THE NORTH CAROLINA STATE BAR

SUMMER JOURNAL2015

IN THIS ISSUE Reflections from Two Former District Attorneys page 11 Raising Issues of Race page 18 Meet the Federal Judges page 32

THE NORTH CAROLINA STATE BAR JOURNAL Summer 2015 FEATURES Volume 20, Number 2

Editor 11 Reflections from Two Former Jennifer R. Duncan District Attorneys—Interviews

Publications Committee with Gilchrist and Grannis Dorothy Bernholz, Chair By Forrest Ferrell, Margaret Dickson, and Nancy Black Norelli, Vice-Chair Harold “Butch” Pope John A. Bowman W. Edward Bunch 18Identifying and Raising Meritorious Harry B. Crow Margaret H. Dickson Claims of Racial Bias—A Manual Rebecca Eggers-Gryder Forrest A. Ferrell for Defense Attorneys and Other John Gehring Court Actors James W. Hall By Melzer Morgan Anna Hamrick Darrin D. Jordan Sonya C. McGraw 20 Young Lawyers Start Career Paths Robert Montgomery by Embracing Pro Bono Harold (Butch) Pope By Mary Irvine G. Gray Wilson Alan D. Woodlief Jr. 24The Charlotte School of Law— © Copyright 2015 by the North Carolina State Bar. All Public and Private Value rights reserved. Periodicals postage paid at Raleigh, NC, By Jay Conison and additional offices. Opinions expressed by contributors are not necessarily those of the North Carolina State Bar. POSTMASTER: Send address changes to the North 28Ronald Spivey—Life After the Law Carolina State Bar, PO Box 25908, Raleigh, NC 27611. By John Gehring The North Carolina Bar Journal invites the submission of unsolicited, original articles, essays, and book reviews. 301, 2, 3, 4: Your Digital Security Submissions may be made by mail or e-mail (ncbar@bell- south.net) to the editor. Publishing and editorial decisions Plan for 2015 by the Numbers are based on the Publications Committee’s and the editor’s By Joyce Brafford judgment of the quality of the writing, the timeliness of the article, and the potential interest to the readers of the 32 Meet the Federal Judges: Judge Journal. The Journal reserves the right to edit all manu- scripts. The North Carolina State Bar Journal (ISSN William L. Osteen Jr. 10928626) is published four times per year in March, By Michelle Rippon June, September, and December under the direction and supervision of the council of the North Carolina State Bar, 35 The All-Time Absolutely, Positively PO Box 25908, Raleigh, NC 27611. Member rate of $6.00 per year is included in dues. Nonmember rates Ten Best Lawyer Films $10.78 per year. Single copies $3.21. The Lawyer’s By Lawrence T. “Rusty” Hammond Jr. Handbook $10.78. Advertising rates available upon request. Direct inquiries to Director of Communications, the North Carolina State Bar, PO Box 25908, Raleigh, Update Membership Information: Members who need to update their membership North Carolina 27611, tel. (919) 828-4620. information must do so by contacting the Membership Department via one of the four following methods: (1) log on to the Member Access section of the State Bar’s website www.ncbar.gov (www.ncbar.gov); (2) mail changes to: NC State Bar, Membership Dept., PO Box 26088, Raleigh, NC 27611-5908; (3) call (919) 828-4620; or (4) send an e-mail to amaner@ ncbar.gov. In deciding what address to list with the State Bar, be advised that this address will be used for all official correspondence from the State Bar and that mem- bership information is a public record pursuant to the NC Public Records Act.

THE NORTH CAROLINA STATE BAR JOURNAL 3 DEPARTMENTS 42 Trust Accounting BAR UPDATES 44 IOLTA Update 5 57 President’s Message 45 Rule Amendments In Memoriam 6 58 State Bar Outlook 51 Proposed Ethics Opinions Law School Briefs 36 Profile in Specialization 60 Client Security Fund 37 The Disciplinary Department 61 July 2015 Bar Exam Applicants 38 Lawyer Assistance Program 40 Legal Ethics

Officers Ronald L. Gibson, Charlotte - President 2014-2015 26: Robert J. Bernhardt, Charlotte Katherine Jean, Counsel and Assistant Executive Dir. Margaret M. Hunt, Brevard - President-Elect 2014-2015 Robert C. Bowers, Charlotte David R. Johnson, Deputy Counsel Mark W. Merritt, Charlotte - Vice-President 2014-2015 A. Todd Brown, Charlotte Sharon Kelly, Events Manager L. Thomas Lunsford II, Raleigh - Secretary-Treasurer Mark Henriques, Charlotte Barbara Kerr, Archivist Ronald G. Baker Sr., Kitty Hawk - Past-President 2014-2015 F. Fincher Jarrell, Charlotte Cathy D. Killian, Clinical Director and Western Clinical Dewitt McCarley, Charlotte Coordinator, LAP Councilors Nancy Black Norelli, Charlotte Melanie Kincaid, Paralegal 27A: Sonya Campbell McGraw, Gastonia Suzanne Lever, Asst. Ethics Counsel By Judicial District 27B: Ralph W. Meekins, Lincolnton L. Thomas Lunsford II, Executive Director 1: C. Everett Thompson, Elizabeth City 28: Howard L. Gum, Asheville Adam Maner, Professional Organization Coordinator 2: G. Thomas Davis Jr., Swan Quarter 29A: Marvin R. Sparrow, Rutherfordton Beth McIntire, IT Manager 3A: Charles R. Hardee, Greenville 29B: Christopher S. Stepp, Hendersonville Beth McLamb, Payment Coordinator, Membership 3B: Debra L. Massie, Beaufort 30: Gerald R. Collins Jr., Murphy Nichole P. McLaughlin, Asst. Ethics Counsel 4: Robert W. Detwiler, Jacksonville Barry S. McNeill, Deputy Counsel 5: Harold L. Pollock, Burgaw Diane Melching, Admin. Asst., ACAP 6: W. Rob Lewis II, Ahoskie Public Members Dottie K. Miani, Deputy Clerk of DHC/Asst. Facilities Manager 7: Randall B. Pridgen, Rocky Mount Margaret H. Dickson, Fayetteville Claire U. Mills, Accounts Manager, IOLTA 8: C. Branson Vickory III, Goldsboro Paul L. Fulton, Winston-Salem Alice Neece Mine, Asst. Executive Dir., Dir. of CLE, 9: Paul J. Stainback, Henderson James W. Hall, Ahoskie Specialization, & Paralegal Certification 9A: Alan S. Hicks, Roxboro Robynn E. Moraites, LAP Director 10: Heidi C. Bloom, Raleigh George Muench, Investigator Nicholas J. Dombalis II, Raleigh Staff Denise Mullen, Asst. Director of Specialization Theodore C. Edwards II, Raleigh Shannon Azzi, Receptionist Pat Murphy, Deputy Counsel John N. (Nick) Fountain, Raleigh Carmen H. Bannon, Deputy Counsel Loriann Nicolicchia, Accreditation Coordinator, CLE Donna R. Rascoe, Raleigh Tim Batchelor, Investigator Emily Oakes, Attendance/Compliance Coordinator, CLE John M. Silverstein, Raleigh Kelly Beck, Compliance Coordinator, Membership/CLE Brian Oten, Deputy Counsel C. Colon Willoughby Jr., Raleigh Joy C. Belk, Asst. Dir. Paralegal Certification Lisanne Palacios, Accounting Manager Cynthia L. Wittmer, Raleigh Krista Bennett, Fee Dispute Facilitator, ACAP Anne M. Parkin, Field Auditor 11A: Donald E. Harrop Jr., Dunn Michael D. Blan, Systems Analyst/Programmer Heather Pattle, Administrator, Office of Counsel 11B: Marcia H. Armstrong, Smithfield Peter Bolac, District Bar Liaison/Trust Account Compliance C. Fred Patton Jr., Investigator 12: Lonnie M. Player Jr., Fayetteville Counsel Wondella Payne, Paralegal 13: Harold G. Pope, Whiteville Elizabeth E. Bolton, Receptionist Aaliyah Pierce, Acct. Data Asst., IOLTA 14: John A. Bowman, Durham Lori Brooks, Admin. Asst., Office of Counsel Angel Pitts, Mail/Copy/Accounting Clerk William S. Mills, Durham Delia M. Brown, Administrative Asst., LAP Jennifer Porter, Deputy Counsel 15A: Charles E. Davis, Mebane Maria J. Brown, Deputy Counsel Evelyn Pursley, Executive Dir., IOLTA 15B: Dorothy Bernholz, Chapel Hill Krista E. Carlson, Investigator Sonja B. Puryear, Admin. Asst., Investigations 16A: William R. Purcell II, Laurinburg Becky B. Carroll, Paralegal Joan Renken, Admin. Asst., Office of Counsel 16B: David F. Branch Jr., Lumberton Joseph D. Cerone, Office Manager Christy L. Reuss, Paralegal Certification Compliance 16C: Richard Buckner, Rockingham Alyssa M. Chen, Deputy Counsel Coordinator 17A: Matthew W. Smith, Eden Margaret Cloutier, Senior Deputy Counsel Randall C. Ross, Investigator 17B: Thomas W. Anderson, Pilot Mountain Joseph J. Commisso, Director of Investigations Whit Ruark, Investigator 18: Barbara R. Christy, Greensboro E. Martin Coolidge, Jr., Investigator Sandra L. Saxton, Public Liaison, ACAP Robert C. Cone, Greensboro Susannah B. Cox, Deputy Counsel Fern Gunn Simeon, Deputy Counsel 18H: Richard S. Towers, High Point Luella C. Crane, Director of ACAP Jaya Singh, Accounting Asst. 19A: James D. Foster, Concord Jennifer R. Duncan, Director of Communications Jennifer Slattery, Paralegal 19B: W. Edward Bunch, Asheboro A. Root Edmonson, Deputy Counsel E. Michael Smith Jr., Investigator 19C: Darrin D. Jordan, Salisbury Justin Edmonson, Administrative Assistant Susie Taylor, Admin. Asst./Special Projects Manager, LAP 19D: Richard Costanza, Southern Pines Nicole Ellington, Eastern Clinical Coordinator, LAP Judith Treadwell, Public Liaison, ACAP 20A: H. Earl Singletary Jr., Albemarle Julie A. Ferrer, CLE Clerk Kristina M. Troskey, Paralegal 20B: Harry B. Crow Jr., Monroe Martha Fletcher, Payroll and Benefits Administrator Wayne C. Truax, Investigator 21: Michael L Robinson, Winston-Salem Towanda Garner, Piedmont Clinical Coordinator, LAP Joshua T. Walthall, Deputy Counsel G. Gray Wilson, Winston-Salem Lanice Heidbrink, Exec. Asst., Administration A. Dawn Whaley, Admin. Asst., Investigations 22: Kimberly S. Taylor, Taylorsville Jeffery Hill, Computer Systems Administrator Edward R. White, Investigator 22B: Roger S. Tripp, Lexington Leanor Hodge, Deputy Counsel Brittany A. Wilson, Paralegal 23: John S. Willardson, Wilkesboro Debra P. Holland, Asst. Director, CLE Mary D. Winstead, Deputy Counsel 24: Rebecca Eggers-Gryder, Boone Mary L. Irvine, Access to Justice Coordinator Christiane Woods, Admin Asst., Investigations 25: Forrest A. Ferrell, Hickory Tammy Jackson, Membership Director THE PRESIDENT’S MESSAGE

An Update on Legislation and Litigation

B Y R ONALD L. GIBSON

In the Fall 2014 Journal, President Ron ference, and ultimately LegalZoom accepted ing services in North Carolina. Baker’s message discussed the status of impor- the State Bar’s proposed language with minor The Supreme Court held that the Dental tant litigation and legislation affecting the prac- revisions, and agreed to support amending Board could not assert the defense of state- tice of law, namely LegalZoom.com, Inc. v. The House Bill 663 by substituting the agreed action antitrust immunity since a controlling North Carolina State Bar, No. 11-CVS-15111 upon language and settling the pending litiga- number of the board's decision-makers are (Wake County), and House Bill 663.1 Ron’s tion by agreeing to conform its business prac- active market participants (dentists) in the message reviewed the events of summer 2014 tices to the proposed new statute. The pro- occupation the board regulates, and activities leading to an agreement with LegalZoom to posed new language was not introduced, and of the board are not subject to “active supervi- support a revised version of the legislature did not take sion by the state.” At a minimum, the Dental House Bill 663: further action on the bill. Board opinion requires that the state supervi- • The State Bar was After the legislature sion must include the substance of the deci- advised the afternoon before adjourned last summer with- sion and not just the process to reach it; the the bill, entitled out further action on the bill, supervisor must have the right to veto or mod- “Commodities Producer the State Bar approached ify the decision; and the state supervisor can- Protection,” would be consid- LegalZoom about resolving not be an active market participant. ered in Senate Judiciary the litigation by consent The State Bar officers and counsel con- Committee 1 the next morn- judgment using the language ferred immediately after the Dental Board ing. The bill had crossed over in the proposal submitted to decision was announced to consider its impli- to the Senate in May 2013, the legislature. No agreement cations for regulation of the practice of law. had been stripped of its agri- was reached. Most functions of the State Bar do not raise cultural content, and was competitive concerns. The North Carolina amended to substantially alter The Dental Board Case Supreme Court reviews and approves or dis- the definition of the practice of law. The bill as On February 25, 2015, The United States approves our rules and regulations. The dis- it existed would have approved LegalZoom’s Supreme Court issued its opinion in NC State barment or suspension of an attorney requires method of operation in North Carolina. Board of Dental Examiners v. FTC.2 The State a hearing before the Disciplinary Hearing • The chair of the State Bar’s Authorized Bar had been involved in the Dental Board Commission, which is a separate adjudicative Practice Committee, Mike Robinson of case since the Fourth Circuit Court of Appeals body whose decisions are subject to review by Winston-Salem, appeared before the Senate affirmed the FTC decision by filing amicus the appellate courts. Judiciary Committee the next morning and briefs in support of the petition for rehearing, In the area of the unauthorized practice of described why the State Bar opposed the bill. in support of the petition for certiorari and on law, there are a limited number of instances The bill was voted out of the committee with the merits. The Dental Practice Act provides where regulation by the State Bar might have a favorable report. that the Dental Board is “the agency of the any effect on competition. We concluded • The State Bar councilors and past-presi- state for the regulation of the practice of den- from our review of the State Bar’s regulatory dents contacted their local representatives and tistry,” not unlike the Chapter 84 regulatory processes that there is clear authority to regu- the legislative leadership to oppose the bill. framework for the practice of law.3 North late the practice of law, to set out and enforce Other lawyers also contacted their legislators. Carolina dentists complained to the board rules of discipline, and to prevent the unau- The bill was removed from the Senate calen- that nondentists were charging lower prices thorized practice of law. However, the defini- dar and sent to the Senate Rules Committee. for teeth whitening services than charged by tion of the practice of law was written long • The legislative leadership urged the State dentists. The Dental Act does not specify that before the advent of the internet. There is a Bar and LegalZoom to confer in an effort to teeth whitening services is “the practice of need to update the definition of the practice of agree on language acceptable to both sides. dentistry.” The board issued official cease and law to recognize that there is a difference The judge presiding over the pending case had desist letters to nondentist teeth whitening between providing forms and scriveners’ serv- already directed the parties to confer. service providers, product manufacturers, and ices, which are lawful, and creating legal doc- • The State Bar prepared and submitted others, warning that the unlicensed practice of uments based on information provided by the proposed language to LegalZoom, which was dentistry is a crime. The Supreme Court consumer, which is prohibited by Chapter 84. rejected. The parties conferred a number of found that this and other related board actions times, including a mediated settlement con- led nondentists to cease offering teeth whiten- CONTINUED ON PAGE 8

THE NORTH CAROLINA STATE BAR JOURNAL 5 STATE BAR OUTLOOK

Philomathia

B Y L. THOMAS L UNSFORD II

My old friend Louis Allen attained a meas- think it would be very effective anymore. The vey immediately after perusing the discipli- ure of fame early in his legal career by success- moral lessons are still cogent, of course, but nary report—and ascertaining that he or she is fully deploying the Andy Griffith defense on the emotional resonance of the stories has not in it. Allow me to suggest that there is a behalf of his criminally accused clients. been somewhat diminished by the fact that better way. Why not start your reading with Understanding that in the last few decades of our experience of the old television program is the executive director’s article, an often aston- the twentieth century most North Carolinians no longer universal. In any given venire, there ishing piece of journalism that recurs each were familiar with and approving of the moral are now relatively few folks who know and quarter under the enigmatic caption, “State lessons of The Andy Griffith Show, Louis was love the people of Mayberry, or would even Bar Outlook.” Although the Outlook is rou- on several occasions able to find episodes that, care if Opie were wrongfully convicted. tinely overlooked by most lawyers, it is when summarized in the light Although the Andy absolutely Philomathian in its dedication to most favorable to his client at defense may have outlived its “cutting out and pasting in” the State Bar’s closing argument, appeared usefulness, I think it would be most important current events. To be sure, the to compel a not guilty verdict. wrong to suppose that the author occasionally belabors boring topics like Among the best stories for his program from which it sprang pro hac vice admission and his childhood in purposes were those that has nothing left to teach us. In monographic fashion. But he is just as likely focused upon the relationship that regard, I’m reminded of to identify sensational issues that really ought of father and son. an episode that centered upon not to be missed by the busy attorney. As Prototypically, some mischief Mayberry Union High proof of that, please consider the following would occur in Mayberry and School’s Class of ‘45. In con- matters that relate to the law of professional suspicion would fall on Opie, templation of a class reunion, responsibility and membership in the North Andy’s little boy. Andy, Sheriff Andy Taylor and Carolina State Bar. despite his status as the town’s Deputy Barney Fife felt called Proposed 2014 FEO 1—Protecting only dependably sensible upon to leaf through their Confidential Client Information when individual, would accept the common wis- high school yearbook. The entry underneath Mentoring. This proposed ethics opinion is dom and jump to the conclusion that his Andy’s photograph recited that, among other published for comment elsewhere in the child was “guilty.” Inevitably, the folly inher- distinctions, he had belonged to the Journal. It is intended to make clear the cir- ent in rushing to judgment was demonstrated Philomathian Society. When queried as to cumstances under which a lawyer can ethically powerfully—and sentimentally—to the tele- what exactly went on in that organization, allow a law student or new lawyer he or she is vision audience after the final commercial Andy reminded his friend that it was a group mentoring (a “protégé”) to sit in on a private when the actual perpetrator was unmasked. of people who cut out “current events” from client conference. Although the opinion is by Not surprisingly, the lesson was not lost on the the newspaper and pasted them in a scrap- its terms supportive of mentoring and permis- people of North Carolina, virtually all of book. He recalled that Barney had been “up sive of such encounters, it recognizes that the whom regularly tuned in, had seen the for membership” but had not been selected, presence of a protégé at a client conference episode in question many times, and knew and had “cried.” could result in a waiver of the attorney-client what was going to happen long before it hap- For me, the value of that story lies not so evidentiary privilege. This is because the pro- pened, fictionally speaking. For a gifted story- much in acknowledging the heartache of ado- tégé is typically not an agent of the mentor, teller like Louis, it was easy to find in such lescent rejection, but in recognizing the but is simply an observer who is not engaged parables the essence of reasonable doubt. No importance of “current events.” Each quarter in the rendition of legal services. Recognizing juror in that generation, when skillfully the State Bar Council meets and considers that it is not the lawyer’s prerogative to jeop- reminded of Andy’s awful mistake and the dozens of matters of significance to the legal ardize unilaterally the client’s confidential miscarriage of justice so narrowly avoided, profession and the people of North Carolina. information, the opinion would require that could fail to understand that things are not The decisions resulting from these delibera- the mentoring lawyer obtain the client’s always as they appear, and that innocence tions are properly viewed as “current events” informed consent regarding possible loss of ought to be presumed rather than guilt. and a great many are reported in the Journal. the privilege prior to the conference. Louis, who is now the federal public Unfortunately, the number of such items is so Before its publication, the proposed opin- defender in the Middle District, hasn’t used great that the average reader is frequently over- ion was reviewed by a subcommittee of the the Andy defense in quite a while. He doesn’t whelmed and often abandons his or her sur- Ethics Committee at two meetings that were

6 SUMMER 2015 1hio c rio2jc rif c

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attended by representatives of various mentor- adjust the conflict between these competing quish” his or her membership in the North ing programs. The subcommittee was advised interests. In so doing, it has considerable lati- Carolina State Bar. It is unclear as a matter of that observation of actual attorney-client con- tude in interpreting its own confidentiality semantics just how that concept differs from ferences is for many students and novice rules, but has no authority to determine how “resignation,” but it does seem to connote the lawyers essential to professional development the substantive law of evidence, as expressed in voluntary and permanent character of the and a key component of successful mentoring. the attorney-client privilege, is applied. desired change in status. It also suggests the It was also suggested that if informed consent Having perceived that the protégé’s presence absolute separation of the moving party from were required, clients would reflexively deny at a client meeting would risk an important the party being moved from, so to speak. their permission, thereby effectively eliminat- client interest as a matter of law, all that The impetus for this rulemaking sprang ing these important educational opportunities remains for decision, it would seem, is from correspondence we received last summer and greatly handicapping the mentoring whether the lawyer can ethically disregard that from a lawyer who no longer wants to be—a effort. As these discussions continued, it risk. In my view, the proposed opinion prop- lawyer that is. He plainly intended to effectu- became apparent that the issue before the erly strikes the balance in favor of the client’s ate his “resignation” by means of that device, Ethics Committee manifests a very real con- interest—in favor of disclosure. and was disappointed when his letter was flict between the interests of the legal profes- Relinquishment—As dedicated readers of treated administratively as a “petition for inac- sion (and the general public) and the interests my column will recall, I ruminated on the tive membership status.” He advised us that of individual clients. Clearly, effective mentor- question of whether a lawyer has a right to his intention was and is to make a political ing is necessary to the professional develop- resign from the North Carolina State Bar in statement relating to his conviction that the ment of competent attorneys, an adequate the Spring 2013 issue of the Journal. As is my legal profession, as embodied by the State Bar, supply of which is essential to the administra- custom in regard to such imponderable ques- has failed in its obligation to promote social tion of justice. Just as compelling is the client’s tions, I offered no opinion of my own, but justice. That being the case, he no longer right to expect that no one with whom confi- noted that an answer would surely be forth- wants to be in any way affiliated. In his view, dential information is shared in the confines coming in the fullness of time. Recent events he has a First Amendment right not to be of the law office can be compelled to testify have gone a long way toward confirming that required to remain in association with the rest regarding the substance of any such conversa- prophecy and my overall prescience as a rumi- of us. Unfortunately, that theory is somewhat tion. The State Bar’s role under such circum- nator. Elsewhere in this issue you will find a difficult to square with the existing statutory stances is to divine how the Rules of set of proposed amendments to the rules that, scheme. Chapter 84 of the General Statutes, Professional Conduct ought to be applied to if adopted, would allow an attorney to “relin- which governs the State Bar, seems to recog-

THE NORTH CAROLINA STATE BAR JOURNAL 7 nize only two means of egress from the mem- there be no pending, unresolved allegations of Since such an individual would have no bership rolls, disbarment and death—and the professional misconduct; that all fees owed to license to suspend and could not be disbarred, efficacy of death is only implied. Resignation the State Bar, the Board of Continuing Legal the only available remedy would be some sort seems never to have been contemplated, just Education, and the Disciplinary Hearing of censure, the effectiveness of which would membership—active or inactive pending dis- Commission be paid; that any ongoing law likely be minimal. I suppose that the resulting grace or decomposition. practice be properly wound down; and that Findings of Fact and Conclusions of Law That notwithstanding, however, a sub- the petitioner acknowledge that readmission might be of interest to bar admissions author- committee of the Issues Committee was to the Bar can only be attained under the aus- ities, should the former lawyer ever seek read- appointed in January to consider whether pices of the Board of Law Examiners and in mission to the fraternity. But it’s hard to imag- lawyers must or ought to be able to resign accordance with the procedures applicable to ine that our limited resources couldn’t be bet- from the State Bar and, if so, how so. The sub- first-time applicants, and that any informa- ter used to discipline ill-behaving practitioners committee made its report in April and rec- tion relating to professional misconduct who still have licenses and constitute a real ommended the rule amendments alluded to received by the State Bar after the date of the and present threat to the public. Maybe I’m above. Its consensus in favor of resignation, or order of relinquishment will not be treated as missing something in that regard. It wouldn’t “relinquishment,” was bolstered by research confidential. be the first time. showing that many other states allow it. Is was Although the right to resign is in theory a Be that as it may, the important thing here encouraged by the understanding that a rather beguiling notion, some have resisted is that you are now caught up on some very resigning lawyer could be held accountable for the idea over the years because resignation important current events. That’s a good thing, misconduct discovered after the resignation appears to afford the lawyer who is facing pro- for sure, but not a sufficient end in itself. A has taken effect. And it was predicated upon fessional discipline a means of “cheating the thoroughly engaged and thoughtful lawyer the legal conclusion that G.S. 84-16 allows hangman,” as it were. That a miscreant might would almost certainly be inspired by this arti- the State Bar Council to “resolve questions avoid professional sanction and opprobrium cle to read carefully the cited ethics opinion pertaining to membership status.” Having by the simple expedient of quitting offends and the proposed rules and to consider sub- thus decided to recommend that resignation my sense of justice, and perhaps yours as well. mitting comments in regard thereto. Indeed, a be accommodated, the necessity of resolving For that reason, apparently, a provision of the close reading of all the material published for the petitioner’s constitutional claim was, for proposed rule declares that “[R]elinquishment comment in the Journal would seem to be the time being at least, obviated. is not a bar to the initiation or investigation of indicated. Of course, I realize that you’re very Under the proposed rules, “relinquish- allegations of professional misconduct and busy and that you may not have the time to ment” cannot be accomplished by the “relin- shall not prevent the State Bar from prosecut- deal with this stuff immediately. That’s OK, quishor” (a term of my own invention of ing a disciplinary action against the former but just to make sure you don’t forget to do it, which I am particularly fond) alone. A peti- licensee for any violation of the Rules of I suggest that you take a moment right now to tion must be filed and, after having deter- Professional Conduct that occurred prior to cut this essay out of the magazine and paste it mined that all required conditions have been the date of the order of relinquishment.” in your scrapbook. n satisfied, the State Bar must enter an order of Frankly, it is unclear to me exactly what relinquishment. Notable among the six enu- good might be accomplished by prosecuting a L. Thomas Lunsford II is the executive merated conditions are the following: that disciplinary action against a former lawyer. director of the North Carolina State Bar.

President’s Message (cont.) April 20. At the time this article went to press, John McMillan, Michelle Frazier, and Nick the bill was being considered by the Senate. Fountain continue to provide extraordinary House Bill 436 The full text of the bill that passed in the voluntary service to our profession and to the The officers decided to approach the lead- House on April 20 is published on the follow- people of North Carolina. Many North ership of the legislature about passing a bill ing two pages. Please read the text of the bill Carolina lawyers have contacted their legisla- modernizing the definition of the practice of so that you know what was proposed and tors to support the State Bar’s efforts. I thank law and amending G. S. §84-37 to provide supported by the State Bar, rather than rely- all of you for your support. n supervision by the attorney general before the ing on descriptions or comments by others State Bar sends a cease and desist demand or on the substance of the bill. Ronald L. Gibson is a partner with the files a lawsuit to enjoin the unauthorized I want to express my appreciation to the Charlotte law firm of Ruff, Bond, Cobb, Wade practice of law in those instances when there legislative leadership, Senate President Pro & Bethune, LLP. may be a competitive concern. In early Tem Phil Berger and Speaker of the House March the State Bar officers visited the leaders Tim Moore for their support, along with the Endnotes of the House and Senate to discuss the pro- bill sponsors in both houses who met with us 1. Link to Fall Journal ncbar.com/journal/archive/jour- posed legislation. The leadership was very to hear why this bill is important for the prac- nal_19,3.pdf. receptive to our proposed bill and suggested tice of law and the protection of the public. 2. N.C. State Board of Dental Examiners v. FTC, ___ U.S.___, 135 S. Ct. 1101, 191 L. Ed. 2d 35 (2015). potential sponsors of the bill. House Bill 436 The State Bar heavily relies on the volun- 3. N.C. G.S. §90-22 et seq. was introduced and passed the House on teer efforts of many lawyers. At the legislature,

8 SUMMER 2015 GENERAL ASSEMBLY OF person, firm or corporation: Provided, that individualized legal advice to or exer- NORTH CAROLINA the above reference to particular acts which cise any legal judgment for the con- are specifically included within the defini- sumer; provided, however, that pub- SESSION 2015 tion of the phrase “practice law” shall not be lishing general information about the H3construed to limit the foregoing general law and describing the products HOUSE BILL 436 definition of the term, but shall be con- offered, when not done to address the Committee Substitute strued to include the foregoing particular consumer’s particular legal situation acts, as well as all other acts within the gen- and when the general information Favorable 4/15/15 eral definition. published to every consumer is identi- Third Edition Engrossed (b) The phrase “practice law” does not cal and does not constitute legal advice encompass any of the following: or the exercise of legal judgment. 4/20/15 (1) the The drafting or writing of mem- e. During and after initial contact oranda of understanding or other medi- between the provider and the con- Short Title: Unauthorized Practice of Law ation summaries by mediators at com- sumer, the provider may not partici- Changes. (Public) munity mediation centers authorized by pate in any way in selecting the content Sponsors: G.S. 7A-38.5 or by mediators of of the finished materials. Referred to: employment-related matters for The f. In the case of the sale of materials April 1, 2015 University of North Carolina or a con- including information supplied by the stituent institution, or for an agency, consumer through an Internet Web A BILL TO BE ENTITLED AN ACT commission, or board of the State of site or otherwise, the consumer is pro- TO FURTHER DEFINE THE TERM North Carolina. vided a means to see the blank tem- “PRACTICE LAW” FOR THE PUR- (2) The production, distribution, or sale plate or the final, completed product POSE OF PROTECTING MEMBERS of materials, provided that all of the fol- before finalizing a purchase of that OF THE PUBLIC FROM SERIOUS lowing are satisfied: product. HARM RESULTING FROM THE a. The production of the materials g. The provider does not review the UNAUTHORIZED PRACTICE OF must have occurred entirely before any consumer’s final product for errors LAW BY A PERSON WHO IS NOT A contact between the provider and the other than notifying the consumer (i) TRAINED AND LICENSED ATTOR- consumer. of spelling errors, (ii) that a required NEY AND TO ESTABLISH A PROCESS b. During and after initial contact field has not been completed, and (iii) OF REVIEW BY THE ATTORNEY between the provider and the con- that information entered into a form GENERAL PRIOR TO ANY ACTION sumer, the provider’s participation in or template by the consumer is factual- BY THE STATE BAR TO ENJOIN THE creating or completing any materials ly inconsistent with other information UNAUTHORIZED PRACTICE OF must be limited to typing, writing, or entered into the form or template by LAW. reproducing exactly the information the consumer. The General Assembly of North provided by the consumer as dictated h. The provider clearly and conspicu- Carolina enacts: by the consumer or deleting content ously communicates to the consumer SECTION 1. G.S. 84-2.1 reads as that is visible to the consumer at the that the materials are not a substitute rewritten: instruction of the consumer. for the advice or services of an attorney. “§ 84-2.1. “Practice law” defined. c. The provider does not select or assist i. The provider discloses its legal name (a) The phrase “practice law” as used in in the selection of the product for the and physical location and address to this Chapter is defined to be performing consumer; provided, however, (i) oper- the consumer. any legal service for any other person, firm ating a Web site that requires the con- j. The provider does not disclaim any or corporation, with or without compensa- sumer to select the product to be pur- warranties or liability and does not tion, specifically including the preparation chased; (ii) publishing descriptions of limit the recovery of damages or other or aiding in the preparation of deeds, mort- the products offered, when not done to remedies by the consumer. gages, wills, trust instruments, inventories, address the consumer’s particular legal k. The provider does not require the accounts or reports of guardians, trustees, situation and when the products consumer to agree to jurisdiction or administrators or executors, or preparing or offered and the descriptions published venue in any state other than North aiding in the preparation of any petitions or to every consumer are identical; and Carolina for the resolution of disputes orders in any probate or court proceeding; (iii) publishing general information between the provider and the con- abstracting or passing upon titles, the about the law, when not done to sumer. preparation and filing of petitions for use in address the consumer’s particular legal (3) The completion of a preprinted form any court, including administrative tri- situation and when the general infor- by a real estate broker licensed under bunals and other judicial or quasi-judicial mation published to every consumer is Chapter 93A of the General Statutes, bodies, or assisting by advice, counsel, or identical, does not constitute assistance and prepared in accordance with rules otherwise in any legal work; and to advise in selection of the product. adopted by the North Carolina Real or give opinion upon the legal rights of any d. The provider does not provide any Estate Commission.

THE NORTH CAROLINA STATE BAR JOURNAL 9 (c) For the purposes of this section, the the proposed demand to cease and desist or to a temporary injunction and the proceed- following definitions shall apply: action and any material submitted in sup- ings for temporary injunctions. (1) Materials. – Legal written materials, port thereof to ensure that the Council or (c) The venue for actions brought under books, documents, templates, forms, or any committee appointed by it is acting to this section shall be the superior court of any computer software. protect the public interest and consistent county in which the relevant acts are alleged (2) Production. – Design, creation, pub- with State policy and with the Council’s to have been committed or in which there lication, or display, including by means authority as set forth in this Chapter. The appear reasonable grounds that they will be of an Internet Web site. purpose of the review by the Attorney committed in the county where the defen- (3) Provider. – Designer, creator, pub- General is to ensure that the proposed dants in the action reside, or in Wake lisher, distributor, displayer, or seller.” demand to cease and desist or action is State County. action that is consistent with the authority of (d) The plaintiff in the action North SECTION 2. G.S. 84-37 reads as rewrit- the Council and that would be entitled to Carolina State Bar shall be entitled to obtain ten: State action immunity under the federal documents and examine the adverse party “§ 84-37. State Bar may investigate and antitrust laws. The Attorney General shall and witnesses before filing complaint and enjoin unauthorized activities. review the substance and procedure of any before trial in the same manner as provided (a) The Council or any committee decision by the Council or any committee by law for examining parties. appointed by it for that purpose may inquire appointed to send a demand to cease and (e) This section shall not repeal or limit into and investigate any charges or com- desist or to file an action to ensure that the any remedy now provided in cases of unau- plaints of (i) unauthorized unauthorized, proposed action is consistent with State pol- thorized unauthorized, unlicensed, or unlaw- unlicensed, or unlawful practice of law or (ii) icy. The Attorney General shall have the ful practice of law. Nothing contained in this the use of the designations, “North Carolina authority to approve or disapprove the pro- section shall be construed as disabling or Certified Paralegal,” “North Carolina State posed sending of a demand to cease and abridging the inherent powers of the court in Bar Certified Paralegal,” or “Paralegal desist or the filing of an action or to modify these matters. Certified by the North Carolina State Bar any demand to cease and desist or action to (f) The Council or its duly appointed Board of Paralegal Certification,” by individ- ensure that it accords with State policy. The committee may issue advisory opinions in uals who have not been certified in accor- Council or any committee appointed by it response to inquiries from members or the dance with the rules adopted by the North for that purpose may forgo review by the public regarding whether contemplated con- Carolina State Bar. Bar, or (iii) noncompli- Attorney General when seeking injunctive duct would constitute the unauthorized ance with G.S. 84-2.1(b)(2) by any provider relief is necessary to prevent ongoing fraud or unauthorized, unlicensed, or unlawful prac- of materials, as those terms are defined in imminent harm to consumers or when the tice of law.” G.S. 84-2.1(b)(2). The Council may issue a Council or any committee appointed by it letter of warning or, after complying with the for that purpose has made a specific determi- SECTION 3. G.S. 84-10.1 reads as provisions of subsection (a1) of this section, nation in writing that the relief sought is not rewritten: may issue a demand to cease and desist or likely to have a material adverse effect on “§ 84-10.1. Private cause of action for bring or cause to be brought and maintained competition. The Attorney General may the unauthorized practice of law. in the name of the North Carolina State Bar appoint a designee to perform any duties If any person knowingly violates any of an action or actions, upon information or required or authority provided under this the provisions of G.S. 84-4 through G.S. 84- upon the complaint of any person or entity subsection. 6 or G.S. 84-9, fraudulently holds himself or actions against any person or entity that (b) In an action brought under this sec- herself out as a North Carolina certified para- engages in rendering any legal service, service tion, the final judgment if in favor of the legal by use of the designations set forth in in violation of any provision of this Chapter, plaintiff North Carolina State Bar shall per- G.S. 84-37(a), or knowingly aids and abets holds himself or herself out as a North petually restrain the defendant or defendants another person to commit the unauthorized Carolina certified paralegal by use of the des- from the commission or continuance of the practice of law, in addition to any other lia- ignations set forth in this subsection, or unauthorized unauthorized, unlicensed, or bility imposed pursuant to this Chapter or makes it a practice or business to render legal unlawful act or acts. A temporary injunction any other applicable law, any person who is services that are unauthorized or prohibited to restrain the commission or continuance of damaged by the unlawful acts set out in this by law. No bond for cost shall be required in the act or acts may be granted upon proof or section shall be entitled to maintain a private the proceeding. by affidavit, that the defendant or defendants cause of action to recover damages and rea- (a1) Prior to issuing a demand to cease have violated any of the laws applicable to sonable attorneys’ fees.fees and other injunc- and desist or bringing an action or actions as unauthorized unauthorized, unlicensed, or tive relief as ordered by court. No order or set forth in subsection (a) of this section, the unlawful practice of law or the unauthorized judgment under this section shall have any Council, or any committee appointed by it unauthorized, unlicensed, or unlawful use of effect upon the ability of the North Carolina for that purpose, shall submit the proposed the designations set forth in subsection (a) of State Bar to take any action authorized by demand to cease and desist or action and an this section or any other designation imply- this Chapter.” explanation of why regulatory action by the ing certification by the State Bar. The provi- Council is needed for review by the Attorney sions of law relating generally to injunctions SECTION 4. This act is effective when General. The Attorney General shall review as provisional remedies in actions shall apply it becomes law. n

10 SUMMER 2015 Reflections from Two Former District Attorneys—Interviews with Gilchrist and Grannis

school and became very interested in corpo- An Interview with Peter Gilchrist rate work and particularly interested in Conducted by Forrest Ferrell income taxes. I focused on tax and corporate work while I was at Duke Law School. I con- Peter S. Gilchrist III served as district attor- templated getting a Master’s in Taxation, but I Photo by Chris Edwards/ ney for Mecklenburg for 36 years before retir- didn’t. I was hired by Arthur Andersen and ing from the office. During his tenure of man- Company, which was then one of the Big 8 aging and prosecuting the criminal docket of accounting firms, in their tax department. the largest prosecutorial district in the state, While I’d had some taxation courses, I really Gilchrist developed a reputation of prosecut- didn’t have basic accounting. At the first office ing high profile cases. He personally prosecut- Christmas party, they gave me a little card to ed all cases of lawyers indicted for criminal put inside the drawer of my desk saying, conduct. “Assets on the left, Liabilities on the right” Charlotte Magazine Gilchrist began working for DA Tom (chuckles). The entire time I was working at Moore in 1970. When Moore decided not to Anderson I was going to night school taking seek re-election, Peter ran for and was elected accounting courses. I went back to Chapel in 1974. Until his retirement he had no oppo- Hill for a session of summer school for six sition. He quickly put in place a system for weeks and took more accounting courses and tracking all criminal cases in the district and I stayed there until I ended up getting my developed a case filing method still used today. CPA. About that time I was realizing that I New policies in his office helped create bet- really didn’t think I wanted to be an account- women who were on public assistance and ter management of the docket. For example, ant and I still thought I would probably go men that were being brought in to pay per- he created trial teams to prosecute specific into the family chemical company. I hap- haps $4 or $5 a week for the support of their crimes such as murder, sexual offenses, habit- pened to go down to the courthouse and children. I thought this really is a lot more ual felons, and general felonies. Likewise, he spoke to a family friend, Judge Willard Gatlin, interesting work than trying to save somebody created a team of seasoned prosecutors to han- who ran the juvenile and domestic relations from having to pay income taxes. dle all misdemeanor cases. court. I just sat down with him and talked for FF: Is there more you can say about what From his staff of attorneys came several a couple of hours. I wasn’t really interviewing led you to go from the world you just excellent superior court judges. Among them for a job. When it was over he said, “why don’t described to working in the trenches with the were Chase Saunders, Gentry Caudill, Robert you come to work for me.” I thought about it county? Bell, Shirley Fulton, and Calvin Murphy. and ended up going down here. I took about PG: Well, I think I liked working with a 40% salary cut, but I was single and could people and I thought, here I have a law degree, Forrest Ferrell (FF): What about being a afford it. I thought this would be a good expe- I think I’d like to get some exposure to what lawyer attracted you? rience, so I started prosecuting fathers for bas- lawyers do. I did, I think, have in the back of Peter Gilchrist (PG): Nothing! I really tardy cases and criminal nonsupport, which my head that I probably wanted to go into never thought I’d be a lawyer. My family was we used to do then. That was how I got start- business at some point. In fact, I did leave the in the chemical business and when I graduat- ed, but I really found it incredibly interesting office for a little bit more than a year. I became ed from college, I had a degree in English. I and satisfying. When I was with Arthur a CFO for a land development company. I had no marketable skills whatsoever and Andersen, all of my clients were wealthy busi- aspired to be a millionaire by the time I was thought that maybe getting a law degree nessmen, most of them making well over 35, and I definitely wasn’t going to get there would be a good background. I went to law $100,000 a year. Suddenly I was dealing with working in the court system (chuckles). I

THE NORTH CAROLINA STATE BAR JOURNAL 11 ended up coming back to Charlotte. rant. That police officer—usually a detec- could resolve the case with a guilty plea on one FF: What was it like in those days? tive—would get in his car and on the day that and dismiss two other cases— the result was PG: You won’t remember, but the district the case was set for trial, or the day or so that you got a man convicted who needed to court had a district court prosecutor who was before, he would go out and gather up those be, and you weren’t too worried about the in charge of it. The superior court still had the people that he thought would be necessary for numbers. Philosophically I would say that solicitor. One person was not responsible for witnesses and would bring them into court. really was more important than having him both the district and superior court. That did- And whatever interviewing or whatever I plead guilty to numbers of cases. The difficult n’t come in until, I guess, about 1971 when knew about the case was what was in the thing though is that the community doesn’t the solicitor took over responsibility for both charging document and what questions I understand that. the superior court and the district court. My could ask those witnesses or the detective. It FF: How has the administration of your predecessor, Tom Moore, had been elected as was a disastrous way to do business, and I was office changed over the years and do you see it the solicitor. I’d been working alongside him terribly frustrated. as being better? in the district court. Neither one of us had any FF: What led to an improvement in this PG: I think it’s definitely changed for the jury trial experience. One of the judges that process? better. I think we’ve got a much more sophis- rotated in was W. K. McClain from PG: I paid my way to Washington, DC, ticated group of senior people who are looking Buncombe County. He’d been the long-time and called up the US attorney up there who at cases and we’ve got something going on solicitor up there. I tried cases with him for was responsible for the District of Columbia. right now that I think is definitely unique for several years, and I never saw him smile but They were in effect doing the same thing that Mecklenburg County. We’ve got a trial court one time. He used to tell folks that when he we would do in a city, and I asked him if I administrator who is monitoring, with our would come to town, you’d be able to put a could come up and visit his office and talk to cooperation, cases moving along, the prosecu- $10 bill down on the square and come back a his lawyers about how they did things. I went tor and the defense lawyer meet and deter- week later and it’d still be there (laughs). He up there and spent a couple of days and found mine what in individual felony cases needs to ran a very tight ship. We were pretty terrified they had a process where the police officer, if be done for the case to move to the next step. of him. He was an impressive guy. After trying he made an arrest, would bring the charge In other words, has discovery been provided, cases with him for four years, I had really into the US Attorney’s Office and talk to one has a plea offer been made, has that informa- evolved and become a relatively competent of the AUSA’s, and they would decide whether tion been transmitted to the defendant, has he trial lawyer. But I will tell you, my first year in or not to file charges. They would get copies had the opportunity to consider it, and is he the superior court I was subject to getting of the police reports. I came back to Charlotte interested in accepting the plea. The whole kicked on a daily basis. It’s hard to realize how and told Tom Moore that I thought we need- effort is to try and resolve as many issues as far the court system has come. At that point, ed to do this. Sometime in the early ‘70s we you can without having to schedule it on the the solicitor’s office had no independent files set up a process where the police would com- trial court and bring the witnesses in. We’re whatsoever. The way cases were set, Tom plete their investigative reports, and fill out a seeing a lot more guilty pleas at an early stage. would go down to the clerk’s office with a separate sheet with the name and address of We require the police officer to bring his file ruler and he would measure out in the drawer each witness and what they were going to say. over and sit down with us and go over it. We’re of pending cases seven inches of files, which he That was the first time we had any files and able to look at cases and at the front end and would set on Monday. He would get six more knew anything about our cases prior to what say you may have made a legal arrest, but the inches and put them on Tuesday, and six inch- we learned on the morning of trial from talk- quantity of evidence that you’ve got or the es on Wednesday, and six inches of depth on ing to the officer and whoever he brought in. quality of it will never result in a conviction Thursday. He’d set those in superior court FF: Did that change in the administrative before the jury and so we end up washing #1—we were running two superior courts— details alter the results in court? those cases out at an early stage. and then with the other court he’d do the PG: It dramatically changed the results FF: Have you faced criticism about this same thing. And because we had no common that I was getting in trial. When we began to process? file, all we had was the clerk’s flat file. It would get files, we knew something about our cases PG: We have had some criticism recently, not be unusual that you’d have two co-defen- in advance. We were also able to coordinate but we still require any case where an arrest is dants and one of them would be set on multi defendants on the same case and get made to be brought to us, and we review it. Monday in courtroom #1 and the other them together. We had never had much in the Early on we were permitting the police to would be set on Wednesday in courtroom #2, way of statistical information on performance, bring cases to us prior to making an arrest, and and we had no way of identifying if we were but it sure helped me. we found that some departments had cases trying to schedule in the same case for trial in FF: You have been criticized in the local that they knew would not be successful, but two courts in the same week with the same media for dismissing too many cases. What’s wanted us to be the one to wash it out rather defendants. your view about negotiating pleas, and how’s than them having to bite the bullet and do it. Q: So the administrative issues you con- that worked for your office? So now I think we’re seeing the number of fronted to begin with were pretty massive. PG: I have been really interested in trying arrests fall off as they recognize that they may PG: They were incredible. You knew noth- to get the best results from the resources avail- have the ability to make an arrest, but the case ing about the case, and we didn’t issue a sub- able. If you have a man and you could work is not going anywhere. We write down exactly poena for witnesses, we issued a subpoena for out a plea arrangement where he pled guilty to what the reasons are for declining a case for the police officer whose name was on the war- one case and would go to prison—where you prosecution and file those reasons in the clerk’s

12 SUMMER 2015 office so the news media and anyone else can issued. He may show up several days later and I have a hard time getting a case started at go over and read exactly why. We had a man that Order for Arrest is stricken. This could the end of the week, and I see the criminal one time that was on the local most wanted happen two or three times in the same case courts closed down sometimes Wednesday list and he was arrested. We dismissed the and yet you can’t go back and look at the file afternoon, definitely Thursday afternoon. It’s charge and the news media went over, looked and see that he’s had three Orders for Arrest not unheard of to start a case one week and it up, and wanted to find out why we dis- issued, much less the ability to see that, over a finish it the next. We certainly do that in long missed the charge. The reason was the victim period of time, he’s been in and out of court a cases and everybody expects it, but we have a looked at the guy and said he’s not the one half dozen times and on each one of those he’s lot of cases that are going to take three days, that committed the crime. failed to show two or three times. Having and if you can’t try two three-day cases in a FF: What can be done, whether it’s by the access to that information would allow a judge week, there’s a lot that doesn’t get accom- District Attorney’s Office or lawyers in gen- to explain to this fella, you will be on time for plished toward the end of the week. And I eral, to better educate the public with an eye your next court appearance or you will be sit- want to say this. I think that the underfunding toward raising the level of public trust and ting in the jail waiting for your trial to come of the court system has certainly affected the confidence in the court system, because that’s back up. When we’re making bond recom- people that we are able to attract to make something all lawyers need to be concerned mendation as a prosecutor, we don’t have that, careers out of public service, on the bench or about. the judge doesn’t have it, and probably the as prosecutors. I don’t know how a judge PG: That’s something that I continue to defense lawyer doesn’t have it. It’s just not could afford to send their children to college struggle with. We had a citizen’s group here in available for people who need to know that. In on the salaries they are being paid. We have Charlotte—a broad-based group brought the district court, although it’s theoretically instances where starting associates in together to look at the court system and make possible to have a criminal history on anybody Mecklenburg County may be making the recommendations. We—the various profes- that comes in, we are processing cases so fast same salary as the chief justice of North sions, police, DAs, defense lawyers—all had that you can’t get it up before the sentencing Carolina. I think that’s intolerable. opportunities to talk to them, and I think this judge, for him to know, or for the district FF: What else would you like the court’s process was explained in detail. At the last attorney to make a decision that this is a case information system to provide? meeting I went to, one of the members said, I ought to prosecute. Or that this little old PG: I think the information system should “I just don’t understand why, if the police lady is 67 years old, never had a speeding tick- allow, when we have a meeting of the public arrest them, you don’t prosecute them.” If the et before, why can’t I give her a break on her defender’s office, the clerk’s office, the DA’s police arrest them, why aren’t you trying first one. office, the trial court administrator, and an them and convicting them? You realize that FF: You have touched on resources, administrative criminal judge, for review what there are a lot of reasons for that and I think administration, and public confidence. Tell us has occurred in our administrative settings in people struggle to understand it. I wish I what you think needs to be done to correct the past month. We should be able to identify knew the answer. some of the real problems going forward. lawyers that don’t show up for court, or iden- FF: Does the DA’s Office have sufficient PG: I think there are two things that tify problems—sometimes ours—where we statistical information and data to track what would make a big difference: having an infor- have been unable to provide discovery, or happens with your cases? mation system, and doing away with the rota- lawyers who’ve gotten discovery and not taken PG: The statistical information that we tion of judges. A superior court judge comes it to their clients to discuss it with them. That’s have available leaves a great deal to be into town and deals with the cases that are set one of the things that I think information has desired. It’s hard to tell if we have X number before that judge for that week. In most juris- done—bringing a judge in to participate in of individuals charged and they end up being dictions, judges pick cases on a random basis making sure things happen on time. convicted, that percentage may be very high and have an inventory of cases just like a DA. FF: What do you see with respect to your although you still may have a substantial per- The judge can bring the parties in and ask, is staff; are the staff resources available to you? centage of cases that are dismissed. We don’t this one that you are able to work out an PG: The short answer to that is yes. have an information system that tracks what agreement on, and if that is not done, are the Mecklenburg County has been very good to goes on and retains it in the level of detail parties willing to participate in a discussion or me and this community providing additional that’s necessary. Our information system that do they say, nope, we can’t agree on this your lawyers and additional support staff and com- we are using here in Mecklenburg would honor, we’ve got to go to trial. The judge, with puters and copiers and paper and everything really just show the last event that occurred the agreement of the parties, sets the trial date else. If we had not had a county commission in a case. That is one of the things we’re and that thing is not continued except under that was willing to do that, we would have struggling with. very dire circumstances. We see now a tremen- really been in terrible shape. There was a cer- FF: How would better availability of infor- dous number of continuances that, if there tain amount of self preservation for the coun- mation be of significance? had been judicial involvement and the judge ty in that it’s awfully expensive to keep people PG: It’s a significant issue that the recorded felt a responsibility to keep both of the parties in jail here, and to the extent that our office is data is not adequate for providing decision moving forward, we’d get a lot of resolutions more efficient and able to move cases along makers with the information they need. Let sooner. It’s also interesting where these things faster, they really saved money. We’ve got over me give you an example: a person comes in are kept. Inventories on judges are kept and 2,400 folks in jail at any given time. It costs and is set for trial and arrives late or does not we can see what judges are moving their cases about $110 a day, so it’s an expensive process come in at all and an Order for Arrest is through and which ones aren’t. holding people, and frankly there’s just a

THE NORTH CAROLINA STATE BAR JOURNAL 13 small percentage of people that I’m responsi- too long. They’ve gone through the system has just come down and I think, I worry ble for trying that are in jail. There are a and completed 24 years of public service and about that a lot because I think we’ve got whole lot more of them that are out on the gone out to pasture, and I’m still here. Not all some very ethical lawyers, and I think there’s street than are in there. I think the county’s have remained in the practice of law. Some some expectations of us. Due to the volume recognized that was a really good investment have gone on to be teachers and ministers and of work that we’re doing, we are very vulner- to put additional money in us over and above other things, but to think that you had the able. Any number of my assistant district what the state was willing to provide or could opportunity to touch them in their career has attorneys have caseloads of 400 felony cases, provide. been satisfying. and we can’t turn to a police officer and say, FF: Some years ago you initiated a policy I’m surprised that sometimes I run into have you given me everything, and rely upon for prosecuting what you then called “career people—victims and even defendants—who that. In the Butler case, it’s my understanding criminals.” Do you still do that in your office? come up to me and say, you treated me fairly, that Butler had told the SBI agent who had PG: We do focus right now on two areas. or, upon reflecting back, I think you were fair taken over the investigation to give them We’ve got our superior court lawyers in spe- to me or you helped me at a time when I everything, and he ultimately did give every- cialized teams and we have one team that needed some help. I think that’s been terribly thing that he had. When he recognized there focuses on what the law calls habitual felons. satisfying. I was in my local fire station that was something missing, he provided it, but in We have a group that looks at every one of the collects aluminum cans and I was dumping a today’s world with discovery, it is incredibly people who qualify under that to determine load of cans in this week and a guy drove up difficult. We’ve had any number of cases which ones are still active and which ones are in an automobile and asked for directions. He where we’re actually in trial and the police just sort of burn out old folks that just contin- looked at me and I thought he was an old officer walks into the district attorney and ue to get in trouble. We’ve got a certain num- looking guy. He was up in his 40s I guess, and says, would you like to see a video of the ber of people who are drug addicted and they he called me by name. I said, I don’t recognize crime being committed that we have found? get caught periodically with drugs in their you. He said, the first year you were in office I And you’re sitting there saying, Lord, we’d pocket. They really are not worth expending a was in the fourth grade and you came and never had to try this case if we had that. We state prison bed on at the cost. We don’t go spoke to my school class. It amazed me, I have a process here that once a case gets to the after them with the habitual felon law. Those wonder what in the world I told that kid that not guilty plea, we have a pre-trial conference ones that fall in the habitual felon category he’s remembered all these years later. I hope it and bring the officer in charge of the case over that are still active, yeah, we bear down on was something good. and he sits there with the DA and the defense them. We have another program with the FF: Isn’t it also a thankless job in so many lawyer and goes through his file page by page police department where they have identified ways? by page trying to make sure that we’ve given certain individuals they think are extremely PG: Sometimes it’s very thankless, but him everything. But you never know where active, and based on intelligence and other sometimes it’s, like I said, the guy coming up there was some other officer who had some things, they bring those cases to us and we and saying I remember you from the fourth part in that case who stuck in his bottom have special prosecutors assigned to deal with grade. That can be terribly satisfying. Yes, I drawer something they were entitled to that those cases. That creates sort of an interesting think part of the job is that there are those just never got into the pipeline. thing because some of these people are young constant highs and lows. I think you asked the FF: You could have done many other and active and don’t have long criminal histo- question early on what I think has been the things with your intellect and your education- ries. So maybe the best thing we do is get a biggest frustration for me, and that’s trying to al background. You could have run for other conviction on them, and with the structured have the citizenry understand what the limits offices or you could have been on the sentencing the judge can’t give them a long of the job are and why. I think this is going to Supreme Court of our state. Why have you sentence and they have to almost be required be an interesting time. We are getting ready to not done that kind of thing? to put them on probation. But we’re starting have a campaign where we are going to have PG: I have found this job to be terribly sat- to build that criminal history on them so if two candidates get out there, and I suspect isfying and felt like I was making—whether I they come back we can enhance their sentence they are both going to say, I’m going to try the was or not—a contribution. That felt like based on their prior record. Some of them do bad guys and I’m going to try them faster. And what life is all about. I felt like my time was have substantial criminal records and we strive I chuckle at that. So I’ll have great interest in well spent and I’ve probably, maybe, been put to get a long sentence on them and to process how my successor solves all the problems that here for a reason. I think I’m very fortunate. I them quickly. I’ve struggled with. think anybody who feels good about what FF: Now that you are looking back on FF: Recently we’ve seen a number of they are doing is really lucky. nearly 35 years of public service, what are you charges levied by the State Bar against lawyers FF: Is there any thing else you might want going to take with you as meaningful to you? who were prosecutors, some of which had to to say in the Journal readers? PG: I think really the joy of it has been the do with the failure to provide exculpatory evi- PG: This will be great for insomnia people that I have gotten to know along the dence, including the notorious Nifong case. (laughs). So that may be the contribution that way, particularly the young lawyers who came How have those things affected the district this effort makes. I don’t know, our justice in here and worked for me. It scares me a little attorneys in the state and in your office? system depends on the quality of the people bit when I see the number that came to work PG: I think the Nifong case really was who work in it. I think that goes all the way for me who are now retired superior court exceptional and blatant. I have sort of fol- from the lawyers to the judges and the sup- judges. That makes me think I’ve been here lowed at a distance, this Greg Butler case that port people. I think we’ve tried to hire good

14 SUMMER 2015 folks here and make them understand that a judicial district, while today, for the most they were appreciated for what they con- part, they cannot. They are simply adminis- tributed. I hope that the two men, at least, trators for Raleigh in many respects. They who have filed for this office so far, whichever may get to preside at a trial, but the ability of one gets elected will be a good person, do a a senior resident to change things is no longer good job, and the Lord will be with him, you there for the most part. But I think those of know, for the administration of justice. I us who have been fortunate enough to have think it’s important. been elected and to serve in some capacity, whether it is on the town council or An Interview with Ed Grannis statewide, all understand what a challenging Conducted by Margaret Dickson and Harold experience it is to go through a campaign. No “Butch” Pope one can understand that unless you are the candidate—when you wake up trying to Edward Whitaker Grannis Jr. is a native of decide whether or not to spend money on Fayetteville. He graduated from Wake Forest TV, whether you are going to have to pay for University and received his Juris Doctor from all this or raise money. It is quite an experi- Wake Forest Law School. He served in the ence to go through that. I think the honor, US Army as an airborne ranger with the the privilege, the responsibility is really one of 173rd Airborne Brigade, serving in Vietnam the neat things in a democracy. If you have in 1969-70. ever had that opportunity, you know what Grannis joined the Cumberland County I’m talking about, and if folks have not had it, how all this stuff is going to play out, but my District Attorney’s Office as an assistant in they really ought to give some thought to wife was very supportive of my being in that 1970. He was elected district attorney of the achieving it at some level or some brief peri- position, as were my children, but I missed a 12th Judicial District in 1974, and served in od, because it is such a unique part of being lot of soccer games, scouting events, and that position until his retirement at the end of an American and part of democratic society. other things that I should have participated 2010. Grannis and Peter Gilchrist, former It cannot be achieved either by having mone- in. If I had it to do over again, the advice I District Attorney of Mecklenburg County, tary success or by being appointed to some would give my successors today is that there’s became ADAs the same year, were elected the position. It is when the voters themselves say a clean balance, and if there is a question, you same year, and retired the same year, making they want you to be our DA, our senator, or should spend more time at a soccer field than them the longest serving DAs in recent North whatever it is. It is quite a unique privilege to in a courthouse because that courthouse will Carolina history. serve those folks. That’s why I was really very be there long after those kids have quit play- Among the honors he has been given are comfortable about the politics of being a DA. ing soccer. the Order of the Long Leaf Pine, the Peter S. Some folks were much more into politics. I Margaret, you met a guy I tried one time Gilchrist III Award as the North Carolina Bar really thought you abused the office a little bit who became quite a bedeviling character. His Association’s Prosecutor of the Year, the Boy when you did that, because the public has this name was Roger McQueen and I convicted Scouts of America Distinguished Citizen expectation that you’ve been given really him of murder. My conviction was the only Award, and the North Carolina Bar unique powers and responsibilities, and the one that stood. He was tried and convicted of Association Centennial Award. He has served last thing they need to be worried about is several others that did not stand in other as president of the NC District Attorney’s whether or not you are doing it for some places like Missouri. He would send me Association and the Conference of Elected political purpose. And so it really becomes Christmas cards that said “I hope you and District Attorneys. very important for folks to realize they are the your mother have had a good Christmas while Grannis is married to the former Winnie judge or the DA for the democrats, the I am doing life for a murder you know I did McBryde, and they have two adult sons. He republicans, and for those folks who don’t not commit.” He was a real con guy, a very is a former member of the North Carolina care. I think it’s really an unfortunate circum- convincing guy…not the sort of fellow you Board of Transportation representing stance when people become either judge or would ever think would be capable of doing Division 6. DA and have political aspirations beyond that that sort of stuff, but he was very capable. Margaret Dickson (MD): There are both because it is awfully hard, in my mind, to be My kids, long before they got their drivers’ positive and not so positive aspects of public able to maintain the confidence the public licenses, the police department gave them service. What was good about being district expects if they know that you’re really a polit- classes on how to shoot guns and take what- attorney and what was not so good? ical fellow either in a partisan way or just try- ever action was necessary. Ed Grannis (ED): It is important to differ- ing to advance your own career. We had one case one time where the entiate in time. Peter and I both spent over a MD: And what is the bad side? police were out at our house to protect us quarter of a century in public office, and so it EG: Well, I really, really enjoyed the and it was getting dark and the police officer is not a constant over that time period. When responsibility, but in many ways I passed on a said, “This is where we are going to station I started, it was a different era. The senior res- lot of parental activities I should have partici- everybody around your house.” I said, “Oh ident superior court judges were the power. pated in. I am very fortunate to have the wife no. You are going to leave because I want a They could, in effect, make things happen in I have. No one knows when they get married clear field of fire after dark.” That was an

THE NORTH CAROLINA STATE BAR JOURNAL 15 abnormal case. affluent staffs of investigators, secretaries, and EG: I think you want to depoliticize it in My favorite story is one time I was in assistant district attorneys. It’s just a different whatever way you can. We all know there’s a Harris Teeter on a Friday afternoon getting a world. There were no computers back then. It certain amount of politics in getting into six pack of beer, getting ready to have a week- was a world in which, for the most part, peo- office. If it’s appointed or if it’s elected, there end, and a voice behind me said, “Going to ple relied on standing in front of a judge and is going to be politics involved in some capac- have a big weekend, Mr. DA?” I knew by the telling him something, and that word being ity. But what you do to depoliticize that— way he said it that he was somebody I had accepted and counted on. I think the other both of them—I think it’s in the best interest had some responsibility for, and I said, “Yeah, thing is—and you’ve got to be careful, this is of the public. I hope so. How about you?” He said, “Yeah, an old man’s theory—if you go back and look BP: Before we go away from that, what do I just got out and I am looking forward to a at the people we had on that staff in the early you think makes a good judge? big one.” And I said, “How long were you 70s—Wade Byrd, John Dickson, a whole raft EG: You know, I don’t think there’s any in?” and he said, “I pulled the full seven.” I of lawyers—they were trial lawyers. They all one thing. I was baptized under Ed Clark, knew then that he had been in for armed rob- enjoyed going into the courtroom and kick- Giles Clark, Pou Bailey, people like that, and bery because at the time that was the only ing some defendant’s rear end. They enjoyed those fellows were as good as God has made, thing you did the full seven for. And I was sit- the combat of the courtroom. I think for the and they were as different as they could pos- ting there thinking, this job doesn’t pay most part today, these kids have been brought sibly be, too. It’s hard to define what makes a enough (laughing). For the most part, people up on computers, smart phones, and the idea good judge. treated you like royalty, and I wouldn’t trade of going into a courtroom and doing combat BP: What did you look for when you were it for anything. over a case is not something they are prone to interviewing someone for an assistant DA’s Butch Pope (BP): That’s in response to the do. In every case there are going to be a dozen position? way you treated them. reasons why I should not try this case, why I EG: You really wanted to try to find out EG: We used to have a saying that a par- have to plead it out, because I am worried who this person was. I think you wanted ticular superior court judge could make that the judge may rule on this, that this wit- someone who was sincere. If you find an hon- defendants angrier by putting them on pro- ness may not stand up. What you are looking est and sincere person, that person will prob- bation than another judge could by giving for is a few trial lawyers that you could get ably do you and the public a good job. them active time, and I think how you treat your hands on who don’t give a…who say I MD: Human nature is what it is and does people is a really big thing in life. Whenever don’t have any concern about all those issues. not change much, but it seems to me that you hire somebody and it turns out you have I’m going to try this case right now and I’m human behavior—the crimes we commit— hired a jerk, the shortest and most direct and going to beat that defense lawyer and I’m has changed. Can you talk about that? quickest thing to do is get rid of them because going to do it in such a fashion that the appel- EG: I think the worst mistake I ever made every day they are going to cause trouble that late courts will let my conviction stand. I’m was we had an investigative grand jury going we’re going to have to go back and clean up. not afraid of anybody. I think that’s really in a drug case, and I had a fellow who was a It was much simpler to deal with a vacancy in hard to find these days. house painter who was allegedly bringing car- the office. You could do that a whole lot easier BP: And call your next case. Win or lose, loads, truckloads of marijuana in here on a than having someone out there antagonizing move on. constant basis. So we ended up negotiating a the public every day. Some people, for what- EG: Yes. We used to do that. I mean you deal where his wife was not prosecuted, but ever reason, just do that. Just the way God would get court all week. I remember finish- he was. Boy, it didn’t take me long to realize made them. When you realize that, you just ing one trial and it was an out of town lawyer. that I had made a terrible mistake. She was need to get rid of them as quick as you can. I called it up and the guy said, “This is just the brains of the outfit, that she was the guy They are going to leave the wrong impression like a doctor’s office. You finish one case and who ran it. I had made a genuinely significant with the public. You never have a clue what is you start another one.” That’s the way it was mistake based on my own views of life having going on and you won’t be able to fix it, and back then. You tried a lot of cases. Nobody grown up in a Southern society, particularly the public will have a view of you that is not was concerned about losing. There wasn’t that about women. fair or good. much preparation on all those cases. There We were all male chauvinists, which MD: What was different from the time was ample room to win and lose in any of meant that we knew that men were capable of you started prosecuting in the early 1970s them. I think that today we are more con- doing very bad things. But it had not sunk in and over your years as district attorney, not so cerned about administratively processing yet that women were capable of doing equally much in the court system, but in the kinds of paperwork, preparing discovery, checking all bad things. So historically jails had 90 beds cases that came to you? the boxes. There’s really not near as much for men and ten beds for women. It didn’t EG: I think it was really two different adversarial trial work as there may have been take long as you got into this new world in worlds. When I started with Jack Thompson, in days gone by. the 80s to realize that you need a whole lot there were four assistants and Jack. We did BP: You touched earlier on politics in the more beds for women than you had. Over not have an office. The office we had was a DA’s office. Do you think the DA’s office time I came to realize that women were per- district court judges’ office, and when he left should be nonpartisan? fectly capable of doing the same bad things in the afternoon, Jack got the desk and we EG: I don’t think it would make any dif- that men were. each got a drawer. That was it. ference. I think one of the worst parts of prosecut- Today, these folks have relatively large and BP: What about judges? ing today is dealing with all the child abuse

16 SUMMER 2015 and sexual assault. What you find is that in ery process, which is better in some ways. Do BP: What were your thoughts on the many cases the women initially complain you agree? Nifong case that got so much attention? about what’s happened to their child, but EG: You’ve got so much volume today, EG: I didn’t know him very well, but I then they realize that if their husband or you’ve got to have some kind of almost auto- would come home at night and see all the boyfriend or whatever the other person is gets mated system, because the court system is not stuff on TV. It made for a very unpleasant locked up forever, there goes their support. So designed or equipped to litigate much of it. It evening. We had a meeting of the Conference their allegiance would change. It would make almost has to be administratively done in a of Elected DAs that was occurring about that people so mad in our office they couldn’t paperwork fashion, except for a very few time, and at the end of the meeting, I grabbed stand it! I think that’s a very real part of where exceptional cases. a bunch of them by the collar and said, we’ve we have all ended up going. BP: That’s essentially what he said— got to meet with this guy and talk to him and BP: Let me rewind here. Why did you go something like maybe 2% of the cases are see, in essence, what the hell is going on, to law school? actually tried now. because this is going to be a problem for all of EG: I did not know I was going to prac- EG: I bet it’s less than that. us—the way he is conducting himself. So we tice law. I just thought it was a real good edu- BP: The good thing is you’ve got more all go in there and start talking to this guy. A cation to get—to be able to think about issues networking, more information about a par- number of us were trying to say to him, you with a legal framework. ticular defendant from other counties and are really damaging the system. You need to BP: Did you want to be a prosecutor? other states that you probably didn’t have give the case up and let somebody else handle EG: No. When I came back here (after available to you in the ‘70s. it. Peter Gilchrist looked at him in a very for- serving in Vietnam and in the course of a EG: It’s very clear that today America does mal way and said to him, I don’t know if this conversation with then county prosecutor not want to come home and have its house is accurate, but it has been said on TV that Jack Thompson), Jack asked me what I was broken into, but by the same token, it wants you have said that you have never interviewed going to do and I told him I didn’t know. He assurance that the criminal justice system the victim in this case. And he said, no I have said, why don’t you come on down here and works such that those people who end up not interviewed her. This case had gone prosecute? So I showed up the first week of being convicted are in fact guilty of the worldwide at that point, and Peter looked at December 1970 and never left. offenses that they were involved in. All the him and said, I would fire any assistant in my BP: As DA, did you have much involve- discovery that you now have, within a year or office that let a case get anywhere close to this ment with the State Bar? two of my leaving the office, I think I had it far without interviewing the victim. And I EG: Kind of. I got to where I wouldn’t go down so that nobody could monkey with the thought to myself, we’re dealing with a whole to Bar meetings anymore because I had so discovery. It was all being done electronically, different ball of wax here. He sure did a lot of many issues involving folks that I was investi- transmitted by a machine in the police damage. gating within the Bar. There was a period department to a machine in my office, and BP: Do you think that case had an impact there in which it really seemed like there were some clerical person was then making a copy on prosecutions throughout the state? a lot of folks violating trust rules and taking for the defense counsel to have. There was EG: Sure it did. Not really on the prose- money, and we ended up prosecuting some of basically no capability—if you had a rogue cution, but on the whole criminal justice sys- them. But I was always concerned about assistant in there—to monkey with that tem. whether or not the Bar...I felt that there process. I remember a long time ago folks had BP: What do you think about superior should have been more aggressive prosecu- had dinner with another DA, and they basi- court judges rotating? Should that continue? tion of lawyers who took funds rather than cally came back and said this person had EG: Oh, yes. They are all more than ready administrative penalties. That’s just a prosecu- spent the last week deciding which pieces of to get out of town, and we all are more than tor coming out. I think that’s one of the worst paper in a murder case file to give the defense ready for them to get out of town. I think it’s trust violations you can have, and I think that counsel and which ones not to give. They really good for everybody—it really is healthy. there was a time, it seemed to me, that the were having great discussions about whether If you had the same folks sitting there in per- Bar would not share the information with to give it or not, and for years prior to that, petuity, that would be a different world than prosecutors that they had received, and it cre- we had just been doing open file based on I have ever experienced. I don’t think I would ated a little bit of a rub. I think the biggest something I learned from Pou Bailey. In be comfortable in that environment. The problem I had had to do with trying to get essence, the hell with it—just give them concept of moving around a little is in every- those records of folks we knew had taken everything and don’t worry about it. But we body’s best interest. from clients and we wanted to prosecute were amazed that somebody would have the MD: Is there any case you tried that keeps them and weren’t having much luck getting belief that they could make those decisions, you up at night? assistance from the Bar. that this is something that the defense counsel EG: The concept of what happened in BP: The State Bar also interviewed Peter might or might not want. I mean, how could Luigi’s (a Fayetteville restaurant) where you Gilchrist when he retired, and he talked a lot you know how they think or what the defense and I are in a nice restaurant and some guy about the change in information and systems. is going to be? But I know they had spent well comes in with a gun and starts shooting peo- He said when he first started in Mecklenburg over a week and were way past the judge’s ple is the thing that you and I can relate most County, he had the shucks, no discovery, deadlines. Just a different world, and today easily to, because we’ve are all been in a nice probably didn’t talk to the police officer, but you would like to think that it’s basically all now you’ve got our long, drawn-out discov- done electronically. CONTINUED ON PAGE 34

THE NORTH CAROLINA STATE BAR JOURNAL 17 Identifying and Raising Meritorious Claims of Racial Bias—A Manual for Defense Attorneys and Other Court Actors

B Y M ELZER M ORGAN

aising Issues of Race in North Carolina Criminal

Cases (hereinafter Raising Issues) is a compre-

hensive manual now available from the UNC

School of Government on identifying and rais- ing meritorious claimsR of racial bias. It will be valuable not only to defense lawyers, but also to judges and prosecutors. Chapters include stops, searches, and arrests, eyewitness identification,

West Virginia Law Review article that says pretrial release, selective prosecution, composition of grand and trial juries, peremptory chal- “by failing to confront the issue of race at trial, criminal defense attorneys risk allowing ‘unconscious racial bias [to] act [ ] as an invis- lenges, and sentencing. ible witness against the African American defendant, buttressing the prosecution’s claims concerning his incorrigibility and undermining his case...” In cases that run the This reference manual compiles in one Implicit Bias - One of the most significant risk of triggering implicit biases, some judges resource the legal authority from North contributions of Raising Issues is on implicit ask jurors to examine how they would Carolina, other states, and the federal courts. bias. Implicit biases are attitudes and stereo- respond if the race of the defendant and/or For system actors and local leaders, it con- types that people are not aware of, but that victim were different, using a model race- tains examples of existing collaborative part- can influence their thoughts and behavior. switching instruction, described in the man- nerships that seek to enhance confidence and Raising Issues refers to poverty and race ual. A federal judge uses a TV clip, pre-voir fairness in the criminal justice system. Some studies showing that raising the subject of dire instructions, and individual juror verdict of the information, techniques, and resources race may cause implicit racial biases to certification to obviate juror biases. available in Raising Issues are highlighted recede, while avoiding it may leave racial One of the innovative features of the below. biases in place. The manual cites a 2012 manual is the inclusion of case studies. In

18 SUMMER 2015 one, a district court judge reflects on implicit years ago the US Supreme Court debunked Cross-Racial Identification – Studies bias, including his own in a case in which the assumption that black jurors are unable note that cross-racial impairment in identifi- two young men were accused of attempting to impartially consider the state’s case against cation procedures usually does not stem from to rob a restaurant while wearing Scream a black defendant. However, common justi- conscious racial prejudice. Raising Issues, in masks and carrying hand guns. The first fications for exercising a peremptory chal- one of many practice notes, observes that juvenile, an African-American, came into the lenge may still be influenced by bias. perhaps the standard employed by North courtroom in an orange jump suit. The other Justifications that may not be race neutral Carolina courts to determine whether an did not appear from the lockup in an orange include already having a black juror on the identification is admissible despite a sugges- jump suit, as the judge expected. Instead, the panel, residence in a predominately minority tive pretrial identification procedure is based white juvenile was sitting in the courtroom neighborhood, age, facial expressions or on a misinterpretation of US Supreme Court with his family and pastor. There was no dif- other nonverbal behavior, clothing or jewel- case law. Rather than depending on whether ference in the juveniles in terms of their par- ry, not educated enough to serve on a jury, the identification has an “independent ori- ticipation. There was a difference in how lack of community connection, hairstyles or gin,” it is suggested that the applicable stan- they had been treated for pretrial release. styles of dress associated with African dard should be whether the pretrial identifi- This experience caused the judge to learn as Americans, and association with black insti- cation procedure was “unnecessarily sugges- much as he could about implicit bias and to tutions (e.g. historically black colleges, or the tive” and, if so, whether the in-court identi- take steps to overcome his own bias. NAACP). fication is “nevertheless reliable.” Raising Meritorious Claims - Raising Selective Enforcement - Racial profil- Addressing Race at Trial - The manual Issues suggests that there are reasons that race ing— an elusive problem—is defined as offers voir dire questions useful in eliciting is not raised even though issues of fairness are decisions by law enforcement that rest on the views and reactions about past experiences involved. There is fear of the possible erroneous assumption that any particular involving race and addresses how to deal response by prosecutors and judges, there is individual of one race or ethnicity is more with a juror who admits to racial bias in voir reluctance to step outside one’s comfort likely to engage in misconduct than any par- dire. For example, counsel can acknowledge: zone, or there is lack of awareness that race is ticular individual of other races or ethnicities. “You have a First Amendment right to an issue, and unfamiliarity with the law and For example, a NC highway patrolman said express your views openly....I kind of think the required factual showings. Raising Issues in State v. Villeda, 165 N. C. App. 431, 434 that view is not so unusual. Does anyone else equips defense lawyers and other court actors (2004), “Hispanics are more prone than have similar views?” Sample voir dire ques- with exhaustive legal authorities and back- other races to get in a car after they have been tions dealing with race are provided as well as ground materials to address issues of race drinking.” A North Carolina study of 13 various techniques to address issues of race, effectively and overcome these concerns and, million traffic stops found that, compared to such as the “show of hands” technique. in doing so, makes an important contribu- White motorists, Black and Latino motorists Policy Considerations and Beyond tion to the court system. and passengers are almost twice as likely to be Litigation – Raising Issues is not a resource Pretrial Release - Raising Issues includes searched and twice as likely to be arrested fol- studies and authorities that point out that (1) lowing a traffic stop. CONTINUED ON PAGE 27 it is unconstitutional to fix excessive bail to assure that a defendant will not gain his free- dom, (2) it is improper to set a “cash-only” Racial Equity Network bond except in limited circumstances, and (3) secured bonds affect racial and ethnic The School of Government’s Indigent Defense Education group has formed the North minorities in particular. Incarcerated defen- Carolina Racial Equity Network, a program to provide training and support in this vital dants are more likely to succumb to pressure area of law. to plead guilty, to be found guilty if they go Supported by a grant from the Z. Smith Reynolds Foundation and as a response to the to trial, and to receive a sentence of impris- positive reaction to Raising Issues of Race in North Carolina Criminal Cases, the network onment if convicted. Additionally, in view- includes 50 indigent defense attorneys from across North Carolina who are dedicated to ing how pretrial detention and wrongful addressing issues of racial equity through a combination of individual case work, support convictions may be connected, the manual and mentorship of fellow indigent defenders, and collaborative efforts with court actors points to the effect of pretrial incarceration and criminal justice officials. These attorneys were selected from a highly qualified group on the suspect’s ability to assist in the of applicants. defense. Where the wrong person has been Over the next two years, network attorneys will participate in six one-day training charged, it is precisely there that factual events at the School of Government and receive advising support from SOG faculty and development, alibis, and hard-to-find evi- staff. dence are the most vital to the case. An “This work will not always be easy,” said Alyson Grine, one of the authors of Raising accused person on pretrial release in the com- Issues of Race in North Carolina Criminal Cases and a SOG faculty member. “The network munity is more likely to locate and convince is intended to provide training and also a supportive community where members can share fact witnesses to participate than most their experiences and resources in addressing issues of race when they arise in criminal lawyers. cases.” Peremptory Challenges - Twenty-five

THE NORTH CAROLINA STATE BAR JOURNAL 19 Young Lawyers Start Career Paths by Embracing Pro Bono

B Y M ARY I RVINE

hen I have a good day with a good

result for a pro bono client, I know I

made a difference in that person’s

life.” “I strongly believe we have the

“obligation to give Wback.” “You can see it when you help—even with just a phone call or a letter—it can be life-changing.” “We have specific training to help meet needs that can only be met by lawyers. With lack of funding for legal aid, it becomes more important for lawyers to volunteer.”

For many school administrators and stu- These are the words of young North Teaching Pro Bono in Law School dents, pro bono is seen as a critical compo- Carolina lawyers, early in their legal careers, While many of North Carolina’s law nent of the law school experience. Sylvia describing why they are committed to mak- schools have long emphasized the value of Novinsky, assistant dean for public service ing pro bono part of their practice, and why public service throughout their histories, law programs at UNC School of Law, came to they encourage others to give back through students today are offered very structured UNC in 1996 and worked with students to pro bono. opportunities to do pro bono work with insti- start the school’s Pro Bono Program the next While voluntary, Rule 6.1 of the Rules of tutional support. Last August when students year. “When I was in law school, pro bono Professional Conduct calls on every lawyer to at the seven law schools across the state began experiences were hard to find. What we’re provide legal services to those who are unable their careers in the legal profession, orienta- doing now is highlighting unmet legal needs to afford them. The rule sets out pro bono tion included information about how to get and determining how law students can help service not as a suggestion or hope, but as a involved in pro bono and students could address them. As a profession, we are now professional responsibility. This article high- begin signing up for pro bono trainings and more aware of how law students can help by lights young lawyers across the state who are projects. Many schools track students’ pro using their unique skills and training. I taking this responsibility seriously and are bono hours, and some offer a special recogni- believe it is our ethical responsibility as making a difference—for clients and com- tion for students at graduation who have lawyers—because we have this special skill munities—through their pro bono service. completed a certain number of hours. set—to do pro bono service, and students

20 SUMMER 2015 should begin honoring this commitment to pro bono while still in school. Additionally, students learn incredibly valuable skills through their pro bono experiences.” UNC’s Pro Bono Program, now in its 18th year, engages hundreds of students annually to complete tens of thousands of pro bono hours. Now, more than 75% of each gradu- ating class at UNC amasses over 75 hours of pro bono service. Every year the North Carolina State Bar recognizes a graduating law student from each North Carolina law school with the Pro Bono Student Award. The North Carolina Bar Association recognizes the pro bono efforts of attorneys and organizations, including a law school pro bono project that provides legal assistance to low-income North Carolinians. In 2014, UNC Law and Duke Law shared the honor of winning the North Carolina Bar Association’s Law School Pro Bono Award for the Cancer Project, a collaboration among the schools, their local cancer hospitals, and private supervising attorneys from the local legal community to provide advance directives to cancer patients. Alex Selig, a UNC Law student and clinic coordinator for the Cancer Project, says the Cancer Project “serves an unmet need for cancer patients receiving care at the hospital and their families. The hospital is not just a place we set up shop to provide the services, but we have really forged a partnership which now includes Legal Aid of North Carolina to address further needs—includ- ing advance directives—as they come up.” To date, the project has served 373 patients and prepared 230 documents. The Cancer Project is just one recent example of success- ful pro bono collaboration in practice. For law students, there are opportunities to do pro bono work in nearly every area of law. Possibilities are as varied as researching an innocence claim through one of the North Carolina Center on Actual Innocence in search of pro bono opportunities, the to various areas of the state each year, as well law school projects, helping draft a will for an North Carolina Bar Association’s Young as clinics to answer basic legal questions for elderly client, and assisting a low-income Lawyers Division provides many outlets in those in need. The YLD is a place where new individual finalize her uncontested divorce. various areas of law. Michael Wells Jr. of lawyers can come together to provide services As recent graduates leave law school with this Wells Liipfert, PLLC, and current chair of to those in need while networking and learn- exposure to a vast array of pro bono opportu- the Young Lawyers Division (YLD) says, “the ing in the process. Michael says YLD is seek- nities, they enter practice prepared to contin- goal of the division’s pro bono work is to pro- ing to expand their reach, and is constantly ue this commitment. vide legal services for those who could not considering new projects. otherwise afford them.” Continuing projects In Charlotte, members of the North Leading the Profession through of the Young Lawyers Division include Wills Carolina Bar Association’s Young Lawyers Service for Heroes, a clinic providing estate planning Division work with Legal Services of For recent graduates and young attorneys documents for first responders which travels Southern Piedmont through the Access to

THE NORTH CAROLINA STATE BAR JOURNAL 21 Justice Pro Bono Partners Program to provide a clinic one Saturday each month to advise Benefits of Pro Bono for Young Lawyers individuals in the Mecklenburg area about consumer issues including fraud, unfair and • Gain skills. Lawyers who are new to practice can more quickly develop as profes- deceptive trade practices, and predatory sionals and learn new skills in client communications, case management, litigation, lending. The project is co-chaired by Tim managing client expectations, and running meetings, for example. Lendino, associate at Smith Moore • Learn about a new practice area. While some lawyers may be more comfortable Leatherwood, LLP, and Kat Armstrong of with pro bono work in an area aligned with their private practice, pro bono also allows Robinson Elliott & Smith. Tim said private exploration of other practice areas and fields of law to pursue in the future or that are attorney volunteers handle the cases that simply of interest. come in through the clinic entirely from start • Build relationships with other lawyers. Pro bono representation is a surefire way to to finish. In his role as co-chair, Tim helps broaden your networks, meeting legal aid attorneys and other volunteer lawyers from recruit private attorneys to screen clients at private practice while collaborating on a project or case. the clinic each month and take cases that • Get recognition within your firm or organization for your work. Pro bono helps warrant extended representation. Katya young lawyers get noticed for their accomplishments. Legal aid organizations and bar Riasanovsky, director of pro bono services for associations often keep pro bono “honor rolls” for attorneys who have completed a cer- the Access to Justice Pro Bono Partners tain number of pro bono hours. They also give awards to attorneys who have excelled in Program, says, “the real value of the program pro bono work for helping create a new project, tackling a difficult case, or showing a sus- is that we are able to serve clients with ‘car tained commitment to pro bono. cases,’ a type of case we receive quite fre- • Build your reputation in the community. Doing pro bono work and doing it well is quently, but that we do not currently have one way to boost your reputation in your local legal community as someone who gives resources or funding to respond to without back and works hard to competently serve all their clients. the help of the YLD volunteers.” The clinic • Find new mentors. Often legal aid organizations provide mentorship to attorneys served nearly 50 clients in 2014, and every who take cases, or partner newer lawyers with more experienced lawyers on pro bono client with a viable case was referred to a pro cases. bono attorney. Tim describes the pro bono work through How to Get Involved the clinic as a great hands-on opportunity for • Connect with your local legal aid office. Pro bono coordinators in cities and towns young attorneys to get experience. “I have across the state are tasked with recruiting new volunteer attorneys and organizing proj- found that the biggest recruiting tool to ects or cases to encourage private attorney involvement. From representing a domestic encourage my peers to participate is that violence victim at a 50B hearing, to providing advice via phone, to securing status and these are cases that can help young attorneys custody for an abandoned immigrant child, there are many opportunities to get learn. I’ve developed much faster as a lawyer involved. by working on pro bono cases,” says Tim. He • Participate in pro bono projects of the Young Lawyers Division. Depending on has litigated numerous cases as part of the where you live and the time you have to volunteer, various projects of the North clinic—mainly consumer issues arising from Carolina Bar Association’s Young Lawyers Division may fit your interests from assisting used car purchases or repairs gone bad—and with a consumer case or writing a will. The North Carolina Bar Association hosts other now he has litigation experience, which opportunities for pro bono service including 4ALL Statewide Service Day, which was many new lawyers in large law firm settings held on March 6, 2015. do not get early in their careers. “With pro • Ask attorneys within your firm about the pro bono work they do and how you can bono work not only are you providing a serv- get involved. Many firms host particular pro bono projects or have committees that ice for folks that desperately need help, but it organize the firm’s pro bono work. affords attorneys with a sense of purpose. • Reach out to your alma mater. As law schools seek to train the next generation of That’s what I love about it.” lawyers, they use pro bono as a teaching tool. Graduates can assist in a law school pro bono As to the perception that it isn’t possible project by supervising students during a legal clinic or reviewing student work on a pro to competently represent a low-income bono advice case through Lawyer on the Line, for example. UNC Law recently released client in an area outside your practice, Tim the Alumni Pro Bono Opportunities Portal, which can be used by both alumni and other says that attorneys “can learn how to do this NC attorneys to find opportunities for pro bono service. Find the portal at work and do it well to help people.” Earlier law.unc.edu/probono/alumni/opportunities/. in the year, legal aid attorneys in Charlotte provided a training to interested volunteers which included the nuts and bolts. Though for any other client at the firm, and pro bono joined the Wills for Heroes Committee of finding balance with billable clients, pro cases are treated with equal importance and the Young Lawyers Division (YLD) shortly bono cases, and other professional obliga- significance.” after passing the North Carolina bar exam. A tions can be difficult, Tim encourages all natural fit as Jillian’s private practice focuses attorneys to make it a priority. “I am the Promoting Access to Justice for All on estate planning, she ran the training for same exact attorney for a pro bono client as Jillian Brevorka of Brevorka Law Firm law students and fellow attorneys and later

22 SUMMER 2015 chaired the committee as it worked to contribute to the issue.” expand the project. Previously focused on serving first responders, Wills for Heroes Responding to New Needs now also serves military personnel. This year, Young lawyers are also eager to help YLD is again taking the service one step fur- respond to the ever-changing legal needs of ther by offering wills to same sex couples in a low-income clients. Justin Puleo, an associ- new project, Wills for Equality. As Jillian ate with Smith Moore Leatherwood in describes, “same sex couples haven’t had Raleigh, found an opportunity to volunteer access to the estate planning tools available to with Legal Aid of North Carolina as the others due to statutory limits, so we have deadline for obtaining healthcare coverage assembled a group of young lawyers interest- through the Affordable Care Act’s federal ed in addressing their needs who are exchange neared. Justin describes the impor- equipped to help.” tant role of health care navigators as “volun- Jillian attended Wake Forest School of teers who inform individual consumers of Law and was placed with the Capital their health insurance options, which will Defenders Office as part of a trial advocacy help them make an informed choice about course. She also volunteered as a guardian ad coverage.” litem and interned with Legal Aid of North Justin felt pro bono work with the Health Carolina during the summer. “When I went Care Navigator Project at Legal Aid aligned to law school, opportunities to get involved nicely with his health care practice, which were available, but now there is a real push to includes counseling employers about the act’s get students involved early.” In addition to employer mandate. Justin says this was one pro bono service, Jillian’s community service reason he was attracted to the project. involvement includes volunteering with the “Going through the training required to be a Guilford County Democratic Party where navigator and volunteering as a navigator at she has worked to raise awareness of voting enrollment events taught me about the con- rights and campaign funding issues, and she sumer perspective and experience with this also serves meals to the homeless with new system.” During a day-long enroll-a- Greensboro’s 16 Cents Ministry. “But as thon in the spring, Justin assisted a 60 year- lawyers,” Jillian says, “we can use specialized old woman who had never been able to skills to help people. Pro bono is extremely afford health insurance. He was able to important because we live in a state with a review available health care coverage options large number of individuals that need assis- with her and provide information about the tance and legal aid and public defenders have subsidies available based on her income. experienced great cuts.” Now she can afford coverage and has access Currently, Jillian serves as the secretary on to needed health care. “Even if people we the Board of Directors of the North Carolina served did not sign up that day, if we are edu- American Civil Liberties Union. She also is cating them about their options, we are involved in fundraising and serves on the doing our jobs as navigators.” legal committee. Legal director of the ACLU Justin describes his law firm’s pro bono Christopher Brook describes the need for pro policy, values, and culture as conducive and through pro bono, Justin also has helped raise bono services from lawyers: “Bottom line: the supportive to pro bono and community serv- money for legal aid by coordinating fundrais- ACLU of North Carolina and other public ice generally. Smith Moore Leatherwood ing among associates in his office and assist- interest law organizations could not do the offers a 50-hour offset to their billable hour ing with the 7th Annual Bar Awards and work we do without the pro bono assistance requirement to attorneys who volunteer their Silent Auction, hosted by the Wake County of attorneys like Jillian. Through her service, time to provide free legal services. This sup- Bar Association as a benefit for Legal Aid of she brings invaluable expertise, perspective, port from the firm encourages attorneys to North Carolina. and enthusiasm that helps to guide our meet the aspirations of Rule 6.1 to provide Through his pro bono experiences in law investigations and litigation.” 50 hours of pro bono service each year. Other school and as a young lawyer, Justin has Pro bono work has also allowed Jillian to firm support includes an internal pro bono found pro bono work to be deeply satisfying. pursue her other interests in the law outside committee to consider pro bono opportuni- Justin says he has “learned that everyone can her private practice. “Aside from getting out ties and a pro bono mentor in each office to use help at some point in their lives. A good in the community and giving back, I have assist attorneys and be a liaison to the legal lawyer at the right time can make all the dif- been able to explore personal passions of aid organizations in their area. Internal firm ference.” n mine like voting rights and other access to pro bono awards also recognize attorneys who justice issues. Realistically, I couldn’t practice give of their time. Mary Irvine is IOLTA’s access to justice in that area, but there is still a place for me to In addition to volunteering his time coordinator.

THE NORTH CAROLINA STATE BAR JOURNAL 23 The Charlotte School of Law— Public and Private Value

B Y J AY C ONISON

he March issue of the North Carolina State Bar Journal contains an article by Mr. Jerry Hartzell directed

against the Charlotte School of Law. Mr. Hartzell’s argument is essentially as follows: (a) Charlotte is a for-

profit organization, which means it puts dollars above students; (b) it is a large law school, which is bad; (c)

it has a high academic attrition rate, which is also bad; and (d) students graduate with unsustainable levels

Tof debt, which is very bad. The implied conclusion, not very far from the surface, is that the Charlotte School of Law delivers little if any value.

This brief article will proceed as follows. First, I will point out the factual errors and incorrect assumptions in the four main steps of Mr. Hartzell’s argument. Second, I will describe deeper flaws in the argument, which also get in the way of understanding prob- lems in legal education. Third, I will explain some key elements of Charlotte’s mission and provide additional information about how Charlotte delivers private and public Mr. Hartzell’s Argument higher educational institution. The CDR value. Finally, I will make concluding com- I will review the steps of Mr. Hartzell’s measures the percentage of graduates of the ments about Charlotte and about the argument in reverse order. institution who default on federal loans. The author’s argument and arguments similar to First, the claim that Charlotte graduates most recent national CDR is 13.7%. The it. (The Journal article written by Jerry emerge with unsustainable levels of debt is most recent CDR for Charlotte is 0.0%. Hartzell, Infilaw and Student Debt, can be contradicted by publicly available fact. Each Second, the number the author asserts to viewed online at ncbar.gov/journal/archive/ year, the Department of Education publishes be Charlotte’s academic attrition rate— journal_20,1.pdf.) the cohort default rate (CDR) for every 32.1%—is wrong. As the very document he

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11.800.662.8843.800.662.8843 919.677.8900919.677.8900 www .lawyersinsuranceagency.lawyersinsuranceagency.com .com cites makes clear, attrition has three compo- than 1,000. They include many schools that schools. Every law school—whether it be a nents: academic attrition, which results from by any estimation would be considered elite: public institution, a private 501(c) entity, or not meeting the requirements of academic Columbia (1,250), Georgetown (1,933), a taxable entity—has the concurrent motiva- good standing; transfer attrition, which con- George Washington (1,613), Harvard tions to deliver high-value education and sists of students voluntarily leaving the (1,741), Michigan (1,055), New York social good, and to generate the resources school for another institution; and other vol- University (1,418), and Virginia (1,048). needed to deliver those benefits. There is no untary attrition, which may be for reasons of Many are generally considered excellent contradiction. In the end, there are only two health, family, change of mind about career, schools. Contrary to the assumption of the types of law schools: (a) for profit and (b) for or any of a host of others. For the year in author argument, there is no negative corre- loss. The latter do not last long because they question, Charlotte’s academic attrition rate lation between school size and school quality. do not have the resources to deliver services was 18.3%; the remainder (13.8%) was Indeed, that assumption flies in the face of and value. transfer or other attrition. I should also note schools that have dwindled to small size and that, contrary to Mr. Hartzell’s assumption, are at peril of closing for want of resources. Deeper Flaws there is no ideal percentage for academic Fourth, the argument trades on the Mr. Hartzell’s argument follows a pattern attrition. There can be too little as well as too assumption that because a law school is that has been used by others. Start with the much. Academic attrition must reflect a bal- labeled “for profit,” it inevitably cares more premise that Charlotte (or another InfiLaw ance between making every effort to help about dollars than students. To see the flim- consortium school) has for-profit tax status. students succeed in their academic efforts siness of this assumption, ask whether an Leap to the claim that the school is only (lower attrition) and rigorously and honestly attorney who is in a for-profit partnership interested in returning profit to investors and ending the enrollment of those who do not necessarily cares more about dollars than not in the value provided students or the have a good chance of success (higher attri- about clients or the public interest. Of course public. Select facts that purport to prop up tion). Every school seeks to find the proper not. Attorneys have double bottom lines: this claim, then dismiss as irrelevant every- balance, and also to accommodate other rel- they pursue both financial return and social thing else that might present a fuller picture evant, but often competing, factors such as impact, and no one would think there is any or put the school in a positive light. exclusivity and opportunity in the admis- contradiction between these aims. No one This pattern has many flaws, one of sions process. would think that an attorney must assume which is that it displays confirmation bias. Third, in Fall 2013 there were 23 ABA nonprofit status to stay true to professional This is selecting evidence and interpreting it law schools that had JD enrollment of more values. Exactly the same holds for law to justify an original impression or conclu-

THE NORTH CAROLINA STATE BAR JOURNAL 25 sion. Confirmation bias eliminates complex- a profound problem not just for one law This commitment to diversity is one ity and critical thought. It is the foundation school; indeed, not just for all law schools, example of how Charlotte provides private of many popular business books, which but for our economy and our educational and public value. Here, Charlotte delivers jump from the fact that a company has been and legal systems as a whole. Charlotte is not private value by enabling individuals profitable in the recent past, and thus alone. To look at a single datum about a sin- (including ones who might otherwise be admirable, to the conclusion that selected gle school in isolation ignores the environ- shut out) to enter the legal profession, earn features of the company are also admirable mental factors that give rise to increasing a living, and achieve personal goals. And it (and so should be copied by others). The student debt at any school and to the social, provides public value, among other ways, by negative version is at work in arguments like economic, and political ramifications. increasing diversity in the legal profession at the author’s. Starting from the (assumedly) To avoid misunderstanding, I am not large. negative assessment of the school based on saying that concrete facts about Charlotte This example is rooted in mission. Many the (assumedly) negative fact that it is a tax- (or any other law school) are irrelevant. For other examples are based in ongoing pro- able entity, one selects facts about the school example, Charlotte’s first-time bar exam pas- grams. One such example of public value is that also appear negative and so justify the sage rate in North Carolina over the past the work of the school’s Civil Rights Clinic initial negative impression. several years has been uneven, and in some on the Ban the Box campaign. Ban the Box As applied to law schools, this pattern of cases disappointing. We are deeply engaged is a national civil rights project that chal- argument takes an even more doubtful form in projects to improve bar passage in both lenges stereotypes prevalent in the employee through the way ostensibly supporting facts the short and long term. But bar passage hiring process regarding persons who have are selected. Too often, facts are selected on rates alone do not demonstrate that conviction histories. Part of the project is to a closed-box view of law schools. By this I Charlotte or any other school fails to deliver bring about change in governmental hiring mean the tendency to see a law school as private and public value, any more than a practices: specifically, to remove the ques- essentially a device for converting certain high entering LSAT profile automatically tion on employment applications about inputs (for example, LSAT scores) into cer- shows that a given school does deliver pri- conviction history, and thus encourage these tain outputs (for example, jobs). On this vate and public value. In either case, the employers to choose candidates on the basis view, a few inputs and outputs are all one conclusion follows only by starting with the of skills and qualifications. For its work in needs to know to judge a school as good or assumption one is trying to prove. bringing about change in Charlotte, the bad. What goes on inside the box is deemed Civil Rights Clinic received the 2014 irrelevant. In this way, Mr. Hartzell can dis- The Charlotte School of Law and the Clinical Legal Education Association Award miss—and indeed show no interest in— Delivery of Value for Excellence in a Public Interest Case. “the quality of the education being provided A telling aspect of the author’s argument An example of the delivery of private at the Charlotte School of Law.” (and similar arguments by others) is the data value is the law school’s Small Practice But law schools are not closed boxes. omitted. One set of omitted data is student Center. The center, the only small firm incu- Inputs and outputs are important, but not body diversity. Charlotte contributes to bator in North Carolina, provides office the whole story. As the Report of the ABA overall law student diversity at a dispropor- space and support for recent graduates who Task Force on the Future of Legal Education tionately high rate. For example, in the wish to purse solo or small firm practice. emphasizes, law schools are enterprises that 2013-14 academic year, Charlotte students Many recent graduates of law schools wish create private and public value. They create constituted 28.7% of all JD students in to quickly move into their own solo or small private value, for example, through long- North Carolina law schools, but 39.7% of practices, yet this can be difficult and risky. term return on investment to graduates or all diverse JD students in North Carolina. In The Small Practice Center provides a safe the development of leadership competen- the same year, at a national level, Charlotte environment with substantial support to cies. Law schools create public value, for students constituted 1.0% of all JD stu- help graduates ease into their desired prac- example, by providing society with persons dents, but 1.7% of all diverse JD students. tice. The center provides administrative sup- skilled in problem solving or social ordering, Here is a case where bigger is better—specif- port, marketing assistance, and mentoring, or in legal services to the underserved ically, a bigger social benefit. for up to two years. through clinics and pro bono service. To Charlotte’s diversity is no accident. These examples could easily be multi- adhere to sweeping conclusions about a Charlotte, like its sister schools, was estab- plied. It is regrettable that many of school on the basis of a narrow selection of lished in large part to build diversity in both Charlotte’s programs and activities are not characteristics is logically and conceptually law schools and in the legal profession—two widely known. This stems in part from the unfounded. domains that have been slow to provide fact that the school underinvests in market- Indeed, it is a disservice not just to the access and opportunity for underrepresented ing. Our marketing budget is low so that we law school in question, but to understand- minorities. Of course, there are trade-offs. can direct more resources to academic pro- ing the current situation in legal education For example, a high level of student diversity grams and key outcomes, in particular, and dealing with current problems. The inevitably affects some of the metrics cited employment, bar passage, and academic main concern of the author seems to be debt in the Infilaw article, such as incoming stu- support. levels of graduates. He dwells on the average dent LSAT profile. Charlotte has chosen to debt of Charlotte graduates. Law school pursue access, opportunity, and diversity Concluding Observations debt is indeed a profound problem. But it is rather than bragging rights based on LSAT. I do not wish to suggest that the

26 SUMMER 2015 Charlotte School of Law is perfect or needs abt=0002&abg=1. no improvement. To the contrary, I know of 5. abarequireddisclosures.org/. Mr. Hartzell misleadingly Raising Issues of Race no educational institution more self-critical calls anyone who falls under any of these categories a “dropout.” (cont.) or more focused on continuous improve- 6. Contrary to the Infilaw author’s suggestion that ment than Charlotte. We welcome con- Charlotte academic attrition is the highest in the state, structive criticism and suggestions for this rate is lower than that of another North Carolina solely for defense lawyers. In five of the nine improvement, and thus appreciate Mr. law school. substantive chapters, there are sections focus- Hartzell’s interest in the Charlotte School of 7. americanbar.org/content/dam/aba/administrative/ ing on nonlitigation or policy approaches to legal_education_and_admissions_to_the_bar/sta- Law. We would be happy to provide him tistics/2013_fall_jd_nonjd_enrollment.authcheck- problems of selective enforcement in stops, with an opportunity to learn more, and go dam.pdf. searches, and arrests; pretrial release; selective beyond the few data points in his article, so 8. See, e.g., minnpost.com/education/2015/02/why- prosecution; ensuring representative juries; that he can better understand the school as a william-mitchell-and-hamline-law-had-merge; and rethinking the Batson standard. Such whole. https://www.insidehighered.com/news/2015/04/03/sa nonlitigation approaches encourage collabo- ve-itself-some-believe-virginia-law-school-may-move- Nonetheless, his argument has serious it-risks-hurting-town-if-it. ration among criminal justice system stake- errors of both fact and analysis, and is con- 9. See Raymond S. Nickerson, Confirmation Bias: A holders. Contact information is provided for tradicted by publicly available information. Ubiquitous Phenomenon in Many Disguises, Rev. Gen. groups who can be resources for the legal Far more problematic, though, are the Psy., 175 (1998), available at psy2.ucsd.edu/~mcken- profession, the law enforcement community, underlying errors of assuming what one zie/nickersonConfirmationBias.pdf. The argument and the general public. For example, the pattern also builds on the related halo effect. See Phil seeks to prove, and failing to understand the Rosenzweig, The Halo Effect and the Eight Other National Consortium on Racial and Ethnic basic purpose of law schools—delivering Business Delusions that Deceive Managers, 50-64 (2007). Fairness in the Courts encourages the estab- private and public value. As a consequence, 10. Rosenzweig at 83-105. lishment, in each state, of a commission to the argument ignores almost everything rel- 11. Hartzell at 29. examine the treatment accorded minorities evant to meaningfully evaluating Charlotte 12. See Sections II & VII(D). The Report is available at in their courts. or, indeed, any other law school. americanbar.org/content/dam/aba/administrative/pro- Raising Issues is a splendid resource. It is I have tried in this article to achieve a fessional_responsibility/report_and_recommenda- easy to read and use; it is a highly valuable tions_of_aba_task_force.authcheckdam.pdf. larger aim than just responding to the manual that every criminal defense practi- 13. Just as with debt level of Charlotte graduates, bar pas- Infilaw article. Specifically, I have tried to sage rates of these graduates must be understood in the tioner should consult. Judges and prosecu- help us break the habit of reflexively making context of a larger trend in legal education. First-time tors will also want to have a copy of the man- assumptions about a law school and then bar pass rates fell nationally by 4% from 2013 to 2014. ual on the shelf, as Raising Issues can help cre- narrowly selecting facts to support the start- See ncbex.org/assets/med ia_files/Bar-Examiner/arti- ate a fairer, more just and racially equitable cles/2015/840115-statistics.pdf. This has caused great ing assumption. Law schools are complex. consternation among law school deans. See, e.g., criminal justice system. The manual is avail- They must be evaluated in light of their pur- nytimes.com/2015/03/20/business/dealbook/bar- able free online or may be purchased in hard- poses. This calls for a more extensive and exam-the-standard-to-become-a-lawyer-comes-under- copy form at the School of Government more nuanced inquiry, to be sure. But it is fire.html?_r=0. None of this is denying that Charlotte bookstore. (and many other schools) must work to improve bar an inquiry that can pay great benefits in outcomes. But it is another example of how focusing UNC School of Government Defender understanding and action, for the legal pro- on a single datum about a particular law school, as if it Educator Alyson Grine is one of the co- fession and for the communities law schools were unique to that school, can be misleading and can authors of Raising Issues. Grine received the and lawyers serve. n divert attention from larger issues affecting much, if not school’s Albert and Gladys Hall Coates all, of legal education. Teaching Excellence award for 2013-14. 14. abarequireddisclosures.org. Jay Conison is dean of the Charlotte School Emily Coward, a research attorney at the 15. abarequireddisclosures.org/; americanbar.org/groups/ of Law. legal_education/resources/statistics.html (click on First school, is the other co-author. Professor John Year and Total JD Minority). Rubin is the editor of the North Carolina Endnotes 16. Charlotte admits a portion of its class, particularly Indigent Defense Series, of which Raising 1. Jerry Hartzell, Infilaw and Student Debt, 21 NC St. Bar ones with lower LSAT scores, through a conditional Issues is a part. n Journal, 27 (Spring 2015). admission program. The program itself consists of two rigorous courses on law school subjects (Fourth 2. ed.gov/offices/OSFAP/defaultmanagement/cdr.html. Amendment and Negotiable Instruments). If a partici- Melzer (Pat) Morgan was a superior court 3. Id. (click on “Search 3-year Database”). The prior pant achieves a score on course assessments that (under judge from 1981 to 2005. He was a member of CDR for Charlotte was 2.5%. a model based on historical data) predicts success in law the charter class of the National College of 4. Mr. Hartzell’s argument relies on speculation around a school, the student will be admitted to the JD program. Criminal Defense Lawyers and Public single data point, average debt. But average debt alone 17. Other examples are rooted in the mission of service to tells nothing about ability to repay or return on invest- the underserved. For example, to the best of our knowl- Defenders. Before being appointed as a judge, ment. The argument appears to dismiss the important edge, Charlotte remains the only law school in North he had a trial and appellate practice for 14 fact that law graduates may repay federal loan obliga- Carolina that requires pro bono legal services by each years with the firm of Gwyn, Gwyn and tions through income-based repayment (IBR), in student for graduation. Charlotte was recently selected Morgan in Reidsville. He was a member of the which repayment is based on income level; it is specif- to the 2014 President’s Higher Education Community ically designed to make loan repayment manageable. Service Honor Roll for Economic Opportunity Commission on Race Relations in the Legal For a brief overview of IBR, see studentaid.ed.gov/ Community Service. nationalservice.gov/sites/default/ Profession in the mid-1990s, and also a mem- repay-loans/understand/ plans/income-driven. See also files/documents/CNCS_Honor_RollProgram_Econo ber of the Indigent Defense Service Commission nytimes.com/2015/ 01/25/upshot/a-quiet-revolution- mic_508.pdf. in-helping-lift-the-burden-of-student-debt.html? from 2000-2008.

THE NORTH CAROLINA STATE BAR JOURNAL 27 Ronald Spivey—Life After the Law

B Y J OHN G EHRING

s there a life after the law? We have Growing up at that time in Sanford was strict standard? Has respect for the court seen many of our fellow attorneys like life on the Andy Griffith show. The sher- changed? Do you see similar changes in the step down from successful careers iff who didn’t carry a gun attended our coun- parties in both civil and criminal courts? in order to pursue other interests. try church. We had one farm family with Judge Spivey: Civility within our profes- Examples of this different road sons who never spoke that could have been sion is one of the important traits that makes followed are John Hart and Walter the prototype for the Darlings. My uncle was our daily work a profession, and not just a Bennett, both authors of critically acclaimed the town barber, not at Floyd’s but Spivey’s job. I think we’ve seen a huge erosion of civil- books.I Barber Shop—right downtown, just a block ity in this country in government, politics, An ancillary question arises—is there life away from my dad’s business, Spivey’s Watch sports, and everyday life in general, which is after the bench? The perfect opportunity has Repair. Instead of Wally’s filling station we unfortunate in my opinion. Even though I arisen for me to had Grady’s Esso. believe that our profession is still exponen- broach this subject Instead of Weaver’s tially more civil than most others, there seem with the retirement of Department Store to be more occasions where a lack of civility three of our local we had Efird’s, Belk, or a lack of professional courtesy is displayed. superior court judges. and Penny. We had Any decline in civility within our profession My first interview the Rexall Drug store is likely directly attributable to greater day- is with Ronald E. with a real soda to-day stresses within our profession— Spivey who recently fountain—but greater financial pressures, greater demands finished a distin- unfortunately no and expectations from clients, more attor- guished career begin- Miss Ellie behind the neys practicing and competing for the avail- ning as an assistant counter that I can able business, and what I perceive as a decline district attorney, then recall. We probably in the status of being an attorney as viewed as a district court even had some fun by society. Not too long ago, when a person judge, and now a girls from Mount introduced themselves as an attorney, there superior court judge. Pilot or Siler City, was a noticeable “wow” factor. I don’t sense We have been friends almost since the begin- but I was too young to know about it. that nearly as much today. The cumulative ning of our legal careers and have hopefully I rode my bicycle about a mile to my first effect of years of high profile stories that por- been advocates—sometimes as opponents— job at a business on US 1 in Sanford (actually tray our profession in a less than positive for the fair administration of justice. My in Tramway) called Miro’s Country Ham. I light, endless lawyer jokes, and inaccurate questions for him are many, so here goes... started as their miniature golf course cleaner, impressions about what we all do every day John Gehring (JG): Please tell us about moved up to mopping the store and cleaning has taken a toll. yourself, your younger years, and what the the restrooms, and eventually got promoted JG: We have seen countless hours of underlying impetus was for your decision to to the ultimate job at the ham house, grind- “news” on the national and local networks become a lawyer. What was your first job and ing sausage and taking hams in and out of the about the grand jury action in both how did that come about? smokehouse. Even on the most difficult days Ferguson, Missouri, and Staten Island, New Judge Spivey: I was born and raised in in the courtroom, I never came home York. Many North Carolinians, and some of Sanford, NC, where many of the community smelling like smoked ham for two or three our lawyers, do not understand the purpose leaders and elected officials were attorneys. I days, which gave me one more reason to of the grand jury or how it operates. Please read about their legal accomplishments in the appreciate the remarkable opportunity I’ve describe the function of the grand jury in our Sanford Herald and admired their contribu- been given to serve as a judge. court system. Also, would you please com- tions to our community. I presumed that JG: What changes in the practice of law ment on the new amendment to the North there must be something special about being have you seen throughout the years? Have the Carolina Constitution relating to trial by a member of the legal profession—and as it standards of civility changed? Do dress codes, judge upon a plea of not guilty in criminal turned out, that presumption was right. for both attorneys and clients, adhere to a less superior court.

28 SUMMER 2015 Judge Spivey: It was my good fortune to talk less and listen more—something that I he had no doubt about what he’d seen. usually have the privilege of empaneling the hopefully remembered while presiding. My In closing argument, the defense attorney new grand jury members almost every mother taught me the value of hard work, hammered away again on the weight and dis- January and July—and I loved it. Yes, it took preparation, and taking pride in my work tance issue. He dramatically went over and a good part of the morning reading that product. retrieved the exhibit from the clerk and said lengthy charge from the pattern jury instruc- Judge Bill Freeman in Winston-Salem is “members of the jury, this tiny, almost tions on the function of the grand jury, but my judicial mentor. I studied judicial tall tim- weightless bag could not possibly fly 20 feet when I read those words from the charge: ber in this part of the state—Albright, away—it’s impossible.” At which time he No person is above the law, and no person Rousseau, Seay, Martin, Cornelius, Ross, flung the glassine bag toward the floor. On should be too important to be called upon McHugh, Greeson, Deramus, Wood, and this remarkable occasion, it responded like a to answer and brought to trial for his or Chief Justice Mitchell just to name a few— Frisbee and flew all the way across the court- her crimes; neither should any person be and tried to copy their outstanding traits on room, some 25 feet and bounced off of the too humble to merit your protection from the bench. clerk’s desk. The look on his face and the oppression and malicious prosecution. I also greatly admired three men of juror’s faces was priceless. It was a very suc- I always felt they were so meaningful, and national stature that I first met while in stu- cessful closing—successful for the other side. I always felt that our grand jurors sensed the dent government at NC State—President That case went from a not guilty to a guilty significance and magnitude of the important Bill Friday, Governor Jim Hunt, and verdict in a single throw. duties that accompanied their charge and Attorney General Rufus Edminsten. In these JG: What advice do you have for those oath. Their work considering bills of indict- great North Carolinians I saw different yet who are new to the practice of law? How ment usually constitutes 95% of their work, extremely effective leadership styles—and would you advise them concerning law as a with the remaining 5% composed of check- what a coincidence, they all happened to be profession and law as a business? What do ing the local jail facilities and other enumer- attorneys! you see as to the future of the practice of law ated duties that arise from time to time. I JG: What, without mentioning any in North Carolina, from a newly minted hope that our North Carolina grand jurors names, was the most humorous and success- attorney to a retiring judge of superior court? will never become a subject of controversy ful final argument that you have heard during And speaking of retired lawyers, what does like those in some recent high profile cases your career on the bench? life after the bench hold for you? where the public was dissatisfied with their Judge Spivey: One of my personal Judge Spivey: I don’t claim to be a wise decision regarding bills of indictment. From favorites came when I was an assistant district oracle, but I would encourage new attorneys my experience, the grand jurors are 18 regular attorney. The allegation was possession of to be cognizant of creating a balance between folks who come in one or two times each cocaine. As the officer approached, the their work/community life and their personal month out of a sense of duty and responsibil- accused allegedly ran down a path and threw life. It can be so easy to allow the day-to-day ity to do their best to carry out their oath a small glassine bag from his person, which demands to consume you and all of your deciding on bills of indictment and inspect- the officer watched land about 20 feet away. time. I think finding that balance will help ing our jails. I hope and believe that they’re The accused was apprehended with substan- make you a better person and a better lawyer. giving us their best effort, and are trying to do tial US currency, but no drugs. After the As for me, life after the bench will hope- the right thing in each case they consider. chase they went back up the path and there fully include a second career as a mediator Regarding the new felony jury trial waiver was a dry glassine bag lying in the wet grass and an arbitrator. I also hope that it will provisions, Jamie Markum, Jeff Welty, and about 20 feet off the path—the typical throw include occasional weeks back in the court- Komal Patel at the School of Government down case. The small glassine bag, which was room as an emergency judge. And so far it has prepared excellent briefs for the judges on a little larger than a thumbnail, contained also included a lot of family activities that I what we might expect. 49 other states have about 1/20th of a gram of cocaine. This was never got to routinely do when I was on duty some form of jury trial waiver in felony trials, a tiny amount of cocaine in an almost weight- at a courthouse somewhere in North and between 5%-30% of the defendants less glassine bag. The defense hammered Carolina, and that’s been a wonderful experi- who go to trial choose a bench trial—so an away on cross examination of the officer ence. I am so thankful that I have had this average of about 15%. It will be interesting about the weight of the entire exhibit, and remarkable opportunity to serve as a district to see how many defendants will want to how it would be impossible for such a tiny, and superior court judge. It gave me the waive jury trial in North Carolina, and more almost weightless item to be cast some 20 feet chance to meet so many great people who interesting to me how many judges will rou- away by a fleeing individual. At the end of the work in our courthouses, so many great tinely consent to the waiver, which is trial day, I stayed in the courtroom with the lawyers, so many outstanding jurors and citi- required by the statute. clerk. After everyone left I asked to see the zens who came to watch court, and I had the JG: Who are your personal heroes and exhibit, and after about 15 attempts, I con- chance to get to know so many communities why? cluded that the maximum flight for this around this state, especially when I had the Judge Spivey: My father, who was a watch object was not more than arm’s length. It was opportunity to stay there for the court week. repairman, was a strong influence, teaching simply too light to go anywhere. When the I was also privileged to have so many out- me the importance of humility and the officer came in the next morning I told him standing colleagues on the bench to whom I importance of appreciating what you have in about my experiment, and my belief that we life. He also taught me how important it is to were going to lose this one. But he reiterated CONTINUED ON PAGE 43

THE NORTH CAROLINA STATE BAR JOURNAL 29 1, 2, 3, 4: Your Digital Security Plan for 2015 by the Numbers

B Y J OYCE B RAFFORD

f you’re like most lawyers, you probably have some digital security in place, but you’re not entirely sure what it does, how it works, or why you really need it. IWe know that security systems are fre- quently misunderstood in law firms, but the reliability or unreliability of your system can cause you to lose time, data, and money. You may feel that you don’t need to fully under- stand information security because your col- leagues are similarly uneducated. Despite the ubiquity of techno-illiterate attorneys, you remain responsible for your clients’ data security. ©iStockphoto.com According to the 2014 Legal Technology Survey Report from the ABA, nearly half of the firms surveyed were infected with mal- ware, viruses, or spyware. Yet less than 20% of those firms employed encryption software. This isn’t a new trend among lawyers. According to the ABA Tech Report 2013, trust accounts is the first and arguably most As you review your security for 2015, most lawyers surveyed didn’t know if their vital step in making sure that you’re protect- look at the three common weak points in firm had experienced any type of data breach. ing your clients’ money and information. your security plan. These points pose Taken as a whole, we see that lawyers in firms, Having a standard set of procedures to han- tremendous risks because they can seem large and small, take for granted that their dle client information and money will help innocuous. information is secure, and they are not, as a you and your staff avoid serious mistakes. A. Your Employees group, proactive about security. In this con- Your policy should include how to handle Your employees can inadvertently cause text, it’s easy to see why law firms are consid- hard copy documents, where to store infor- major security breaches. One of the most ered the soft underbelly of data security. mation, a system of checks to ensure deposits common problems for law firms is a data As you move through 2015, I urge you to into your account are accurate, a destruction breach stemming from information stored in consider where your risks lay, and what you policy for sensitive material, and a reconcili- an insecure way. Whether it be by failing to can do to prevent a breach. If you handle real ation plan. password protect a document, sharing infor- property matters, you should review the 2. Adopt and Maintain a Written mation on an unsecure server, or accidently ALTA Best Practices Document. The ALTA Information Security Policy allowing access to your information by track- page should be at the top of your list for Like a written trust account policy, your ing programs, your employees can do a lot of resources for improving your security poli- information security policy can help you damage. By changing permissions on your cies. Here are the highlights from the ATLA avoid damage by giving you step-by-step network, you can exercise greater control Report. instructions for handling sensitive data, over what gets in. Require a network pass- 1. Create and Maintain Written when and how you manage downloads, and word before anything can be downloaded. Procedures for Trust Accounts how to respond if there is an information Only download items from trusted, verified Having a written policy on how to handle breach in your firm. sources. Carry this mantra into your mobile

30 SUMMER 2015 device policy, too. Require that anyone using viruses and spyware, you should also receive complex passwords, consider a service like a mobile device to access firm information real-time protection from any malicious code LastPass. LastPass and other password servic- have a security app that monitors updates hidden in email attachments or lurking on es will generate strong passwords for you, and downloads. websites. To reiterate—you should have pro- auto-populate password fields, and they will B. Third Parties tection from viruses and spyware, and have do those things while requiring you to Third party service providers may have a real-time protection. remember only one master password. lot of access to your network. Consider every 2. System Updates 4. Backups vendor with whom you share drives, to The programs that run on your computer There are a myriad of ways to back up whom you send information, or who has will sometimes require updating. You’ll see your data. If you’re storing documents on a network access. Now consider all the infor- pop-ups that prompt you to either download third party server, there’s a good chance that mation they have. Do you know what each an update, or require you to restart to finish your vendor has server redundancy—mean- of your vendor’s security plan entails? If not, installing a backup. It’s entirely probable that ing there are multiple backups across the now is a great time to ask. Even if your firm’s you will be in the middle of something very country. The data you store locally, however, data is secure in-house, you continue to be important when you get that message. I want is likely less secure. It’s important to back up responsible for it after it crosses your digital to strongly encourage you to keep all of your your data for that worst case scenario of nat- threshold. programs up to date. If you can not run the ural disaster or hacking. You can make a copy C. Suspicious Mail update immediately, put a note on your calen- of your machine onto a terabyte hard disk While you would never pick up an dar to run it either at the end of the day or first that sits on your desk, or you can store that unmarked or suspicious package at an airport thing in the morning. Updates improve a vari- same information offsite with companies like or in a park, you probably do something sim- ety of metrics including performance, respon- Carbonite or SpiderOak. Both of these com- ilar with your email all of the time. We regu- siveness, compatibility, and of course security. panies will help you recover your lost data larly open mail from unknown senders, 3. Password Protection quickly and easily. The advantages to storing because that’s the way so many of us connect You know that passwords matter. They locally on your backup hard drive are that it with new people. Think of all the times you’ve make getting into your computer, phone, or is cheaper and you retain full control of the made an email introduction for a person, or network more difficult, and provide a lot of data. The advantages to backing up remotely sent a document to an opposing party you security with very little work on your part. are that your data is stored in a very secure don’t personally know. Even the most suspi- You should have a password for every com- way, and if a natural disaster hits, your infor- cious among us have opened email from what puter you use in your professional life. This mation will be out of harm’s way. looked like our bank, or a car dealership. includes your tablet, phone, and laptop. On Improving your security doesn’t have to Predators know that most people have gotten your mobile devices you should have a 4- be a complicated, opaque process. You can wise to their game, and a lot of effort goes into digit passcode, at least. It’s strongly recom- control who has permission to access your making malicious email look benign. To that mended that you have an actual password. firm’s computers, and you have the power to point, you must have antivirus protection that Passwords matter for your applications, too. stop most cyber attacks. You are the respon- scans attachments and automatically quaran- Because so much of what you do is probably sible party, and you must take notice of what tines any malicious code. stored on a third party server, (email, bank- information comes in and what is leaking While many of the best practices listed ing, document storage) strong passwords are out. But with a few simple steps, and making require major or time consuming changes to an essential part of your security plan. Try smart choices about who has access to your your office’s procedures, here are four steps not to replicate passwords. Use words or firm’s data, you can have a secure 2015. n you can implement this week to improve phrases in conjunction with symbols. If, your security: however, you’re like most people and don’t Joyce Brafford is the practice management 1. Antivirus Protection have the capacity to remember 30 different advisor for the North Carolina Bar Association. You likely have antivirus protection, but it’s important to reiterate how crucial this first line of defense is to your firm. Take just a few moments to review what your antivirus does, and what, if any, important features it Thank You to Our Meeting Sponsors is missing. Your antivirus program should Thank you to the following sponsors of the State Bar’s quarterly meeting: include protection from viruses (also worms, trojan horses, rootkits, phishing attacks, and YOUNG MOORE & HENDERSON any other malware techies invent in 2015), POYNER & SPRUILL : : PARKER POE and spyware. Your protection should run LAWYERS MUTUAL : : SMITH ANDERSON routine and on-demand scans, and it should NEXSEN PRUET : : HUNTON & WILLIAMS identify suspicions behavior. If you don’t M. KEITH KAPP / WILLIAMS MULLEN MANNING FULTON have scans set to run at regular intervals, take ROBINSON BRADSHAW & HINSON : : MCGUIRE WOODS, LLP a moment to run an on-demand scan now MOORE & VAN ALLEN and set up your protection to scan your com- puter regularly. In addition to scanning for

THE NORTH CAROLINA STATE BAR JOURNAL 31 Meet the Federal Judges: Judge William L. Osteen Jr.

B Y M ICHELLE R IPPON

n the winter of 1993 the

State Bar Journal (then

known as the State Bar

Quarterly) published a profile

Iof William L. Osteen Sr., federal district

judge for the Middle District of North

Carolina. Among his many achievements,

it turns out that he raised a remarkable son.

The Osteen family lived within walking William L. Osteen Jr. was nominated on January 9, 2007, to the seat vacated by his father distance of their schools. Osteen and his two brothers would come home for lunch. His mother made a career of raising her boys. upon his retirement, and received his commission the following September. “She was always there for us—kind of a Leave it to Beaver 1 feeling.” Far from seeing himself as a federal dis- The extraordinary relationship between importance of hard work and a deep and trict judge, Osteen’s first career choice was to father and son is one that defies yet exempli- genuine belief in the goodness of people. become a farmer so he could spend his time fies the influence the one had over the other. Osteen describes his childhood as pretty hunting and fishing. Then in junior high and To begin with, there are certain obvious con- much perfect: “I was given every opportuni- high school his interests turned to athletics— nections with the law and the federal court ty.” As a young teen, he was given the chance primarily baseball and wrestling. While which could only help influence the relation- to spend his summers living and working sports continued to be an interest, Osteen’s ship between the two. These connections with a family on a farm, waking early, milk- career plans hadn’t really become focused actually began with Osteen’s grandfather ing cows, and heading off at the end of the when he began college at UNC Chapel Hill. who was the chief probation officer for the day to fish or hunt—something he still He began with a somewhat unusual major in Middle District of North Carolina. Father enjoys. These were “good, solid, hard-work- math and English. He enjoyed science and so and son also shared important values—the ing people” whose influence he still feels. moved on to environmental science and

32 SUMMER 2015 engineering, and then graduated with a story was not so much his dad’s words, it degree in Public Health. was that his dad was always there for every COURTHOUSE RESEARCHER: While law school began to appear some- game and for every match no matter the This is a part time position with great where on the horizon, Osteen decided to day or time. potential. Perfect for a paralegal or any- work for a year. He unloaded vans for United The second aspect of this relationship one who visits one or more county Van Lines; he landed a job drawing blood at was also telling. While he was aware that his courthouses in North Carolina on a reg- Moses Cone Hospital; and he finally worked dad practiced law, in his mind “Dad just ular basis. We need information from as a technician at GuilfordLabs, a privately went to work.” And, given Osteen’s some- probate files. Should take about fifteen owned lab, performing chemical testing on what meandering path to what has become minutes if done once a week. Monthly water and wastewater. He enjoyed this job a wonderfully successful career, it shouldn’t fee plus possible commissions. Reply to and considered postgraduate work in analyt- come as a surprise that Osteen Sr. put no [email protected] ical chemistry or engineering. The choice pressure on his boys to do anything other between a career in science or law was diffi- than what would make them happy: “You cult. Ultimately, however, he chose to attend just need to do what you love to do,” he It was during this time that Osteen mar- law school in Chapel Hill. Needless to say, would say. And that included where Osteen ried. His wife, Elizabeth, had also attended the transition from science to law, from “the would begin his legal career. It was not nec- Page High School in Greensboro and concrete to the Socratic” was an interesting essarily that young Osteen wanted to make Osteen had known her family. The Osteens challenge. his own mark, or simply wanted to avoid have two children. Anne Bennett, a sopho- In keeping with his nontraditional path, working in his father’s shadow. He just never more in college, and Bill III, a sophomore in Osteen worked in construction after his first considered practicing law with his father. high school, are undoubtedly two to be year of law school. At the end of his second However, as fate, or luck, or more likely just proud of. Osteen describes both as far better year he worked on maintenance and proper- a kernel of an idea would have it, Osteen students, athletes, and individuals than he ty management tasks for a friend, Joe actually began practicing in a law firm with ever was. While Osteen admits that parent- Buckner. Buckner was a law clerk for a four great lawyers—Bill Osteen Sr., Pat ing is “an experiment filled with a lot of trial Chapel Hill firm, Epting and Hackney. As a Adams, Ralph Walker, and N. Carleton and error,” he is quick to credit his wife for result of their friendship, Osteen continued “Woody” Tilley. It was Tilley who planted her leadership and their many neighbors his property work, but also became a law the idea one day when he asked Osteen to and good friends who are interested in and clerk with that firm and gained valuable legal meet and talk about his future as law school support the Osteen children as if they were research experience. As Osteen reflects, came to an end. Tilley counseled, “You can their own. “There was no straight line for me.” do what you want, but your dad is one of As a visitor to his office, the first thing to Buckner, now a judge in Orange County, the finest trial lawyers in the state. Don’t notice is that it is neat, organized, and relax- remains a great friend. miss out. You have an incredible opportuni- ing. Osteen depends heavily on Frances Osteen had always thought he would ty to practice law with your dad. There’s no Cable, his judicial assistant, for her great abil- enjoy practicing environmental law. telling how long the firm will be here, and ity and experience, and his law clerks for a However, he was ultimately drawn to crimi- you may not have this opportunity again.” variety of research and discovery projects. In nal law, and following graduation from law His advice was wise and compelling and addition to looking for students with high school he considered applying for a job as an Osteen made the decision to join the prac- academic achievement and law review expe- assistant public defender or as an assistant tice. He was the only young lawyer among rience, he leans toward students with some district attorney. “great teachers.” Looking back, he remem- academic or work experience before law So where was dad in all of this? Osteen bers the first case he worked on with his school. “I try to find not only one individual will tell you that as a child and even as a father. He was assigned the job of examining with whom it will be good to work, but also young man he never paid much attention to a character witness. He prepared for three two individuals whose strengths complement what his dad was doing at the office. “I days and asked three questions. each other and whose personal qualities will know now that Dad was busy, but at the As if Tilley had presaged what was to allow them to work well together.” For the time we just didn’t know it.” To make his come, it wasn’t long before things changed at most part whether in drafting memos or point, Osteen relates an incident that the firm. Tilley was appointed to the federal preparing for trial, the work is the result of a occurred when he was in the eighth grade bench and Walker went to the North collaborative effort. and on the varsity wrestling team. In his Carolina Court of Appeals. Osteen, Adams, Osteen’s insights into the practice of law first match, right after school at 3:30, he and Osteen continued. As Adams practiced and the workings of the courtroom are was pinned in 30 seconds. He was upset. primarily in the area of real estate, the two instructive. “My job,” he says, “is often His dad was at the match and commented Osteens kept up with a thriving federal crim- shaped by how prepared the lawyers are— that “It can only get better.” In his next and inal and state civil practice. “Like magic,” their fine work is an integral part in guiding second wrestling match, also at 3:30 in the smiles Osteen, “I suddenly realized that dad me to a fair and just decision.” He observes afternoon, he was pinned in 40 seconds. was an extraordinary talent in the court- that “lawyers live with their cases,” often His dad was again at the match and this room. Tilley was right, I would never have becoming so completely immersed in the time his dad said, “I told you it could only known what an amazing opportunity I cause of their client that they may some- get better and it did.” Osteen’s point in this would have missed.” times have trouble narrowing the issues. As

THE NORTH CAROLINA STATE BAR JOURNAL 33 a result, “meritorious arguments can easily get lost.” Attorneys should also remember that one reason the process is impartial is Gilchrist and Grannis (cont.) ingenious way to do away with the death because judges “just see a snapshot of the penalty. I would have been very comfortable case without the emotional investment that restaurant before. It dawns on you that what if with folks just saying as a society, we are not comes from living with the case from begin- somebody comes in here with a gun. That guy going to have the death penalty anymore. ning to end.” From his own experience, (Kenneth French) did things like—he That would have been a political decision the Osteen does understand that for attorneys thought there was a gay couple there, two state of North Carolina could have made, there is always the difficult balance between men, and were on top of each other. It was a but…we couldn’t figure out what it meant, being prepared, yet at the same time meet- father trying to protect this son, and the father how we were supposed to deal with it. People ing office demands and charging their was shot and killed. One of the disillusioning mean well, but I wish it had been a more clients fairly. He supports the mediation things when I started in this game of justice forthright statement and people just simply process, but he cautions attorneys to find a was that bad cases were supposed to get the said that, for whatever reasons, we don’t want mediator who is willing to provide a realistic death penalty. After a while it becomes very to proceed with the death penalty anymore. assessment of the case to both sides. Osteen clear that it is a very inexact system. While the BP: What advice did you give Billy West? will also hold a settlement conference if death penalty needs to remain and be a viable (West, a longtime senior ADA, succeeded requested. He strongly suggests, however, possibility in the worst of situations, the fact Grannis as elected DA). that attorneys not wait until after the jury is that last year (2013) there was one in North EG: He was there for about ten years, but picked to settle a case. Carolina tells you all you need to know about even being a senior assistant is not quite the Judge Osteen has been told that he is a it. We as a corporate community no longer same as being the elected DA. Even those sen- stickler under the rules. Indeed, he feels really use that tool anymore. After a while, ior assistants who have been in the office for strongly that rules are to be respected, and he when you have so many homicides you are sit- a while, once they become the elected DA is likely to try to follow statutory language ting there thinking that the best thing I can do realize there’s a whole different level of carefully. He advises attorneys to use the for most of these people is give them life with- responsibility and public accountability. Rules of Evidence and the Rules of Civil out parole as quickly as I can and avoid these There is an incredible amount of stress. Procedure at trial not just for reference, but as lengthy delays, or the two and three and four MD: Did you understand that when you “guides to the effective presentation of the years from the point at which the event occurs started as well as you did when you left? case.” Quoting his grandfather, his bottom until the trial begins. I think the one thing EG: I don’t think I understood that until line advice is, “do right,” and respect the North Carolina should try to do is figure out after I left. process: the adversary, the rules, and the how to expedite the process. BP: Speaking of stress, our State Bar works court. BP: The DA should look at each case indi- hard with lawyers with depression, alco- While Osteen misses a lot of the relation- vidually, even though they are all first degree holism, and drug problems. Knowing what a ships that the practice of law afforded him, murder and they are all different, and some difficult profession we are in, what do you tell he also sees one pleasant advantage to sitting going capital and are worse than others. It is the young guy who says, “Mr. Grannis, I am on the bench. It’s his father’s reminder that ultimately the DA’s decision. thinking of going to law school?” when practicing law, “it’s always great to win EG: It is really important if you have this EG: There are way too many lawyers out and difficult to lose.” As a judge, he now public responsibility that you define the time- there for the economic opportunities. I try to enjoys a comfortable middle position with- frame within which justice ought to be deliv- be very careful. I’ve had kids who come to me out the swings. ered in your district. The possibility of your owing more than $100,000, and I am giving Looking back on Judge Osteen’s many getting the death penalty is greater legally them a $40,000 job. There is no way those and diverse interests—academically, athleti- than it is realistically, so you’ve really got to numbers work. Now it has become a busi- cally, and personally—the role of judge very take the bull by the horns and say, I can only ness. We’ve got big law schools with big pay- well suits his love for challenge and variety. really try three or four of these cases a year rolls, and it is very important that they keep While he laughingly refers to himself as “a and still process the rest of my stuff. You need “X” number of kids in school generating the jack of all trades, and master of none,” this to be able to say to your constituents, I may revenue it takes to fund all that. We are no comment speaks loudly of a man who not get every disposition you want, but I am longer dealing with whether society needs accepts his many achievements with grace going to try to have it done while it is still this many lawyers. I think that is a recipe for and humility. n meaningful. a bad situation. BP: Do you want to say anything about BP: Good to see you, and thank you. Michelle Rippon is of counsel with Constangy the Racial Justice Act? EG: The only thing you didn’t ask me is, Brooks & Smith in Asheville. She is also an EG: I don’t think it was necessary. There “Do you miss it?” adjunct professor in the Business Management are very few folks who get into an elected BP: Do you miss it? Department at UNC-Asheville. position that I have met who gave any out- EG: It’s really interesting. You miss people ward appearance of racist propensities. I some, but when you are finally able to get Endnote thought there were a number of away from it, it’s like that old Martin Luther 1. For our younger readers, this television series of the Constitutional safeguards already in place. I King Jr. line, “Free at last, free at last.” It was 1950s did portray the idyllic family. really and truly felt that it was simply a very something. n

34 SUMMER 2015 The All-Time Absolutely, Positively Ten Best Lawyer Films

B Y L AWRENCE T. “R USTY” HAMMOND J R .

Digging out the ten best movies about dunk malpractice case falls into his lap. Denzel Washington to take his wrongful dis- lawyers is a problem of exclusion. I have at Everyone—insurance lawyers, the judge, the missal case. Who won? Hey, this is least 20 that could make the cut. But herewith doctors, even his client—wants to settle. But Hollywood! is one man’s opinion of the hallowed list. he senses they all want him to sell out too eas- 3. My Cousin Vinny (1992) is not a true 10. Witness For The Prosecution (1957) ily, so he rolls the dice and tries it out. What picture of our profession, but is so damn Well, if you’ve ever practiced law at all, you happened? Watch and see. funny I just love it. Joe Pesci is the awful attor- have been “had” by a client. In this classic 7. Amistad (1997) is frankly fairly boring ney from Hell misrepresenting his slacker British film, Charles Laughton takes on the in some parts, but is a wonderful endorsement nephew and friend in Judge Fred Gwynn’s defense of Tyrone Power (his last role), of attorneys representing unpopular causes. court. His appearance in a pink tuxedo is a accused of murdering a rich widow who had Matthew McConahughey is Roger Sherman highlight of this laugh riot, and he only makes become enamored with him. The accused’s Baldwin, defending mutinous slaves and put- things worse and worse for the “yutes” he is wife Christine (legendary Marlene Dietrich) ting the whole issue of slavery at issue. defending. testifies for the prosecution when it appears 6. A Time To Kill (1996) is the legal ver- 2. Inherit The Wind (1960) Talk about a she isn’t legally married to the defendant. sion of Rudy or Miracle on Ice. It is based on heavyweight fight! Here we have Spencer Then a mysterious bunch of letters to John Grisham’s first (and one of his best) nov- Tracy as Henry Drummond (really Clarence Christine fall into the defense’s hands, discred- els. When a black girl is raped and it looks as Darrow) and Frederick March as Matthew iting her testimony, and the jury acquits the if the obviously guilty white perpetrators will Harrison Brady (really William Jennings accused. His lawyer is skeptical and finds out walk, her father takes matters into his own Bryan) toe-to-toe in a trial about the right to he has been completely fooled by his client hands and mows them down. His trial is teach evolution. Tracy realizes he can only win and Christine. The ending of the movie asks undertaken by local (this is Mississippi) attor- a moral victory, so he has a grand-old-time (as viewers not to divulge the ending, so I won’t. ney Matthew McConaughey (without his do we) doing so. Interesting that this movie 9. Anatomy Of A Murder (1959) This film patented smirk). The Klan threatens his fami- settled the question forever, isn’t it? is a prime example of a smart lawyer making ly and burns down his house, but he perse- 1. To Kill A Mockingbird (1962) Okay, lemonade out of lemons. It is adapted from a veres. His jury argument is a real humdinger! you saw this coming. So what? You walk out novel by a Michigan Supreme Court justice 5. A Civil Action (1998) stars John of the theater thinking, “Wow, I’m a lawyer, taking the pen name of Robert Traver. Ben Travolta (of all people) as a hot-shot Boston too!” Gregory Peck undertakes the hopeless Gazzara plays the defendant, accused of mur- personal injury attorney who brings a class defense of a black man in Mississippi for the dering a bartender. He says the man raped his action against some really nasty water pollut- rape of a white woman. He is innocent; she is wife and his action in response was unavoid- ing corporations. But he doesn’t see the forest a slut; there’s no chance at all for the defense. able. Attorney James Stewart, on the rebound for the trees and carries the case beyond all rea- But this movie absolutely ennobles every from losing an election as prosecutor, tries the sonable limits. The big boys grind down his attorney on the planet. “Stand up, Jean case on the unheard of basis of “irresistible small firm, and there’s no happy ending here. Louise, your Daddy is passing by,” intones the impulse,” a bizarre branch of temporary except that the EPA socked these bad guys black minister from the colored balcony. insanity. A fun trivia item is that the trial judge with big fines, basing their evidence mainly on Honorable mention to: The Caine Mutiny, is played by real-life lawyer Joseph Welch of what the lost civil action attorneys did. A Few Good Men, I Am Sam, The Lincoln Army-McCarthy hearing fame. Remember 4. Philadelphia (1993) highlights the best Lawyer, The Accused, and Presumed Innocent. n “at long last, Senator, have you no shame?” and worst of our profession. Tom Hanks (who That was him! won the Oscar for best actor for this role) is a Rusty Hammond has been writing a movie 8. The Verdict (1982) features one of the good attorney in a big firm who contracts column called Mr. Movie since 1996 and is an late great Paul Newman’s best parts. He is an AIDS. He is summarily fired and can’t find emergency district judge. Visit his blog at ham- alcoholic, down-on-his luck lawyer. A slam- anyone but semi-sleazy billboard attorney mondmrmovie.blogspot.com.

THE NORTH CAROLINA STATE BAR JOURNAL 35 LEGAL SPECIALIZATION

Profiles in Specialization—Kimberly R. Coward

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

I recently had an opportunity to talk with Property Section. I read the Hornbook on the clients. We have a small number of lawyers Kimberly R. Coward, a board certified spe- Law of Property from cover to cover, includ- here in Cashiers and I think I may be the cialist in residential real property law, who ing the statute citations. I focused some addi- only board certified specialist in real property practices in Cashiers. Kim grew up in Iowa tional study time on the practice routines law west of Asheville.* I have many profes- and attended Iowa State University, earning that I didn’t see much in my daily work. I sional contacts and a strong determination to an undergraduate degree in political science. studied leases and some of the other real prove that I am the best lawyer I can be. A last-minute decision to consider law school property forms. I studied something each Q: Are there any hot topics in your special- led her to the University of North Carolina day for about three months. I felt prepared to ty area right now? at Chapel Hill. She received her law degree in take the exam when the time came. All real property lawyers are still working 1988 and, shortly after, married a Q: Was that process valuable to to incorporate directives from the Consumer fellow student, William H. you in any way? Financial Protection Bureau (CFPB) into Coward (Bill). Bill now serves as Yes, the process of studying our practices. In 2013 the CFPB imple- resident superior court judge in for the exam confirmed for me mented a process by which third party the Judicial District 30A. Kim what I already knew. Studying providers must be “vetted” in order to han- joined the firm of Coward, Hicks allowed me to hone my skills dle residential loan transactions, which vet- and Siler, PA, working almost and improve on the things I did- ting includes satisfactorily meeting “Seven exclusively in real property law in n’t know. Pillars of a Sound Practice.” These new reg- the Cashiers office. The firm has Q: Has certification been help- ulations have made us all take a very close Coward two other office locations, in ful to your career? look at our policies and procedures to make Franklin and Sylva. Kim became board certi- Becoming a board certified specialist has any necessary changes. The goal is a better fied in residential real property law in 2006. certainly had a positive impact on my career. client experience, and in my opinion it’s bet- Following are some of her comments about Many clients see it as a source of comfort, ter to comply early. the specialization program and the impact it knowing that they are in good hands. For Q: Does your certification relate to that in has had on her career. many years Cashiers and the Highlands have any way? Q: Why did you pursue certification? been known as a summer vacation play- It gave me the confidence to know that I Two of the lawyers with whom I worked ground for the wealthy. The clients that I could deal with new regulations. I do have closely at the time were board certified, Tom work with are very sophisticated consumers the skills necessary to review the require- Crawford and Monty Beck. They spoke who have high expectations. My certification ments and incorporate changes into my highly of the program and I thought that helps them to understand my dedication to practice. At this point, I’m the only lawyer in becoming certified would provide a good this practice area as well as my level of expert- the Cashiers office, working with a staff of tagline to follow my name, and may also ise. I work with great clients and my goal is nine dedicated employees. It’s up to me to make me a better lawyer as well. I’ve always always to provide a very high level of service set the tone and provide the leadership to believed that if you are going to do some- to them. my staff. My recognition as a specialist bol- thing, you should work to be the best. I felt I have also been blessed with opportuni- sters that confidence and assists me to lead like I’d been in boot camp since beginning ties to become deeply involved in my com- effectively. my work as a lawyer. I worked long hours in munity. I served on the founding board of Q: How do you stay current in your field? a demanding environment, learning all that I the Summit Charter School, launching the I attend CLE programs in real property could about real property law. By the time I first charter school in our area. Currently I law through the NC Bar Foundation as well applied to take the certification exam, I felt serve on the Highlands Cashiers Hospital as through other entities offering continuing that I was a specialist and that receiving the Board with a diverse and accomplished panel legal education. I read as often as I can and I certification would validate that. of mostly retired executives from all over the stay connected to the other real property Q: How did you prepare for the examina- country. I truly enjoy my work and treasure specialists. I have excellent law partners as tion? the role that specialty certification has resources and I never feel that I’m on my I had a pretty serious schedule to prepare played. own. I know when to reach out and seek for the exam. I read through three years of Q: Who are your best referral sources? guidance from those I trust. continuing legal education (CLE) publica- I receive many referrals from local real tions from the NC Bar Association’s Real estate brokers and also from former satisfied CONTINUED ON PAGE 39

36 SUMMER 2015 THE DISCIPLINARY DEPARTMENT

Lawyers Receive Professional Discipline

violated numerous rules, including failing to ensured that reconciliations were performed, Disbarments properly reconcile his trust account, failing or kept appropriate client ledgers. The DHC Reid James of Gastonia neglected his to keep client ledgers, and failing to prompt- suspended him for two years. The suspen- clients, did not properly wind down his prac- ly remove earned fees. The DHC suspended sion is stayed for two years upon Williams’ tice after he was suspended by the DHC, and his license for two years. The suspension is compliance with numerous conditions. did not respond to the State Bar. He was dis- stayed for two years upon Austin’s compli- Clarke Wittstruck of Asheville neglected barred by the DHC. ance with numerous conditions. and/or did not communicate with clients in David Kirkbride of Raleigh pledged the Keith Henry of Asheville was affiliated 13 cases, did not timely respond to the State funds in his trust account to a casino to secure with a business that purported to offer estate Bar, did not deposit entrusted funds in a his gambling debts. He surrendered his license and tax planning services and was closed trust account, and did not participate in the and was disbarred by the DHC. when its principal was indicted for operating State Bar’s mandatory fee dispute resolution Edward L. McVey III of Greensboro sur- a Ponzi scheme. Henry shared fees with a process. The DHC suspended Wittstruck for rendered his license and was disbarred by the nonlawyer, had a conflict of interest, and five years. After serving three years of the sus- Wake County Superior Court. Between 2010 facilitated the unauthorized practice of law. pension, Wittstruck may petition for a stay and 2014, McVey intentionally falsified docu- The DHC suspended him for two years. of the balance upon showing compliance ments purporting to show that he maintained Paul Jackson, an assistant district attorney with numerous conditions. legal malpractice insurance. McVey had actu- in Johnston County, made inaccurate state- ally not maintained such insurance for at least ments of material fact to the court that he had Censures 15 years. He provided the false information to contacted the SBI Lab to obtain results of Cynthia Mills of Greenville was censured at least one mortgage lender to satisfy the DNA testing. As a result, a criminal defendant by the Grievance Committee for failing to lender’s requirements that approved closing did not receive timely disclosure of exculpatory appear at a court conference, filing a frivo- lawyers must maintain malpractice insurance. evidence and spent over 500 days in custody lous and misleading motion to recuse a Matthew J. Ragaller of Greensboro, for- before charges against him were dismissed. judge, abandoning a client’s case, and failing merly of Nags Head, surrendered his license The DHC suspended Jackson for one year. to communicate to the client her intent not and was disbarred by the Wake County The suspension is stayed for two years upon to continue the representation. Superior Court. Ragaller misappropriated his compliance with enumerated conditions. approximately $21,500 he held in trust for an David Lloyd of Spindale used entrusted Reprimands estate and filed two false accountings. funds for his own benefit and for the benefit Eric Ellison of Winston-Salem was repri- In March 2013 the DHC concluded that of third parties without authorization to do manded by the Grievance Committee. The High Point lawyer Wilbur Linton did not so, did not report to the State Bar misappro- committee found that Ellison did not appear properly manage his trust account. The DHC priation of entrusted funds by his law part- in court on behalf of his client, did not ade- entered an order suspending Linton’s law ner, who has since been disbarred, commin- quately communicate with his client, violat- license but stayed the suspension on numer- gled personal and entrusted funds, and did ed several advertising rules, and did not ous conditions. The DHC activated the sus- not safeguard entrusted funds. The DHC respond promptly to the State Bar. pension in October 2013 because Linton did suspended him for three years. The suspen- S. Wayne Patterson of Winston-Salem not comply with the conditions of the stay. sion is stayed for three years upon Lloyd’s was reprimanded by the Grievance Linton neglected and ultimately abandoned compliance with numerous conditions. Committee. Patterson is licensed to practice his clients during the stayed suspension and James Thompson of Morehead City vio- law in Georgia but not in North Carolina. did not respond to the State Bar. He surren- lated several trust account rules and did not In an action before the US Equal dered his license and was disbarred by the properly supervise nonlawyer assistants in Opportunity Commission, Patterson held State Bar Council. connection with real estate closings. The himself out as being able to practice law in Thomas F. Foster of High Point acknowl- DHC suspended him for three years. The North Carolina. Patterson also used a mis- edged that he misappropriated entrusted suspension is stayed for three years upon leading firm name. funds and did not pay income taxes. He sur- Thompson’s compliance with numerous Maynard Harrell of Plymouth was repri- rendered his license and was disbarred by the conditions. manded by the Grievance Committee. Harrell State Bar Council. James Garfield Williams of Archdale self- did not timely deliver a client file. The com- reported employee theft from his trust mittee found that Harrell’s failure to turn Suspensions & Stayed Suspensions account. He had not properly supervised his Robert Gray Austin III of Indian Trail employee, reconciled the trust account, CONTINUED ON PAGE 41

THE NORTH CAROLINA STATE BAR JOURNAL 37 LAWYER ASSISTANCE PROGRAM

Getting Lost in Our Own Lives

B Y R OBYNN M ORAITES

Lawyers are especially adept at maintain- ly preoccupied with the trappings of success ing a façade. “Never let ‘em see ya sweat” is and approval, such as looking good, always wonderful advice for entering into a tough appearing to be on top of everything, and so mediation, negotiation, or lengthy trial. The forth, we concurrently abandon our “true problem arises when we take an adage like selves” in the process. The true self can be that to heart so strongly that we completely thought of as our deeper, more eternal self— disconnect from our authentic internal expe- a self that is less reactive to life and less con- rience. cerned with what other people think. Most lawyers we see at the North Carolina It is understandable that we might be Lawyer Assistance Program who struggle with trapped in the False Self Syndrome and its debilitating depression got there through ensuing misery because most lawyers by decades of dishonoring, disconnecting from, nature are highly adept at adaptation by the or ignoring and pushing down their true time they reach law school. If not, law school internal emotional experience. How do we do surely is a boot camp that firmly establishes this so effectively for so long? Part of the this unhealthy pattern in lawyers-in-training answer lies in something called the “False Self (a topic for another article). And finally, there Always the Helper Syndrome.” are aspects of the legal profession itself that Lawyers tend to be of a personality type reinforce a false self in us. that operates as a hero/rescuer. We solve other The False Self Syndrome people’s problems. We take pride in that role. The term “false self” was originally identi- Zealous Advocacy There is nothing wrong with it, except when fied and named by child psychologists who Zealous advocacy is revered as the corner- we overly identify with it. We get into trouble studied the socialization stages of children. stone of our profession. But no one in law when we don’t recognize that we need to hit We all have our default instinctual drives and school explains that we will be representing the brakes. We get a lot of narcissistic perks desires. As children, for example, we do not causes, conditions, institutions, or people that for never saying no. We may get so identified want to share our toys, be potty trained, or eat we disrespect, don’t like, or even despise. No with the rescuer role that we don’t—or with utensils. Yet society expects and one tells us or teaches us how to hold and can’t—admit to ourselves when we are in demands these behaviors of us. We adapt manage that tension. We have to pocket those need of help. Feelings of vulnerability do not because it is more important for us to have feelings and stuff them down, put on the false mesh with the view we have of ourselves as acceptance, love, approval, and affirmation self persona, and march forward as a zealous always being the helper. from our caregivers than to firmly hold on to advocate. our toys (well, sometimes). We continue to Instead of holding the tension, it is easier Ignoring Boundaries adapt throughout life, adjusting and modify- to act like we actually agree or support the Speaking of never saying no...a career ing our behavior to varying degrees in order position we represent. Of course we have to practicing law teaches us to ignore or abolish to meet social norms and expectations. This do that. We can’t go into court, a mediation, boundaries. We have been trained to devise process is a normal, natural one that helps to or a negotiation really in touch with feeling strategic ways to overcome boundaries and to foster healthy ego development. frustrated (or even disgusted) by our client’s ignore limits. Our profession greatly rewards The False Self Syndrome, however, dis- position. We’d never be able to do our jobs if us for not having certain kinds of boundaries, torts this normal, healthy process. When the we did. So we split off from ourselves, dis- and reinforces processes and patterns that dis- False Self Syndrome has taken effect in our connect the head from the heart, and go to connect us from our true self: always working young adult or even later adult years, we over- battle. Over time, this suppression takes a big late and on weekends, never firing a bad ly identify with the behaviors and image we emotional toll on us if we are not consciously client, taking verbal abuse from senior part- have created. This process is an unconscious aware of what is happening. It can make a ners—you can name others. These kinds of one we have learned by habit and condition- significant difference to simply be able to internal emotional boundaries, however, are ing because it rewards us handsomely at first: articulate—to ourselves or to a trusted really important for good mental health. We academically, emotionally, financially, and friend—that we don’t agree with the position need to first recognize and then honor our socially. The problem is that it eventually that, as a client’s attorney, we are required to own emotional and endurance limits. We also boomerangs on us. As we become increasing- advocate. need to learn how to say no—to certain

38 SUMMER 2015 clients, to certain jobs or practice areas, and lawyer who was famous for never losing a wake up to his or her true self. Reconnecting especially to our own internal voice that com- case. Then he lost a big case and committed with our true self is very empowering. A world mands us to ignore what is really going on suicide the next day. He had lost sight of the of choices opens up for us. inside of us. fact that sometimes we just get bad facts. This The encouraging news is that more is a true story and may seem extreme, but it is lawyers than you might imagine have traveled The Pressure of Confidentiality illustrative of the idea that success can this journey of awakening and have found As lawyers, we can’t talk about the moral become one’s image of self. What happens if deep fulfillment in a legal career established complexities of the work we are doing, espe- suddenly that success is not there? If we don’t on a different, healthier, and more conscious- cially when we are zealously advocating for a have something deeper, more eternal, and ly awake footing. You can, too. n position we do not personally support. We more authentic to ground us, we can get lost have no viable outlets for processing our emo- in the false image. The North Carolina Lawyer Assistance tional responses to our clients’ positions. So There is something to be said about failing Program is a confidential program of assistance we ignore them, disconnect, and move on. once in awhile. Failure connects us to a sense for all North Carolina lawyers, judges, and law of humility and humanity. Humility and a students, which helps address problems of stress, Success Can Be the Most Dangerous sense of one’s own humanity are not traits depression, alcoholism, addiction, or other prob- Trap that are valued in the legal profession, but lems that may impair a lawyer’s ability to prac- That success can reinforce the false self they are essential for a rewarding quality of tice. If you would like more information, go to may be a bit counterintuitive, and yet it is life and sustainable mental health. nclap.org or call: Cathy Killian (for Charlotte probably the most important trap to under- and areas west) at 704-910-2310, Towanda stand. With constant success, we start to Reconnecting with the True Self Garner (in the Piedmont area) at 919-719- believe the persona is all there is. There is We attain a major milestone when we rec- 9290, or Nicole Ellington (for Raleigh and nothing deeper to connect to or hold us when ognize the inherent pitfalls of law practice and down east) at 919-719-9267. things don’t go our way—we believe we really how the practice itself reinforces the false self. This article was originally published in the are in control, a master of the universe. That recognition alone is often enough to help ABA’s Tort Trial & Insurance Practice Section’s A few years ago there was a very successful a lawyer struggling with depression and anxiety TortSource, Summer 2015.

Specialization Profile (cont.) Law school teaches you to think, how to certification is the recognition of what identify issues. In order to be good at some- already exists. Achieving it is an enriching thing, you have to make that choice and reward! n Q: Is certification important in your prac- work toward your goal of providing excellent tice area? legal service. *Specialization staff checked the records and Certification is absolutely important in real Q: What would you say to encourage other confirmed that Kim is the only board certified property law. Unfortunately, there are still lawyers to pursue certification? specialist in real property west of Asheville. lawyers who don’t understand the depth of I would tell them to just do it! If you’ve For more information on the State Bar’s knowledge required in real estate law and dedicated your career to a practice area, and specialization programs, visit us online at don’t realize that mistakes aren’t easily correct- know it well, then you are a specialist. The nclawspecialists.gov. ed. You can’t amend a deed. It’s important for consumers to be able to locate a qualified attorney, and the specialization directory is one good resource for them to use. Q: How does certification benefit the pro- fession? I think that the more educated a lawyer is, Don’t Miss Important the more confident he/she will be. The prac- tice of law is becoming more and more spe- State Bar Communications cialized. It’s too vast to handle all client needs anymore. It’s important for lawyers to focus Log on to ncbar.gov to make sure their practice and become deeply knowledge- we have your email address. able about one area. Q: How do you see the future of specializa- tion? I think that lawyers will begin to focus their practices earlier, so that when they grad- uate from law school they will know that they are going to specialize in a specific area.

THE NORTH CAROLINA STATE BAR JOURNAL 39 LEGAL ETHICS

CPR—RPC—FEO—WTH?

B Y S UZANNE L EVER

The Ethics Committee recently received member of the Bar may ethically advise his sively revised in 2003 (effective February 27, an inquiry from a lawyer referencing a CPR client to seek a Dominican divorce know- 2003). To distinguish the 1985 Rules from from 1981. The lawyer’s inquiry led to a gen- ing that the client will return immediately the Rules adopted in 1997, this code is some- eral discussion at the quarterly meeting of the and continue his North Carolina resi- times referred to as the “Revised Rules of different titles found on our ethics opinions dence. Professional Conduct.” Formal Ethics and a suggestion that I write an article explain- Opinion: No. Opinions are identified by the last two digits ing the mystery behind the ethics opinions’ The CPR opinions tend to be short and of the year of initial publication in the State nomenclature. Easier said than done. not particularly informative. More important- Bar Journal and are numbered serially. The Let’s start with the basics. Chronologically, ly, many provisions in the superseded Code first Formal Ethics Opinion is 97 FEO 1 and there have been three designations for the and most of the interpretations of the Code is dated October 24, 1997. ethics opinions formally adopted by the State found in the CPRs are simply no longer con- Now that we have deciphered the Bar Council: CPR, RPC, and FEO. With the sistent with the current Rules of Professional acronyms of the three designations for ethics exception of “FEO,” the acronyms corre- Conduct. In the extreme, Code provisions opinions, let’s look at the paramount distinc- spond to the code of conduct that the opin- violate constitutional law (think advertising). tion between them. Each of the three cate- ions interpret. However, if you believe that a particular CPR gories of ethics opinions rely on a different set opinion may be helpful to you, you may of ethics rules for their authority: either the CPRs request a copy from the ethics department at superseded Code of Professional CPR stands for Code of Professional the State Bar. The ethics department will tell Responsibility, the superseded North Carolina Responsibility. CPR opinions are ethics opin- you whether to consider the CPR to be con- Rules of Professional Conduct (1985), or the ions that were issued under the Code of sistent with the current Rules and still good Revised Rules of Profession Conduct Professional Responsibility which was in effect guidance for lawyers. (1997/2003). from April 30, 1973, until January 1, 1986. To illustrate this distinction, consider these Each CPR bears the identifying number RPCs ethics opinions dealing with the exceptions to assigned to it at the time of its initial publica- RPC stands for Rules of Professional a lawyer’s duty not to disclose confidential tion in the State Bar’s quarterly publication at Conduct. RPC opinions are ethics opinions client information. that time. CPR 1 is dated January 18, 1974. promulgated under the Rules of Professional The CPR opinions cite Ethical CPRs are not included in the Lawyer’s Conduct that were in effect from January 1, Considerations and Disciplinary Rules from Handbook, and only a select few are included 1986, until July 23, 1997. Each RPC bears the superseded 1973 Code of Professional on the State Bar’s website. Why? Take a look the identifying number assigned to it at the Responsibility. For example, when discussing at the following CPR opinions (printed in time of its initial publication in the State Bar’s the duty of confidentiality owed to a former their entirety): quarterly publication at the time. RPC 1 is client, CPR 300 (1981) states: “DR 4- CPR 33 dated January 17, 1986. 101(b)(1) forbids a lawyer to knowingly reveal (January 17, 1975) RPCs are included on the State Bar web- a confidence or secret of his client except Inquiry: Is it ethical for a lawyer to have his site and in the annual Lawyer’s Handbook. [when permitted under DR 4-101 (C)].” name printed on personal checks (as dis- That is because many of the provisions of the The RPC opinions contain citations to tinguished from his law office checks) fol- superceded 1985 Rules remain consistent the superseded 1985 Rules of Professional lowed by the words “Attorney” or with the current Rules and, with some excep- Conduct. RPC 206 (1995), addressing the “Attorney at Law”? tions, the RPCs continue to provide excellent duty of confidentiality owed to a deceased Opinion: Yes. guidance to lawyers. client, provides: “A lawyer may only reveal CPR 37 confidential information of a deceased client (January 17, 1975) FEOs if disclosure is permitted by the exceptions to Inquiry: May a lawyer ethically charge The most recent ethics opinions are titled the duty of confidentiality set forth in Rule interest on delinquent bills? “FEO” opinions. FEO stands for Formal 4(c).” Opinion: Yes. Ethics Opinion. Formal Ethics Opinions are The FEO opinions cite to the Revised CPR 110 the ethics opinions adopted under our current Rules of Professional Conduct (1997/2003). (April 15, 1977) Rules of Professional Conduct which were For example, 98 FEO 18, which relies on the Inquiry: The question is whether or not a effective July 24, 1997, and were comprehen- 1997 Rules when discussing the duty of con-

40 SUMMER 2015 fidentiality owed to a minor client, provides: rule (or rule paragraph) when referencing the priate correlation table, you will see that Rule “[A] lawyer owes the duty of confidentiality exceptions to a lawyer’s general duty of confi- 7.4(1985) is now Rule 4.2 (2003), to a minor client and may not disclose con- dentiality. Communication with Person Represented by fidential information to minor’s parents While citations in the ethics opinions to Counsel. unless there is an applicable exception in the Ethical Considerations and Disciplinary The CPRs, RPCs, and FEOs still provide Rule 1.6(d) permitting disclosure.” This Rules from the superseded 1973 Code of guidance on issues of professional conduct demonstrates one of the important distinc- Professional Responsibility are easy to distin- except to the extent that a particular opinion tions between the 1985 Rules and the guish, the citations to the various versions of is overruled by a subsequent opinion or by a 1997/2003 Revised Rules: the 1997/2003 the Rules of Professional Conduct can cause provision of the current Rules of Professional Rules track the numbering of the rules in the confusion. Here’s an example: Conduct. Lawyers should check the text of ABA Model Rules of Professional Conduct. RPC 39 (1988) deals with communica- the current rules as well as the ethics opinion This change was made to facilitate research tion with an adverse party’s insurer. The opin- index in the Handbook and online to be sure and to help lawyers moving between juris- ion provides that “Rule 7.4(a) prohibits a that all subsequent history is considered. dictions to identify and understand their lawyer from communicating regarding the Navigating the various opinions, rules, professional responsibilities in each jurisdic- subject of representation with a party the and correlation tables can be tricky. If you are tion. lawyer knows to be represented by another unsure whether an ethics opinion or ethics 2009 FEO 1 relies on the Rules as amend- lawyer in the matter.” If you go to Rule 7.4(a) rule is still good authority, you may contact ed in 2003 when discussing a lawyer’s duty to of current Rules of Professional Conduct the ethics department at the State Bar for use reasonable care to prevent the disclosure (1997/2003), you will see that it deals with assistance ([email protected]). n of confidential client information hidden in communication of fields of practice and spe- metadata. The opinion states: “Rule 1.6(a) of cialization. Because the numbers for the 1985 Suzanne Lever is assistant ethics counsel for the Rules of Professional Conduct prohibits a Rules may be different from comparable rules the North Carolina State Bar. lawyer from revealing information relating to in the 1997/2003 Revised Rules, correlation the representation of a client unless the client tables1 are included in the Lawyer’s Handbook Endnote gives informed consent, the disclosure is and online. These tables cross-reference the 1. Correlation Table 1: Revised Rules of Professional impliedly authorized to carry out the repre- 2003 and 1997 versions of the Revised Rules Conduct and Superseded NC Rules of Professional Conduct (1985) sentation, or disclosure is permitted by one of with the comparable provisions of the super- Correlation Table 2: Superseded NC Rules of the exceptions to the duty of confidentiality seded 1985 Rules of Professional Conduct Professional Conduct, Revised Rules of Professional set forth in [Rule 1.6(b)].” and 1973 Code of Professional Conduct. In Conduct, and Superseded Code of Professional Each of the four opinions cites a different the current example, if you consult the appro- Responsibility

Disciplinary Actions (cont.) Johnson violated the conditions and requir- lic’s interest. Bryant appealed to the council. ing Johnson to show cause why the stay The council reinstated Bryant. over the file was potentially prejudicial to should not be lifted and the suspension acti- In February 2014 the DHC suspended the client and to the administration of jus- vated. Upon investigation, it was established Allan De Laine of Clayton for two years. tice. that Johnson is disabled. The DHC trans- De Laine forged a client’s name on a civil ferred her to disability inactive status. complaint, dismissed the action without the Transfers to Disability Inactive Status client’s knowledge or authorization, and Reid G. Hinson of Charlotte was trans- Reinstatements neglected the cases of two clients, causing ferred to disability inactive status by the In 2009 the DHC suspended Robert their civil claims to be time-barred. After chair of the Grievance Committee. Brown of Durham for five years for sexually serving one year active, he was eligible to Robert Bell of Fayetteville was trans- harassing his former employees at the petition for a stay of the balance upon ferred to disability inactive status by the Durham County Public Defender’s Office. showing compliance with numerous condi- chair of the Grievance Committee. The DHC reinstated him on February 5. tions. He was reinstated by the Secretary on Jesse B. Rouse III of Fayetteville was In November 2007 Ralph Bryant of April 6. transferred to disability inactive status by the Newport surrendered his law license and In 2012 the DHC suspended Gary Chair of the Grievance Committee. was disbarred by the DHC for misappropri- Kivett of Spruce Pine for four years after In 2011 the DHC suspended Laura G. ating entrusted funds totaling $64,847. In concluding that he had and attempted to Johnson of Fayetteville for two years for August 2014 the DHC recommended that have sex with several clients. The order of mishandling client funds and for trust his petition for reinstatement be denied. The discipline permits Kivett to apply for a stay account mismanagement. The suspension DHC found that Bryant had reformed but after serving one year active. In June 2013 was stayed for three years upon Johnson’s that his reinstatement would be detrimental Kivett’s first petition for a stay was denied. compliance with numerous conditions. The to the integrity and standing of the bar, to On March 13 the DHC reinstated Kivett State Bar filed a motion alleging that the administration of justice, or to the pub- after a hearing on his second petition. n

THE NORTH CAROLINA STATE BAR JOURNAL 41 TRUST ACCOUNTING

Top Tips: Proposed Amendments to Prevent and Detect Internal Theft

B Y P ETER B OLAC, TRUST A CCOUNT C OMPLIANCE C OUNSEL

At the State Bar’s April quarterly meeting, practice increases exponentially. He no know if I take it or if I put it back.” the council voted to revise and republish for longer has time to oversee every aspect of the comment proposed amendments to Rule 1.15 closing process, and relies solely on his staff Monthly and Quarterly Reviews of the Rules of Professional Conduct. The to handle the day-to-day deposits, disburse- The proposed amendments to Rule 1.15 amendments were proposed to facilitate the ments, and reconciliations. He still signs include the addition of monthly and quarter- prevention and early detection of employee theft most trust account checks, but has given sig- ly trust account reviews. The monthly review from a trust account. Minor revisions were natory authority to one of his employees for requires lawyers to “review the bank state- made in response to the public comments situations when he is not in the office. The ment and cancelled checks for the month received after the January quarterly meeting; bank statement appears to balance with the covered by the bank statement.” Most most revisions relate to the distinction between trust account balance whenever Mr. Smith lawyers already perform this task during their trust accounts and fiduciary accounts. The full asks to see a reconciliation. Everything seems monthly balance of the bank statement with text of the revised proposed amendments is to be going well until title insurance compa- the trust account records. The monthly available on page 48 of this Journal. nies begin asking why premiums have not review will disclose: a) forged signatures, b) been paid, and Mr. Smith is selected for ran- improper payees or checks to cash, and c) The Bar only received three written com- dom audit by the State Bar. Upon looking at unexplained gaps in check numbers indicat- ments following the publication of the pro- his trust account, Mr. Smith notices that ing checks may have gone missing. The posed rule amendments in the last edition of trust account checks have been paid out to lawyer can verify that checks from the gener- the Journal, but there has been a fair amount employees and relatives of employees, title al trust account properly identify on the face of “chatter” about whether the proposed insurance checks have never been mailed, of the check the client from whose balance changes are overly burdensome on a lawyer’s and the trust account is thousands of dollars the check is drawn. The lawyer can also practice. While there are other substantive short. Mr. Smith is forced to borrow money examine the back of cleared checks to ensure proposed changes to Rule 1.15 (e.g., allow- to replenish the deficit, and his law practice proper endorsements were made. ing the use of credit unions, explaining the and license are in jeopardy. The quarterly review requires the lawyer self-reporting requirement, requiring This is a true story. to “review the statement of costs and lawyers to sign reconciliations), this article Had John Smith regularly reviewed the receipts, client ledger, and cancelled checks focuses on three proposed changes: 1) images of cleared checks and a random sam- of a random sample of representative trans- monthly and quarterly reviews, 2) restric- ple of transactions, he would have noticed actions completed during the quarter to ver- tion of signature authority, and 3) trust that checks were made out to his employees ify that the disbursements were properly account oversight officers (TAOOs). and title insurance checks were never made.” The revisions made this quarter add John Smith is a small-town lawyer with a mailed. Further, if he was the only person in that, “[T]he transactions reviewed must general practice. He focuses mainly on litiga- the firm with signature authority, he would involve multiple disbursements unless no tion and tax matters, but also maintains an have seen that the checks were made payable such transactions are processed through the active real estate practice. He is well regarded to improper payees. What is even more like- account, in which case a single disbursement in his community and has no prior discipli- ly, however, is that if John Smith regularly is considered a transaction for the purpose of nary issues. Mr. Smith, a solo practitioner, reviewed images of cleared checks and a ran- this paragraph.” Sampling three transactions has always relied on the help of his staff, dom sample of transactions, his employees satisfies the requirement, but a larger sample under his supervision, to complete real estate would never have stolen from the trust may be advisable. Random review of ledgers closings and maintain the trust account. He account. A lawyer’s regular review of the and settlement statements helps to ensure trusts his staff completely. Mr. Smith knows trust account serves as the single greatest that the ledgers and statements accurately he has to supervise his staff’s handling of the deterrent to employee embezzlement. The reflect the transaction. This type of review trust account because Bruno made that very embezzling employee in the above story can uncover improper disbursements, incor- clear during a harrowing visit in the late ‘90s. said, when interviewed by the district attor- rect deposits, and substituted or unissued During the early ‘00s, the real estate market ney, that she knew Mr. Smith wasn’t looking checks. The review can be performed as an begins to boom and Mr. Smith’s real estate at the trust account records and “he won’t additional step in the quarterly reconcilia-

42 SUMMER 2015 tion and, if the Rule revisions are adopted, ciplinary files against every partner. the Bar will provide a sample form to use This is a true story. when reviewing transactions. While the ran- dom review requirement may not uncover Trust Account Oversight Officer any improper activity, it will most definitely (TAOO) act as a deterrent to employee malfeasance. The proposed amendments to Rule 1.15 include the addition of a new subsection, Restriction of Signature Authority Rule 1.15-4, Trust Account Oversight Officer. The proposed amendments will limit sig- This rule allows, but does not require, a nature authority to a) a lawyer or b) a non- multi-member firm to designate, annually lawyer employee supervised by the lawyer and in writing, one or more partners as over- who is not responsible for performing rec- sight officers for any general trust account. onciliations. Every signatory—lawyer or The rule helps a firm ensure that it is prop- nonlawyer—must take a one-hour trust erly maintaining its trust and fiduciary account continuing education course (CLE) accounts, and avoid reliance on an assump- prior to exercising the signatory authority. tion that trust accounts are being main- The rule amendments will ensure that: 1) a tained by someone else in the firm. nonlawyer employee is educated about trust Designation as the TAOO requires the account rules and 2) the employee cannot lawyer to complete a certain amount of issue checks without any oversight because, training to gain proficiency in the trust at a minimum, someone else is reconciling accounting rules and the firm’s accounting the account. The State Bar has found that system, and requires the firm to adopt a limiting signature authority to lawyers is a written policy detailing the firm’s trust significant barrier against employee embez- account management procedures. Again, zlement. The Subcommittee on this rule is optional for multi-member firms Accountability for Trust Account that want to add an extra level of oversight to Management initially considered whether their firm’s trust account management. only lawyers should be permitted to sign trust account checks, but understood that Conclusion such a rule would create difficulties for Feeling overburdened by new oversight many lawyers and decided to give lawyers responsibilities is understandable. However, the option of having a nonlawyer signatory. the additional reviews and requirements in The proposed amendment should not over- the proposed rule amendments are not over- ly burden small firm or solo attorneys whelming and will go a long way to deter because a lawyer can opt to be the only sig- and detect theft from lawyer trust accounts. natory and allow a nonlawyer employee to Safeguarding client property is your profes- conduct the required reconciliations for the sional responsibility as a lawyer. Some addi- review and signature of the lawyer. tional time per quarter overseeing your trust Jane Doe is a lawyer at a highly rep- accounts is worthwhile if it helps you to utable and distinguished big-city firm. avoid becoming another cautionary tale. Jane, a new partner, has signature authority You are encouraged to read the full text on the trust account, but isn’t involved in of the proposed rule amendments on page any of the day-to-day trust account main- 48 and submit your comments to the North Judge Spivey (cont.) tenance. Ms. Doe assumes that the other Carolina State Bar. The council considers all partners are reviewing the trust account. comments—negative and positive—before will always be indebted for their counsel and The only time trust accounts are men- any action is taken. support. It was an honor and a privilege to tioned at the monthly partnership meeting serve the members of the bar and the citizens is when a trusted employee tells the part- Random Audits of this state in courtrooms around North ners that the accounts reconcile. Then trust Lawyers randomly selected for audit are Carolina. account checks start to bounce. It quickly drawn from a list generated from the State JG: Thank you for taking your time to becomes apparent that an employee has Bar’s database based upon judicial district talk with me about your life and, hopefully, a been stealing from the trust account. The membership designations in the database. successful life after the law. n State Bar investigates and requests the The randomly selected judicial districts used firm’s trust account records. Each partner at to generate the list for the 2nd quarter of John Gehring, a former State Bar councilor the firm had assumed that another partner 2015 were District 3B (Carteret, Craven, and chair of the Publications Committee, is now was actively supervising the account. In and Pamlico Counties) and District 27A semi-retired, which means that he “works less fact, no one was. The State Bar opens dis- (Gaston County). n and enjoys it more.”

THE NORTH CAROLINA STATE BAR JOURNAL 43 IOLTA UPDATE

IOLTA Income Still Depressed, but Some Good News Arrives

Income legal aid for 2014 as we had in the previous million is allocated to IOLTA programs for All IOLTA income earned in 2014 has two years. Our total income, therefore, was the provision of foreclosure prevention and now been received and recorded. under $2 million. community redevelopment legal services. Unfortunately, we must report that the We do have some good news to report Each program (54 jurisdictions) is allocated income from IOLTA accounts continued to for 2015. The funding for IOLTA programs $200,000, and the remainder of the $30 decrease as many banks are recertifying their included in the settlement with Bank of million will be distributed based on poverty comparability rates at lower levels. Income America announced by the Department of population (as federal Legal Services from IOLTA accounts decreased by 5%. Justice in August will be distributed this Corporation funds are distributed). Bank of Unfortunately, we did not receive any signif- year. Of the $7 billion allocated to consumer America has notified NC IOLTA that our icant funds from court awards designated to relief in the settlement, a minimum of $30 program will receive $842,896.15.

Grants Beginning with 2010 grants, we have Email Fraud Alert limited our grant-making to a core group of (mainly) legal aid providers. Even with that To: All Members of the North Carolina State Bar restriction and using almost $3 million in From: Peter Bolac, Trust Account Compliance Counsel reserve funds over five years, grants had dra- matically decreased (by over 40%). For three In recent weeks the Bar has received multiple reports of fraudulent activity relating to years, from 2012 through 2014, we were wired funds in real estate transactions, with losses as high as $200,000. Here is a redacted able to keep grants steady at ~$2.3 million sample of what we have received: using funds from reserve and from court awards designated for civil legal aid. For On a closing that took place on Friday morning, before we disbursed, we received an 2015, the trustees had to reduce grants fur- email and a phone call from a lady purporting to be our out-of-state seller asking us to ther (by 19%) to ~$1.9 million. We will use wire funds to her bank account. On Monday we learned that the seller’s email was com- two thirds of our remaining reserve to make promised and bad actors had inserted themselves in her place. We attempted to retract those grants, leaving approximately the wire and we learned late yesterday that the bank did not retract the wire and will $245,000 in reserve. not communicate further without a subpoena. State Funds This firm had two-level authentication practices in place to protect against fraudulent In addition to its own funds, NC wires, but the hackers emailed and called the firm to confirm the wiring instructions as was IOLTA administers the state funding for required. The hackers gained access to the email account of one of the parties to the trans- legal aid on behalf of the NC State Bar. action and learned the information necessary to assume the identity of one of the parties Total state funding distributed for the and initiate the fraudulent transaction. Another defrauded firm noticed after the fact that 2013-14 fiscal year was $3.5 million. The the email address of the hacker was different from the actual seller’s email address by one state budget adjustments for 2014-15 elim- letter. inated the appropriation for legal aid work (currently $671,250). Though the pro- One way to protect against this fraud is for the lawyer to initiate the phone call to confirm posed Senate budget had also eliminated the emailed wiring instructions, calling only the number in the client file even if a different the Access to Civil Justice funding from number is provided via email. court fees (~$1.8 million), that funding was continued in the final budget, with signifi- Please be vigilant when communicating over email and consider whether your firm’s cant additional reporting requirements for wiring procedures are strong enough to detect and prevent these fraud attempts. If your Legal Aid of NC. The Equal Access to firm has been the subject of an attempted or successful fraud, please contact me at the State Justice Commission and the NCBA contin- Bar at [email protected] or (919) 828-4620. ue to work to sustain and improve the fund- ing for legal aid. n

44 SUMMER 2015 RULE AMENDMENTS

Amendments Approved by the Supreme Court On March 5, 2015, the North Carolina timeframes for the PNA Program, thereby Plan for Certification of Paralegals Supreme Court approved the following giving CLE providers more flexibility to be The amendments permit a degree from a amendments to the rules of the North creative in their presentations of the program. foreign educational institution to satisfy part Carolina State Bar (for the complete text, see of the educational requirements for certifica- the Fall 2014 and Winter 2014 editions of Amendments to The Plan of Legal tion if the foreign degree is evaluated by a the Journal or visit the State Bar website): Specialization qualified credential evaluation service and 27 N.C.A.C. 1D, Section .1700, The found to be equivalent to an associate or Amendments to the Discipline and Plan of Legal Specialization bachelor’s degree from an accredited US Disability Rules The amendments eliminate the possibili- institution. 27 N.C.A.C. 1B, Section .0100, ty that one person can serve as board chair Discipline and Disability of Attorneys for an excessive period of time and enable a Amendments to the Rules of The amendments change the name of the logical succession of the chairmanship Professional Conduct to Address Trust Accounting Supervisory Program to among the members of the board. Bullying and Intimidation the Trust Account Compliance Program. 27 N.C.A.C. 2, Rules of Professional Amendments to the Standards for Conduct Amendments to the Rules Governing Certification as a Specialist The amendment to Rule 1.0, the Board of Law Examiners 27 N.C.A.C. 1D, Section .2500, Terminology, clarifies that the term “tribunal” 27 N.C.A.C. 1C, Section .0100, Board of Certification Standards for the Criminal Law encompasses any proceeding of a court Law Examiners Specialty, and Section .2700, Certification including a deposition. The amendments to The amendments will allow graduates of Standards for Workers’ Compensation Law the comments to Rule 3.5, Impartiality and law schools that are not accredited by the Specialty Decorum of the Tribunal, Rule 4.4 Respect for American Bar Association to qualify for The amendments to the criminal law Rights of Third Persons, and Rule 8.4, admission to the North Carolina State Bar standards reduce the number of practice Misconduct, confirm that conduct that con- under certain circumstances. hours required to meet the substantial stitutes bullying and attempts to intimidate involvement standard for the juvenile delin- are prohibited by existing provisions of these Amendments to the Rules Governing quency subspecialty and allow for additional Rules of Professional Conduct. the Administration of the CLE Program forms of practice equivalents for the subspe- 27 N.C.A.C. 1D, Section .1500, Rules cialty. In the standards for the workers’ com- Amendments to the Rules of the Governing the Administration of the pensation specialty, the amendments add Board of Law Examiners Continuing Legal Education Program insurance as a related field in which a lawyer Rules Governing Admission to the The amendments change the name of the may earn CLE credits for certification and Practice of Law in the State of North mandatory CLE program for new lawyers recertification. Carolina, Section .0100, Organization from “Professionalism for New Admittees” to The amendments change the street and “Professionalism for New Attorneys” (PNA Amendments to the Standards for mailing address listed for the offices of the Program) and permit the Board of Certification of Paralegals Board of Law Examiners to reflect the Continuing Education to approve alternative 27 N.C.A.C. 1G, Section .0100, The board’s move to a new location.

Amendments Pending Approval of the Supreme Court

At its meeting on April 17, 2015, the Proposed Amendments to the Rule on persons to obtain pro bono practice status dur- council of the North Carolina State Bar voted Pro Bono Practice by Out-of-State ing the pendency of the lawyer’s application to adopt the following rule amendments for Lawyers for admission to the North Carolina State Bar. transmission to the North Carolina Supreme 27 N.C.A.C. 1D, Section .0900, In addition, the proposed amendments clarify Court for approval (for the complete text of all Procedures for Administrative Committee that an out-of-state lawyer employed as in- proposed rule amendments see the Spring The proposed amendments allow an out- house counsel for a business organization with 2015 edition of the Journal unless otherwise of-state lawyer employed by a nonprofit cor- offices in North Carolina may petition and indicated): poration rendering legal services to indigent qualify for pro bono practice status.

THE NORTH CAROLINA STATE BAR JOURNAL 45 Proposed Amendments to the Hearing 20/20 Commission’s recommended amend- and Appeal Rules of the Board of Legal ments to the ABA Model Rules of Specialization Professional Conduct in response to The Process 27 N.C.A.C. 1D, Section .1800, Hearing changes in technology and globalization. Proposed amendments to the Rules and Appeal Rules of the Board of Legal The proposed amendments to the North of the North Carolina State Bar are pub- Specialization Carolina Rules included amendments to lished for comment in the Journal. They The proposed amendments explain that the titles of three rules. Unfortunately, the are considered for adoption by the coun- an “incomplete application” does not include title amendments were not forwarded to the cil at the succeeding quarterly meeting. an application with respect to which fewer Supreme Court when the proposed rule If adopted, they are submitted to the than five completed peer review forms have amendments were sent to the Court for North Carolina Supreme Court for been timely filed with the Board of Legal approval. The amendments to the text of approval. Amendments become effective Specialization the rules were approved by the Court on upon approval by the Court. Unless October 2, 2014. The following amend- otherwise noted, proposed additions to Proposed Amendments to the Rules of ments to rule titles are now pending rules are printed in bold and under- Professional Conduct approval of the Court: lined; deletions are interlined. 27 N.C.A.C. 2, The Rules of Professional Rule 5.3, Responsibilities Regarding Conduct Nonlawyer Assistants Assistance In the Spring 2014 edition of the Rule 5.5, Unauthorized Practice of Law; Journal, proposed amendments to several Multijurisdictional Practice of Law to the Rules of Professional Conduct, see the Rules of Professional Conduct were pub- Rule 7.3, Direct Contact with Potential Spring 2014 edition of the Journal or visit the lished for comment. The amendments were Solicitation of Clients State Bar website. proposed after study of the ABA Ethics For the complete text of the amendments

Proposed Amendments

At its meeting on April 17, 2015, the All proposed rules under Section .0300 Stat. 84-16 and in the rules of the State Bar. council voted to publish the following pro- are new. Therefore, bold, underlined print is (b) Requirements to Return to Practice of posed rule amendments for comment from not used below to indicate proposed addi- Law. If an individual who has been granted the members of the bar: tions other than to the titles to Section .0300 relinquishment of membership desires to and Section .0400. Rules .0401 to .0407 will return to the practice of law in the state of Proposed Amendments to Create a contain the rules (currently Rule .0301 North Carolina, he or she must apply to the Procedure for Permanent through Rule .0307) being relocated, North Carolina Board of Law Examiners and Relinquishment of Membership in the unchanged, from Section .0300 and are not satisfy all of the requirements to obtain a State Bar printed below. license to practice law in the state of North 27 N.C.A.C. 1A, Section .0300, Election Section .0300 Election and Succession of Carolina as if for the first time. and Succession of Officers, and Section Officers Permanent Relinquishment of (c) Prohibition on Representations. .0400, Duties of Officers Membership in the State Bar Effective upon the date of the order of relin- Presently, there are only two classes of [All rules currently in this section with- quishment, the former licensee is prohibited membership in the State Bar, active and inac- drawn and relocated, in their entirety, to the from representing that he or she is tive, and there is no procedure for resigning beginning of Section .0400.] (1) a lawyer in North Carolina, from—i.e., relinquishing membership in— (2) licensed to practice law in North the State Bar. The proposed amendments .0301 Effect of Relinquishment. Carolina, create such a procedure. To permit the inclu- (a) Order of Relinquishment. Pursuant to (3) able to provide legal services in North sion of the relinquishment rules in an appro- the authority of the council to resolve ques- Carolina, or priate location within Subchapter 1A of the tions pertaining to membership status as (4) a member of the North Carolina State State Bar rules, it is proposed that the rules specified in N.C. Gen. Stat. 84-23, the coun- Bar. currently in Section .0300, Election and cil may allow a member of the State Bar to Succession of Officers, be moved to the begin- relinquish his or her membership in the State .0302 Conditions for Relinquishment ning of Section .0400, Duties of Officers, and Bar subject to the conditions set forth in this A member of the State Bar may petition that Section .0400 be renamed “Election, section. Upon the satisfaction of those condi- the council to enter an order of relinquish- Succession, and Duties of Officers.” Section tions, the council may enter an order declar- ment. An order of relinquishment shall be .0300 will be renamed and devoted to pro- ing that the individual is no longer a member granted if the petition demonstrates that the posed rules on permanent relinquishment of of the State Bar and no longer has the privi- following conditions have been satisfied: membership in the State Bar. leges of membership set forth in N.C. Gen. (a) Unresolved Complaints. No open,

46 SUMMER 2015 unresolved allegations of professional mis- Allegations of misconduct shall be investigat- conduct are pending against the petitioner in ed pursuant to the procedures set forth in any jurisdiction. Section .0100 of Subchapter 1B. Comments (b) No Financial Obligation to State Bar. (c) Release of Information from The petitioner has paid all membership fees, Investigation. Information from the investi- The State Bar welcomes your com- Client Security Fund assessments, late fees, gation of allegations of misconduct shall be ments regarding proposed amendments and costs assessed by the North Carolina retained in the State Bar’s records and may be to the rules. Please send your written State Bar or the Disciplinary Hearing released by the State Bar as required by law or comments to L. Thomas Lunsford II, Commission, and all fees, fines, and penalties as necessary to protect the interests of the The North Carolina State Bar, PO Box owed to the Board of Continuing Legal public. Release may be made to, but is not 25908, Raleigh, NC 27611. Education. limited to, the North Carolina Board of Law (c) Wind Down of Law Practice. The Examiners, any professional licensing author- petitioner has completed the wind down of ity, or any law enforcement or regulatory .0205 Supervision his or her law practice in compliance with the body investigating the former licensee. (a) A supervising attorney shall procedure for winding down the law practice (1) be an active member of the North of a suspended or disbarred lawyer set forth Section .0400 Election, Succession, and Carolina State Bar who has practiced law in paragraphs (a), (b), and (e) of Rule .0124 Duties of Officers as a full-time occupation for at least two of Subchapter 1B and with any other condi- .0401 Officers years; tion on the wind down of a law practice [Relocated Rule .0301 from Subchapter (2) supervise no more than two legal imposed by state, federal, and administrative 1A, Section .0300] interns concurrently, provided, however, law. The petition must describe the wind .0402 Eligibility for Office there is no limit on the number of legal down of the law practice with specificity. [Relocated Rule .0302 from Subchapter interns who may be supervised concur- (d) Acknowledgment. The petitioner 1A, Section .0300] rently by an attorney who is a full or part- acknowledges the following: the State Bar’s .0403 Term of Office time member of a law school’s faculty or authority to take the actions described in [Relocated Rule .0303 from Subchapter staff whose primary responsibility as a fac- Rule .0303 of this section; that the sole mech- 1A, Section .0300] ulty member is supervising legal interns anism for regaining active membership status .0404 Elections in a legal aid clinic and, further provided, with the State Bar is to apply to the North [Relocated Rule .0304 from Subchapter that an attorney who supervises legal Carolina Board of Law Examiners for admis- 1A, Section .0300] interns through an externship or out- sion and to satisfy all of the requirements to .0405 Nominating Committee placement program of a law school legal obtain a license to practice law in the state of [Relocated Rule .0305 from Subchapter aid clinic may supervise up to five legal North Carolina as if for the first time; and 1A, Section .0300] interns; that he or she is not entitled to confidentiality .0406 Vacancies and Succession (3) assume personal professional responsi- under Rule .0129 of Subchapter 1B of any [Relocated Rule .0306 from Subchapter bility for any work undertaken by a legal information relating to professional miscon- 1A, Section .0300] intern while under his or her supervision; duct received by the State Bar after the date of .0407 Removal from Office (4) ... the entry of the order of relinquishment. [Relocated Rule .0307 from Subchapter (e) Address. The petition includes a phys- 1A, Section .0300] Proposed Amendments to the ical address at which the State Bar can com- .0401 .0408 Compensation of Officers Specialization Hearing and Appeal municate with the petitioner. … Rules (f) Notarized Petition. The petition is [Re-numbering remaining rules.] 27 N.C.A.C. 1D, Section .1800, Hearing signed in the presence of a notary and nota- and Appeal Rules of the Board of Legal rized. Proposed Amendments to the Rules Specialization Governing the Training of Law The proposed amendments increase the .0303 Allegations of Misconduct Students time an applicant has to review a failed exam- Received by the State Bar On or After the 27 N.C.A.C. 1C, Section .0200, Rules ination after receiving notice of failure and Date of Relinquishment Governing Practical Training of Law shorten the time an applicant has to file a (a) Post Relinquishment Action by State Students petition for grade review. Bar. Relinquishment is not a bar to the initi- The proposed rule amendments eliminate ation or investigation of allegations of profes- the requirement that supervising lawyers in a .1803 Reconsideration of Failed sional misconduct and shall not prevent the law school clinic must be full-time faculty Examination State Bar from prosecuting a disciplinary members. This will allow law schools to (a) Review of Examination. Within 30 45 action against the former licensee for any vio- employ, on a part-time basis, adjunct faculty days of the date of the notice from the board’s lation of the Rules of Professional Conduct to supervise students in a clinic. The rule executive director that the applicant has that occurred prior to the date of the order of amendments will give law schools more flex- failed the written examination, the applicant relinquishment. ibility in designing and implementing new may review his or her examination at the (b) Procedure for Investigation. clinical programs. office of the board at a time designated by the

THE NORTH CAROLINA STATE BAR JOURNAL 47 executive director... 1.15, Safekeeping Property (and its subparts, (other than professional fiduciary servic- (b) Petition for Grade Review. If, after Rule 1.15-1, Rule 1.15-2, and Rule 1.15-3), es) rendered by a lawyer in a client-lawyer reviewing the examination, the applicant and to Rule 8.5, Misconduct, were pub- relationship. feels an error or errors were made in the grad- lished. The amendments were proposed pri- ing, the applicant may file with the executive marily to add requirements that will facili- Rule 1.15-2 General Rules director a petition for grade review. The peti- tate the early detection of internal theft and (a) Entrusted Property. tion must be filed within 45 30 days of the errors. A new subpart, Rule 1.15-4, Trust ... date of the notice of failure after the last day Account Management in Multiple-Lawyer (f) Segregation of Lawyer’s Funds. Funds of the exam review period and should set out Firm, was proposed to create a procedure in Trust Accounts. A trust or fiduciary in detail the examination questions and whereby a firm with two or more lawyers account may only hold trust funds entrust- answers which, in the opinion of the appli- may designate a firm principal to serve as the ed property. Third party funds that are not cant, have been incorrectly graded... “trust account oversight officer” to oversee received by or placed under the control of (c) ... the administration of the firm’s general trust the lawyer in connection with the perform- accounts in conformity with the require- ance of legal services or professional fiduci- Proposed Amendments to the ments of Rule 1.15. ary services may not be deposited or main- Specialization Rules on CLE In response to comments received after tained in a trust or fiduciary account. 27 N.C.A.C. 1D, Section .1900, Rules publication, additional amendments are pro- Additionally, No no funds belonging to a Concerning the Accreditation of Continuing posed. These additional amendments better lawyer shall be deposited or maintained in a Legal Education for the Purposes of the distinguish fiduciary accounts and general trust account or fiduciary account of the Board of Legal Specialization trust accounts and the duties relative to these lawyer except: The proposed rule amendments make the accounts; explain what is intended by a “rep- (1) funds sufficient to open or maintain specialization rules on CLE consistent with resentative transaction” in Rule 1.15-3(i); an account, pay any bank service charges, the general CLE accreditation rules by allow- and distinguish professional fiduciary services or pay any tax levied on the account; or ing an applicant for specialty certification or from legal services. (2) funds belonging in part to a client or recertification to satisfy the CLE require- The additional amendments are shown other third party and in part currently or ments by attending prerecorded, simultane- below in red text. Rule 1.15-4 is an entirely conditionally to the lawyer. ously broadcast, and online programs. new rule and, therefore, only the revisions (g) Mixed Funds Deposited Intact. since last published appear in bold, under- When funds belonging to the lawyer are .1903 Accreditation Standards for lined print. No comments were received on received in combination with funds belong- Lecture-Type CLE Activities the proposed amendments to the official ing to the client or other persons, all of the (a) ... comments to Rule 1.15 and Rule 8.3, funds shall be deposited intact. The (b) ... Reporting Professional Misconduct. Therefore, amounts currently or conditionally belong- (c) The CLE activity may be live; prere- the proposed amendments to the comments ing to the lawyer shall be identified on the corded in audio or video format; simulta- are not republished. deposit slip or other record. After the neously broadcast by telephone, satellite, deposit has been finally credited to the live web streaming (webcasting), or video Rule 1.15 Safekeeping Property account, the lawyer may shall withdraw the conferencing; or online. presented by either This rule has three four subparts: Rule amounts to which the lawyer is or becomes live instruction or mechanical or electroni- 1.15-1, Definitions; Rule 1.15-2, General entitled. If the lawyer’s entitlement is dis- cally recorded or reproduced material. If Rules; and Rule 1.15-3, Records and puted, the disputed amounts shall remain electronic transmission is used, an instructor Accountings; and Rule 1.15-4, Trust in the trust account or fiduciary account should be present for comment or to answer Account Management in Multiple-Lawyer until the dispute is resolved. questions. The board may reduce the hours Firm. The subparts set forth the require- (h) Items Payable to Lawyer. Any item of credit for electronic transmission when ments for preserving client property, includ- drawn on a trust account or fiduciary no instructor is present. A prerecorded ing the requirements for preserving client account for the payment of the lawyer’s fees audio or video CLE activity must comply property in a lawyer’s trust account. The or expenses shall be made payable to the with the minimum registration and verifi- comment for all three four subparts as well as lawyer and shall indicate on the item by cation of attendance requirements in Rule the annotations appear after the text for Rule client name, file number, or other identify- .1604(d) of this chapter. 1.15-3 1.15-4. ing information the client from whose bal- (d) ... ance on which the item is drawn. Any item Rule 1.15-1 Definitions that does not include capture this informa- Proposed Amendments to the Rules on For purposes of this Rule 1.15, the follow- tion may not be used to withdraw funds Trust Accounting in the Rules of ing definitions apply: from a trust account or a fiduciary account Professional Conduct (a) “Bank” denotes a bank, or savings and for payment of the lawyer’s fees or expenses. 27 N.C.A.C. 2, Rules of Professional loan association, or credit union chartered (i) No Bearer Items. No item shall be Conduct under North Carolina or federal law. drawn on a trust account or fiduciary In the Spring 2015 edition of the (b) ... account made payable to cash or bearer and Journal, proposed amendments to Rule (k) “Legal services” denotes services no cash shall be withdrawn from a trust

48 SUMMER 2015 account or fiduciary account by any means of Rule 1.15-3 Records and Accountings Rule 1.15-3(g). a debit card. (a) Check Format... (e) Accountings for Trust Funds. (j) Debit Cards Prohibited. Use of a (b) Minimum Records for Accounts at ... debit card to withdraw funds from a general Banks. The minimum records required for (i) Reviews. or dedicated trust account or a fiduciary general trust accounts, dedicated trust (1) Each month, for each general trust account is prohibited. accounts, and fiduciary accounts maintained account, dedicated trust account, and (j) (k) No Personal Benefit to Lawyer or at a bank shall consist of the following: fiduciary account, the lawyer shall Third Party. A lawyer shall not use or pledge (1) ...; review the bank statement and cancelled any entrusted property to obtain credit or (2) all canceled checks or other items checks for the month covered by the other personal benefit for the lawyer or any drawn on the account, or printed digital bank statement. person other than the legal or beneficial images thereof furnished by the bank, (2) Each quarter, for each general trust owner of that property. showing the amount, date, and recipient account, dedicated trust account, and (k) (l) Bank Directive. of the disbursement, and, in the case of a fiduciary account, the lawyer shall review ... general trust account, the client name, the statement of costs and receipts, client [Re-lettering intervening paragraphs.] file number, or other identifying infor- ledger, and cancelled checks of a random (o) (p) Duty to Report Misappropriation. mation of the client from whose client sample of representative transactions A lawyer who discovers or reasonably believes balance against which each item is drawn, completed during the quarter to verify that entrusted property has been misappro- provided, that:... that the disbursements were properly priated or misapplied shall promptly inform ... made. The transactions reviewed must the trust account compliance counsel (d) Reconciliations of General Trust involve multiple disbursements unless (TACC) in the North Carolina State Bar Accounts. no such transactions are processed Office of Counsel. Discovery of intentional (1) Quarterly Reconciliations. At least through the account, in which case a sin- theft or fraud must be reported to the quarterly, the individual client balances gle disbursement is considered a transac- TACC immediately. When an accounting shown on the ledger of a general trust tion for the purpose of this paragraph. A or bank error results in an unintentional account must be totaled and reconciled sample of three representative transac- and inadvertent use of one client’s trust with the current bank statement balance tions shall satisfy this requirement, but a funds to pay the obligations of another for the trust account as a whole. For each larger sample may be advisable. client, the event must be reported unless the general trust account, a printed reconcil- (3) The lawyer shall take the necessary misapplication is discovered and rectified on iation report shall be prepared at least steps to investigate, identify, and resolve or before the next quarterly reconciliation quarterly. Each reconciliation report within ten days any discrepancies discov- required by Rule 1.15-3(d)(1). This rule shall show all of the following balances ered during the monthly and quarterly requires disclosure of information otherwise and verify that they are identical: reviews. protected by Rule 1.6 if necessary to report (A) The balance that appears in the (4) A report of each monthly and quar- the misappropriation or misapplication. general ledger as of the reporting date; terly review, including a description of (p) (q) Interest on Deposited Funds. (B) The total of all subsidiary ledger the review, the transactions sampled, ... balances in the general trust account, and any remedial action taken, shall be (q) (r) Abandoned Property. determined by listing and totaling the prepared. The lawyer shall sign, date, ... positive balances in the individual and retain a printed copy of the report (s) Signature on Trust Checks. client ledgers and the administrative and associated documentation for a (1) Checks drawn on a trust account ledger maintained for servicing the period of six years in accordance with must be signed by a lawyer, or by an account, as of the reporting date; and Rule 1.15-3(g). employee who is not responsible for per- (C) The adjusted bank balance, deter- (j) Retention of Records in Electronic forming monthly or quarterly reconcilia- mined by adding outstanding deposits Format. Any printed or paper report tions and who is supervised by a lawyer. and other credits to the ending balance required by this rule may be saved, for the Prior to exercising signature authority, a in the monthly bank statement and required period, in an electronic format lawyer or supervised employee shall take subtracting outstanding checks and provided the original paper report was a one-hour trust account management other deductions from the balance in signed and dated at the time of preparation continuing legal education (CLE) course the monthly statement. and the electronic copy is retained in a for- approved by the State Bar for this pur- (2) Monthly Reconciliations. Each mat that cannot be electronically manipu- pose. The CLE course must be taken at month, the balance of the trust account as lated, such as PDF. least once for every law firm at which the shown on the lawyer’s records shall be rec- lawyer or the supervised employee is onciled with the current bank statement Rule 1.15-4, Trust Account given signature authority. balance for the trust account. Management in Multiple-Lawyer Firm (2) Trust account checks may not be (3) The lawyer shall review, sign, date, (a) Trust Account Oversight Officer signed using signature stamps, preprint- and retain a printed copy of the reconcil- (TAOO). ed signature lines on checks, or electron- iations of the general trust account for a Lawyers in a law firm of two or more ic signatures. period of six years in accordance with lawyers may designate a partner in the firm to

THE NORTH CAROLINA STATE BAR JOURNAL 49 serve as the trust account oversight officer education (CLE) on trust account man- (TAOO) for any general trust account into agement approved by the State Bar for the Proposed Amendment to Rule 5.6 of which more than one firm lawyer deposits purpose of training a TAOO or one hour The Rules of Professional Conduct fiduciary trust funds. The TAOO and the of training, presented by a qualified edu- 27 N.C.A.C. 2, Rules of Professional partners of the firm, or those with compara- cational provider, on one or more of the Conduct ble managerial authority (managing lawyers), subjects listed in paragraph (c)(1)(C). The proposed amendments to Rule 5.6, shall agree in writing that the TAOO will (d) Designation and Annual Restrictions on Right to Practice, clarify that the oversee the administration of any such trust Certification. prohibition on participation in a settlement account in conformity with the requirements The written agreement designating a agreement that restricts a lawyer’s right to of Rule 1.15, including, specifically, the lawyer as the TAOO described in paragraph practice applies to settlement agreements requirements of this Rule 1.15-4. More than (a) shall contain the following: between private parties and the government, one partner may be designated as a TAOO (1) A statement by the TAOO that the not just agreements between private parties. for a law firm. TAOO agrees to oversee the operation of The proposed amendment to the official (b) Limitations on Delegation. the firm’s general trust accounts in com- comment explains that the prohibition does Designation of a TAOO does not relieve pliance with the requirements of all sub- not apply to a plea agreement or other settle- any lawyer in the law firm of responsibility parts of Rule 1.15, specifically including ment of a criminal matter or to a disciplinary for the following: the mandatory oversight measures in case in which the accused is a lawyer. (1) oversight of the administration of any paragraph (e) of this rule; dedicated trust account or fiduciary (2) Identification of the trust accounts Rule 5.6 Restrictions on Right to Practice account that is associated with a legal that the TAOO will oversee; A lawyer shall not participate in offering matter for which the lawyer is primary (3) An acknowledgement that the TAOO or making: legal counsel or with the lawyer’s per- has completed the training described in (a) …; or formance of professional fiduciary serv- paragraph (c)(1) and a description of that (b) an agreement in which a restriction on ices; and training; the lawyer’s right to practice is part of the set- (2) review of the disbursement sheets or (4) A statement certifying that the TAOO tlement of a client controversy between pri- statements of costs and receipts, client understands the law firm’s accounting sys- vate parties. ledgers, and trust account balances for tem for trust accounts; and Comment those legal matters for which the lawyer is (5) An acknowledgement that the lawyers [1] …. primary legal counsel. in the firm remain professionally respon- [3] This Rule does not prohibit restric- (c) Training of the TAOO. sible for the operation of the firm’s trust tions that may be included in the terms of the (1) Within the six months prior to begin- accounts in compliance with Rule 1.15. sale of a law practice pursuant to Rule 1.17. ning service as a TAOO, a lawyer shall, Each year on the anniversary of the execu- The Rule also does not prohibit restrictions (A) read all subparts and comments to tion of the agreement, the TAOO and the on a lawyer’s right to practice that are Rule 1.15, all formal ethics opinions of managing lawyers shall execute a state- included in a plea agreement or other settle- the North Carolina State Bar interpret- ment confirming the continuing designa- ment of a criminal matter or the resolution ing Rule 1.15, and the North Carolina tion of the lawyer as the TAOO, certify- of a disciplinary proceeding where the State Bar Trust Account Handbook; ing compliance with the requirements of accused is a lawyer. n (B) complete one hour of accredited this rule, describing the training under- continuing legal education (CLE) on taken by the TAOO as required by para- trust account management approved by graph (c)(2), and reciting the statements the State Bar for the purpose of training required by subparagraphs (d)(1), (2), (4), a lawyer to serve as a TAOO; and (5). During the lawyer’s tenure as (C) complete two hours of training TAOO and for six years thereafter, the (live, online, or self-guided) presented agreement and all subsequent annual Download by a qualified educational provider on statements shall be maintained with the one or more of the following topics: (i) trust account records (see Rule 1.15-3(g)). the 2015 financial fraud, (ii) safeguarding funds (e) Mandatory Oversight Measures. from embezzlement, (iii) risk assess- In addition to any other record keeping or Lawyer’s ment and management for bank accounting requirement set forth in Rule accounts, (iv) information security and 1.15-2 and Rule 1.15-3, the firm shall adopt Handbook online banking, or (v) accounting a written policy detailing the firm’s trust basics; and account management procedures which shall The digital version of the 2015 (D) become familiar with the law firm’s annually be reviewed, updated, and signed by Lawyer’s Handbook is now available for accounting system for trust accounts. the TAOO and the managing lawyers. Each download and is free of charge. Visit (2) During each year of service as a version of the policy shall be retained for the the State Bar’s website at TAOO, the designated lawyer shall attend minimum record keeping period set forth in ncbar.gov/handbook.asp. one hour of accredited continuing legal Rule 1.15-3(g).

50 SUMMER 2015 PROPOSED OPINIONS

Committee Opines on When a Lawyer Must Disclose Potential Malpractice to a Client

Council Actions opinion appears at the end of this article. The Inquiry #1: At its meeting on April 17, 2015, the committee also voted to revise and republish May a lawyer who is mentoring a law stu- State Bar Council adopted the ethics opin- three proposed opinions (Proposed 2014 dent (“protégé”) allow the student to observe ions summarized below: FEO 1; Proposed 2014 FEO 9; and confidential client consultations between the 2015 Formal Ethics Opinion 1 Proposed 2014 FEO 11) and to publish one lawyer and the lawyer’s client? Preparing Pleadings and Other Filings new proposed opinion. for an Unrepresented Opposing Party The comments of readers on the pro- Opinion #1: Opinion rules that a lawyer may not pre- posed opinions are welcomed. Comments Yes, if the client gives informed consent. pare pleadings and other filings for an unrep- received before July 16, 2015, will be consid- The duty of confidentiality is set forth in resented opposing party in a civil proceeding ered at the next meeting of the Ethics Rule 1.6. It provides that all communica- currently pending before a tribunal if doing Committee. Comments may be emailed to tions relative to a client’s matter are confiden- so is tantamount to giving legal advice to that [email protected]. tial and cannot be disclosed unless the client person. consents, the client’s consent is implied as 2015 Formal Ethics Opinion 2 Proposed 2014 Formal Ethics necessary to carry out the representation, or Preparing Waiver of Right to Notice of Opinion 1 one of the specific exceptions to the duty of Foreclosure for Unrepresented Borrower Protecting Confidential Client confidentiality in Rule 1.6(b) applies. If a law Opinion rules that when the original Information When Mentoring student/protégé is not an agent of the lawyer debt is $100,000 or more, a lawyer for a April 16, 2015 for the purpose of representing the client, lender may prepare and provide to an Proposed opinion encourages lawyers to there is no implied client consent to disclo- unrepresented borrower, owner, or guaran- become mentors to law students and new sure of the client’s confidential information tor a waiver of the right to notice of fore- lawyers (“protégés”) who are not employees of to the student. Moreover, none of the specif- closure and the right to a foreclosure hear- the mentor’s firm, and examines the application ic exceptions to the duty of confidentiality ing pursuant to N.C.G.S. § 45-21.16(f) if of the duty of confidentiality to client commu- apply in this situation. Only the express the lawyer explains the lawyer’s role and nications to which a protégé may be privy. informed consent of the client will permit does not give legal advice to any unrepre- disclosure of confidential client information sented person. However, a lawyer may not Note: to a law student/protégé. prepare such a waiver if the waiver is a part This opinion does not apply to law stu- “Informed consent,” as defined in Rule of a loan modification package for a mort- dents certified pursuant to the Rules 1.0, Terminology, “denotes the agreement by gage secured by the borrower’s primary res- Governing the Practical Training of Law the person to a proposed course of conduct idence. Students (27 N.C.A.C 1C, Section .0200) or after the lawyer has communicated adequate 2015 Formal Ethics Opinion 3 to lawyers, employees, or law clerks (paid or information and explanation appropriate Offering Prospective Client a Computer volunteer) being mentored or supervised by under the circumstances.” Rule 1.0(f). Tablet in Direct Mail Solicitation a lawyer within the same firm. This opinion Informed consent must be given in writing Opinion rules that a lawyer may not offer addresses issues pertaining to informal men- by the client or confirmed in writing by the a computer tablet to a prospective client in a toring relationships between lawyers, or lawyer. See Rule 1.0(c). In the mentoring sit- direct mail solicitation letter. between a lawyer and a law student, as well uation, obtaining the client’s informed con- as to established bar and/or law school men- sent requires the lawyer to explain the risks to Ethics Committee Actions toring programs. Mentoring relationships the representation of the client that will be At its meeting on April 16, 2015, the between a lawyer and a college or a high presented by the law student’s knowledge of Ethics Committee voted to publish a substi- school student are not addressed by this client confidential information and the law tute opinion for 2014 FEO 5 (7/25/14), opinion because such relationships require student’s presence during client consulta- Advising a Client About Social Media, but more restrictive measures due to these stu- tions. deferred voting on whether to withdraw the dents’ presumed inexperience and lack of One such risk is the possibility that the existing opinion to permit consideration of understanding of a lawyer’s professional law student, who is not subject to the Rules comment on the proposed substitute opin- responsibilities, particularly the professional of Professional Conduct, will intentionally or ion received after publication. The substitute duty of confidentiality. unintentionally reveal the client’s confiden-

THE NORTH CAROLINA STATE BAR JOURNAL 51 tial information to unauthorized persons. To opposing party is not represented in the cur- minimize this risk, it is recommended that rent matter by the lawyer/mentor. Similarly, the law student be required to sign a confi- the lawyer/mentor should obtain informa- Public Information dentiality agreement that emphasizes the tion sufficient to determine that the duty not to disclose any client confidential lawyer/protégé’s matter is not one affecting The Ethics Committee’s meetings are information unless the client and the lawyer the interests of an existing or former client. public, and materials submitted for con- give express consent. Rule 1.7 and Rule 1.9. sideration are generally NOT held in The lawyer should also explain to the confidence. Persons submitting requests client any risk that the attorney-client privi- Inquiry #3: for advice are cautioned that inquiries lege1 will not attach to client communica- When a lawyer seeks advice from a should not disclose client confidences or tions with the lawyer because of the presence lawyer/mentor, what actions should be taken sensitive information that is not neces- of the law student during the lawyer’s consul- to protect confidential client information? sary to the resolution of the ethical ques- tation with the client. If the lawyer concludes tions presented. that the student’s presence will jeopardize the Opinion #3: attachment of the privilege and the resulting If possible, the lawyer/protégé should try harm to the client’s interests is substantial, to obtain guidance from the lawyer/mentor Rule 1.7 and Rule 1.9. the lawyer should consider carefully whether without disclosing identifying client infor- it is appropriate to ask the client to consent mation. This can often be done by using a Endnote to the student’s presence during the consulta- hypothetical. If the consultation is general 1. The attorney-client evidentiary privilege to avoid com- tion. and does not involve the disclosure of identi- pelled testimony applies to client communications with a lawyer if (1) the relation of attorney and client existed fying client information, client consent is at the time the communication was made, (2) the com- Inquiry #2: unnecessary. munication was made in confidence, (3) the commu- A lawyer wants to be a mentor to a new If the consultation is intended to help the nication relates to a matter about which the attorney is lawyer (“protégé”) who is not employed by lawyer/protégé comply with the ethics rules, being professionally consulted, (4) the communication was made in the course of giving or seeking legal advice or affiliated with the lawyer/mentor’s law client consent is not required because Rule for a proper purpose although litigation need not be firm. The lawyer/mentor wants to allow the 1.6(b)(5) allows a lawyer to reveal protected contemplated, and (5) the client has not waived the new lawyer to observe his consultations with client information to the extent that the privilege. State v. McIntosh, 336 N.C. 517, 444 S.E.2d clients, and he also wants to observe the new lawyer reasonably believes necessary “to 438 (1994). lawyer’s consultations with the new lawyer’s secure legal advice about the lawyer’s compli- clients in order to critique and advise the new ance with [the Rules of Professional Proposed 2014 Formal Ethics lawyer. Conduct].” Pursuant to comment [10] to Opinion 9 May the lawyer/mentor allow the Rule 1.6: Use of Tester in an Investigation that lawyer/protégé to observe confidential client A lawyer’s confidentiality obligations do Serves a Public Interest consultations between the lawyer/mentor not preclude a lawyer from securing con- April 16, 2015 and his client? May the lawyer/protégé allow fidential legal advice about the lawyer’s Proposed opinion rules that a private lawyer the lawyer/mentor to observe confidential personal responsibility to comply with may supervise an investigation involving mis- client consultations between the lawyer/pro- [the Rules of Professional Conduct.] In representation if done in pursuit of a public tégé and his client? most situations, disclosing information to interest and certain conditions are satisfied. secure such advice will be impliedly Opinion #2: authorized for the lawyer to carry out the Note: Yes, these observations are allowed with representation. Even when the disclosure This opinion does not apply to the con- the client’s informed consent. See Opinion is not impliedly authorized, paragraph duct of a government lawyer. As explained in #1. The observing lawyer should sign an (b)(5) permits such disclosure because of comment [1] to Rule 8.4, the prohibition in agreement to maintain the confidentiality of the importance of a lawyer’s compliance Rule 8.4(a) against knowingly assisting the information of the other lawyer’s client, with the Rules of Professional Conduct. another to violate the Rules of Professional in accordance with Rule 1.6, and to avoid If the consultation does not involve Conduct or violating the Rules of representations adverse to the client in accor- advice about the lawyer’s compliance with Professional Conduct through the acts of dance with Rule 1.7 and Rule 1.9. the Rules of Professional Conduct, a hypo- another does not prohibit a government Both the lawyer/protégé and the thetical is not practical, or making the lawyer from providing legal advice to investi- lawyer/mentor should avoid the creation of a inquiry risks disclosure of information relat- gatory personnel relative to any action such conflict of interest with any existing or for- ing to the representation, the lawyer/protégé investigatory personnel are lawfully entitled mer clients by virtue of the mentoring rela- must obtain client consent. See Opinion #2. to take. tionship. For example, the lawyer/protégé Under all circumstances, the lawyer/pro- In addition, this opinion is limited to pri- should not consult with a lawyer he knows tégé and the lawyer/mentor should avoid the vate lawyers who advise, direct, or supervise has represented the opposing party in the creation of a conflict of interest with any conduct involving dishonesty, deceit, or mis- past without first ascertaining that the mat- existing or former clients by virtue of the representation as opposed to a lawyer who ters are not substantially related and that the mentoring relationship. See Opinion #2; personally participates in such conduct.

52 SUMMER 2015 to retain a private investigator to investigate that a lawyer may advise, direct, or supervise E’s wage payment practices. The private an investigation involving pretext under cer- Rules, Procedure, investigator suggests using lawful, but mis- tain limited circumstances. leading or deceptive tactics, to obtain the In the pursuit of a legitimate public inter- Comments information Attorney A seeks. For example, est such as in investigations of discrimination the private investigator may pose as a person in housing, employment and accommoda- All opinions of the Ethics interested in being hired by E in the same tions, patent and intellectual property Committee are predicated upon the capacity as Client C to see if E violates the infringement, and the production and sale of Rules of Professional Conduct as revised North Carolina Wage and Hour Act when contaminated and harmful products, a effective March 1, 2003, and thereafter compensating the investigator. lawyer may advise, direct, and supervise the amended, and referred to herein as the Prior to filing a lawsuit, may Attorney A use of misrepresentation (1) in lawful efforts Rules of Professional Conduct (2003). retain a private investigator who will misrep- to obtain information on actionable viola- The proposed opinions are issued pur- resent his identity and purpose when con- tions of criminal law, civil law, or constitu- suant to the “Procedures for Ruling on ducting an investigation into E’s wage pay- tional rights; (2) if the lawyer’s conduct is Questions of Legal Ethics.” 27 ment practices? otherwise in compliance with the Rules of N.C.A.C. ID, Sect .0100. Any interest- Professional Conduct;1 (3) the lawyer has a ed person or group may submit a writ- Opinion: good faith belief that there is a reasonable ten comment or request to be heard The Rules of Professional Conduct are possibility that a violation of criminal law, concerning a proposed opinion. Any rules of reason and there are instances when civil law, or constitutional rights has taken comment or request should be directed the use of misrepresentation does not violate place, is taking place, or will take place in the to the Ethics Committee at PO Box Rule 8.4(a)’s prohibition on the use of third foreseeable future;2 (4) misrepresentations 25908, Raleigh, NC 27611, by June 30, parties to engage in conduct involving mis- are limited to identity or purpose; and (5) 2015. representation. See Rule 0.2, Scope, and Rule the evidence sought is not reasonably avail- 8.4(a) and (c). able through other means. A lawyer may not Other jurisdictions have interpreted their advise, direct, or supervise the use of misrep- Rules of Professional Conduct to permit resentation to pursue the purely personal lawyer supervision of investigations involv- interests of the lawyer’s client, where there is Captions and ing misrepresentation in circumstances simi- no public policy purpose, such as the inter- Headnotes lar to that set out in the instant inquiry. For ests of the principal in a family law matter. example, the bars of Arizona and Maryland If Attorney A concludes that each of the A caption and a short description of permit lawyers to use “testers” who employ above conditions is satisfied, he may retain a each of the proposed opinions precedes misrepresentation to collect evidence of dis- private investigator to look into E’s wage pay- the statement of the inquiry. The cap- criminatory practices. Ariz. State Bar Comm. ment practices, which investigation may tions and descriptions are provided as on the Rules of Prof’l Conduct, Op. 99-11 include misrepresentations as to identity and research aids and are not official state- (1999); Maryland Bar Ass’n, Op. 2006-02 purpose. ments of the Ethics Committee or the (2005). These ethics opinions conclude that council. testers are necessary to prove discriminatory Endnotes practices and, therefore, serve an important 1. Rule 4.2(a) prohibits a lawyer from communicating public policy. The State Bar of Arizona about the subject of the representation with a person Inquiry: the lawyer knows to be represented by another lawyer opined that it would be inconsistent with the in the matter unless the other lawyer consents or the Attorney A was retained by Client C to intent of the Rules of Professional Conduct communication is authorized by law or court order. A investigate and, if appropriate, file a lawsuit to interpret the rules to prohibit a lawyer lawyer may not violate this rule through the acts of against Client C’s former employer, E. from supervising the activity of testers. Ariz. another, including an investigator. Rule 8.4(a). Employer E employed Client C as a janitor State Bar Comm. on the Rules of Prof’l 2. Government evidence or data that supports the conclu- sion that random testing will uncover illegal discrimi- and required him to work 60 hours per Conduct, Op. 99-11 (1999). natory conduct is a sufficient basis for a lawyer’s “good week. E paid Client C a salary of $400 per The objective of Rule 8.4 is set out in faith belief” under this condition. For example, federal week. Attorney A believes that because his comment [3] to the rule: “The purpose of funding and contracts for Legal Aid of North Carolina, client’s employment was a “non-exempt posi- professional discipline for misconduct is not Inc.’s (LANC) Fair Housing Project require the per- formance of systematic fair housing testing to uncover tion” under the North Carolina Wage and punishment, but to protect the public, the patterns, practices, barriers, and other more subtle Hour Act, the payment method used by E courts, and the legal profession.” The chal- forms of unlawful housing discrimination in North was unlawful. Instead, E should have paid lenge is to balance the public’s interest in Carolina. Studies and evidence developed by US Client C at least $7.25 (minimum wage) per having unlawful activity fully investigated Department of Housing and Urban Development con- firm that systematic fair housing testing is an important hour for each of the first 40 hours Client C and possibly thereby stopped, with the pub- tool to detect housing discrimination. A LANC lawyer worked per week, and at least $10.88 (time lic’s and the profession’s interest in ensuring may rely on such evidence to form a good faith belief and a half) for each hour in excess of 40 that lawyers conduct themselves with integri- that there is a reasonable possibility that a violation of (overtime) that Client C worked per week. ty and honesty. In an attempt to balance fair housing law has, is, or will take place and that ran- dom audits by “testers” supervised by the lawyer will Prior to filing a lawsuit, Attorney A wants these two important interests, we conclude uncover such conduct.

THE NORTH CAROLINA STATE BAR JOURNAL 53 the newborn child. legal question beyond the purview of the Proposed 2014 Formal Ethics Ethics Committee. For this exception to Opinion 11 Inquiry #1: apply, however, there must be “a statute or Notice to Parents Prior to Seeking Is the lawyer for DSS required to notify case law specifically and clearly authorizing Nonsecure Custody Order the respondent parents’ lawyers prior to or at such communication. Such authorization April 16, 2015 the time of filing the new petition alleging may not be inferred by the absence in the Proposed opinion rules that a DSS lawyer abuse, neglect, or dependency as to the new- statute or case law of a specific statement must follow legal notice requirements when fil- born child? requiring notice to the adverse party or coun- ing a petition alleging abuse, neglect, or sel prior to the ex parte communication.” dependency and must comply with Rule 3.5 Opinion #1: 2001 FEO 15. regarding ex parte motions for nonsecure cus- The issue of notice is a legal question not tody. governed by the Rules of Professional Proposed 2015 Formal Ethics Conduct. The DSS lawyer must follow the Opinion 4 Facts: legal guidelines established as to the notice or Disclosing Potential Malpractice to a In cases when immediate removal of a service required prior to or at the time of fil- Client child is deemed necessary, the County ing the petition alleging abuse, neglect, or April 16, 2015 Department of Social Services (DSS) must dependency. file a petition alleging abuse, neglect, or If the law does not require such notice, it Introduction dependency, and obtain a nonsecure custody would be consistent with the Rules of Lawyers will, inevitably, make errors, mis- order. Professional Conduct for the DSS lawyer to takes, and omissions (referred to herein as an The petition alleging abuse, neglect, or provide the parents’ lawyers with notice prior “error” or “errors”) when representing clients. dependency must be filed prior to the to or at the time of the filing, particularly Such errors may constitute professional mal- request for a nonsecure custody order. The when the parents’ lawyers have requested practice, but are not necessarily professional parties to the action are DSS as petitioner, such notice as to the unborn child. Rule misconduct. This distinction between pro- the respondent parents, the child (who is 1.2(a)(2) provides: fessional or legal negligence and professional appointed a guardian ad litem), and, A lawyer does not violate this rule by misconduct is explained in comment [9] to depending upon the facts, a legal guardian, acceding to reasonable requests of oppos- Rule 1.1, Competence: legal custodian, or adult caretaker of the ing counsel that do not prejudice the An error by a lawyer may constitute pro- child. N.C. Gen. Stat. § 7B-401.1 (2013). rights of a client, by being punctual in fessional malpractice under the applicable Upon the filing of the petition, respondent fulfilling all professional commitments, standard of care and subject the lawyer to parents are each appointed provisional coun- by avoiding offensive tactics, or by treat- civil liability. However, conduct that con- sel by the clerk. The provisional counsel ing with courtesy and consideration all stitutes a breach of the civil standard of remain appointed to each parent unless the persons involved in the legal process. care owed to a client giving rise to liability parent does not appear at the hearing, the for professional malpractice does not nec- court finds that the parent is not indigent, Inquiry #2: essarily constitute a violation of the ethi- the parent retains his/her own counsel, or the Rule 3.5 prohibits ex parte communica- cal duty to represent a client competently. parent waives his/her right to counsel. N.C. tion with a judge except in certain limited A lawyer who makes a good-faith effort to Gen. Stat. § 7B-602 (2013). Very specific situations. Does Rule 3.5 apply to the filing be prepared and to be thorough will not criteria for nonsecure custody are set out in of the ex parte motion for nonsecure custody generally be subject to professional disci- N.C. Gen. Stat. § 7B-503 (2011). Pursuant as to the newborn child? pline, although he or she may be subject to N.C. Gen. Stat. § 7B-506 (2013), if non- to a claim for malpractice. For example, a secure custody is needed for more than seven Opinion #2: single error or omission made in good calendar days, there must be a hearing on the Yes. Rule 3.5 governs a lawyer’s commu- faith, absent aggravating circumstances, merits within that time. nication with a judge about a pending mat- such as an error while performing a pub- The instant inquiry involves a family ter. Rule 3.5(a)(3) provides that a lawyer shall lic records search, is not usually indicative where there is a pending DSS action and not communicate ex parte with a judge or of a violation of the duty to represent a each parent has been appointed counsel. The other official except in the course of official client competently. children have been adjudicated abused, neg- proceedings, in writing, if a copy is furnished Although an error during the representa- lected, and/or dependent, and the case is in simultaneously to the opposing party, orally, tion of a client may not constitute profes- the permanency planning and review stage. upon adequate notice to the opposing party, sional misconduct, the actions that the The respondent mother is pregnant (it is or “as otherwise permitted by law.” lawyer takes following the realization that she unknown whether the father is same father The lawyer for DSS must comply with has committed an error should be guided by as in the underlying abuse, neglect, or Rule 3.5(a)(3) as to any ex parte communica- the requirements of the Rules of Professional dependency action). Upon the birth of the tions with a judge following the filing of the Conduct. This opinion explains a lawyer’s infant, DSS intends to file a petition alleging petition relative to the newborn child. professional responsibilities when the lawyer abuse, neglect, or dependency and to file an Whether an ex parte motion for nonsecure has committed what she believes may be ex parte motion for nonsecure custody as to custody is specifically authorized by law is a legal malpractice.

54 SUMMER 2015 This opinion does not address require- error falls on the spectrum and the circum- Conflict of Interest: Current Clients, that allow ments under a lawyer’s malpractice insurance stances at the time that the error is discov- a representation burdened with a conflict to policy to give the insurer notice or to report ered. The New York State Bar Association, proceed cannot be satisfied. a potential claim. Lawyers are encouraged to in a formal opinion, described the duty as Rule 1.7(a)(2) states that a lawyer may read their policies. This opinion also does follows: not represent a client if the representation of not address settlement of a malpractice [W]hether an attorney has an obligation a client may be materially limited by a per- claim. Lawyers are reminded that Rule to disclose a mistake to a client will sonal interest of the lawyer. When a lawyer 1.8(h)(2) prohibits settlement of a malprac- depend on the nature of the lawyer’s pos- realizes that she made an error that may give tice claim with an unrepresented client or sible error or omission, whether it is pos- rise to a malpractice claim against her, the former client unless the person is advised in sible to correct it in the present proceed- lawyer’s personal interest in avoiding liability writing of the desirability of seeking and ing, the extent of the harm resulting from may materially impair her professional judg- given a reasonable opportunity to seek the the possible error or omission, and the ment. Specifically, she may take actions that advice of independent legal counsel. likelihood that the lawyer’s conduct are contrary to the interests of the client to would be deemed unreasonable and protect herself from liability. This is the Inquiry #1: therefore give rise to a colorable malprac- essence of a conflict of interest. When the lawyer determines that an error tice claim. Nevertheless, in many instances the that may constitute legal malpractice has N.Y. State Bar Ass’n Comm. Prof’l Ethics, lawyer may reasonably believe that she can occurred, is the lawyer required to disclose Op. 734 (2000). Under this analysis, it is mitigate or avoid any loss to the client by tak- the error to the client? clear that material errors that prejudice the ing corrective action.3 For example, an error client’s rights or interests as well as errors that made in a title search may be readily repaired Opinion #1: clearly give rise to a malpractice claim must or a motion in limine may prevent the use of Disclosure of an error to a client falls always be reported to the client. Conversely, privileged communications that were within the duty of communication. Rule if the error is easily corrected or negligible improperly produced in discovery. It is often 1.4(a)(3) requires a lawyer to “keep the client and will not materially prejudice the client’s in the best interest of both the lawyer and the reasonably informed about the status of the rights or interests, the error does not have to client for the lawyer to attempt such repair. matter,” while paragraph (b) of the rule be disclosed to the client. When the interests of the lawyer and the requires a lawyer to “explain a matter to the Errors that fall between the two extremes client are aligned in this way, withdrawal is extent reasonably necessary to permit the of the spectrum must be analyzed under the not required if the conditions for consent in client to make informed decisions regarding duty to keep the client reasonably informed Rule 1.7(b) are satisfied. the representation.” Comment [3] to the about his legal matter. If the error will result Rule 1.7(b) allows a lawyer to proceed rule explains that paragraph (a)(3) requires in financial loss to the client, substantial with a representation burdened by a conflict that the lawyer keep the client reasonably delay in achieving the client’s objectives for if the lawyer reasonably believes that she informed about “significant developments the representation, or material disadvantage will be able to provide competent and dili- affecting the timing or the substance of the to the client’s legal position, the error must gent representation to the client and the representation.” Comment [7] to Rule 1.4 be disclosed to the client. Similarly, if disclo- client gives informed consent, confirmed in adds that “[a] lawyer may not withhold sure of the error is necessary for the client to writing. If the lawyer reasonably concludes information to serve the lawyer’s own interest make an informed decision about the repre- that she is still able to provide the client or convenience or the interests or conven- sentation or for the lawyer to advise the with competent and diligent representa- ience of another person.” client of significant changes in strategy, tim- tion—that she can exercise independent In the spectrum of possible errors,1 mate- ing, or direction of the representation, the professional judgment to advance the inter- rial errors that prejudice the client’s rights or lawyer may not withhold information about ests of the client and not solely her own claims are at one end. These include errors the error. Rule 1.4. When a lawyer does not interests—the lawyer may seek the that effectively undermine the achievement know whether disclosure is required, the informed consent of the client to continue of the client’s primary objective for the repre- lawyer should err on the side of disclosure or the representation. sentation, such as failing to file the complaint should seek the advice of outside counsel, the Of course, when an error is such that the before the statute of limitations runs. At the State Bar’s ethics counsel, or the lawyer’s mal- client’s objective can no longer be achieved, other end of the spectrum are minor, harm- practice carrier.2 as when a claim can no longer be filed less errors that do not prejudice the client’s because the statute of limitations has passed, rights or interests. These include nonsub- Inquiry #2: the lawyer must disclose the error to the stantive typographical errors in a pleading or Applying the analysis in Opinion #1, the client and terminate the representation. a contract or missing a deadline that causes lawyer has determined that her error must be nothing more than delay. Between the two disclosed to the client. Is the lawyer also Inquiry #3: ends of the spectrum are a range of errors required to withdraw from the representa- If an error must be disclosed to a client, that may or may not materially prejudice the tion? what must the lawyer tell the client? client’s interests. Whether the lawyer must disclose an Opinion #2: Opinion #3: error to a client depends upon where the No, unless the conditions in Rule 1.7, The lawyer must candidly disclose the

THE NORTH CAROLINA STATE BAR JOURNAL 55 material facts surrounding the error, includ- should not provide to the client when dis- Inquiry #8: ing the nature of the error and its effect on closing her error to the client? If the client has paid legal fees to the the lawyer’s continued representation. If the lawyer, is the lawyer required to return some lawyer believes that she can take steps to rem- Opinion #4: or all of the fees that she received? edy the situation or mitigate or avoid a loss, The lawyer should not disclose to the the lawyer should discuss these with the client whether a claim for malpractice exists Opinion #8: client while informing the client that the or provide legal advice about legal malprac- Rule 1.5(a) prohibits a lawyer from col- client has the right to terminate the represen- tice. See Opinion #3. lecting a clearly excessive fee. As stated in tation and seek other counsel. Rule 1.4. 2000 FEO 5, Whether a lawyer must inform the client Inquiry #5: there is always a possibility that a lawyer that the client may have a malpractice action When is the lawyer required to inform will have to refund some or all of any type against the lawyer was addressed in Colorado the client of the error? of advance fee, if the client-lawyer rela- Formal Ethics Opinion 113. The opinion tionship ends before the contemplated states that Opinion #5: services are rendered. At the conclusion of The lawyer need not advise the client The error should be disclosed to the client the representation, the lawyer must about whether a claim for malpractice as soon as possible after the lawyer deter- review the entire representation and exists, and indeed the lawyer’s conflicting mines that disclosure of the error to the client determine whether, in light of the cir- interest in avoiding liability makes it is required. See Rule 1.4(a)(1) (lawyer shall cumstances, a refund is necessary to avoid improper for the lawyer to do so. The promptly inform the client of any decision a clearly excessive fee. lawyer need not, and should not, make an requiring consent). Therefore, the lawyer must determine admission of liability. What must be dis- whether, in light of the lawyer’s error and its closed are the facts that surround the Inquiry #6: consequences for the client’s interests and error, and the lawyer should inform the Is filing a motion to undo the error based legal representation, a refund is necessary to client that it may be advisable to consult upon excusable neglect sufficient disclosure avoid a clearly excessive fee. In addition, the with an independent lawyer with respect to the client if the client is copied with the lawyer should never charge or collect legal to the potential impact of the error on the motion? May the lawyer wait until the court fees for any legal work or expenses necessitat- client’s rights or claims. has ruled on the motion to send a copy of the ed by the lawyer’s attempts to mitigate the Co. Formal Ethics Op. 113 (November 19, motion and order to the client? consequences of the lawyer’s error. 2005). The Colorado approach appropriate- ly limits the possibility that a lawyer will Opinion #6: Endnotes attempt to give legal advice to a client about As noted above, comment [3] to Rule 1. The “spectrum” concept of legal errors is borrowed a potential malpractice claim against the 1.4 explains that a lawyer must keep the from Colorado Formal Ethics Op. 113 (November 19, 2005). lawyer. To do so would place the lawyer client reasonably informed about “signifi- 2. Rule 1.6(b)(5) allows a lawyer to disclose confidential squarely in a nonconsentable conflict cant developments affecting the timing or client information to secure legal advice about the between the client’s interest and the lawyer’s the substance of the representation.” If the lawyer’s compliance with the Rules of Professional personal interest. However, the lawyer is client will lose a significant right or interest Conduct. required to tell the client the operative facts if the motion fails, the client is entitled to 3. Insurance carriers are experienced at repairing malprac- about the error and to recommend that the know about the error in order to determine tice. A lawyer should seek the advice and assistance of her carrier. client seeking independent legal advice about whether the client is willing to allow the the consequences of the error. lawyer to attempt to correct the error or Proposed Substitute for 2014 Formal Under this approach, the lawyer is not would prefer that the motion be handled Ethics Opinion 5 (Adopted 7/25/14) required to inform the client of the statute of by another lawyer. The client must be Advising a Civil Litigation Client about limitations applicable to legal malpractice advised of the error prior to filing the Social Media actions, nor is she required to give the client motion to allow the client to make an April 16, 2015 information about the lawyer’s malpractice informed decision about the representa- Proposed opinion rules a lawyer must advise insurance carrier or information about how tion. Rule 1.4(b). a civil litigation client about the legal ramifica- to file a claim with the carrier. Nevertheless, tions of the client’s postings on social media as the lawyer should seek the advice of her mal- Inquiry #7: necessary to represent the client competently. practice insurance carrier prior to disclosing When disclosing the error to the client, The lawyer may advise the client to remove the error to the client, and should discuss may the lawyer refer the client to another postings on social media if the removal is done with the carrier what information, if any, lawyer for advice? in compliance with the rules and law on preser- should be provided to the client about the vation and spoliation of evidence. lawyer’s malpractice coverage or how to file a Opinion #7: claim. Yes, if the lawyer concludes that she can Inquiry #1: exercise impartial, independent professional A client’s postings and other information Inquiry #4: judgment in recommending other counsel to that the client has placed on a social media1 Is there any information that the lawyer the client. See Opinion #2. website (referred to collectively as “postings”)

56 SUMMER 2015 are relevant to the issues in the client’s legal removal is done in compliance with the rules Endnotes matter and, if the matter is litigated, might and law on preservation and spoliation of 1. “Social media” is defined as “forms of electronic com- be used to impeach the client. The client’s evidence, the lawyer may instruct the client munication ([such] as Websites for social networking lawyer does not use social media and is unfa- to remove existing postings on social media. and microblogging) through which users create miliar with how social media functions. The lawyer may take possession of printed or online communities to share information, ideas, per- sonal messages, and other content ([such] as videos).” What is the lawyer’s duty to be knowl- digital images of the client’s postings made Social Media, Merriam-Webster, merriam- edgeable of social media and to advise the for purposes of preservation. See N.Y. State webster.com/dictionaty/social%20 media (last visited client about the effect of the postings on the Bar, Ethics Op. 745 (2013)(lawyer may Jan. 20, 2015). client’s legal matter? advise a client about the removal of postings 2. Black’s Law Dictionary 1437 (8th ed. 2004) defines spo- if the lawyer complies with the rules and law liation as the intentional concealment, destruction, alteration or mutilation of evidence, usually docu- Opinion #1: on preservation and spoliation of evidence). ments, thereby making them unusable or invalid. The Rule 1.1 requires lawyers to provide com- doctrine of spoliation of evidence holds that when “a petent representation to clients. Comment Inquiry #3: party fails to introduce in evidence documents that are [8] to the rule specifically states that a lawyer May the lawyer instruct the client to relevant to the matter in question and within his con- trol...there is a presumption, or at least an inference that “should keep abreast of changes in the law change the security and privacy settings on the evidence withheld, if forthcoming, would injure his and its practice, including the benefits and social media pages to the highest level of case.” Jones v. GMRI, Inc., 144 N.C. App. 558, 565, risks associated with the technology relevant restricted access? 551 S.E.2d 867, 872(2001) (quoting Yarborough v. to the lawyer’s practice.” “Relevant technolo- Hughes, 139 N.C. 199, 209, 51 S.E. 904, 907-08 (1905)). gy” includes social media. As stated in an Opinion #3: opinion of the New Hampshire Bar Yes, if doing so is not a violation of law or n Association, N. H. Bar Ass’n Op. 2012- court order. 13/05, “counsel has a general duty to be aware of social media as a source of potential- ly useful information in litigation, to be competent to obtain that information direct- ly or through an agent, and to know how to In Memoriam make effective use of that information in lit- igation.” Cade Lee Austin D. Marsh McLelland If the client’s postings could be relevant Charlotte, NC Burlington, NC and material to the client’s legal matter, com- Mark Richard Bernstein Philip Hodgin Modlin petent representation includes advising the Charlotte, NC Jamestown, NC client of the legal ramifications of existing postings, future postings, and third party Joe Oliver Brewer John Knox Patterson comments. Wilkesboro, NC Burlington, NC Don R. Castleman Hugh H. Peoples Inquiry #2: Winston-Salem, NC Mount Airy, NC The client’s legal matter will probably be litigated, although a law suit has not been David Lee Credle John Oliver Pollard filed. May the lawyer instruct the client to Elizabeth City, NC Charlotte, NC remove postings on social media? Charles Lemuel Cromer Elton Claude Pridgen Apex, NC Smithfield, NC Opinion #2: A lawyer may not counsel a client or assist Roy W. Davis Jr. Daniel Reid Simpson a client to engage in conduct the lawyer Asheville, NC Morganton, NC knows is criminal or fraudulent. Rule 1.2(d). Robert Harrison Gourley Sr. Keith McLendon Stroud In addition, a lawyer may not unlawfully Statesville, NC Charlotte, NC obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a docu- Ann Elizabeth Hanks Thomas Spruill Thornton Jr. ment or other material having potential evi- High Point, NC Greensboro, NC dentiary value. Rule 3.4(a). The lawyer, Grover Prevatte Hopkins Joseph VonKallist therefore, should examine the law on preser- Tarboro, NC Charlotte, NC vation of information, spoliation2 of evi- Frederick Strickland Hutchins Jr. George Edward Weaver II dence, and obstruction of justice to deter- Clemmons, NC Asheville, NC mine whether removing existing postings would be a violation of the law. Pamela Lee Kopp Walter Frederick Williams Sr. If removing postings does not constitute Charlottesville, VA Greensboro, NC spoliation and is not otherwise illegal, or the

THE NORTH CAROLINA STATE BAR JOURNAL 57 BAR UPDATES

Law School Briefs

All of the law schools located in North will act as vice-chair. Both will serve three- Carolina are invited to provide material for this year terms. Duke Law School column. Below are the submissions we received New dual-degree program combines law, this quarter. Charlotte School of Law bioethics, and science policy—A new dual- New leadership—Chidi Ogene, previously degree program enables Duke Law students to Campbell University School of Law interim dean at Florida Coastal School of Law, combine a JD with a master’s focused on the Campbell Law wins South Texas Mock was appointed as Charlotte School of Law’s interrelationships between science, law, ethics, Trial Challenge—Campbell Law student third president. Ogene will succeed President and policy—and complete them both in just advocates collected the national champi- Don Lively, who is leaving to become the three years. onship at the prestigious South Texas Mock president of Arizona Summit School of Law. Students pursuing the JD/MA in Trial Challenge for the second time in three Through this appointment, Ogene will be the Bioethics and Science Policy are required to years. Third-year students Terry Brown Jr., first African-American to serve as president at complete 36 additional credits to earn the Lauren Fussell, and Kaitlin Rothecker won CharlotteLaw and only one of 10% in the master’s degree, which involves other Duke every single trial in all seven rounds of the United States to lead a law school. schools, departments, and programs. The competition en route to the title. Rothecker Partnership with Haitian Foundation— law school will accept 12 of those credits picked up a handful of individual awards as CharlotteLaw has entered into a cooperative towards the JD to make it possible to com- well, including the Williams Kherkher agreement with a renowned Haitian plete both sets of requirements in six semes- Trophy as the most professional advocate Foundation in an effort to increase access to ters and one summer. The program’s cap- from a field of more than 140 competitors justice for Haitian citizens. The partnership stone requirement is satisfied through a and the Laminack, Pirtle & Martines Trophy with Institut Dwa Tout Moun (“Institute for practicum completed during a full summer as the best advocate in the championship Rights of All People”) will pave the way for pro in Washington, DC, or other externship final round. bono, externship, and law clinic opportunities locations after the 1L year. Campbell Law ranked second nationally in Haiti. The Institute for Rights for All Wrongful Convictions Clinic gains sup- for best bar exam prep—Campbell Law People was founded by Maitre Jean Henry port—A $1 million commitment to the School has been named the second best law Céant and projects the emergence of a united Duke Wrongful Convictions Clinic from school in the country for bar exam prepara- vision of respect for human rights in Haiti. William Louis-Dreyfus ‘57 has the potential tion by The National Jurist. Of the 50 schools The foundation focuses primarily on the dis- to change clients’ lives by supporting the included on the list, Campbell Law is the only semination of information on laws, prioritiz- work of students and faculty to investigate North Carolina law school selected for inclu- ing the formation of new citizens placing the and litigate claims of actual innocence. Louis- sion. Over the course of the past 25 years, general interest above special interests and Dreyfus’s pledge will fund activities essential 90.89% of Campbell Law graduates have complete dedication to the service of the to the clinic’s teaching and service mission: passed the July North Carolina bar exam on Haitian nation. This mission is accomplished investigative research and travel; retaining their first try, tops among the seven North through information, training, and education, expert witnesses; developing legal strategies; Carolina law schools for the emergence of new fully imbued citi- making legal filings; and purchasing tran- Campbell Law named one of the best law zens of their rights and duties. scripts, to name a few. schools for practical training—Campbell Law CharlotteLaw student recognized by ABA 3L receives EJI Legal Fellowship—Judea School has been selected as one of the top law Student Division—Maritza Adonis was Davis ‘15 has been awarded a two-year post- schools in the country for practical training by awarded the American Bar Association graduate fellowship with the Equal Justice The National Jurist. Campbell Law also (ABA) Student Division Silver Key Award Initiative in Montgomery, AL. The EJI Legal received the highest rating of any North for Leadership on Saturday, March 14, 2015, Fellowship promises to engage Davis in an Carolina law school. at the ABA Board of Governors meeting in examination of the legal history of racial sub- Jones, Miller elected to chair alumni asso- Las Vegas, NV. The Silver Key is the highest ordination, exclusion, and segregation as part ciation board—Todd Jones (L ‘98) and recognition given by the American Bar of a new initiative on race and poverty. Kimberly Miller (L ‘07) have been elected to Association Law Student Division annually. The Equal Justice Initiative is a nonprofit chair the newly-launched Campbell Law Adonis has served as Fourth Circuit governor law and human rights organization that pro- Alumni Association Board of Directors. The for the past year, which consists of serving as vides legal assistance to condemned prisoners, pair was elected by the alumni association a regional representative for 17 law schools children in the criminal justice system, people board in February. Jones will serve as chair of from four states and sits on a national ABA wrongfully convicted or sentenced, and peo- the alumni association board, while Miller board. ple facing imprisonment.

58 SUMMER 2015 Suite at Durham County Courthouse. Three Banking Institute—During the 19th Elon University School of Law hours a day, four days a week, the public can annual Banking Institute held March 26-27 Luke Bierman proposes four steps to rein- have their questions answered at no cost as in Charlotte, the UNC Center for Banking vent legal education—In the ABA Journal’s they navigate the court system. Although and Finance honored Anthony “Tony” “The New Normal” series (April 15), Elon three of the school’s 13 clinics regularly staff Gaeta Jr. with a Leadership Award given for Law Dean Luke Bierman calls for “better the community suite, one of the most consis- just the fifth time in center history. Gaeta, training in writing, business skills, project tent is the Family Law Clinic under the who practices with Wyrick Robbins Yates & management, technology, data analytics, supervision of Senior Clinical Professor Ponton LLP in Raleigh, has served on the leadership development, and communica- Nakia Davis. Board of Advisors of the Banking Institute tion” enabling “lawyers to blossom from nar- Davis described a case in which a mother since its inception and has been a guiding row technicians into strategic thinkers, deal was frantic to have the Durham court award force in ensuring its success. makers, problem solvers, and community her custody of her three children, despite the Distinguished Alumni Awards—UNC leaders.” fact that the court order she held in her hand School of Law celebrated its distinguished Bierman calls for “full-time, course-con- was issued in Wisconsin. Davis was able to alumni award winners at the annual Law nected legal residencies to become a staple of help her regain the care of her three daugh- Alumni Weekend Leadership and Awards the law school experience,” and urges law ters after several years of separation. “After a Dinner on May 1. The Lifetime Achievement schools both to become more affordable and very long journey, we were able to get her Award was presented to the Honorable Sarah to build stronger connections with practicing children back,” said Davis. E. Parker ‘69, retired chief justice of the NC attorneys. Separation, divorce, and child custody Supreme Court. The Distinguished Alumni “Elon Law has adopted a new curriculum may not rise to the level of seriousness to Award was presented to John Charles “Jack” that addresses each and every one of the ele- warrant time-strapped Legal Aid’s attention, Boger ‘74 for his service as dean of UNC ments discussed above,” Bierman writes. but these issues can be of overwhelming School of Law. The school presented its “We redesigned the law school experience for importance to families who might otherwise Outstanding Recent Graduate Award to the 21st century, providing logically never set foot inside a courtroom. To help Christopher Brook ‘05, legal director of the sequenced instruction, full-time experience, bridge this gap in service, the Family Law ACLU of North Carolina. highly integrated student engagement with Clinic created the File it Yourself packet of the practicing bar, and great value all in a 2½ the documents necessary to file a pro se cus- Wake Forest University School of Law year experience with a 20% reduction in tody action. Offered at cost ($20), packets Two-year JD for international lawyers— cost.” have been made available through NCCU’s Beginning in August 2015 Wake Forest Law Elon Law featured in U.S. News & File it Yourself workshops, at the law school, will offer an American Bar Association- World Report—Elon Law’s new curriculum and the courthouse. Family Law Clinic stu- approved Two-Year Juris Doctor (JD) for is featured in a U.S News & World Report arti- dents will complete the packets for a nomi- International Lawyers. Wake Forest is the cle (March 11) as one of the most far-reach- nal $50 through its bundled services pro- first law school in North Carolina to offer ing innovations in American legal education gram. “The cost to draft these documents this degree, which is specifically designed for this year. Introducing Elon, the article notes privately could be $400,” said Davis. lawyers educated outside of the United States that some law schools have “borrowed a page “If our clinic operations worked on a for- who are interested in gaining expertise in from medicine to incorporate clinical rota- profit basis, last year the value of the services American law. Graduates are eligible to take tions or ‘residencies.’” we provided to the community would be any state bar exam along with all other JD “In one of the most radical reforms, Elon nearly $2 million,” said Dean Phyliss Craig- graduates. Admitted foreign law graduates University School of Law in North Carolina Taylor. receive one year of law school credit based on will introduce a complete overhaul of its cur- their legal education in their home countries. riculum this year,” the article states. “The University of North Carolina School Business Law Program—Also in Fall program will shift to trimesters so students of Law 2015 Wake Forest Law will introduce its new graduate in two and a half years and can prep Speakers of note—Jenny Rivera, a judge Business Law Program, which is designed to for the February bar exam and enter the job on the New York State Court of Appeals, expand student opportunities that strength- market in the spring. The new curriculum is delivered the commencement address for en knowledge of business law concepts as much more intentionally sequenced; shadow- UNC School of Law on May 9. Rivera, who well as develop skills to assist professional ing a litigator leads to participation in moot clerked for the Honorable Sonia Sotomayor, development and readiness for practice. The court and then to a residency with a trial and has spent her career in public service and civil program targets four core areas: academic appellate practice firm, for example.” rights. Thokozile Masipa, a judge at the enrichment, professional development and Johannesburg Division for the Gauteng ethics, experiential learning, and joint North Carolina Central University High Court in South Africa, delivered the degrees. Professor Omari Simmons, who School of Law 2015 William P. Murphy Distinguished teaches Contracts, Business Associations, and NCCU’s courthouse presence—As a Lecture at UNC School of Law on April 6. Corporate Governance among other courses, leader in clinical legal education and service Masipa was the presiding judge in the high- has been named the inaugural director to the community, NCCU Law provides free profile murder trial of Olympic runner legal services in the Community Agencies Oscar Pistorius. CONTINUED ON PAGE 60

THE NORTH CAROLINA STATE BAR JOURNAL 59 BAR UPDATES

Client Security Fund Reimburses Victims

At its April 16, 2015, meeting, the North reimbursed four other Hayes clients a total time sensitive document months prior to Carolina State Bar Client Security Fund of $8,654.23. Taylor having a stroke. Board of Trustees approved payments of 4. An award $25,000 to a former client 8. An award of $8,032.18 to a former $183,774.03 to ten applicants who suffered of Freddie Lane Jr. of Fayetteville. The board client of Daniel L. Taylor. The board deter- financial losses due to the misconduct of determined that Lane was retained to nego- mined that Taylor was retained to prepare a North Carolina lawyers. tiate a reduction in a medical lien from a client’s estate planning documents, an asset The payments authorized were: client’s personal injury action. Lane deposit- protection plan, and a Medicaid application 1. An award of $76,666.66 to a former ed the settlement check into his trust for the client’s mother. Taylor prepared a client of Donald Bumgardner of Gastonia. account, but failed to negotiate the lien and number of the documents, but failed to pro- The board determined that Bumgardner misappropriated the funds. Lane was dis- vide the asset protection plan or prepare the was retained to handle a client’s workers’ barred on November 20, 2014. Medicaid application during the 15 months compensation and personal injury claims. 5. An award of $1,312.50 to a former prior to his death. Bumgardner settled the claims but failed to client of Elesha Smith of Raleigh. The board 9. An award of $300 to a former client of make all the proper disbursements from the determined that Smith was retained by a Christopher Vaughan of Raeford. The board settlement proceeds. Bumgardner misappro- client to investigate a possible wrongful determined that Vaughan was retained to priated the amount that should have been death claim. In addition to paying for the handle a client’s speeding ticket. Vaughan held to pay the client’s subrogation lien from initial consultation, the client paid an failed to provide any valuable legal services the workers’ comp case. advance for fees Smith would earn in the for the client once his fee was paid. Vaughan 2. An award $1,133.35 to a former client future. Smith was placed on disability inac- was disbarred on August 15, 2014. of Christopher Harper of Durham. The tive status. Smith’s trust account balance was 10. An award of $325 to a former client board determined that Harper was retained insufficient to satisfy all of her client obliga- of Christopher Vaughan. The board deter- to handle a client’s personal injury matter. tions, including the unearned fee for this mined that Vaughan was retained to handle Harper wrote seven trust account checks to client. Smith was placed on disability inac- a client’s speeding ticket. Vaughan failed to himself out of the client’s portion of the set- tive status on January 15, 2015. provide any valuable legal services for the tlement that were negotiated for cash. 6. An award of $14,250 to a former client once his fee was paid. n Although Harper contended that he gave client of Daniel L. Taylor of Troutman. The the cash to his client, the client disputed board determined that the client attempted receiving more than $200 in cash from to retain Taylor to amend his living trust. Harper. Harper failed to get receipts or oth- The client met with Taylor’s wife who pre- Law School Briefs (cont.) erwise document that his client received the pared a retainer agreement that included benefit of checks payable to Harper that services that the client didn’t need. The of the program. were negotiated for cash. Harper was dis- client paid the fee called for in the agree- Juris Doctor and Master of Arts in barred on December 26, 2014. ment with the intent of discussing a refund Sustainability (JD/MASus)—Wake Forest 3. An award of $51,654.34 to a former for the unneeded documents with Taylor. Law and Wake Forest University’s Center for client of L. Pendleton Hayes of Pinehurst. Taylor had suffered a stroke and was never Energy, Environment, and Sustainability The board determined that Hayes was able to resume the practice of law. Taylor’s (CEES) are partnering to offer a dual Juris retained to probate a client’s mother’s estate wife knew, or should have known, that Doctor and Master of Arts in Sustainability and to represent the client in the sale of her Taylor would not be able to provide the legal (JD/MASus) degree. Students will be able to parents’ home. Hayes deposited the home services for which the client paid. Taylor complete the degree in three years, including sale proceeds check from the closing attor- died on December 25, 2014. The board pre- a summer internship or research. Interim ney into her trust account, but failed to viously reimbursed eight other Taylor clients Dean Suzanne Reynolds (‘77) says the dual make all the proper disbursements from a total of $59,484.40. degree will facilitate interdisciplinary learn- those proceeds prior to her trust account 7. An award of $5,100 to a former client ing, perspectives, and interaction among stu- being frozen by the State Bar due to misap- of Daniel L. Taylor. The board determined dents and faculty in both the JD and MASus propriation. Hayes’ trust account balance that Taylor was retained to prepare a client’s programs, and provide students pathways for was insufficient to satisfy all of her client estate planning documents. Although he developing skills and acquiring competencies obligations. Hayes was disbarred on prepared some of the documents, Taylor necessary for succeeding in professional roles November 21, 2014. The board previously failed to prepare the most important and where the law intersects with sustainability. n

60 SUMMER 2015 BOARD OF LAW EXAMINERS July 2015 Bar Exam Applicants

The July 2015 Bar Examination will be held in Raleigh on July 28 and 29, 2015. Published below are the names of the applicants whose applications were received on or before April 30, 2015. Members are requested to examine it and notify the board in a signed letter of any information which might influence the board in considering the general fitness of any applicant for admission. Correspondence should be directed to Lee A. Vlahos, Executive Director, Board of Law Examiners, 5510 Six Forks Rd., Suite 300, Raleigh, NC 27609.

Jamie Abbondanza Charlotte, NC Daniel Beaulieu Alexandria, VA Dylan Buffum Waxhaw, NC Max Ashworth Durham, NC Katherine Booth Durham, NC Meghan Abernathy Fuquay-Varina, NC John Beck Winston-Salem, NC Frank Bullock Charlotte, NC Meghan Ashworth Charlotte, NC Krista Bordatto Durham, NC Candace Abreu Astoria, NY Michael Becker Miami, FL Jaimee Bullock Asheville, NC Justin Atkinson Charlotte, NC John Boschini Raleigh, NC Joshua Adams New Hartford, NY Joshua Bell Greensboro, NC Hailey Bunce Winston-Salem, NC Vera Attaway Dallas, NC Alexander Boston Chapel Hill, NC Matthew Adams Raleigh, NC Alice Bennett Winston-Salem, NC Michael Bunch Nashville, NC Lauren Atwater Durham, NC Kendall Bourdon Greensboro, NC Randi Adkins-Warren Washington, DC Leslie Bennett Charlotte, NC Emily Burgis Atlanta, GA Brandon Atwood Taylors, SC Tamara Bowles Columbia, SC Jada Akers Raleigh, NC Daniel Bensley Cary, NC Laura Burkett Raleigh, NC Elizabeth Austin Raleigh, NC Shytise Bowser Chapel Hill, NC Angela Alcala Raleigh, NC Frederick Benz Charlotte, NC Nicole Burnette Durham, NC James Austin Durham, NC William Boyer Baltimore, MD Danielle Aldrich Taylorsville, NC Ashley Berger Charlotte, NC Natalie Burns Raleigh, NC James Azarelo Cary, NC Chadwick Boykin Raleigh, NC John Aldridge Morrisville, NC Adam Berkland Raleigh, NC Dorian Burton Garner, NC Jeremy Babb Durham, NC Michael Bradbury Durham, NC James Alexander Rock Hill, SC Caitlin Bernstein Columbia, SC Mark Burts II Charlotte, NC Ariston Bailey Carrboro, NC Daniel Brader Durham, NC Justin Allen Raleigh, NC Karen Bestman Raleigh, NC Nicholas Busch Carrboro, NC Candra Baizan Durham, NC Seth Bradley Matthews, NC Noah Allen Chapel Hill, NC Jennifer Biggerstaff Charlotte, NC Cory Busker Columbia, SC Eric Baker Greensboro, NC Ellen Bragg Chapel Hill, NC Ryan Ames High Point, NC Ian Biggs Monroe, NC William Butler Charlotte, NC Jessica Baldwin Chapel Hill, NC Megan Bramhall Winston-Salem, NC Nicole Amos-Jeffers New Kent, VA Jonathan Billak Fuquay Varina, NC Tamara Bynum Lansing, MI Tameka Baldwin Charlotte, NC Matthew Brickey Durham, NC Ashley Anderson Durham, NC Elizabeth Binion Advance, NC Nicholas Byrne Wendell, NC Courtney Ballard Winston-Salem, NC Thomas Bridges Durham, NC James Anderson Charlotte, NC Sara Blackman Shelby, NC Kia Cabbler Chapel Hill, NC LaTasha Banks Philadelphia, PA Lalita Brockington Charlotte, NC Lucy Anderson Macon, NC Amy Blackmon Brooklyn, NY Carolina Caicedo Manrique New Orleans, LA Jonathan Barber Winston-Salem, NC Benjamin Brodish Raleigh, NC Scott Anderson Concord, NC William Blackton Raleigh, NC Anil Caleb Durham, NC Rebecca Barbour Cary, NC Jasmin Brooks Fayetteville, NC Alexandria Andresen Clayton, NC Zachary Blackwell Charlotte, NC Ryan Callahan Charlotte, NC Robert Barickman Durham, NC Thelma Brooks High Point, NC Scott Andron Champaign, IL Hilary Blackwood Charlotte, NC Jinny Campbell Ft. Lauderdale, FL Truman Barker Boston, MA Carrie Browder Smithtown, NY Erika Angles Thomasville, NC Amanda Blake Raleigh, NC Justin Campbell Raleigh, NC David Barnes Archdale, NC Jennifer Brown Winston-Salem, NC Christie Anthony Apex, NC Kaitlyn Blakey Greensboro, NC Kelly Campbell Raleigh, NC Sontina Barnes Charlotte, NC Martha Brown High Point, NC Brianne Appnel Ypsilanti, MI Nicole Bleuer Virginia Beach, VA Lauren Campbell Charlotte, NC Omar Bashi Holly Springs, NC Terry Brown Sanford, NC Kimberly Arch Raleigh, NC Glen Blumhardt Knightdale, NC Timothy Cannady Raleigh, NC Derek Bast Chapel Hill, NC Tyler Bruce Charlotte, NC Chad Archer Winston-Salem, NC Kerry Boehm Charlotte, NC Amanda Cannavo Greensboro, NC Robert Baxter Carrboro, NC Amanda Bryan Williamsville, NY Tricia Argentine Washington, DC Emily Bogart Hillsborough, NC John Cantril Durham, NC Rosanne Beach Columbia, SC Janean Bryant Lincoln, NE Marcia Armstrong Durham, NC Nicholas Boggs Greensboro, NC Weiting Cao Four Oaks, NC Sarah Beamer Raleigh, NC Melissa Bryson Atlanta, GA Leah Arnold Charlotte, NC Marvilyn Bohannan Winston-Salem, NC Jonathan Carnes Chapel Hill, NC Zachary Beasley Mebane, NC Allen Buansi Abington, MA Jason Arter Currituck, NC Portia Boone Chapel Hill, NC Whitley Carpenter

THE NORTH CAROLINA STATE BAR JOURNAL 61 Raleigh, NC Durham, NC Lexington, KY Knoxville, TN Pittston Township, PA Derek Carr Amanda Colley Cameron deBrun Christopher Dwight Michael Ferretti Durham, NC Charlotte, NC Charlotte, NC Weldon, NC Fayetteville, NC Dillon Carter Cynthia Collins Celene Delice Amber Eades David Festin Raleigh, NC Chapel Hill, NC Charlotte, NC Newton, NC Wilson, NC Brittany Cartner Patrick Collins Anthony DelNero Meredith Earle Ellen Fichtelman Chapel Hill, NC Greensboro, NC Albany, NY Charlotte, NC Gulfport, FL Philip Casey Douglas Colvard Sjaan Demmink Tony Eaves Franchesco Fickey Martinez Charlotte, NC Raleigh, NC Raleigh, NC Durham, NC Dayton, OH Kerry Cassidy Marshall Conrad Damjan Denoble Raymond Echevarria Thomas Finch Yorktown Heights, NY Raleigh, NC Raleigh, NC Chapel Hill, NC Charlotte, NC Dean Castaldo Brittany Constance Keta Desai Rory Eddings Brandi Finn Greensboro, NC Charlottesville, VA Charlotte, NC Lynchburg, VA Cornelius, NC Dylan Castellino Birshari Cooper Manisha Devasthali Kaitlin Ek Anna Fischer Chapel Hill, NC Durham, NC Raleigh, NC Durham, NC Charlotte, NC Christopher Castro-Rappl Chad Cooper Kristen Dewar Tamer El-Amoor Michelle Fisher Raleigh, NC Rutherfordton, NC Charlotte, NC Forest City, NC Metairie, LA John Caudle Bryan Corbett Gabriel Diaz Rabee El-Jaouhari David Fitzgerald Davidson, NC Charlotte, NC Cary, NC Raleigh, NC Raleigh, NC Kristopher Caudle Kathryn Corey Ashton Dillard Alissa Ellis Veronica Fleury Chapel Hill, NC Greensboro, NC Statesville, NC Carrboro, NC Greenville, SC David Caulder Blake Courlang LaRita Dingle Christine Ellis Daniel Flint Rutherfordton, NC Brooklyn, NY Morrisville, NC New Bern, NC Charlotte, NC Lisa Chadderdon Kayla Cox Richard Dingus Christopher Ellis Paul Florence Henrico, VA Charlotte, NC Durham, NC Chapel Hill, NC Greensboro, NC Cassi Chambers Paul Cox Andrew Dinkelacker Cynthia Ellis Ibelis Flores Davidson, NC Pasadena, CA Brooklyn, NY Mocksville, NC Concord, NC Helen Chatt Kaitlyn Cranshaw Michael D'Ippolito William Ellis Kaitlyn Focken Greensboro, NC Tallahassee, FL Durham, NC Chapel Hill, NC New Albany, IN Christopher Cheng Kristin Crawford Kimberly Dixon David Emery Tanisha Folks Charlotte, NC Charlotte, NC Raleigh, NC Winston-Salem, NC Cary, NC Tien Cheng Justin Crawley Julie Dogan Michael Emrey Martin Folliard Philadelphia, PA Fayetteville, AR Bermuda Run, NC Charlotte, NC Durham, NC Chia-Hsuan Chien Christopher Criner Emily Doll Angelica Endres Richard Forbes Greenville, NC Clemmons, NC Chapel Hill, NC Hartly, DE Charlotte, NC Nalina Chinnasami Joshua Crowley Mark Donald Elsa Eriksen Raquel Foriest HighPoint, NC Winston-Salem, NC Charlotte, NC Chicago, IL Winston-Salem, NC Daniel Choo Miguel Cuadra Margaret Donnelly Martin Erskine Ashley Fortune Durham, NC Winston-Salem, NC Charlotte, NC Greensboro, NC Durham, NC Brady Ciepcielinski Megan Cullen Caitlin Dorne Natalia Escobar Ashley Foxx Raleigh, NC Charlotte, NC Atlanta, GA New York, NY Morrisville, NC Erick Cipau Dufferin Culpepper Rita Dorry Gelianny Esponda La Rosa Stephanie Frantz Allston, MA Charlotte, NC Raleigh, NC Charlotte, NC Charlotte, NC Justin Ckezepis Lindsay Curtis Pearce Dougan Cameron Eubanks Elizabeth Frawley Cornelius, NC Raleigh, NC Lexington, NC Miami, FL Charles Town, WV Mallory Clark Blinn Cushman Melvin Dove Benjamin Evans Erin Frazer Durham, NC Greensboro, NC Raleigh, NC Chapel Hill, NC East Lansing, MI Vanessa Clark Katherine Custis Marc Downing Richard Evans Harrison Freedland Charlotte, NC Knightdale, NC Gainesville, FL Durham, NC Chapel Hill, NC Zuriyah Clary Kimberly Cuthrell Ceymone Dozier Forrest Fallanca Rhyan Freeman Huntersville, NC Gibsonville, NC Durham, NC Fuquay Varina, NC Charleston, SC Bryan Clausing Morgan Cutright Krystal Draughn Olivia Farah Eric Frick Cary, NC Savannah, GA China Grove, NC Greensboro, NC Arlington, VA Ryan Clayton Awanti Damle Jaryd Dubin Damon Fargis Kevin Friley Quincy, MA Cary, NC Charlotte, NC Huntersville, NC Charlotte, NC Gretchen Cleevely Shelvia Dancy Brent Ducharme Bushra Farooqui Shelley Fullwood Lexington, VA Raleigh, NC Chapel Hill, NC Greensboro, NC Durham, NC Charles Cobb Jade Davis Kathryn Duffy Annalise Farris Jordan Funke Charlotte, NC Rutherfordton, NC Fort Mill, SC Chapel Hill, NC Oak Ridge, NC Matthew Cockman Jatiah Davis Timothy Dugan Richard Faulkner Lauren Fussell Graham, NC Charlotte, NC Greensboro, NC Charlotte, NC Raleigh, NC Ashley Coghill Justin Davis Whitney Duhaime Jeffrey Favitta James Gallagher Raleigh, NC Chapel Hill, NC North Liberty, IA Chapel Hill, NC Atlanta, GA Jan-Michael Cohen Kali Davis Jason Duke Vanessa Fede Jessica Galletta Brevard, NC Clayton, NC Coats, NC Charlotte, NC Burlingame, CA Daniel Cole Nicholas Davis Lawrence Duke Elizaveta Fedun Michael Gandee Chapel Hill, NC Cornelius, NC Raleigh, NC Charlotte, NC Wilmington, NC Lori Cole Joshua Dawson Michael Dunn Vincent Feher Alysja Garansi Cary, NC Lynchburg, VA Carrboro, NC Cary, NC West Columbia, SC Michael Coleman Zachary Dawson Zachary Dunn Aaron Fennell Ikee Gardner Raleigh, NC New York, NY Winston-Salem, NC Durham, NC Durham, NC Savanna Coleman John De Mattei Aimee Durant M. Joseph Fernando Tracie Gardner Charlotte, NC Anderson, SC Winston-Salem, NC South Bend, IN Winterville, NC Michael Coletta Joshua Dearman Joseph Durham Stephen Fernando Tyler Gardner

62 SUMMER 2015 Winston-Salem, NC Washington, DC Lynchburg, VA Durham, NC Winston-Salem, NC Jake Garris Katherine Hagen Konner Higgins Trevoria Jackson Kathryn Kendall Goldsboro, NC State College, PA Charlotte, NC Charlotte, NC Brighton, MA Ashley Gengler Charles Hagerman Heather Hillaker Jaweria Jamal Jonathan Kendrick Draper, UT Charlotte, NC Carrboro, NC Durham, NC Raleigh, NC Christopher Genheimer Rhonda Halas Anthony Hinman Morgan James Kristen Kenley Colfax, NC Charlotte, NC Holly Springs, NC Matthews, NC Carrboro, NC Andrew Gibbons Caitlin Hale Matthew Hinson Karmyn Janes Katelin Kennedy Raleigh, NC Winston-Salem, NC Tobaccoville, NC Raleigh, NC Clemmons, NC Erin Gibbs Carla Halle Benjamin Hintze Amanda Jay Robin Kester Chapel Hill, NC Washington, DC Winston-Salem, NC Richmond, VA Greensboro, NC Robert Gibson Stephen Hampsey Tyler Hite Phillip Jefferson Sarah Kettles Salisbury, NC Apex, NC Deep Gap, NC Raleigh, NC Reidsville, NC Kennedy Gilly Jacqueline Handel Ariel Hodge Taylor Jenkins Matthew Kilgus Raleigh, NC Wake Forest, NC Greensboro, NC Nashville, TN Roanoke, VA Emily Gladden Charleka Hannon Christopher Hodgson Emily Jernigan Reece Kimsey New York, NY Charlotte, NC Chapel Hill, NC Fayetteville, NC Winston-Salem, NC Deanna Glickman Ioannis Haralambous John Hodnette Katie Jervis Adam Kindley Washington, DC Raleigh, NC Winston-Salem, NC Charlotte, NC Greensboro, NC Aaron Goforth Maren Hardin Madeleine Hogue Linda Jochim Abby King Raleigh, NC Hillsborough, NC Hillsbrough, NC Charlotte, NC Fayetteville, TN Caitlin Goforth Bradley Harper Kelly Holder Alicia Johnson Chelsea King Raleigh, NC Lumberton, NC Winston-Salem, NC Durham, NC Williamsburg, VA Jack Goins David Harper Brooke Holliday Chase Johnson Jessica King Philadelphia, PA Chapel Hill, NC Columbia, SC Cary, NC Charlotte, NC Lorie Goins Jessica Harrington Daniel Hollis Devon Johnson Solita King Raleigh, NC Columbia, SC Apex, NC Greensboro, NC Charlotte, NC David Goldberg William Harrington Rebecca Holljes Jamihlia Johnson Jonathan Kinny Chapel Hill, NC Marshville, NC Raleigh, NC Durham, NC Chapel Hill, NC Lindsay Goldsmith John Harris Daniel Holt Jared Johnson Winston Kirby Charlotte, NC Chapel Hill, NC Clarksburg, MD Westfield, NJ Raleigh, NC Scott Goldsmith Meredith Harris Leslie Hood Keosha Johnson Andrea Kirksey Charlotte, NC Greensboro, NC Charlotte, NC Decatur, GA Myrtle Beach, SC Airrelle Gonzalez Nathaniel Harris Stephen Hopkins Keosha Johnson Julian Kisner Wheaton, MD Summerfield, NC Charlotte, NC Decatur, GA Winston-Salem, NC Alexis Gonzalez Shontay Harris Dana Horlick Taylor Johnson Walter Kistler Charlotte, NC Charlotte, NC Greensboro, NC Chapel Hill, NC Charlotte, NC Cynthia Gonzalez Parker Harroff Katelyn Horne Carrie Johnson Walters Leslie Kite State Road, NC Fort Mill, SC Charlotte, NC Kannapolis, NC Raleigh, NC Sherita Gooding Andrew Harrris Dianna Houenou Erich Johnston Lorna Knick Durham, NC Charleston, SC Durham, NC Charlotte, NC Chapel Hill, NC Molly-Catherine Goodson Alexandria Hartill Alecia Houston Brandon Jones Mercedes Knight Lynchburg, VA Knoxville, TN Apex, NC Winston-Salem, NC Beltsville, MD Kristin Gordon Samuel Hartzell Christine Houston Cecelia Jones Mark Kochuk Farmville, NC Raleigh, NC Charlotte, NC Greensboro, NC Morrisville, NC Katherine Graham Kia Harvey Brett Hubler Jason Jones Brandon Kohr Chapel Hill, NC Winston-Salem, NC Charlotte, NC Carrboro, NC Fort Mill, SC Sean Graham Kristopher Hawkins Lauren Huddleston James Jordan Anthony Konkol Mint Hill, NC Raleigh, NC Jonesborough, TN Chapel Hill, NC East Lansing, MI Alexander Graziano Tyler Hawn Valerie Hughes Willymena Joseph Stella Kreilkamp Raleigh, NC Charlotte, NC Chapel Hill, NC Cary, NC Durham, NC Jonathan Green Ronald Haynes Jr Christian Hunt Jennifer Joyner Gintaras Krulikas Birmingham, AL Durham, NC Charlotte, NC Concord, NC Charlotte, NC Megan Greene Teresa Heath Julia Hurley Zona Julien Patrick Kuchyt Raleigh, NC Chapel Hill, NC Chapel Hill, NC Charlotte, NC Raleigh, NC Shalondra Greenlee Christopher Heller Taylor Hutchens Omar Kalala Brian Kuhl Durham, NC Winnabow, NC Raleigh, NC Charlotte, NC Huntersville, NC Leah Gregoire Daniel Hemme Rhea Hutton Seth Kandl Kathleen Kurdys Candler, NC Chapel Hill, NC Charlotte, NC State College, PA Raleigh, NC Jessica Gregory Christie Henderson Thomas Hutton Caitlin Kannan Gabriel Kussin Chapel Hill, NC Sneads Ferry, NC Panama City Beach, FL Wilmington, NC Chapel Hill, NC Christopher Grice Kelsey Hendrickson Bryan Huxhold Laura Kastner Quinn Ladd Durham, NC Chapel Hill, NC Mint Hill, NC Chapel Hill, NC Saint Petersburg, FL Ray Griffis Mary Hendrix Lauren Ikpe Nestoras Katsoudas Brian Lagesse Durham, NC Mocksville, NC Raleigh, NC Winston-Salem, NC Virginia Beach, VA Mary Grob Simeon Henkle Neal Inman Richard Kaufman Kiran Lakha Woodbridge, VA Greensboro, NC Holly Springs, NC Charlotte, NC Fayetteville, NC Richard Groberg Andrew Henson Michelle Iqbal Melinda Keck Justin Lalor Charlotte, NC Chapel Hill, NC Charlotte, NC Concord, NC Carrboro, NC Nathan Gudeman Robert Herford Lucy Ireland Patrick Keeley David Lambert Raleigh, NC Charleston, SC Chapel Hill, NC Greensboro, NC Robbins, NC Ashley Guerra Clay Hester Ryan Ivey Joshua Kellough Katherine Lamberth Raleigh, NC Chapel Hill, NC Winston-Salem, NC Gastonia, NC Charlotte, NC Hannah Guerrier Kimberly Hicks Teta Jackson Alexander Kelly Todd Landreth

THE NORTH CAROLINA STATE BAR JOURNAL 63 Leland, NC Jaqueline Lopez Raleigh, NC Graham Miller Charlotte, NC Jacob Lane Raleigh, NC Wesley Mayberry Chapel Hill, NC Ian Neal Walnut Cove, NC Fatina Lorick Chapel Hill, NC Katie Mills Charlotte, NC Jeffrey Lane Durham, NC Jon Mayhugh Raleigh, NC Sarah Neal Greensboro, NC Brooke Loucks Winston-Salem, NC Donae Minor Raleigh, NC Karrah Leary Winston-Salem, NC Angaza Mayo-Laughinghouse Pittsburgh, PA April Nelson Signal Mountain, TN Nicholas Loveluck Raleigh, NC Haniya Mir Charlotte, NC Colin Ledoux Charlotte, NC Colleen McCaffrey Durham, NC Jonathan Newman Waxhaw, NC Anthony Lucas Atlanta, GA Joshua Mitchell Oxford, MS Mao Lee Raleigh, NC Melissa McCallop Cary, NC William Newsome Riverview, FL Joshua Lucas Ada, OH Melissa Mitchell Rockwell, NC Pedra Lee Chapel Hill, NC Jeremy McCamic Chapel Hill, NC Hannah Nicholes Cary, NC James Lucy Chapel Hill, NC John Mobley Winston-Salem, NC Sanghyun Lee Durham, NC Alexa McCartney Charlotte, NC Vincent Nicolsen Washington, DC Jason Lunsford Charlotte, NC Bobby Monroe Raleigh, NC Tamara Lee Durham, NC Darah McClain Charlotte, NC Zoe Niesel Columbia, SC Elizabeth Lyons Cramerton, NC Mitchell Montgomery Winston-Salem, NC Woo-Il Lee Winston-Salem, NC Katelyn McCombs Greensboro, NC Ryan Niland Morrisville, NC Victor Macam Salisbury, NC Allie Moore Chapel Hill, NC Eunice Lee-Ahn Fuquay Varina, NC Michael McCraw Raleigh, NC Yuping Niou Sylva, NC Jacquelin Macdonald Charlotte, NC Barbara Moore Chapel Hill, NC Justin Lefkowitz Raleigh, NC Frank McFarland Garner, NC Stacie Noe Durham, NC John Mace Boiling Springs, NC Lindsey Moore Raleigh, NC Nicholas Leger Raleigh, NC Michael McFarland Clayton, NC Jasmina Nogo Greensboro, NC Alexandra Macey Raleigh, NC Rena Moore Durham, NC William Leister Raleigh, NC Mark McIntyre Elizabeth City, NC Holly Norman Durham, NC Scott MacLatchie Durham, NC Erin Moorman Charlotte, NC Alison Lester Tuscaloosa, AL Jassmin McIver-Jones Highlands, NC Anna-Catherine Norwood Winston-Salem, NC Joseph Makhoul Durham, NC Elizabeth Morales Cherryville, NC Michaella Levandoski Chapel Hill, NC Timothy McKeever Cary, NC Jennifer Nusbaum Chapel Hill, NC Kenneth Malloy Chapel Hill, NC Joshua Morales Chapel Hill, NC Britton Lewis Charlotte, NC Neel McKoon Cary, NC Grayson Oakley Durham, NC Alexis Mann Raleigh, NC Clifton Morgan III Raleigh, NC Jarelle Lewis Charlotte, NC Avianca McKoy Durham, NC Agbai Obasi Raleigh, NC James Manning Charlotte, NC Colby Morris Raleigh, NC Virginia Lifchez Raleigh, NC Joseph McLean Charlotte, NC Christopher O'Brien Durham, NC Richard Mannion Raleigh, NC JaNa Morrison Charlotte, NC Shang Yun Lin Fayetteville, GA Benjamin McManus Charlotte, NC Mary O'Connor Chapel Hill, NC Amalia Manolagas Mebane, NC Candice Morson Erie, PA Aaron Lindquist Chapel Hill, NC Shannon McMorris Charlotte, NC Chigozie Ogwuegbu-Stephens Virginia Beach, VA Eric Manor Charlotte, NC Erika Moses Charlotte, NC Brittany Lins Durham, NC Hayden McNeill Carrboro, NC Sabrina O'Hare Marietta, GA Jenny Maresca Raleigh, NC Gregory Moss Winston-Salem, NC Elizabeth Linzan Greensboro, NC Lawrence McPhail Brighton, MA Hamid Olang Charlotte, NC Brooke Marin Durham, NC Brittany Mullen Fort Mill, SC Caitlin Little Cornelius, NC Ty McTier Durham, NC Celia Olson Raleigh, NC Kevin Markham Charlotte, NC Petal Munroe Matthews, NC Jennifer Little Durham, NC Spencer Mead Raleigh, NC Nathaniel O'Neil Chapel Hill, NC Joseph Marshall Richmond, VA Jaunell Murphy Mooresville, NC Toya Little Durham, NC Julisa Medina Bluffton, SC Beth Onyenwoke Charlotte, NC Cameron Martin Maspeth, NY Jerry Murphy Raleigh, NC Micheal Littlejohn Chapel Hill, NC Lyndsay Medlin Tyler, TX Kylie Opel Columbia, SC Craig Martin Charlottesville, VA Peyton Murray Raleigh, NC Sara Littrell Greensboro, NC Jordan Meetze Pfafftown, NC Pooyan Ordoubadi Raleigh, NC Ellis Martin Knoxville, TN Jason Mushnick Cary, NC Nicholas Livengood Carrboro, NC Carmen Melvin Manalapan, NJ Michelle Oria Greensboro, NC Jonathan Martin Chapel Hill, NC Zachary Musick Huntersville, NC Benay Lizarazu Sanford, NC Paul Mengert Matthews, NC Peter Ormerod Charlotte, NC Katelyn Martin Greensboro, NC Elizabeth Mutisya Washington, DC Ellen Lloyd Charlotte, NC Marissa Meredith Raleigh, NC Anna Orr Winston-Salem, NC Luke Martin Durham, NC Kellie Myers Chapel Hill, NC Shawn Lloyd Hiddenite, NC John Messick Apex, NC Natalee Ott Mt. Ulla, NC Shawnda Martin Durham, NC Nicholas Myers Fayetteville, NC Samantha Lobao Knightdale, NC Dana Messinger Raleigh, NC Richard Ottinger Lansing, MI William Martin Chapel Hill, NC Lee Mynhardt Dunn, NC Kathleen Lockwood Durham, NC Kelsey Meuret Charlotte, NC Ashton Overholt Chapel Hill, NC Caroline Massagee Winston-Salem, NC Aayushi Naik Raleigh, NC Christine Long Winston-Salem, NC Michael Mewborn Pineville, NC Graham Owen Hubert, NC Lucy Massagee Nashville, NC Carol Naples Chapel Hill, NC Elizabeth Long Hendersonville, NC Bert Miano Charlotte, NC Kelly Owens Greensboro, NC John Matheny Charlotte, NC Christina Nasuti Charlotte, NC Richard Longo Charlotte, NC Kathryn Milam Chapel Hill, NC Gunsel Ozcan Miami Beach, FL Lacy Mau-McDowell Charlotte, NC Kyle Navarro Charlotte, NC

64 SUMMER 2015 Wilburn Oziogu Joseph Phillips Keronica Richardson Aretina Samuel-Priestley Kierra Simmons Greensboro, NC Greensboro, NC Charlotte, NC Charlotte, NC Durham, NC Jeffery Painter Bonnie Pierce MaryJane Richardson Amanda Sasnett William Sims Raleigh, NC Pinetops, NC Raleigh, NC Charlotte, NC Durham, NC Nikeeta Pal Brandon Pierce Jeremy Rigsbee Stephanie Sautelle Patrick Sinclair Pineville, NC Charlotte, NC Durham, NC Charlotte, NC Raleigh, NC Addison Palanza Jasmine Pitt Daina Riley Wesley Sawyer Karanpreet Singh Wilmington, NC Clemmons, NC Columbia, SC Columbia, SC Charlotte, NC Joseph Palmer Alysha Poles Jacob Riske Robert Schaaf Gregory Singleton Durham, NC Durham, NC Belmont, NC Winston-Salem, NC Rockville, MD Hima Bindhu Pamarthi Ingrid Portillo Shanna Rivera Elizabeth Schoeman Nicholas Sipes Knightdale, NC Charlotte, NC Charlotte, NC Chapel Hill, NC Greensboro, NC Ruta Panomitros Andrew Powell Mary Roberson Spencer Schold Samantha Skains Charlotte, NC Winston-Salem, NC Charlotte, NC Athens, GA New Orleans, LA Emily Pappas Joseph Powell Valerie Roberts Megan Schultz Sean Skinner Apex, NC Charlotte, NC Cornelius, NC Sneads Ferry, NC New Orleans, LA Daniel Parisi Amy Privette William Roberts O'Shauna Scoggins Casey Smith Chapel Hill, NC Cary, NC Raleigh, NC Charlotte, NC Raleigh, NC Andrew Parker Timothy Prosky Adrian Robey Christina Scott Daniel Smith Athens, GA Greensboro, NC Cary, NC Charlotte, NC Charlotte, NC Isaiah Parlier Anna Pulliam Bobbie Robinson Djenaba Scott David Smith Clayton, NC Washington, DC Charlotte, NC Charlotte, NC Davidson, NC Andrew Parrish William Pully II Cameron Rodeffer Whitcomb Scott Emily Smith Winston-Salem, NC Raleigh, NC Charlotte, NC Chapel Hill, NC Raleigh, NC Lucy Partain Donna Purcell Rosa Rodriguez-Michel James Seay III Emily Smith Dalton, GA Raleigh, NC Chapel Hill, NC Garner, NC Charlotte, NC Caleb Partee Davis Puryear Kristi Rogers Rebecca Sedgwick Jacob Smith Charlotte, NC Fayetteville, NC Cary, NC Durham, NC Charlotte, NC Harsh Patel Stephen Pytlik Mary Rogers Gelila Selassie Jacquelyn Smith Raleigh, NC Saint Clairsville, OH Greensboro, NC Winston-Salem, NC Hope Mills, NC Alexios Pathenos Timothy Quirk Sinetta Rorie Amelia Serrat Janetta Smith Wilmington, NC Cary, NC Garner, NC Chapel Hill, NC Wallace, NC Dione Patillo Stephen Radford Jasmine Ross Sarah Seufer MaRhonda Smith Huntersville, NC Wilson, NC Mebane, NC Newland, NC Greenville, SC Linda Patino Tierra Ragland Jonathan Ross Colton Sexton Nola Smith Greensboro, NC Charlotte, NC Alexandria, VA Winston-Salem, NC Charlotte, NC Karen Patrice Eric Ramirez Joshua Rotenstreich Jamison Shabanowitz Robert Smith Charlotte, NC Charlotte, NC Greensboro, NC Blacksburg, VA Cary, NC Daniel Patterson Hannah Randolph Kaitlin Rothecker Anderson Shackelford Sharnae Smith Stamford, CT Charlotte, NC Raleigh, NC Raleigh, NC Bowie, MD Elizabeth Paul William Rankin Gregory Rouse Shea Shadrick Edward Smith II Raleigh, NC Raleigh, NC La Grange, NC Winston-Salem, NC Charlotte, NC Taylor Payne Jordan Ransenberg Daniel Rowe Brittany Shaffer Brian Soja Cary, NC Charlotte, NC Durham, NC Charlotte, NC Charlotte, NC Jenee Peace Henry Raper Alexis Ruark Stephanie Shaker Kimberly Sokolich Sanford, NC Murrells Inlet, SC New Bern, NC Chapel Hill, NC Winston-Salem, NC Dwayne Pennant William Rary Rhesa Rubin Rebekah Shanaman Nicole Solis Concord, NC Charlotte, NC Chapel Hill, NC Greensboro, NC Charlotte, NC Katherine Pennant Kerry Rashad Deborah Ruiz Alicia Shankle Andrea Solorzano Concord, NC High Point, NC Charlotte, NC Matthews, NC Chapel Hill, NC Max Pennington Ryan Redd Christopher Rumfelt Kyle Shannon Juan Sosa Burlington, NC Lexington, VA Marion, NC Charlotte, NC Raleigh, NC Kelsey Penrose Gary Redding Geneva Runion Brittany Shaw Alexander Soto Charlotte, NC Washington, DC Raleigh, NC Suffolk, VA Winston-Salem, NC Kim Perez Joshua Reed Sarah Rupp Isabella Shaw Dymond Spain Charlotte, NC Charlotte, NC Boone, NC Raleigh, NC Durham, NC Seleste Perez Jodi Regina Rosa Ryan Katie Shelton Matthew Spangler Charlotte, NC Cary, NC Chapel Hill, NC Raleigh, NC Chapel Hill, NC Mary Perkinson Monica Reid Drew Rynders Hayley Sherman Patrick Spaugh Raleigh, NC Silver Spring, MD Charlotte, NC Greensboro, NC Durham, NC Stephen Perry Ryan Reif Howard Sadoskas Sarah Shoaf Marla Spector Chapel Hill, NC Charlotte, NC Durham, NC Raleigh, NC Gainesville, FL Allison Persinger Robert Renfro Julia Saikali Lauren Shoffner Ciera Spencer-Mattox Raleigh, NC Gastonia, NC Morehead City, NC McLeansville, NC Charlotte, NC Jenelle Peterson Kevin Reynolds William Sain Geri Shomo Jason Spindle Chapel Hill, NC Sunrise, FL Carrboro, NC Greensboro, NC Charlotte, NC Kyle Peterson Parker Reynolds Andres Salazar Sadie Short Ana Spitzley Chapel Hill, NC Allston, MA Charlotte, NC Durham, NC Raleigh, NC Samuel Peterson Keltoum Rhali Abdulrahman Salem Gregory Sigmon Jeremy St Pierre Morgantown, WV Charlotte, NC Cary, NC Chapel Hill, NC Seaford, VA Genna Petre Bridgette Richards Joel Salman Jacob Silverman Margaret Stacy Greensboro, NC Durham, NC Greensboro, NC Wildwood, MO Raleigh, NC Brian Phillips Alex Richardson Vlada Samatova Elizabeth Simmons Kelly Stage Roxboro, NC Sumter, SC Matthews, NC Chapel Hill, NC Greensboro, NC

THE NORTH CAROLINA STATE BAR JOURNAL 65 Danny Stamey Paige Taylor Justin Tucker Clifford Walters Abigail Williams Pasadena, CA Charlotesville, VA Charlotte, NC Raleigh, NC Charlotte, NC Nelson Stanaland Thomas Taylor Chad Turner Llogan Walters Bianca Williams East Lansing, MI Fuquay Varina, NC Pleasant View, UT Chapel Hill, NC Durham, NC Rebecca Stanislaw William Taylor Desiree Turner Mark Wampler Jaime Williams Owings Mills, MD Winston-Salem, NC Pittsboro, NC Durham, NC Raleigh, NC Casey Starling Brittany Teague Emily Turner Patrick Ward Robinson Williams Jacksonville, NC Greensboro, NC Philadelphia, PA Winston-Salem, NC Raleigh, NC James Steen Hannah Tedder Joshuah Turner Lauren Elizabeth Watkins Samuel Williams Brevard, NC Durham, NC Durham, NC Charlotte, NC Carrboro, NC Nicholas Steen Alison Templeton Nicholas Turza Daniel Watts Michelle Williams-McNair Davdson, NC Chapel Hill, NC Morrisville, NC Greensboro, NC Charlotte, NC Fiona Steer Benjamin Terrell Lauren Tuttle Holley Watts Nelia Willis Raleigh, NC Charlotte, NC Winston-Salem, NC Raleigh, NC Raleigh, NC Louis Steiner Jobyna Terry Joshua Twitty Sara Page Waugh Jeffrey Willison Charlottesville, VA Charlotte, NC Rutherfordton, NC Charlottesville, VA Winston-Salem, NC Amber Stephens Katie Terry Nathaniel Ulmer Robin Weatherhead Herman Wilson Charlotte, NC Raleigh, NC Raleigh, NC Tewksbury, MA Fayettteville, NC Carolina Stephenson Kristin Terwey Michael Umberger James Webster Jaleesa Wilson Durham, NC Apex, NC Charlotte, NC Clemmons, NC Durham, NC Russell Stewart Virginia Tharrington Zane Umsted Michelle Weiner Nicholas Wilson Raleigh, NC Raleigh, NC Iowa City, IA Durham, NC Durham, NC Matthew Stigall Channing Thomas Margaret Unger Julia Welch Rebecca Winder Lexington, KY Raleigh, NC Raleigh, NC Chapel Hill, NC Winston-Salem, NC Jonathan Stoian Nathan Thomas Alexander Urquhart Natalie Welch Malory Windham Asheville, NC Greensboro, NC Speed, NC Winston-Salem, NC Wilson, NC Rebecca Stone Stuart Thomason Zachary Usher Evan Weller Emma Wingfield Hendersonville, NC Chapel Hill, NC Reidsville, NC Clayton, MO Durham, NC Joshua Strachan Kellye Thompson Gabrielle Valentine Jessica Wells Benjamin Winikoff Durham, NC Hillsborough, NC Rutherfordton, NC Holly Springs, NC Winston-Salem, NC Brian Strickland Philip Thompson Joshua Valentine Jessica Wengler Jeremy Winters Clayton, NC Chapel Hill, NC Rutherfordton, NC Charlotte, NC Dunn NC, NC Stacy Strickland William Thore Francis Valone Amelia West Grace Witsil Raleigh, NC Chapel Hill, NC Raleigh, NC Charlotte, NC Charlotte, NC Daniel Strong Antwan Thornton Ryan Van Horn Robert Wexler Ryan Wood Lexington, VA Carrboro, NC Snellville, GA Delmar, NY Prospect, KY Demetria Stuart Samuel Thorp Matthew Van Hoy Bryan Weynand Matthew Woodard Durham, NC Raleigh, NC Chapel Hill, NC Chapel Hill, NC Smithfield, NC Joseph Stusek Michael Thurmond Ashley Van Laethem Caitlin Whalan Charles Woodyard Chapel Hill, NC Winston-Salem, NC Charlotte, NC Williamsburg, VA Matthews, NC Lauren Suber Aaron Tierney Mary Varner Christina Wheaton Luke Wooley Raleigh, NC Concord, NC Carrboro, NC Chapel Hill, NC Altamonte Springs, FL Bryan Sulentic Samantha Timpone Heather Vaughan-Batten Gregory Wheeler John Wooten Greensboro, NC Mooresville, NC Cary, NC Chapel Hill, NC Winston-Salem, NC Teesta Sullivan Steven Tirado Jeb Vaughn John Whetzel Henry Worrell Apex, NC Wake Forest, NC Winston-Salem, NC Holly Springs, NC Winston-Salem, NC Jarrod Summey Mary Tkach Caroline Veltri Amy White Lani Wright Durham, NC Durham, NC Chapel Hill, NC Durham, NC Greensboro, NC Joseph Sunderhaus Amanda Tomblyn Elizabeth Vennum Cody White Shirley Wright Charlotte, NC Morgantown, WV Charlotte, NC Durham, NC Charlotte, NC Inchang Sye Jeremy Tomes Nicole Vibbert Haley White Shana Wynn Charlotte, NC Charlotte, NC Macon, GA Lexington, VA Durham, NC Charles Sykes Lisa Tomlinson Raylena Vines Janet White Albert Yang Raleigh, NC Arlington, VA Charlotte, NC Durham, NC Chapel Hill, NC Veronika Sykorova Laura Tonch Samuele Viscuso John White Jessica Yelverton Durham, NC Mooresville, NC Greensboro, NC Travelers Rest, SC Augusta, GA Benjamin Szany William Toomer Matthew Viva Stephen White Christine York Chapel Hill, NC Jackson, NJ Raleigh, NC Winston-Salem, NC Winston-Salem, NC Hillary Szawala Joseph Torok Peter von Stein Heather Whitecotton Travis Young East Lansing, MI Charlotte, NC Chapel Hill, NC Platte City, MO Charlotte, NC Louis Ta Katheline Tran Robert Wald Jennifer Whitley Xenia Zeballos Parra Durham, NC Cary, NC San Diego, CA Charlotte, NC Charlotte, NC Lauren Talboom Linda Trees Brian Walker Paige Whittle Marc Zelinsky Chapel Hill, NC Chapel Hill, NC Wilmington, NC Dyersburg, TN Goose Creek, SC Natasha Tam Wing Little Kevin Trempe Kassia Walker Jared Widseth Brian Ziegler Matthews, NC Winston-Salem, NC Shelby, NC Milwaukee, WI Durham, NC Spenser Tatum Elizabeth Trenary Casey Wallace Lisa Wielunski Elizabeth Zimmerman Greensboro, NC Raleigh, NC King, NC Charlotte, NC Raleigh, NC Erin Taylor Snehal Trivedi Robert Wallace Jacob Wight Angelo Zingaretti Virgie, KY Raleigh, NC Wingate, NC Chapel Hill, NC Charlotte, NC James Taylor Helen Truong Jonathan Wallis Nicole Wilkes Lyndey Zwingelberg Charlotte, NC Charlotte, NC Forest, VA Chapel Hill, NC Columbia, SC Katelin Taylor John Tucker Tameka Walls Markeshia Wilkins Charlotte, NC Chapel Hill, NC Durham, NC Raleigh, NC

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