervi- (3) notice from a supervising attorney that practical training of the legal intern and sion of a legal intern concludes prior to the supervising attorney is no longer the protection competent representation the designated period of supervision. supervising the legal intern and that no of the client; and (c) Responsibilities of Law School Clinic other qualified attorney has assumed the (5) read, approve and personally sign any in Absence of Legal Intern. During any peri- supervision of the legal intern; or pleadings or other papers prepared by a od when a legal intern is not available to (4) notice from a judge before whom the legal intern prior to the filing thereof, and provide representation due to law school legal intern has appeared that the certifica- read and approve any documents pre- seasonal breaks, graduation, or other reason, tion should be withdrawn. pared by a legal intern for execution by a the supervising attorney shall maintain the History Note: Statutory Authority G.S. client or third party prior to the execution status quo of a client matter and shall take 84-7.1 and G.S. 84-23 thereof.; action as necessary to protect the interests of (6) prior to commencing the supervision, the client until the legal intern is available or .0205 Supervision assume responsibility for supervising a a new legal intern is assigned to the matter. (a) Supervision Requirements. A super- legal intern by filing with the North During law school seasonal breaks, or other vising attorney shall Carolina State Bar a signed notice setting periods when a legal intern is not available, (1) be an active member of the North forth the period during which supervising if a law school clinic or a supervising attor- Carolina State Bar who has practiced law attorney expects to supervise the activities ney is presented with an inquiry from an eli- as a full-time occupation for at least two of an identified legal intern, and that the gible person or a legal matter that may be years; supervising attorney will adequately appropriate for representation by a legal (2) for a law school clinic, concurrently supervise the legal intern in accordance intern, the representation may be undertak- supervise no more than two legal interns with these rules; and en by a supervising attorney to preserve the concurrently, provided, however, there is (7) notify the North Carolina State Bar in matter for subsequent representation by a no limit on the number of an unlimited writing promptly whenever the supervi- legal intern. Communications by a supervis- number of legal interns who may be sion of a legal intern ceases. ing attorney with a prospective client to supervised concurrently by an if the (b) Filing Requirements. determine whether the prospective client is supervising attorney who is a full-time, or (1) Prior to commencing supervision, a eligible for clinic representation may include part-time, or adjunct member of a law supervising attorney in a law school clin- providing immediate legal advice or infor- school’s faculty or staff whose primary ic shall provide a signed statement to the mation even if it is subsequently determined responsibility as a faculty member is North Carolina State Bar (i) assuming that the matter is not appropriate for clinic supervising legal interns in a legal aid law responsibility for the supervision of iden- representation. school clinic and, further provided, the tified legal interns, (ii) stating the period (d) Independent Legal Practice. Nothing number of legal interns concurrently during which the supervising attorney in these rules prohibits a supervising attor- supervised is not so large as to compro- expects to supervise the activities of the ney in a law school clinic from providing mise the effective and beneficial practical identified legal interns, and (iii) certify- legal services to third parties outside of the training supervision of the legal interns ing that the supervising attorney will scope of the supervising attorney’s employ- or the competent representation of adequately supervise the legal interns in ment by the law school operating the clinic. clients that an attorney who supervises accordance with these rules. History Note: Statutory Authority G.S. legal interns through an externship or out- (2) Prior to the commencement of a field 84-7.1 and G.S. 84-23 placement program of a law school legal aid placement for a legal intern(s), the site clinic may supervise up to five legal interns; supervisor shall provide a signed state- Note: The following three rules are all new (2) for a field placement, concurrently ment to the North Carolina State Bar (i) rules; therefore, bold, underlined font is not supervise no more than two legal interns; assuming responsibility for the adminis- used. however, a greater number of legal tration of the field placement in compli- .0208 Field Placements interns may be concurrently supervised ance with these rules, (ii) identifying the (a) A law student enrolled in a field place- by a single supervising attorney if the participating legal intern(s) and stating ment at an organization, entity, agency, or law appropriate faculty supervisor deter- the period during which the legal firm shall be certified as a legal intern if the mines, in his or her reasoned discretion, intern(s) is expected to participate in the law student will (i) provide legal advice or that the effective and beneficial practical program at the field placement, (iii) iden- services in matters governed by North training of the legal interns and the com- tifying the supervising attorney(s) at the Carolina law to eligible persons or govern- petent representation of clients will not field placement, and (iv) certifying that ment agencies outside the organization, enti- be compromised; the supervising attorney(s) will adequate- ty, agency, or law firm or (ii) appear before any (3) assume personal professional responsi- ly supervise the legal intern(s) in accor- North Carolina tribunal or agency on behalf bility for any work undertaken by a legal dance with these rules. of an eligible person or a government agency. intern while under his or her supervision; (3) A supervising attorney in a law school (b) Supervision of a legal intern enrolled (4) assist and counsel with a legal intern in clinic and a site supervisor for a legal in a field placement may be shared by two or

44 SUMMER 2019 more attorneys employed by the organiza- access to, information relating to the repre- client or to transfer the file to legal counsel tion, entity, agency, or law firm, provided sentation of clients. See Rule 1.6(c) of the outside of the clinic. If instructed by a client, one attorney acts as site supervisor, assuming Rules of Professional Conduct. a file shall be promptly returned to the client administrative responsibility for the legal (d) Responsibility for Maintenance of or transferred to authorized legal counsel intern program at the field placement and Client Files. Client files shall be maintained outside of the clinic. providing the notices to the State Bar and safeguarded by a law school clinic in (g) Responsibility upon Closure of a Law required by Rule .0205(b) of this subchapter. accordance with the Rules of Professional School Clinic. If a law school clinic is closed All supervising attorneys at a field placement Conduct and the ethics opinions interpreta- for any reason, the supervising attorney, with shall comply with the requirements of Rule tive thereof. Closed client files shall be support from the law school, shall take appro- .0205(a). returned to the client or shall be safeguarded priate steps to preserve the status quo of the and maintained by a law school clinic until legal matters of clients, consistent with the .0209 Relationship of Law School and disposal is permitted under the Rules of Rules of Professional Conduct and the ethics Clinics; Responsibility Upon Departure of Professional Conduct. See RPC 209. opinions interpretative thereof. The adminis- Supervising Attorney or Closure of Clinic (e) Engagement Letter. In addition to the tration of the law school and of the clinic (a) Relationship to Other Clinics. The consent agreement required by Rule shall promptly notify all affected clients that clinics that are a part of a clinical legal educa- .0206(d) of this section for any representa- (i) they have the right to counsel of choice tion program at a law school may each oper- tion of an individual client in a matter before (which may include the supervising attorney ate as an independent entity (the “indepen- a tribunal, a written engagement letter or if the supervising attorney will engage in dent clinic model”) or they may operate col- memorandum of understanding with each legal practice after closure of the clinic); (ii) lectively as one entity with each clinic acting client is recommended. The writing should the file will be mailed to or delivered to the as a department or division of the entity (the state the general nature of the legal services to client and the supervising attorney will with- “unified clinic model”). In the independent be provided and explain the roles and draw from representation in the absence of clinic model, clinics function independently responsibilities of the clinic, the supervising other instructions from the client; and (iii) of each other, including the maintenance of attorney, and the legal intern. See Rule 1.5, they may instruct the clinic to transfer the separate offices and separate conflicts-check- cmt. [2] of the Rules of Professional file to authorized legal counsel outside of the ing and case management systems. In the Conduct (“A written statement concerning clinic (which may include the supervising unified clinic model, clinics may share offices the terms of the engagement reduces the pos- attorney). If the supervising attorney will not as well as conflicts-checking and case manage- sibility of misunderstanding.”) continue the representation after closure of ment systems. (f) Responsibility upon Departure of the clinic, the attorney shall comply with (b) Application of the Rules of Supervising Attorney. Upon the departure of Rule 1.16 of the Rules of Professional Professional Conduct. For the purposes of a supervising attorney from a law school clin- Conduct and all court rules for withdrawal applying the Rules of Professional Conduct, ic, the administration of the law school and from representation. each law school clinic operated pursuant to of the clinic shall promptly identify a replace- the independent clinic model shall be consid- ment supervising attorney for any active case .0210 Pro Bono Activities ered one law firm and clinics operated pur- in which no other supervising attorney is (a) Pro Bono Activities for Law Students. suant to the unified clinic model shall collec- participating. In such cases, the departing Pro bono activities for law students may be tively be considered one law firm. attorney and the clinic administration shall facilitated by a law school acting under the (c) Relationship with Law School. The protect the interests of all affected clients by auspices of a clinical legal education program relationship between law school clinics and taking appropriate steps to preserve the status or another program or department of the law the law school in which they operate shall be quo of the legal matters of affected clients, school. As used in this rule, “auspices” means managed in a manner consistent with the consistent with the Rules of Professional administrative or programmatic support or requirements of the Rules of Professional Conduct and the ethics opinions interpreta- supervision. Conduct. Procedures shall be established by tive thereof. If the departing attorney will not (b) Student Certification Not Required. both the clinics and the law school that are continue the representation after departure Regardless of whether the pro bono activity is reasonably adequate to protect confidential from the clinic, the attorney shall comply provided under the auspices of a clinical legal client information from disclosure including with Rule 1.16 of the Rules of Professional education program or another program or disclosure to the law school administration, Conduct and all court rules for withdrawal department of a law school, a law student non-participating law school faculty and staff, from representation. Affected clients shall be participating in a pro bono activity made avail- and non-participating students of the law notified and advised that (i) they have the able by a law school is not required to be cer- school. The rule of imputed disqualification, right to counsel of choice (which may tified as a legal intern if as stated in Rule 1.10(a) of the Rules of include the departing attorney if the depart- (1) the law student will not perform any Professional Conduct, shall not apply to the ing attorney intends to engage in legal prac- legal service; or law school administrators, non-participating tice outside of the law school clinic); (ii) their (2) all of the following conditions are sat- law school faculty and staff, and non-partici- file will be transferred to the new supervising isfied: (i) the student will perform specifi- pating law school students if reasonable attorney in the absence of other instructions cally delegated substantive legal services efforts are made to prevent the inadvertent or from the client; and (iii) they may instruct for third parties (clients) under the direct unauthorized disclosure of, or unauthorized the clinic to mail or deliver the file to the supervision of an attorney who is an active

THE NORTH CAROLINA STATE BAR JOURNAL 45 member of the North Carolina State Bar Governing the Administration of the (2) Evaluation. To receive CLE credit for or licensed in another jurisdiction as Continuing Legal Education Program attending a PNA Program, the partici- appropriate to the legal services to be The proposed amendment eliminates the pant must complete a written evaluation undertaken (the responsible attorney); (ii) requirement that all attendees of the of the program which shall contain ques- the legal services shall not include repre- Professionalism for New Admittees program tions specified by the State Bar. Sponsors sentation of clients before a tribunal or must complete a course evaluation to receive shall collate the information on the com- agency; (iii) the responsible attorney is CLE credit. pleted evaluation forms and shall send a personally and professionally responsible report showing the collated information, for the representation of the clients and .1518 Continuing Legal Education together with the original forms, to the for the law student’s work product; and Program State Bar when reporting attendance (iv) the role of the law student as an assis- (a) Annual Requirement. pursuant to Rule .1601(e)(1) of this sub- tant to the responsible attorney is clearly … chapter. explained to each client in advance of the (c) Professionalism Requirement for New (3)(2) Timetable and Partial Credit… performance of any legal service for the Members. (4)(3) Online and Prerecorded client by the law student. (1) Content and Accreditation… Programs… n (c) Law School Faculty and Staff Providing Pro Bono Services Under Auspices of a Clinical Legal Education Program. Any member of the law school’s faculty or staff who is an active member of the North In Memoriam John Burchfield McMillan Raleigh, NC Carolina State Bar or licensed in another jurisdiction as appropriate to the legal work Eugene Moore Anderson Jr. David Scott Melin to be undertaken may serve as the responsible Davidson, NC Charlotte, NC attorney for a pro bono activity if the activity Susan Pfleeger Andre James Curtis Moffatt is provided to eligible persons under the aus- Holly Springs, NC Potomac, MD pices of the law school’s clinical legal educa- tion program and the responsible attorney Alexander Hall Barnes Arthur Eugene Morehead IV complies with the relevant supervision Durham, NC Charlotte, NC requirements set forth in Rule .0205(a)(2)- Donald Lee Beci George William Coan Mountcastle (5) of this subchapter. Apex, NC Winston-Salem, NC (d) Responsibility for Client File. Unless otherwise specified in this rule, if a client file Alfred Cameron Brinson John Rodwell Penry Jr. is generated by a pro bono activity, it shall be Greenville, NC Lexington, NC maintained and safeguarded by the responsi- Louis Franklin Burleson Jr. Susan E. Rhodes ble attorney in compliance with the Rules of Ahoskie, NC Clover, SC Professional Conduct and the ethics opinions interpretative thereof. If the pro bono activity Sherwood Johnson Carter Jr. Ross Hall Richardson is provided under the auspices of a clinical Hickory, NC Charlotte, NC legal education program and the responsible James Murrel Cooper Paul Alan Rodgman attorney is a member of the law school’s fac- Fayetteville, NC Raleigh, NC ulty or staff, the client file shall be maintained and safeguarded by the clinical legal educa- John Jay Covolo Norman Vincent Schaich tion program in compliance with the Rules of Rocky Mount, NC Black Mountain, NC Professional Conduct and the Rule .0209(d). James Donald Cowan Jr. Paul Allan Sheridan If the pro bono activity is sponsored by a legal Raleigh, NC Raleigh, NC services organization or government agency, the legal services organization or government Joseph Powell Creekmore John Shorter Stevens agency shall maintain and safeguard the client Supply, NC Asheville, NC file. If the pro bono activity is sponsored by Ronald Gene Edmundson William Johnson Waggoner more than one legal services organization or Oxford, NC Davidson, NC government agency, the co-sponsors shall Dale D. Glendening Jr. Robert W. Wilson determine which entity shall maintain and Decatur, GA Edwardsville, IL safeguard the client file and shall so inform the client. Charles H. Harp II N. Hunter Wyche Jr. Lexington, NC Raleigh, NC Proposed Amendments to the CLE Rules 27 N.C.A.C. 1D, Section .1500, Rules

46 SUMMER 2019 BAR UPDATES

Client Security Fund Reimburses Victims

At its April 24, 2019, meeting, the North clients of H. Trade Elkins of Hendersonville. practicing law on November 22, 2017, but Carolina State Bar Client Security Fund The board determined that Elkins was the injunction was lifted effective November Board of Trustees approved payments of retained by a couple to file an adversary pro- 6, 2018. The board previously reimbursed 71 $27,827.05 to 11 applicants who suffered ceeding in a bankruptcy proceeding and to other Gurley clients a total of $66,359. financial losses due to the misconduct of handle a closing for the couple. At Elkins’ 9. An award of $7,500 to a former client North Carolina lawyers. suggestion, the couple left their sale proceeds of Jason Hegg, who formerly practiced in The payments authorized were: with Elkins after the closing to avoid the pro- Jacksonville. The board determined that 1. An award of $1,400 to a former client ceeds being caught up in the bankruptcy Hegg was retained to handle a client’s crimi- of Craig O. Asbill of Charlotte. The board court. Elkins misappropriated their sale pro- nal charge of insurance fraud. After the client determined that Asbill was retained to handle ceeds. Elkins was suspended on September paid the fee in full, Hegg abandoned his prac- a client’s personal injury matter. Asbill 25, 2017, on an interim basis until the con- tice and moved to Colorado with no notice to received two med-pay checks totaling $5,000 clusion of his criminal proceeding. Elkins his clients. Hegg failed to provide any mean- from the client’s insurance carrier and failed paid a portion of the clients’ loss in criminal ingful legal services for the fee paid prior to to pay the client $1,400 of what he collected. restitution. The award was for the balance. abandoning his practice. Asbill was suspended on September 23, The board previously reimbursed two other 10. An award of $500 to a former client of 2017. applicants a total of $165,271.60. Nikita Mackey of Charlotte. The board 2. An award of $758.65 to a former client 6. An award of $5,000 to a former client determined that Mackey was retained to han- of Paul N. Blake III of Wilson. The board of Susan Franklin of Chapel Hill. The board dle a client’s two misdemeanor charges. The determined that Blake was retained to handle determined that Franklin was retained to client paid $500 towards the $1,000 quoted a client’s personal injury matter. Blake settled advise a client about possibly getting a fee. Mackey failed to provide any meaningful the client’s matter and received a settlement divorce. The client signed the fee agreement services for the fee paid. check which he did not deposit into his trust and paid the funds, but then decided to get 11. An award of $2,000 to a former client account because Blake had been enjoined marriage counseling prior to Franklin having of Christi Misocky of Monroe. The board from handling clients’ funds by the State Bar. provided any services. Franklin failed to determined that Misocky was retained to get Blake failed to make payments to the lien respond to the client’s request for a refund a credit card balance reduction in the negoti- holders from the settlement funds. Blake was prior to her disability and eventual death. ations of his domestic matter concerning disbarred on April 7, 2017. The board previ- Franklin died on October 20, 2018. equitable distribution. Misocky failed to pro- ously reimbursed one other Blake client a 7. An award of $4,650 to a former client vide any meaningful legal services to the total of $66,027.18. of David E. Gurganus of Williamston. The client for the fee paid. The board previously 3. An award of $1,370 to a former client board determined that Gurganus was reimbursed two other Misocky clients a total of Paige C. Cabe of Sanford. The board deter- retained to handle a client’s personal injury of $5,455. mined that Cabe was retained by a client to claim from an auto accident. Gurganus In addition to the awards listed above that file two adoption petitions. Cabe failed to received $2,000 in med-pay and $2,650 in will be paid by the fund, the board directed provide any meaningful legal services to the settlement funds from the insurance compa- its counsel to seek to have an applicant paid client for the fees paid. Cabe was disbarred on ny without the client’s consent. Gurganus $1,240 from the funds the State Bar received November 25, 2018. The board previously failed to pay any of the client’s medical from Charles Medlin’s trust account on reimbursed three other clients a total of providers and misappropriated the funds. behalf of unidentified clients. Medlin died on $41,046.48. Gurganus was suspended until further order August 28, 2008. n 4. An award of $518 to a former client of of the court on August 30, 2018. David H. Caffey of Winston-Salem. The 8. An award of $1,850 to a former client board determined that Caffey handled a real of Charles R. Gurley of Goldsboro. The estate closing for a client. From the closing board determined that Gurley was retained to Thank You to Our proceeds, Caffey issued checks on the client’s handle serious criminal charges for a client. behalf, but the check to the HOA was not The client began making payments towards Meeting Sponsor honored due to his misappropriation of Gurley’s quoted fee just prior to Gurley being Lawyers Mutual Liability funds. Caffey was disbarred on May 10, suspended from the practice of law. Gurley Insurance Company 2018. failed to provide any meaningful legal services 5. An award of $2,280.40 to former for the fee paid. Gurley was enjoined from

THE NORTH CAROLINA STATE BAR JOURNAL 47 BAR UPDATES

Law School Briefs

Association (NBLSA) competition on Campbell University School of Law March 16. Kimberly Dixon ‘15 coached the Elon University School of Law Campbell University Norman Adrian team to victory. Regional leaders reflect on impact of Elon Wiggins School of Law advocates made his- Law—Four civic and business leaders tory this spring by bringing home three new Duke Law School praised Elon Law for its role in helping to national championships and one world US Supreme Court Justice Anthony M. revitalize downtown Greensboro when they championship, among other accolades. Kennedy (Retired) received the first annual visited the law school in April for a panel Their most recent victory was at the Bolch Prize for the Rule of Law awarded by conversation that commemorated a decade American Association of Justice (AAJ) the Bolch Judicial Institute of Duke Law of Elon Law graduates. “Elon Law in Student Trial Advocacy National School on April 11. The institute’s mission Greensboro: Past, Present, & Future” wel- Competition on April 11-14 in focuses on bettering the human condition comed to the law school: Philadelphia, Pennsylvania. Second-year by studying and promoting the rule of law, • Jeb Brooks (an Elon Law alum), presi- students Lydia Stoney, Kevin Littlejohn, and and the Bolch Prize is designed to honor dent & CEO, The Brooks Group Ethan Carpenter and third-year student individuals or entities who have distin- • Jim Melvin, president & CEO, Joseph Anna Claire Turpin worked with coach guished themselves in the preservation or M. Bryan Foundation Jacob Morse ‘17 to defeat 15 regional cham- advancement of the rule of law. The recip- • Tom Ross, president emeritus, pions to bring home the top prize for the ient is selected by the Advisory Board of University of North Carolina System first time. It was the third time Campbell the Bolch Judicial Institute. “Over the • Nancy Vaughan, mayor of Greensboro Law has competed at the AAJ national com- course of his long and distinguished career The April 2 dinner took place on the eve petition since 2011, but Campbell Law’s on the Ninth Circuit Court of Appeals and of the spring meeting of Elon Law’s Board of first national title. It is the third national the Supreme Court of the United States, Advisors and served as an opportunity for competition the law school has won this Justice Kennedy has been a leader among university leaders to gather insights as Elon year, which is also a first, according to those dedicated to understanding and pre- moves forward with crafting its next ten- Professor Dan Tilly, director of the law serving the rule of law,” said David F. Levi, year strategic plan. school’s advocacy program. Campbell Law director of the Bolch Judicial Institute and Elon Law students selected for prestigious students also made history April 3-6, besting the Levi family professor of law and judicial NCBA internship program—Four Elon 23 teams to become world champions at the studies at Duke Law. Justice Samuel Alito Law students—more than from any other Brown Mosten International Client Jr. spoke at the award ceremony at North Carolina law school—were selected Consultation Competition in Dublin, Durham’s Washington Duke Inn, as did this winter for a North Carolina Bar Ireland. The same Campbell Law duo— Justice Kennedy, and both took part in Association program that promotes diversity Tatiana Terry (’19) and Katie Webb (’19)— related events with Duke Law faculty and and inclusion in the legal profession by plac- who won the National ABA Client students. ing accomplished first-year students into top Counseling Championship became the only Professor Neil Siegel, the David W. Ichel summer internships. Kia Barrett, Alisha team from a North Carolina law school to professor of law and professor of political Harris, Timisha Henley, and Cynthia win the world competition. Campbell Law science, has published United States Hernandez accepted invitations for the is only the seventh law school from the US Constitutional Law (Foundation Press, NCBA’s Minorities in the Profession 1L to win since the competition’s inception in 2019) with Daniel Farber of Berkeley Law Summer Associate Program, which is coor- 1986. They were coached by Professors School, which explores the dynamic and dinated through its Minorities in the Melissa Essary and Jon Powell. Campbell interactive process between the Supreme Profession Committee. Law advocates also came out on top at the Court and a range of actors and institutions Elon Law hosts pre-law advisors confer- Constance Baker Motely National Trial who make claims on the Constitution in the ence—College educators from across the Competition in Little Rock, Arkansas, to sphere of constitutional politics, including South visited Elon Law in March on the win the law school’s first national champi- social movements, political parties, and gov- first day of a three-day annual conference onship in that competition. Campbell Law ernmental institutions. Siegel, a scholar of organized by a professional group that aims third-year students Nichad Davis, Maurizo constitutional law, theory, and politics, was “to provide everyone in the law school Lewis-Streit, Tatiana Terry, and Ashley elected to the Board of Directors of the admissions process with up-to-date infor- Urquijo were named national champions of American Constitution Society in mation and expert guidance.” Members of the National Black Law Students December. the Southern Association of Pre-Law

48 SUMMER 2019 Advisors convened in Greensboro on ber 34 out of 192 law schools ranked in the Medicine, was named lead reporter of the March 13 for a program that had been US News & World Report’s 2020 edition of medical liability sections of the Restatement rescheduled from September because of “America’s Best Graduate Schools.” Third of Torts by the American Law Hurricane Florence. Additionally, the school’s RRWA program Institute (ALI). Hall will lead the effort to ranked eighth in legal writing, an increase of develop official text that informs all US North Carolina Central School of Law ten spots from two years ago. Now in its courts on the legal principles governing On January 30, 2019, North Carolina eighth year as a full-year, six-credit program, medical liability. Wake Forest Law currently Central University School of Law hosted RRWA’s dedicated faculty and staff aim to has four reporters with the ALI, including Governor Roy Cooper’s Commission on help 1L students develop and practice legal Michael Green, Tanya Marsh, Jonathan Inclusion. NCCU Law Professor Lydia research, writing, and oral communication Cardi, and Mark Hall. Lavelle ’93 and Attorney Christy L. Smith skills. WFU Law clinics take wrongful convic- Foster ’04 are members of the commission UNC ranks number 1 in February NC tion case to federal court—Wake Forest that is led by Machelle Sanders, secretary of bar exam results—Among North Carolina Law’s Innocence & Justice, Appellate the NC Department of Administration. law schools, UNC had the highest-ranking Advocacy clinics took the John Robert Governor Roy Cooper attended the bar passage rate for first time test takers Hayes case to the Fourth Circuit at the end meeting and discussed the commission’s pri- (87.5% passage rate) and overall test takers of January. Appellate Advocacy students orities and thanked the members for their (90% passage rate). Raquel Macgregor (JD ‘19) and Sarah service. Afterward, Governor Cooper met Donald Hornstein receives Award for Spangenburg (JD ‘19) contributed to the with several NCCU law student leaders. Excellence from UNC system—Donald case’s briefs and oral argument. The clinics The objective of the commission is to Hornstein, Aubrey L. Brooks professor of are awaiting judgment on the case. identify and create policies and measures law, is one of 17 faculty members in the Ashley DiMuzio (JD ‘19) named a Law that will promote inclusion while addressing UNC system to receive the 2019 Awards for Student of the Year by National Jurist mag- discrimination, harassment, and retaliation. Excellence in Teaching. Awarded by the azine—Ashley DiMuzio has been a compet- The commission was created pursuant to UNC Board of Governors, the honor recog- itive force in trial advocacy since she arrived Executive Order 24, which addresses these nizes the extraordinary contributions of fac- at Wake Forest Law. Her success in the objectives under the jurisdiction of the office ulty members. Hornstein has taught at courtroom has produced four championship of the governor. NCCU School of Law Carolina Law since 1989. titles in just three years, in addition to her Interim Dean Elaine O’Neal provided the 3L class reaches 100% pro bono partici- own individual accolades. During her first commission with an overview of the law pation—For the second time in the UNC year of law school, DiMuzio was named a school’s history. NCCU’s Director of School of Law Pro Bono Program’s 21-year 2016 1L Trial Bar Competition Champion Diversity and Inclusion Emily Guzman and history, all 206 third-year students, 100% of as well as a 2017 Kilpatrick 1L Trial NCCU’s LGBTA Resource Center the graduating class of 2019, has participat- Competition Champion. Her 1L winning Coordinator Jennifer M. Williams discussed ed in a pro bono project. streak also included a 2017 Zeliff NCCU’s inclusion efforts. SCOTUSblog co-founder and lawyer Competition Championship title. Read North Carolina Central University Tom Goldstein delivers annual Murphy more about her at wfu.law/4ap. n School of Law received top ranking for Lecture—Goldstein is a lawyer and the pub- female enrollment in the Best Law Schools lisher/co-founder of SCOTUSblog, a web- as ranked by US News & World Report for site devoted to comprehensive coverage of 2018. the Supreme Court.

NORTH CAROLINA A February 2019 article in Enjuris noted ST ATE BAR The 2018 Lawyer’s H that for three consecutive years, women out- Wake Forest School of Law andbook numbered men in law school classrooms Environment law expert Scott Schang to across the country. According to data join WFU Law—Scott Schang, senior The 2019 released by the ABA in 2018, women com- director of corporate engagement at

Administrative Rules ...... 2­1 In prise 52.39% of all students in ABA- Landesa, will join Wake Forest School of Continuin dex to Ethi g c Legal Educ s Opinions Lawyer’s ation (CLE) ...... 1 ...... 0­28 . . . .5­22 Gen. Stat. Chapter 84 ...... 5 Discipline and Disabil ity ...... 3­1 1­1 Fee IOLTA Q&A ...... Dispute Re solution ...... 11­1 . . . . .5­9 Rules of Professional Conduct ...... approved law schools. Law as professor of practice of environmen- IOLTA ...... 5­16 9­1 R Legal Spe ules Index cialization ...... 5­32 ...... 9­81 Members hip ...... 2­1 P NCCU School of Law is now the top law tal law beginning July 1, 2019. In addition aralegal Cer The North Carolina State Bar Lawyer’s t ification . . Handbook ...... Handbook 2018 (Abridged) ...... 7­1 Profess ional Organ An o izations . fficial public ...... c ation of th . . . . .6­1 ontaining t e North Ca Ethics Opinions ...... he most fre rolina Stat North Ca quently ref e Bar rolina State erenced rul Cond Bar, annota es of the 10­1 uct, all ethi ted Rules o S cs opinions f Profession uperseded adopted un al school by female enrollment (66.85%) (pre- to teaching environmental law and natural (1985) Rule der the Rule s, and tr s and ust account guidelines. viously held by Howard University) fol- resources, Schang will develop, launch, and In early June, lowed by John Marshall Law School direct a new environmental law clinic that the digital version of the 2019 (66.21%) and Northeastern (65.76%). will advise clients, inform transactional Lawyer’s Handbook will be available for work, as well as draft amicus briefs and pol- download, free of charge, from the University of North Carolina School icy white papers. State Bar’s website: ncbar.gov/news- of Law Professor Mark Hall to lead American publications/ 1L Research, Reasoning, Writing, and Law Institute project on medical liability— lawyers-handbook. Advocacy (RRWA) Program ranks 8th in the Mark Hall, a professor with Wake Forest nation—UNC moved up 11 spots to num- School of Law and Wake Forest School of

THE NORTH CAROLINA STATE BAR JOURNAL 49 BAR UPDATES

John B. McMillan Distinguished Service Award

Richard M. Wiggins a mentor to many lawyers at his firm and dent and has served on numerous bar-related Attorney Richard M. Wiggins was pre- countless other lawyers in his community. committees at the local and state level. Mr. sented with the John B. McMillan Mr. Wiggins’ impact on the legal profes- Wiggins has been recognized by Legal Distinguished Service Award on January 31, sion is best evidenced by the civility with Services of NC for his outstanding work in 2019, at his home in Fayetteville, NC. The which he has practiced law for so many the Access to Justice Campaign and honored award was presented by North Carolina State years. He has set the standard for zealously by UNC Law School for a lifetime of pro Bar President-Elect Colon Willoughby. On advocating his client’s position while simul- bono service. He is an NCBA Centennial May 4, 2019, Mr. Wiggins passed away in taneously maintaining a relationship of civil- Award winner and a member of the General his Fayetteville home. ity and cordiality with opposing counsel. Practice Hall of Fame. Mr. Wiggins received his law degree from His approach in handling clients is not Mr. Wiggins has maintained a sterling UNC Chapel Hill in 1958. After graduation unlike his approach with handling opposing record of integrity, hard work, and profes- he began practicing law with the law firm of counsel. It does not matter if the client is a sionalism in all of his 60 years of practice and Sanford, Phillips, McCoy and Weaver, which large corporation involved in a complex is a most deserving recipient of the John B. later become the firm of McCoy, Weaver, commercial lawsuit or an elderly client with McMillan Distinguished Service Award. Wiggins, Cleveland & Raper. In a legal pro- a relative minor issue. Mr. Wiggins treats fession where it is common for focused prac- both clients with the same level of attention Nominations Sought tice areas, Richard has remained a generalist and respect. He believes that, as an attorney, Members of the Bar are encouraged to with a robust legal knowledge in various you should be amenable to foregoing all or a nominate colleagues who have demonstrat- areas of the law. He has been a successful portion of your fee to help a client that ed outstanding service to the profession. The advocate for his clients in the trial courts and needs your services. nomination form is available on the State appellate courts of North Carolina and the Mr. Wiggins has served as the Bar’s website, ncbar.gov. Please direct ques- Federal Court System. Mr. Wiggins has been Cumberland County Bar Association presi- tions to Suzanne Lever, [email protected]. n

BOARD OF LAW EXAMINERS

July 2019 Bar Exam Applicants

The July 2019 Bar Examination will be held in Raleigh on July 30 and 31, 2019. Published below are the names of the applicants whose applications were received on or before May 7, 2019. Members are requested to examine the list and notify the board in a signed letter of any information which might influence the board in considering the general fitness of any applicant for admission. Correspondence should be directed to Lee A. Vlahos, Executive Director, Board of Law Examiners, 5510 Six Forks Rd., Suite 300, Raleigh, NC 27609.

Tyler Aagard Raleigh, NC David Alzamora Raleigh, NC David Avery Chapel Hill, NC Brian Akers Raleigh, NC Jordan Artrip Youngsville, NC Lalisa Abdul-Malek Valparaiso, IN Elliott Andrews Winston-Salem, NC Alexandra Bachman Durham, NC Carmelle Alipio Raleigh, NC John Ashby Cornelius, NC Tiwalola Abogunrin Decatur, GA Jacob Andrews Durham, NC Brendan Bailey Durham, NC Trent Allard Cornelius, NC Jennifer Ashton Nashville, TN Anais Aguilar-Fabre Apex, NC Justin Annas Lake Worth, FL Kadeidra Baker Astoria, NY Daniel Allison Hickory, NC Bethany Ashworth Earl, NC Feza Ajayi Hillsborough, NC Samantha Aparicio Lititz, PA John Baley College Park, MD Donald Alston Chapel Hill, NC Cailey Augustin Chapel Hill, NC Agatha Akers Henderson, NC Santiago Arroba Rodriguez Miami, FL Jacob Balogun

50 SUMMER 2019 Fayetteville, NC Katherine Bordwine Indian Trail, NC Joonu-Noel Coste Raleigh, NC Jonah Bamel Morganton, NC Jonnell Carpenter Garner, NC Joseph Dougherty Winston-Salem, NC Erin Bowman Zebulon, NC Kristen Covington Winston-Salem, NC Mili Banerji Knoxville, TN Taylor Carrere Raleigh, NC Jasmine Downing Charlotte, NC Ashton Bowns Pikeville, NC Tyler Crawford Tarboro, NC Lakeshia Banks Raleigh, NC Jules Carter Lynchburg, VA John Drewry Durham, NC Keith Boyette Durham, NC Ryan Crofts Courtland, VA Avery Barber Raleigh, NC Michael Carter Raleigh, NC Katelyn Dryden Winston-Salem, NC Luke Bradshaw Selma, NC Cameron Crump Chapel Hill, NC Landis Barber Clinton, NC Sara Carter Charlotte, NC Addison Dufour Raleigh, NC Daniel Branon Raleigh, NC Shelby Culver Charlottesville, VA Joshua Barfield High Point, NC Corey Case Albany, CA Chandra Duncan Whitakers, NC Joshua Bransford Jacksonville, NC Dan Cypert Summers Charlotte, NC Veronica Barkley Chapel Hill, NC Lasley Cash Chapel Hill, NC Hayden Duncan Durham, NC Joshua Brantley Winston-Salem, NC Khari Cyrus Raleigh, NC Cheyenne Barnes Cana, VA William Cauley Burlington, NC Christy Dunn Raleigh, NC Abigail Breedlove Durham, NC Evan Dancy Raleigh, NC Mitchell Barnes Raleigh, NC Suzanne Cavanaugh Chapel Hill, NC Natasha Durkee Carolina Beach, NC Morgan Bridgers Charlotte, NC Delisa Daniels Miami, FL Sontina Barnes Wendell, NC Kimberly Cephas Greensboro, NC Graeme Earle Raleigh, NC Leslie Bright Greensboro, NC Bethany Dargatz Chapel Hill, NC Nancy Baron Fayetteville, NC Cassi Chambers Fuquay Varina, NC Nicolas Eason Raleigh, NC Williams Britt Statesville, NC Kaleigh Darty Carrboro, NC Joshua Barton Raleigh, NC Yanique Chambers Chapel Hill, NC Candace Eaton Durham, NC Cara Brown Charlotte, NC Elisabeth Davis Silver Spring, MD Kashi Bazemore Fort Mill, SC Michael Chaney Virginia Beach, VA Lance Edmonds Raleigh, NC Hugh Brown Roxboro, NC Gregory Davis Elkin, NC France Beard Roanoke, VA Rebecca Charbonneau Wake Forest, NC Robert Ellis-Liang Raleigh, NC Ian Brown Raleigh, NC James Davis Winston-Salem, NC James Beard Tobaccoville, NC Megan Chavis Davidson, NC Pamela Entrikin Yadkinville, NC Kelly Brown Shannon, NC Nichad Davis York, SC Daniel Becker Goldsboro, NC Adrienne Cherry Greensboro, NC Eric Evans Winston-Salem, NC Yusuf Brown Durham, NC Delicia Dawson Atlanta, GA Quentin Becker Zebulon, NC Cameron Chotiner Clayton, NC Josef Ewendt Lexington, VA Joseph Bruner Bedford, VA Elliott Deaderick Apex, NC James Beissner Cary, NC Patrick Clare Charlotte, NC Zachary Ezor Durham, NC John Bruno Raleigh, NC Samuel Dearstyne Durham, NC Madeline Belford Waxhaw, NC Katherine Clarke Apex, NC Marie Farmer Charlotte, NC Chandler Bryant Chapel Hill, NC Katherine Delaura Chapel Hill, NC Gavin Bell Greensboro, NC Elliot Clark-Farnell East Lansing, MI Sara Farnsworth Raleigh, NC Shellie Bryant Chapel Hill, NC Noelle Demeny Greensboro, NC Jordan Bernstein Winston-Salem, NC Diarra Clemons Durham, NC Alexandra Farrell Carrboro, NC Zachary Buckheit Huntersville, NC Chelsea Demoss Durham, NC Kimberley Beyer Durham, NC Zakiya Clemons Tulsa, OK Brooke Ferenczy Glenville, NC Jamie Burchette Blythewood, SC Katherine Devine Lynchburg, VA Sean Bickford N Wilkesboro, NC Christopher Click-Kimber Asheville, NC Jonathan Fernandez Carrboro, NC Jasmine Burgess Haw River, NC Michelle Dewkett Coral Gables, FL Brendan Biffany Greensboro, NC Emily Cline Raleigh, NC Emma Ferriola-Bruckenstein Durham, NC Benjamin Burke Wilmington, NC Khristen Dial Carrboro, NC Tijana Bijelac East Lansing, MI Chrystal Clodomir Durham, NC Joseph Fields Durham, NC Jordan Burke Greensboro, NC Sheri Dickson Durham, NC Brandye Birdsall Winston-Salem, NC Christy Coates Apex, NC Darrilyn Fisher Elizabeth City, NC Alexandria Burns Carrboro, NC Ashley Dimuzio Raeford, NC Livia Birtalan Chapel Hill, NC Gordon Cobb Winston-Salem, NC Tiffany Fitzgerald Durham, NC Rowland Burns Chapel Hill, NC Derek Dittmar Mebane, NC Rachel Blackburn Raleigh, NC Brady Cody Raleigh, NC Alexa Fleming Asheville, NC Marian Burroughs Knoxville, TN Aubry Dix Chapel Hill, NC Jason Blackmon Fayetteville, NC Cadee Cody Raleigh, NC Rebecca Floyd Apex, NC Adam Burton Robbinsville, NC Emily Dixon Carrboro, NC Aunyai Blackstock Virginia Beach, VA Ashley Collette Durham, NC Elizabeth Foley Greensboro, NC Caitlin Bush Winston-Salem, NC Jeffrey Dobson Raleigh, NC Matthew Blair Winston-Salem, NC Hailey Collis Fuquay Varina, NC Charmaine Ford Raleigh, NC Alexandra Bushelli Raleigh, NC Anne Doherty Charlotte, NC Tyler Block Apex, NC Gabriela Colon Charlotte, NC Kelley Fore Durham, NC Rhett Butler Winston-Salem, NC William Dolinger Sanford, NC Lloyd Bolton Boone, NC Charles Conley Gainesville, FL Martin Forrest Northport, AL Lydia Butts Lewisville, NC Alexia Dominguez Atlantic Beach, NC Lauren Bond Chapel Hill, NC William Conn Holly Springs, NC Lindsay Frazier St. Louis, MO Leron Byrd Denver, CO Casey Donahoe Chapel Hill, NC Kathleen Booras Winston-Salem, NC Heather Cooper Raleigh, NC Anne Fristoe Mount Holly, NC James Canafax Fayetteville, NY Brittany Dorman Raleigh, NC James Borden Charlotte, NC Rebecca Cooper Raleigh, NC Kaitlyn Fudge Carrboro, NC Cristina Capello Raleigh, NC Kelsey Dorton Raleigh, NC

THE NORTH CAROLINA STATE BAR JOURNAL 51 Regina Fulton Mathew Groseclose Jonathan Hilliard Miranda Jeong Patrick Kondorossy Durham, NC Santa Monica, CA Winston-Salem, NC Raleigh, NC Raleigh, NC Davis Fussell Robert Guillot Kenneth Hirsh Alexandra Johnson David Krogh Durham, NC Pinebluff, NC Cincinnati, OH Raleigh, NC Fern Park, FL James Futrell Prerna Gupta Michael Hirthler Courtney Johnson William Kroske Durham, NC Woodside, NY Raleigh, NC Durham, NC Winston-Salem, NC Amber Fye Jaron Gurney Sydney Hobson Jerri Johnson Lauren Kulp Fairfax, VA Charleston, SC East Lansing, MI Goldsboro, NC Durham, NC Lydia Gabbard Devin Gustafson Amanda Holder Kayla Johnson Natalie Kutcher Chapel Hill, NC Durham, NC Charlotte, NC Carrboro, NC Charlotte, NC Skylar Gallagher Karli Guyther Ellys Holding Michael Johnson Rachel Labruyere Raleigh, NC Tuscaloosa, AL Durham, NC Raleigh, NC Durham, NC Natalie Galvez Alexandria Gwynn Abigail Holloway Morgan Johnson Hayley Lampkin Blyth Drexel Hill, PA Durham, NC Durham, NC Zebulon, NC Durham, NC Richard Gambs Joseph Hackney Walter Holmes Robert Johnson Elizabeth Lane Charlotte, NC Durham, NC Chapel Hill, NC Chapel Hill, NC Winston-Salem, NC Joseph Garcia Benjamin Hahn Janon Holmes - Washington Sarah Johnson Taylor Langley Durham, NC Greenville, NC Durham, NC Siloam, NC Raleigh, NC Scott Garner Sara Hall Nathaniel Honaker Terra Johnson John Lanier Durham, NC Raleigh, NC Chapel Hill, NC Statesville, NC Lumberton, NC Delaney Garrett Camekia Hammond Corri Hopkins Emily Jones Zachary Layne West Bloomfield, MI Charlotte, NC Winston-Salem, NC Jacksonville, FL Chapel Hill, NC Michael Garrigan Stacy Hannah Whitney Hosey Keren Jones Glenn Leach Greensboro, NC Durham, NC Winston-Salem, NC Greensboro, NC Charlotte, NC Jonah Garson Baylee Hapeman Andrew House Logan Judy Eric Leder Chapel Hill, NC Raleigh, NC Durham, NC Rockwell, NC Raleigh, NC Martecia Gass Cameron Hardesty Erich Howard Misty Juhasz Matthew Ledford Raleigh, NC Raleigh, NC Raleigh, NC Smithfield, NC Marion, NC Gil Gatch Lashieka Hardin Melanie Huffines Michael Justice Patricia Lee Summerville, SC Chapel Hill, NC Garner, NC Jacksonville, NC Fort Mill, SC Timothy Gavigan Rachael Hardin Kyle Huggins Daniel Kale Sangeun Lee Columbia, SC Greenville, SC Raleigh, NC Chapel Hill, NC Garden Grove, CA Matille Gibbons Thomas Harding Torrie Humphreys Janki Kaneria Scott Lemos Charlotte, NC Durham, NC Raleigh, NC Vestal, NY Charlotte, NC Matthew Gibbons Noel Harlow Lawrence Hundley Jacqueline Keenan Christopher Lewis Greensboro, NC Raleigh, NC Silver Spring, MD Lexington, VA Kernersville, NC Mark Gibson Chadwick Harper Hayla Hunter Sean Keenan Patricia Lewis Chapel Hill, NC Somerville, MA Sugar Land, TX Leesburg, VA Charlotte, NC Kiarra Gilliam Aaron Harris Michael Hutcherson Camryn Keeter Whitley Lewis Charlotte, NC Durham, NC Chapel Hill, NC Wilson, NC Raleigh, NC Joseph Giovinazzo Cherell Harris Desirae Hutchinson Samuel Kellum Maurizo Lewis-Streit Cornelius, NC Wake Forest, NC Sanford, NC Durham, NC Raleigh, NC Alec Glenn Adam Hartmann Kathryn Hutchinson Morgan Kendall Xavier Lightfoot Durham, NC Charlotte, NC Brandon, FL Polkton, NC Durham, NC Shayna Glickfield David Hasenauer Silke Hynes Bruce Kennedy Christopher Linton North Miami, FL Raleigh, NC Winston-Salem, NC Ellenboro, NC Winston-Salem, NC Erica Glover David Hawisher Jason Iglesias David Kershaw Rashawn Linton Sanford, NC Chapel Hill, NC Asheville, NC Greenville, SC Charlotte, NC Jerrod Godwin Caden Hayes Akanimo Ikpe Siraj Khan Mario Liranzo Raleigh, NC Lexington, VA Oxford, NC Cary, NC Charlotte, NC David Goldman Colin Hayton Holly Ingram Chelsea Kim Jasmine Little Charlottesville, VA Winston-Salem, NC Winston-Salem, NC Sanford, NC Albemarle, NC Jonathan Goldstein Joanna Haywood Juliana Inman Gavin Kim Lenore Livingston Chelsea, MA Fayetteville, NC Winston-Salem, NC Chapel Hill, NC Apex, NC Jordan Goodwin Kelly Hebrank Mary Griffin Inscoe David King Derrick Lloyd Asheville, NC Durham, NC Athens, GA Raleigh, NC Carrboro, NC Emma Goold Sabrina Heck Robert Irvin Jami King John Loftin Allston, MA Chapel Hill, NC Davidson, NC Durham, NC Hillsborough, NC Shaniqua Granby Amy Heimel Zachary Irvine Ryan King Stefan Longo Chesapeake, VA Raleigh, NC Winston-Salem, NC Iowa City, IA Raleigh, NC Joshua Gray Essence Henderson Fred Irving Steven King Jonathan Loo Madison, WI Durham, NC Chapel Hill, NC Asheville, NC Raleigh, NC Samuel Gray Jessica Henry Anup Iyer Hailey Kirby Paulina Lopez Wendell, NC Charlotte, NC Chapel Hill, NC Pikeville, NC Timberlake, NC John Hall Greenbacker Kristen Hensley William Jacobs Rakia Kirby Richard Lowden South Boston, VA Franklinton, NC Carrboro, NC Durham, NC Huntersville, NC Alexis Greene Michelle Herd Antoine Jameson Justin Knapp Xinyue Lu Raleigh, NC Birmingham, AL Franklin, NC Chapel Hill, NC Carrboro, NC Adam Griffin Mary Herring Khaled Jaouhari Shaun Knapp Robert Lucas Chapel Hill, NC Calypso, NC Raleigh, NC Temecula, CA Chapel Hill, NC Jasmine Griffin Evan Hiatt Austin Jenkins Joseph Knofczynski Guadalupe Lugo Durham, NC Chapel Hill, NC Knoxville, TN Charlottesville, VA Charlotte, NC Lisa Maria Grigley Samuel Hicks Jane Jenkins Sade Knox William Luoni Greensboro, NC Washington, DC Charlotte, NC Durham, NC Charlotte, NC

52 SUMMER 2019 Sierra Lyda Emily Melvin Dominique Myers Kevin Peach Samuel Ray Carrboro, NC Winston-Salem, NC Waxhaw, NC Raleigh, NC Newland, NC Raquel Macgregor Hannah Michalove Shawn Namet Tyra Pearson Cameron Reed Charlotte, NC Raleigh, NC Winston-Salem, NC Chapel Hill, NC Durham, NC William Maddrey Charles Middlebrooks Alexis Narducci Michael Peevy Mary Reed Chapel Hill, NC Charlotte, NC Ponte Vedra, FL Raleigh, NC St. Louis, MO Kelcee Mader Brian Miller Joseph Natt Dwayne Pennant Arielle Reid Gainesville, FL Raleigh, NC Athens, GA Concord, NC Corvallis, OR Michael Manset Charles Miller Angel Neal Mary Penney Evan Reid Durham, NC Durham, NC High Point, NC Durham, NC Winston-Salem, NC Donna Mansfield Janet Miller Isaac Neill Phillip Perko William Reingold Holly Springs, NC Efland, NC Charlotte, NC Chapel Hill, NC Winston-Salem, NC Carlos Manzano Jonathan Miller Briella Nelson Madeline Person Stephanie Renzelman Morrisville, NC Raleigh, NC Charlotte, NC Winston-Salem, NC Lexington, KY Geoffrey Marcus Jordan Miller Erica Nesmith Olivia Pesterfield Rosa Reyes Moreno South Miami, FL Summerfield, NC Durham, NC Raleigh, NC Raleigh, NC Brie Maris Kaitlyn Miller Jill Neville Molly Petrey Braxton Reyna Gainesville, FL Reno, NV Raleigh, NC Durham, NC Liberty, NC Ryan Marosy Katelyn Miller Josey Newman Brandon Pettijohn Michael Reyna Ann Arbor, MI Wilson, NC New Bern, NC Greenwood, IN Lynchburg, VA Alexia Martin William Mims James Nichols Robert Pharr Ronald Richter Charlotte, NC Roebuck, SC Raleigh, NC Charleston, SC Charleston, SC Kathryn Martin Jacquelyn Miner Farah Nicol Robert Pinkerton Jake Rifkin Uniontown, OH Williamsburg, VA Los Angeles, CA Arlington, VA Chapel Hill, NC Lauren Martin Kristin Mitcham Samuel Nicosia Jasmine Plott John Riordan Danville, VA Washington, DC Washington, DC Chapel Hill, NC Lynchburg, VA Lindsey Martin Andrew Moir Megan Noble Brent Plummer Gary Ripley Catawba, NC Morganton, NC Charleston, SC Winston-Salem, NC Winston-Salem, NC Tyler Martin Amber Monroe David Nolan Tara Polston Lisa Roach Rocky Mount, NC Durham, NC Hope Mills, NC Durham, NC Charlotte, NC Grant Martz Hanna Monson Corey Noland Joi Ponder Michael Roberson Durham, NC Winston-Salem, NC Raleigh, NC Durham, NC Durham, NC Sarah Maserang Emily Montoya Frederick Norchi Kelsey Poorman Carlin Robertson Chapel Hill, NC Lubbock, TX Charlotte, NC Columbia, SC Raleigh, NC Christian Mashburn South Moore Stephanie Northcott Samantha Pope Luis Alberto Rodriguez Pozos Raleigh, NC Durham, NC Raleigh, NC Raleigh, NC Pineville, NC Nicholas Masters William Moore Mukeni Ntumba James Porter Adrian Roseboro Kernersville, NC Charlotte, NC Charlotte, NC Morrisville, NC Whiteville, NC Marisa Mato Iris Morales Olabisi Ofunniyin Richard Porter Lindsay Ross Saint Johns, FL Graham, NC Apex, NC Cameron, NC Titusville, FL Bethanie Maxwell Meghan Moran Victoria Oguntoye Laura Potter Kayla Rowsey Durham, NC Durham, NC Tampa, FL Garner, NC Chapel Hill, NC Sara Mayson Shannon Morgan Zachary O'Halloran Tyler Potts Sarah Rozek Raleigh, NC Durham, NC Durham, NC Winston-Salem, NC Greensboro, NC Patricia Mccall Carly Morrison Marie Claire O'Leary Jackson Pridgen Molly Rubin Cashiers, NC Sandy Springs, GA Raleigh, NC Charlotte, NC Chapel Hill, NC Taylor Mccallman Jana Morrison Rebecca Olla Ryan Prosise Kayla Russell Fayetteville, NC Charlotte, NC Durham, NC Canton, OH Winston-Salem, NC Andre' Mccoy Michael Morrison Kevin Olsen Phillip Pullen Matthew Russell Charlotte, NC Jacksonville, NC Winston-Salem, NC Chesapeake, VA Cary, NC Elizabeth Mccoy Keir Morton Manley Charlotte Painter Connor Purks Alexander Ruzzier Charlottesville, VA Raleigh, NC Charlotte, NC Raleigh, NC Chapel Hill, NC Anthony Mccue Laura Morway James Palma Elyse Purnell-Crawford Misty Ryan Chapel Hill, NC Gahanna, OH Chapel Hill, NC Macon, GA Charlotte, NC Christopher Mcilveen Alice Moscicki Gentry Palmer Alexandra Puszczynski Mariam Sabra Syracuse, NY Durham, NC Winston-Salem, NC Raleigh, NC Raleigh, NC Jordan Mcintyre John Moss Mark Parent Ismaail Qaiyim John Safrit Macon, GA Raleigh, NC Greensboro, NC Charlotte, NC Chapel Hill, NC Tyler Mckeithan Marsh Moton Jessica Paribello Paul Quimby Candelario Saldana Briseno Wilmington, NC Birmingham, AL Columbia, SC Orlando, FL Miami, FL Brittany Mckinney Joseph Mouer Tae Hun Park Robert Rader Benjamin Satterthwaite Ruffin, NC Asheville, NC Carrboro, NC Raleigh, NC Columbia, SC Zachary Mclaurin Gilbert Munoz-Cornejo Jazmyn Parkan Benjamin Rafte Elizabeth Savage Fayetteville, NC Fuquay-Varina, NC Montgomery, AL Winston-Salem, NC Raleigh, NC Victoria Mcnally Jaquelinne Murillo Figueroa Alexander Parker William Ramos Bobby Scarboro Wilmington, NC Raleigh, NC Raleigh, NC Holly Springs, NC Wake Forest, NC Laurie Mcnaught Briggs Geoffrey Murphy Ellie Parker Walter Ramsey Reghan Schmidt Charlotte, NC Greensboro, NC Burlington, NC Rougemont, NC Wilson, NC Morgan Mcpherson Kyle Murphy Shanim Patel Sonye' Randolph Monica Schuring Wilmington, NC Charlotte, NC Chapel Hill, NC Greensboro, NC Columbia, SC Michael Mcrae Rashawnda Murphy Jonathan Patton Joshua Rankin Mitchell Schwab Rockingham, NC Durham, NC Winston-Salem, NC Statesville, NC Raleigh, NC Kyle Medin Tyana Murray Kimberly Paz Caroline Ray Melissa Schwartz Durham, NC Whitsett, NC Charlotte, NC Graham, NC Weaverville, NC

THE NORTH CAROLINA STATE BAR JOURNAL 53 Patrick Scott Jordann Smart Frances Sullivan Alexis Tremble Alexis Weiss Raleigh, NC Durham, NC Walnut Cove, NC Winston-Salem, NC Chapel Hill, NC Emily Seaton Andrew Smith Allison Summerville Robert Tucci Justine Welch Athens, GA Durham, NC Huntersville, NC Winston-Salem, NC Winston-Salem, NC Alexander Sefton Ayeshinaye Smith Bryan Sumner Edwin Turnage Matthew Welch Raleigh, NC Wendell, NC Raleigh, NC Greenville, SC Winston-Salem, NC Stacy Shak Enisha Smith Taylor Sweet Joseph Turner Katherine Wenner Apex, NC Durham, NC Mooresville, NC Chapel Hill, NC Lewis Center, OH Jonathan Shbeeb Ernest Smith Jillian Swett Mariam Turner Paul West Lynchburg, VA Durham, NC Greensboro, NC Durham, NC Raleigh, NC Xiaolu Sheng Joanna Smith Jeffrey Swing Anna Turpin Sean Whelehan Apex, NC Morrisville, NC High Point, NC Raleigh, NC Chapel Hill, NC Autumn Shipman Yvonne Smith Edward Tarantino Ravyn Tyndall Everette White Washington, DC Liberty, NC Mooresville, NC Raleigh, NC Chapel Hill, NC Kerry Shipman Zachary Smith Georgios Tarasidis Ashley Urquijo Rosalind White Charleston, SC Tuscaloosa, AL Greensboro, NC Cary, NC Cary, NC Logan Shipman Emily Sorge Landy Tate Madison Vance Graham Whittington Raleigh, NC Greensboro, NC Durham, NC Newland, NC Durham, NC Megan Shook Robert Sosower Jaran Tatum Jaqueline Vaughan-Jones Adam Wilcox Hickory, NC Durham, NC Cayce, SC Chapel Hill, NC Orlando, FL Courtney Shytle Matthew Sparks John Taylor Juliana Vergara Duque Ashlee Wiley Columbia, SC Cherryville, NC Lynchburg, VA Winston-Salem, NC Durham, NC Alan Sides Tyler Speers Kristin Taylor Wesleigh Vick Alstongabrielle Wilkins Chapel Hill, NC Durham, NC Durham, NC Chapel Hill, NC Durham, NC Sarah Sidwell Mary Stamato Steven Taylor Dmitry Vinogradsky Crystal Wilkins Nashville, TN Frederick, MD Goldsboro, NC Kernersville, NC Durham, NC Glayverth Silva Lauren Starnes Tatiana Terry Aaron Vodicka Caitlin Willen Durham, NC Chattanooga, TN Raleigh, NC Apex, NC Charlotte, NC Thalita Silva Garrett Steadman Grace Thomas Gregory Volk Tyler Williams Durham, NC Pittsboro, NC Durham, NC Winston-Salem, NC Norman, OK Hailey Sim Eric Steber Luke Thomas Alexa Voss Cameron Williamson Jamestown, NC Cary, NC Salisbury, NC Chapel Hill, NC Raleigh, NC Samuel Simmons Jenna Steiner Morgan Thomas Nicholas Voss Kelly Williamson Waco, TX Winston-Salem, NC Athens, GA Palmyra, NY Apex, NC Allen Simpkins Chase Stevens Sarah Thomas Thomas Walker Kimberly Willis Raleigh, NC Winston-Salem, NC Wilson, NC Chapel Hill, NC Oakland, CA Lila Simpson Emily Stewart Florence Thompson William Walker Tyler Willis Beaufort, SC Charlottesville, VA Purcellville, VA Raleigh, NC Raleigh, NC Olivia Sings Mary Stillwell Holly Thompson Hannah Wallace Hayley Wilson Morrisville, NC Raleigh, NC Traverse City, MI Fuquay-Varina, NC Charlotte, NC Heather Sirna Joshua Stone Emma Tisdale Robert Walsh Tallah Wilson Charlotte, NC Charlotte, NC Norfolk, VA Pittsboro, NC Durham, NC Sarah Skinner Matthew Stone Michael Todd Joy Walters Nevin Wisnoski Angier, NC Raleigh, NC Chapel Hill, NC Davie, FL Asheville, NC John Skubina Jessica Stout Lauren Toole Robyn Walters Rebecca Wolfe Athens, GA Raleigh, NC Chapel Hill, NC Norfolk, VA Winston-Salem, NC Cecilia Slifko Joshua Stroud Susan Torres Kevin Walton Katarina Wong Johnstown, PA Durham, NC Brooklyn, NY Chapel Hill, NC Durham, NC Jane Small Elle Stuart Samantha Tracy Daniel Ward Edward Woodall Raleigh, NC Washington, DC Winston-Salem, NC Alachua, FL Chapel Hill, NC Sarah Warren Brian Wooten Winston-Salem, NC Winston-Salem, NC Gregory Wasylak Daniel Wright Baltimore, MD Wake Forest, NC Elizabeth Watkins Karlee Wroblewski Speakers Bureau Available Gainesville, FL Somerset, WI Briana Way Chu En Wu Raleigh, NC Pinehurst, NC Speakers on topics relative to the North Carolina State Bar’s regulatory mis- Michael Way Hannah Wyatt sion are available at no charge for presentations in North Carolina to lawyers Durham, NC Thomasville, NC and to members of the public. Topics include the State Bar’s role in the regu- Warren Weatherspoon Thomas Zamadics lation of the legal profession; the State Bar’s disciplinary process; how the State Cary, NC Raleigh, NC Brian Webb Jonathan Zator Bar provides ethical guidance to lawyers; the Lawyer Assistance Program of the Mooresville, NC Chapel Hill, NC State Bar; the Client Security Fund; IOLTA: Advancing Justice for more than Taylor Webb Leighton Zhong 20 Years; and current challenges to the regulation of the practice of law in Pinetops, NC Orlando, FL North Carolina. Requests for speakers on other relevant topics are welcomed. Holly Webster Ariella Zulman Syracuse, NY Chapel Hill, NC For more information, call or email Lanice Heidbrink at 919-828-4630 or Tyler Weddle Tamara Zwick [email protected]. Mount Airy, NC Charlotte, NC Elizabeth Weisner Charlotte, NC

54 SUMMER 2019

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

Summer 2019