NORTH CAROLINA STATE BAR JOURNAL FEATURES Fall 2016 Volume 21, Number 3 10 Crowdfunding for Raising Capital Editor Has Arrived Jennifer R

THE NORTH CAROLINA STATE BAR

FALL JOURNAL2016

IN THIS ISSUE Crowdfunding for Raising Capital page 10 Retirement Planning page 20 Legal Ethics and Social Media page 24

THE NORTH CAROLINA STATE BAR JOURNAL FEATURES Fall 2016 Volume 21, Number 3 10 Crowdfunding for Raising Capital Editor has Arrived Jennifer R. Duncan By Thomas Lee Hazen Publications Committee Dorothy Bernholz, Chair 14The District Court at 50 Nancy Black Norelli, Vice-Chair By James C. Drennan John A. Bowman Richard G. Buckner 20 Retirement Planning and the Andrea Capua Thomas P. Davis Transitioning Lawyers Margaret H. Dickson Commission John Gehring By Woody Connette and Mark Scruggs James W. Hall Darrin Jordan Sonya C. McGraw 24Legal Ethics and Social Media Harold (Butch) Pope By Chris McLaughlin Steve Robertson G. Gray Wilson 27New Rules for Permanent

© Copyright 2016 by the North Carolina State Bar. All Relinquishment of State Bar rights reserved. Periodicals postage paid at Raleigh, NC, Membership and additional offices. Opinions expressed by contributors are not necessarily those of the North Carolina State Bar. By Eric M. Fink POSTMASTER: Send address changes to the North Carolina State Bar, PO Box 25908, Raleigh, NC 27611. 28BarCARES and LAP—Working The North Carolina Bar Journal invites the submission of in Harmony unsolicited, original articles, essays, and book reviews. Submissions may be made by mail or e-mail (ncbar@bell- By Zeb Barnhardt and Robynn Moraites south.net) to the editor. Publishing and editorial decisions are based on the Publications Committee’s and the editor’s 29The Robin Williams in Each of Us judgment of the quality of the writing, the timeliness of By Ronnie Ansley the article, and the potential interest to the readers of the Journal. The Journal reserves the right to edit all manu- 30 Fulfillment through Pro Bono scripts. The North Carolina State Bar Journal (ISSN 10928626) is published four times per year in March, Publico—An Interview with June, September, and December under the direction and Carole Bruce supervision of the council of the North Carolina State Bar, By Eric M. Fink PO Box 25908, Raleigh, NC 27611. Member rate of $6.00 per year is included in dues. Nonmember rates $10.78 per year. Single copies $3.21. The Lawyer’s 32 Special Education Team Impacts Handbook $10.78. Advertising rates available upon System request. Direct inquiries to Director of Communications, By Elaine Whitford the North Carolina State Bar, PO Box 25908, Raleigh, North Carolina 27611, tel. (919) 828-4620. 35 New Statewide Pro Bono ncbar.gov Resource Center Launched Follow us at: By Jared Smith Twitter: @NCStateBar Facebook: facebook.com/NCStateBar 36 Voter Education is the Key to Judicial Elections By Charles E. Raynal IV

THE NORTH CAROLINA STATE BAR JOURNAL 3 40 The Disciplinary Department BAR UPDATES 42 Paralegal Certification DEPARTMENTS 43 Lawyer Assistance Program 49 Wilson Nominated as 44 IOLTA Update Vice-President 5 President’s Message 45 Trust Accounting 50 Client Security Fund 6 State Bar Outlook 46 Proposed Ethics Opinions 52 Law School Briefs 38 Legal Ethics 47 Rule Amendments 53 In Memoriam 39 Profile in Specialization 54 Distinguished Service Award

Officers Margaret M. Hunt, Brevard - President 2015-2016 26: David N. Allen, Charlotte Sharon Kelly, Events Manager Mark W. Merritt, Charlotte - President-Elect 2015-2016 Robert C. Bowers, Charlotte Barbara Kerr, Archivist John M. Silverstein, Raleigh - Vice-President 2015-2016 A. Todd Brown, Charlotte Cathy D. Killian, Clinical Director and Western Clinical L. Thomas Lunsford II, Raleigh - Secretary-Treasurer Mark P. Henriques, Charlotte Coordinator, LAP Ronald L. Gibson, Charlotte - Past-President 2015-2016 F. Fincher Jarrell, Charlotte Melanie Kincaid, Paralegal Dewitt McCarley, Charlotte Suzanne Lever, Asst. Ethics Counsel Councilors Nancy Black Norelli, Charlotte Jeffrey D. Lundgren, Paralegal 27A: Sonya Campbell McGraw, Gastonia L. Thomas Lunsford II, Executive Director By Judicial District 27B: Ralph W. Meekins, Shelby Eric H. Lyerly, Admin. Asst. 1: C. Everett Thompson II, Elizabeth City 28: Anna Hamrick, Asheville Adam Maner, Professional Organization Coordinator 2: G. Thomas Davis Jr., Swan Quarter 29A: H. Russell Neighbors, Marion 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, District Bar 4: Robert W. Detwiler, Jacksonville Liaison 5: Harold L. Pollock, Burgaw Barry S. McNeill, Deputy Counsel 6: W. Rob Lewis II, Ahoskie Public Members Diane Melching, Admin. Asst., ACAP 7: Randall B. Pridgen, Rocky Mount Margaret H. Dickson, Fayetteville Dottie K. Miani, Deputy Clerk of DHC/Asst. Facilities Manager 8: C. Branson Vickory III, Goldsboro Paul L. Fulton Jr., Winston-Salem Claire U. Mills, Accounts Manager, IOLTA 9: Paul J. Stainback, Henderson James W. Hall, Ahoskie Alice Neece Mine, Asst. Executive Dir., Dir. of CLE, 9A: Alan S. Hicks, Roxboro Specialization, & Paralegal Certification 10: Heidi C. Bloom, Raleigh Robynn E. Moraites, LAP Director Walter E. Brock Jr., Raleigh Staff George Muench, Investigator Nicholas J. Dombalis II, Raleigh Shannon Azzi, Receptionist/IOLTA Accounting Data Asst. Denise Mullen, Asst. Director of Legal Specialization Theodore C. Edwards II, Raleigh Carmen H. Bannon, Deputy Counsel Pat Murphy, Deputy Counsel Katherine Ann Frye, Raleigh Kelly Beck, Compliance Coordinator, Membership/CLE Loriann Nicolicchia, Accreditation Coordinator, CLE Donna R. Rascoe, Raleigh Joy C. Belk, Asst. Dir. Paralegal Certification Emily Oakes, Attendance/Compliance Coordinator, CLE Warren Savage, Raleigh Krista Bennett, Fee Dispute Facilitator, ACAP Brian P.D. Oten, Deputy Counsel C. Colon Willoughby Jr., Raleigh Michael D. Blan, Systems Analyst/Programmer Carolyn S. Page, Investigator 11A: Eddie S. Winstead III, Sanford Peter Bolac, Trust Account Compliance Counsel, Legislative Lisanne Palacios, Accounting Manager 11B: Marcia H. Armstrong, Smithfield Liaison Anne M. Parkin, Field Auditor 12: Lonnie M. Player Jr., Fayetteville Elizabeth E. Bolton, Receptionist Heather Pattle, Administrator, Office of Counsel 13: Harold G. Pope, Whiteville Lori Brooks, Admin. Asst., Office of Counsel C. Fred Patton Jr., Investigator 14: John A. Bowman, Durham Delia M. Brown, Administrative Asst., LAP Wondella Payne, Paralegal William S. Mills, Durham Maria J. Brown, Deputy Counsel Aaliyah Pierce, Compliance Coordinator, Paralegal Certification 15A: Charles E. Davis, Mebane Krista E. Carlson, Investigator Angel Pitts, Mail/Copy/Accounting Clerk 15B: Dorothy Bernholz, Chapel Hill Becky B. Carroll, Paralegal Jennifer Porter, Deputy Counsel 16A: Terry R. Garner, Laurinburg Joseph D. Cerone, Office Manager Evelyn M. Pursley, Executive Dir., IOLTA 16B: David F. Branch Jr., Lumberton Alyssa M. Chen, Deputy Counsel Sonja B. Puryear, Admin. Asst., Investigations 16C: Richard Buckner, Rockingham Margaret Cloutier, Senior Deputy Counsel Joan Renken, Admin. Asst., Office of Counsel 17A: Matthew W. Smith, Eden Joseph J. Commisso, Director of Investigations Randall C. Ross, Investigator 17B: Thomas W. Anderson, Pilot Mountain Martin F. Coolidge Jr., Investigator Whit Ruark, Investigator 18: Barbara R. Christy, Greensboro Susannah B. Cox, Deputy Counsel Sandra L. Saxton, Public Liaison, ACAP Stephen E. Robertson, Greensboro Luella C. Crane, Director of ACAP Fern Gunn Simeon, Deputy Counsel 18H: Richard S. Towers, High Point Jennifer R. Duncan, Director of Communications Jaya Singh, Accounting Asst. 19A: James D. Foster, Concord A. Root Edmonson, Deputy Counsel Jennifer Slattery, Paralegal 19B: Clark R. Bell, Asheboro Justin Edmonson, Admin. Asst., Special Projects Coordinator E. Michael Smith Jr., Investigator 19C: Darrin D. Jordan, Salisbury Nicole Ellington, Eastern Clinical Coordinator, LAP Susie Taylor, Admin. Asst./Special Projects Manager, LAP 19D: Richard Costanza, Southern Pines Martha Fletcher, Payroll and Benefits Administrator Judith Treadwell, Public Liaison, ACAP 20A: John Webster, Albemarle Towanda Garner, Piedmont Clinical Coordinator, LAP Wayne C. Truax, Investigator 20B: H. Ligon Bundy, Monroe Lanice Heidbrink, Exec. Asst., Administration Joshua T. Walthall, Deputy Counsel 21: Michael L. Robinson, Winston-Salem Jeffery Hill, Computer Systems Administrator A. Dawn Whaley, Admin. Asst., Investigations Kevin G. Williams, Winston-Salem Leanor Hodge, Deputy Counsel Edward R. White, Investigator 22A: Kimberly S. Taylor, Taylorsville Debra P. Holland, Asst. Director, CLE Brittany A. Wilson, Paralegal 22B: Roger S. Tripp, Lexington Mary L. Irvine, Access to Justice Coordinator Mary D. Winstead, Deputy Counsel 23: John S. Willardson, Wilkesboro Tammy Jackson, Membership Director Christiane Woods, Admin Asst., Investigations 24: Andrea N. Capua, Boone Katherine Jean, Counsel and Assistant Executive Dir. 25: M. Alan LeCroy, Morganton David R. Johnson, Deputy Counsel THE PRESIDENT’S MESSAGE

Challenges

B Y M ARGARET M. HUNT

As my term as State Bar president comes to toward our profession makes it much more the North Carolina Board of Law Examiners a close, I want to briefly discuss several difficult to garner support from the public is now studying the issue. issues—some of long standing and some aris- and legislators for the passage of legislation 4. Alternative Business Structures—This ing more recently—that have the potential to necessary to properly regulate our profession subject is currently under study by the significantly reshape our profession for the and to regulate nonlawyer providers of legal American Bar Association’s Commission on future. The following are some of those issues: services in order to protect the public. the Future of Legal Services. One model 1. Public’s View of the Profession—The 2. Internet Providers of Legal Services — under study allows nonlawyers to own equity public has a generally unfavorable view of the With the passage of House Bill 436 (the interests in a law firm. Variations of this legal profession with a majority believing that LegalZoom bill), many lawyers may think model would allow nonlawyer owners to lawyers primarily regulate the that the issue of internet actively participate in the operations of the profession for their own pro- providers has been resolved. law firm, and another alternative would protection and act in their own While House Bill 436 prohibit the nonlawyer investor from any active self-interest rather than in the vides a regulatory framework role in the operations of the law firm. interest of clients and the for internet providers of legal Another variation allows a percentage of own- public. Unfortunately, the documents, issues are likely to ership by a nonlawyer, anywhere from a public fails to understand the arise from other internet minority interest to an unlimited share. essential role of lawyers in the providers who offer more Legislation that would permit nonlawyer preservation of the rule of law than legal documents, such as ownership interests in North Carolina law and the administration of jus- AVVO which advertises fixed firms was introduced in the General tice, which has been entrusted fee services provided by “expe- Assembly several years ago, but failed to pass. to each new generation of rienced lawyers” with “satis- Washington, DC, allows nonlawyers to lawyers since the beginning of faction guaranteed” in such own equity interests in law firms, and our country. We advise and practice areas as criminal Washington State allows their licensed legal represent our clients, mitigate, challenge over- defense, family law, estate planning, bank- technicians to have an equity interest in law reach by the government and other entities, ruptcy, and real estate. In addition, some firms in that state. and advocate for unpopular causes. We also internet providers are advancing from provid- Such an arrangement, in addition to obvi- offer ourselves for public office, serve on gov- ing legal documents to providing automated ous conflicts issues, could interfere with a ernment boards and commissions, on non- legal advice through the use of artificial intel- lawyer’s ability to adhere to some of our core profit and community boards where our skills ligence applications. When nonlawyers use values such as undivided loyalty to clients and and expertise are indispensable, and regularly artificial intelligence technology to give legal giving clients our best independent legal provide legal services pro bono either through advice based on a customer’s individual facts, judgment and advice. organizations or individually on an ad hoc most lawyers consider that the unauthorized 5. Legal Technicians—Some states are basis. Our profession has been absolutely inte- practice of law. How will that be regulated in studying whether to adopt a certification gral to the creation and the preservation of our the future? process that would permit nonlawyers to form of government, to the development of a 3. The Uniform Bar Examination—The perform certain specific legal services now free market economy, and to a free and civil Uniform Bar Examination (UBE) has now considered to be the practice of law. society. We have a great story to tell, but we been adopted by over 20 states. Each state Washington State has adopted such a pro- left the playing field a long time ago, and oth- that adopts the UBE selects its own passing gram and it is currently limited to certain ers have written our story for us to the detri- score, may add a state specific test compo- clearly defined family law matters. This issue ment of our profession and the public’s per- nent, and will continue to conduct its own is also being studied by the Commission on ception of us. character and fitness vetting. The UBE results the Future of Legal Services. Both certifica- The rule of law will survive only as long as in a portable score and portable law license tion or licensing of legal technicians and the public has confidence in its administra- that can be transferred to other UBE jurisdic- nonlawyer internet providers of legal docu- tion. It is evident that the public is losing con- tions if the applicant’s character and fitness is ments are believed by some to make basic fidence, and I believe this misperception of successfully vetted. The American Bar legal services more accessible to those who our profession is one of the most significant Association’s House of Delegates voted to problems we face. This lack of good will support the Uniform Bar Examination, and CONTINUED ON PAGE 23

THE NORTH CAROLINA STATE BAR JOURNAL 5 STATE BAR OUTLOOK

The Micawber Principle

B Y L. THOMAS L UNSFORD II

In managing the State Bar’s finances, I am Indeed, we have embraced his prescription who are inclined to “drill down” into the figu- ever mindful of the economic philosophy of for happiness wholeheartedly in the State rative crust, I will also try to create vivid “word Wilkins Micawber, the impecunious landlord Bar’s operational budget for 2016, projecting pictures” concerning our outlays for especially and mentor of David Copperfield, whom a surplus of nearly $140,000. intriguing line items like “salaries” and “utili- you will no doubt recall from tenth grade My purpose herein is to describe the ties.” The second pie chart presents some of English. One of Charles Dickens’ greatest spending decisions that collectively ought to the same information in a somewhat different comic creations, Mr. Micawber was evidently enable us to balance the budget this year— way. It displays our relative costs for particular modeled upon the author’s father, an incur- and to avoid prison and the necessity of start- undertakings such as the disciplinary pro- able optimist whose knack for fiscal ruin led ing over in Australia, like Mr. Micawber. In gram, the ethics program, and the Lawyer inevitably to debtor’s prison. the service of these noble Assistance Program. Admittedly, this is a lot to Micawber’s personal econo- objectives, I am again offering take in, and reader discretion is advised. my was a curious admixture for your enlightenment a cou- The operational budget for 2016 contem- of faith and rueful calcula- ple of multi-colored pie- plates expenditures totaling $9,183,977. Of tion. On the income side of charts. Like most pastries of that amount, more than 63% ($5,835,347 to his personal equation, the sort, the first categorically be exact) has been appropriated to pay “per- Micawber was merely san- depicts the relative amounts sonnel expenses.” Most of that money is, not guine. He trusted simply and of spending that are required surprisingly, devoted to the payment of perennially that, “something to administer the agency. For “salaries.”1 This year the amount budgeted will turn up.” Unfortunately, ease of understanding, a great for that line item totals $4,447,205, a figure he was generally unfortunate. many related accounts are that incorporates an across the board increase Where expenses were con- being combined under broad in compensation for our dedicated employees cerned, however, Mr. headings like “personnel of about 2%. Benefits, including health Micawber was actually wise, expenses,” “building expens- insurance, dental insurance, life insurance, but slavishly imprudent. He understood the es” and “office expenses.” For those of you FICA, parking, coffee, and participation in a curse of insolvency, but couldn’t resist it. Perhaps you will recall his definitive pro- THENORTHCAROLINASTATEBAR nouncement on the subject: CATEGORIESOFEXPENSES Annual income 20 pounds, annual expendi- 2016 16% ture 19 (pounds), 19 (shillings), and six 11% (pence), result happiness. Annual income 20 pounds, annual expenditure 20 pounds ought and six, result misery. Council&Committee

This quotation, known widely as the 8% embodiment of the Micawber Principle, pro- Personnel vides a bit of cheerful context for this essay concerning how the State Bar spends and TrialExpenses 1% why. Faithful readers of this column will recall that the matter of revenue was discussed the OfficeExpenses last time I appeared in these pages. As was then noted, our income streams are reason- BuildingExpenses ably well understood, fairly reliable, and presently adequate. Although it is always nice when something unexpected “turns up,” we, unlike Mr. Micawber, aren’t having to count on that to make ends meet. We are, as it happens, more heedful of his advice and experience where expenditures are concerned. 64%

6 FALL 2016 defined contribution pension plan, are North Carolina. Although the dollars actually less than half of what we spent on out- expected to cost the State Bar an additional involved are not large, it is worth noting that side counsel in 2015, a year in which we con- $1,258,667, more or less. It is rather difficult in recent years, the cost of intrastate travel has tended mightily with the LegalZoom corpora- to predict with total confidence how much risen sharply, largely because our presidents tion concerning the application of the and how quickly the staff and its compensa- have been remarkably energetic in making Sherman Act. The fact that we are finding it tion are likely to grow over the next few years. themselves available in-person whenever and necessary to hire private counsel is no knock We do know that the need for additional per- wherever lawyers have been gathering. Since on our own lawyers. They are all extremely sonnel increases as a function of membership two of the last three presidents have been capable and are well-led by our general coun- growth, which has been rising at around based in Kitty Hawk and Brevard, their faith- sel, Katherine Jean. It is indicative mainly of 2.5% a year. If recent experience is any guide, fulness and ubiquity have been both impres- the fact that the State Bar’s primary regulatory it seems clear that more and more people are sive and costly. Thank goodness we reimburse responsibility—the enforcement of our pro- going to be required to investigate and prose- only for food, lodging, and mileage.3 We also fession’s high ethical standards—requires the cute disciplinary cases that are becoming ever support several delegates to the American Bar time and energy of virtually all of our in-house more complex, numerous, and protracted. In Association’s House of Delegates, and we lawyers almost all of the time. This circum- contrast, we hope to need fewer administra- annually sponsor four district bar meetings in stance, in combination with the reality that tive workers. As we are able to leverage digital four widely dispersed areas. All told, the cost anti-trust law is an arcane area of practice best technologies more effectively to eliminate of taking our act and our people on the road left to specialists, has warranted our retention paper transactions, we ought to be in a posi- is expected to exceed $110,000 this year. of particularly qualified outside counsel. tion to do more with the same or fewer peo- But wait, that’s not all. Several odd The amount budgeted for legal services ple. The savings from foregone coffee alone accounts are lumped in with “council and this year looks to be sufficient, based upon should be quite hefty. committee expenses” because they don’t seem the fees we have incurred through the first six The next largest slice of administrative pie to fit anywhere else. The most significant item months. It is, however, impossible to say with is less filling but tastes great. I am referring, of is the cost of supporting the Lawyer confidence what our costs for such services course, to the wedge encaptioned “council Assistance Program (LAP), $744,376 to be will be going forward. Indeed, this category and committee expenses.” That category, precise. As everyone should know by now, the of expense is probably the biggest wild card in which embraces a fairly wide variety of LAP through its highly trained staff and our entire financial deck. The agency has accounts, is expected to total $1,459,324 in legions of dedicated volunteers, identifies become in recent years a “target of opportu- 2016, or about 16% of our budgeted lawyers who are impaired by substance abuse nity” for a great many disputatious folks. expense. As you may be aware, the council is and mental illness and assists them in getting Fulfillment of the State Bar’s regulatory mis- the State Bar’s governing board. It is com- treatment. The LAP Board, like the State Bar’s sion, especially its statutory obligation to posed of 68 members: 61 lawyers elected other quasi-independent boards, is regarded enforce the laws prohibiting unauthorized from the 45 judicial districts, three public as a standing committee of the council. practice, seems likely to engender much members appointed by the governor, and Unlike the other boards, however, it is with- future controversy and litigation. While the four officers elected by the councilors. out its own source of revenue and is necessar- agency can call upon the attorney general for Although most business school textbooks ily carried as an expense account in the State highly qualified assistance under certain cir- would caution against governance by three Bar’s budget. The size of the appropriation, cumstances, and may have the contractual score and eight, the council, which acts main- which is inclusive of all costs associated with right to the provision of defense pursuant to ly through its various committees, has proven the undertaking, is indicative of the impor- its insurance policies in other situations, it is over time to be rather nimble, wise, and effec- tance of the program, the risk to the public to our own treasury that we must often look tive. It is also expensive to operate. The coun- associated with impairment, and the Bar’s for the resources necessary to ensure that the cil meets quarterly for at least three days at a commitment to helping suffering lawyers. State Bar—and the people of North time, most often in Raleigh. Because its vol- Like the size of the council and the number of Carolina—are well represented. unteer members are drawn from all over the miles our presidents drive in support of the Although we can’t say for sure what it’s state, there is considerable cost associated Bar, the justifiable cost of running the LAP going to cost next year to defend the State Bar with their participation, about $320,000 in might very well be unlimited. The demand in court, we do know exactly how much it’s the current year. It is believed that these for its services is, after all, seemingly inex- going to take to stave off foreclosure. Aside expenses should remain fairly predictable and haustible. Nevertheless, it appears to me that from salaries, our biggest fixed cost is the serv- stable going forward—unless the General the State Bar’s financial support for the pro- ice of our mortgage debt. And it’s most of Assembly creates more judicial districts. Since gram is at an appropriate level, and is unlikely what we expect to spend in 2016 for “building every district is entitled by law to its own to increase dramatically in the near term. expenses.” Appropriations for the accounts councilor, the size of our board increases Although the State Bar’s Office of Counsel grouped under that broad heading—things automatically whenever the legislature is one of North Carolina’s best law firms, we like housekeeping, building maintenance, and decides to create a new prosecutorial district, are still finding it necessary to spend serious utilities—total $1,048,966. Of that amount, and is theoretically unlimited.2 money on private attorneys. In 2016 we have $827,766 will be used to pay the mortgage. Also gathered under this heading are the budgeted $200,000 for that purpose, money It’s a big chunk, to be sure, but is at least a costs of sending our officers and senior staff to which is also accounted for under the rubric of known quantity, fixed until the loan must be professional meetings inside and outside of “council and committee expenses.” That is renegotiated in 2021. The other categories of

THE NORTH CAROLINA STATE BAR JOURNAL 7 “building expense” are fairly mundane, rea- I suspect that some of you are beginning still presented, but in a slightly different form sonably well understood, and not worth dis- to wonder whether this brutal exercise in fis- with enhanced annotation. Unfortunately, cussing. A couple of the accounts though— cal transparency will ever be over. Perhaps the move to consolidation and the resolution ”LEED certification” and “building securi- you’ve studied the first pie chart and now of several other bean-counting issues pushed ty”—do bear mentioning. realize that there are still two major cate- back the delivery of the audit from April to The State Bar’s still new building was gories of expense yet to be discussed. If you July. That being the case, the audit summary designed to be energy efficient and “green.” find this distressing, you are probably not typically published in this issue of the Journal To memorialize our good citizenship in that alone. I believe it was Briscoe Darling, a will appear next time. So stay tuned. regard, we resolved to seek LEED4 certifica- philosopher of some considerable reputation This year’s budget also includes an appro- tion of the endeavor. We initially dreamed of on the old Andy Griffith Show, who having priation of $40,000 for the renovation of our “platinum” recognition, that being the “gold been memorably overserved by Aunt Bea website, a place on the internet that at one standard” of sustainability. Regrettably, some declared that, “three cuts of pie is my high- time was a source of pride, but which had three years after the building’s completion water mark.” If there are those of you who become prejudicial, at least as far as our image and our receipt of the coveted “certificate of can’t bear another scrap of information, now was concerned. At any rate, the old website occupancy” from the City of Raleigh, our would be a good time to stop reading. After has now been swept into the dustbin of metallurgical aspirations were found to be all, what can I say about “office expenses” cyberhistory in favor of a more attractive dis- nonsustainable, and we were obliged to settle that hasn’t already been said better by lots of play that is well-conceived, user-friendly, and for the “silver” award, which is from what I other people? My advice—just put the mag- designed to accommodate portable devices as can tell, the “bronze standard” for green or azine down and back away from it slowly. well as outmoded machines that are depend- “greenish” buildings. Anyway, our budget for No one will think less of you. But, if you ent upon wires. The project is coming in 2016 includes $15,200 for LEED certifica- think you can handle it, I believe you’ll be within budget and is regarded as a nonrecur- tion. The good news is that we have actually glad if you “stay the course.” rent expense, in much the same way as a 17- spent only $6,907 of that amount. The better Speaking of “office expenses,” I am year locust is conceived to be a nonrecurrent news is that we are now done with paying for bound to confess that we expect to spend insect. It’s likely to recur, but not in the next LEED certification and can bask henceforth $738,340 on the items grouped under that few years. I hope you’ll like it. and forever5 in the warm afterglow of our heading this year. That’s a lot of paper Which brings us inevitably to those costs third-place finish. Maybe we didn’t win, but clips—and postage, and software licenses, that are presented together under the caption we did get on the podium, and no one can and printing, and internet service, etc. of “trial expenses.” You might think, given the take that away from us. Actually, there are 18 discrete line items con- State Bar’s Javert-like pursuit of those among We also expect to spend a fair amount of stituting what are collectively described as us who are manifestly dishonorable, that we money this year on enhanced security for our office expenses in the State Bar’s operational would be spending a huge amount on the building and the people who use it. The sum budget. Not wanting to discourage the few prosecution of disciplinary cases. And we do, of $12,500 has been earmarked for that pur- of you who have continued reading this essay if you count the salaries of all the investiga- pose. Most of the funds will be used to hire against medical advice, I am choosing to dis- tors, and the public liaisons, and the parale- armed guards for duty at public disciplinary cuss only a couple: “audit” and “website.” gals, and the administrative assistants, and the proceedings conducted by the Disciplinary The State Bar is a state agency subject to lawyers who constitute the Office of Counsel. Hearing Commission. We don’t routinely review by the state auditor. We are audited But, if you just look at incidental expenses make such arrangements, but seem to be annually by an independent accounting firm such as “court reporting” and “witness costs,” needing the sobering presence of sworn peace approved by the state auditor. This year our they don’t add up to all that much. In fact, the officers more and more often lately as erratic fiscal policies required us to change auditors. whole enterprise, aside from labor costs, behavior among complainants and respon- We budgeted $25,100 for the audit, but should require only about $100,000 this year. dents increases. In any event, we have expect to pay somewhat more for the service I would like you to think that this sort of eschewed, for the time being at least, the sort owing mainly to the auditors’ conclusion that economy is the direct result of my own leg- of intensive security measures that are now generally accepted accounting standards endary frugality but, in the words of Richard commonplace at courthouses throughout the require that the financial statements of the Nixon,7 “that would be wrong.” The real rea- state, wanting the public to feel welcome to State Bar Council be consolidated with those son is that we (you) benefit from an incredi- visit our public building whenever they wish. of its several quasi-independent boards.6 ble amount of work that is donated by the 20 We have chosen, instead, to heighten our Heretofore, each board was subject to its own people (12 lawyers and 8 nonlawyers) who security on an ad hoc basis when circum- discrete audit and had its own entirely segre- compose the Disciplinary Hearing stances seem to warrant extraordinary meas- gated financial statements. Although I resis- Commission and adjudicate the many disci- ures. Query whether it is better to incline ted the change at first, believing that readers plinary cases that are tried each year before toward hospitality or risk aversion in our of the consolidated statements might wrongly that administrative tribunal. Disciplinary position? I’m not sure I know the answer to assume that I could now pay the State Bar’s cases, which used to take a day to try, or two that question, but one thing is clear. It’s mortgage with money belonging to the at the most, are now routinely scheduled for expensive, and maybe impossible, to purchase Client Security Fund, I was apparently mis- at least two days. Quite a few take much real safety in our business. And I’m not sure taken. The consolidated statements do make longer and require multiple trips to Raleigh we can afford it. sense and are useful. The same information is for preliminary proceedings and trial. One

8 FALL 2016 case in 2014 took fully 14 days to try. As was THENORTHCAROLINASTATEBAR noted previously in regard to the random per- PROGRAMMATICEXPENSES2016 ambulations of the State Bar’s president ADMINISTRATIVE around the state each year, if we had to pay 8% COMMUNICATIONS these people for the actual value of their time, 2% we probably couldn’t afford it. As it is, we pay DISCIPLINE them the insultingly small stipend of $15 per 3% AUTHORIZEDPRACTICE day (plus expenses) for their service, and skate ETHICS by on an annual appropriation for the DHC LAP of $30,000. What a deal! The second pie chart presents the same expenditures in a slightly different way. It reflects a bit of unaudited cost accounting 46% for the programs that are funded out of the State Bar’s operational budget, after segre- gating costs for activities that are purely administrative, such as maintaining the building, administering the membership database, cooking the books, and managing 39% human resources. And no attempt has been made to assign any portion of the agency’s general overhead to the programs. Please 3% note that several programs for which the State Bar is well known (specialization, paralegal certification, IOLTA, etc.) are not ref- gram effectively, even if we must compromise fund the ethics program. It goes mostly for erenced in the diagram because they have our support of other important activities. the salaries of the lawyers who answer the their own independent sources of revenue Fortunately, we continue to be able to afford ethics hotline, respond to email inquiries, and and are self-sufficient. Their finances will to do what we must as well as what we should. counsel the Ethics Committee. The commit- probably be the subject of my article in the It is hoped that will always be the case. tee is huge. It meets quarterly in conjunction next issue of the Journal. Mention has already been made of the size with the council, and is generally recognized Whether you view that forecast as a prom- of our financial commitment to assisting as the profession’s last great debating society. ise or a threat is neither here nor there. Our lawyers impaired by substance abuse and Fortunately, as far as the budget is concerned, immediate concern is the council’s use of its mental illness. I believe that the stakes are suf- talk is cheap. own sources of revenue, principally member- ficiently high for all concerned that we are Finally, we must account for our rather ship dues. As should be readily apparent from fully justified in dedicating nearly 8% of our comprehensive communications effort. the second chart, the State Bar’s largest finan- budget to the effort. Of course, it’s difficult to About 3% of our expenditures are intended cial commitment programmatically is to the quantify our success in terms of lives saved, to “get the word out.” In addition to the disciplinary program. Approximately 39% of families preserved, and feasances (mis, mal, salary of our extremely talented editor and the budget, around $3,500,000, goes to sup- and non) averted. But despite the strict con- webmaster, Jennifer Duncan, we also pay the port the intake, processing, investigation, confidentiality surrounding the program, we cost of printing and distributing the fine sideration, and prosecution of grievances. know from numerous unsolicited testimoni- quarterly publication you are enjoying, the That figure includes the activities of the als that the work is fruitful and essential. cost of producing the incomparable Lawyers Attorney/Client Assistance Program, whereby Three other important regulatory pro- Handbook, and the cost of maintaining and efforts are made to help citizens in regard to grams are represented on the chart by smaller operating our website. It is possible that our complaints that may not be cognizable under slices of similar size. Our effort to suppress expenses will decrease in the foreseeable the Rules of Professional Conduct, but war- the unauthorized practice of law consumes future, depending on whether the council rant our effort to provide referrals and other about 3% of the budget. This percentage ultimately decides to convert the Journal to a assistance. It also includes the State Bar’s Fee does not include the cost of litigating matters completely digital publication. It costs about Dispute Resolution Program. The size of our with UPL issues, although perhaps it should. $140,000 a year to provide every member investment in the disciplinary program seems It is, alas, very difficult to predict our involve- with a hard copy. A decision to go digital entirely appropriate since the enforcement of ment in such cases and the cost of any such would be very economical. But would it be as high standards of professional conduct for the participation. For those reasons, the cost of communicative? protection of the public is the State Bar’s high- litigating UPL matters is included, along the Which brings us back around to Wilkins est priority. Indeed, we are fairly price inelastic entire appropriation for “legal services,” in Micawber and his insight regarding the firm where the operation of the disciplinary pro- the vast undifferentiated half of the pie related linkage between solvency and delight. As gram is concerned. We are bound to find the to administration of the agency. money to do what is necessary to run the pro- About 2% of the budget is required to CONTINUED ON PAGE 23

THE NORTH CAROLINA STATE BAR JOURNAL 9 Crowdfunding for Raising Capital has Arrived

T HOMAS L EE H AZEN

he federal and state (“blue sky”) securities

laws are based on the premise that compa-

nies offering securities to the public should

provide adequate disclosure. Absent an exemption, companiesT offering securities to the public must comply with the registration and disclosure requirements of the Securities Act of 1933. The required disclosures necessarily impose costs on companies raising capital through public offerings. ©iStockphoto.com

Traditionally, exempt transactions have similar fundraising endeavors are known as been premised on sales of securities not crowdfunding. The Internet thus provides a involving public offerings and made to platform for using crowdfunding to reach sophisticated and/or wealthy investors. This large numbers of people. The solicitation of means that start-up companies’ stock is not funds as gifts or donations is a substantially available to ordinary investors. Small busi- unregulated activity. Crowdfunding to raise funding exemption was before the Senate. nesses made a push to enact exemptions to capital for a business, however, is highly Section 4(a)(6) provides an exemption for make their securities available to members of regulated. crowdfunding offerings up to $1 million per the public, provided that the amount of any Capital raising through crowdfunding has year and is conditioned on disclosure to purchaser’s investment is limited. Congress existed outside the United States for several investors. The new exemption also requires and many states responded with a registra- years, but has not been viable in the US until registration of the offering platform known tion exemption for crowdfunding offerings. now because it would have required registra- as a crowdfunding portal. Crowdfunding is the fundraising analog tion under the Securities Act of 1933. In addition to limiting the total amount to crowdsourcing, which refers to mass col- However, in 2012 Congress enacted the of the offering to $1 million in any 12- laboration efforts through large numbers of JOBS Act1 that, among other things, added a month period, the federal crowdfunding people, generally using social media or the provision—Section 4(a)(6)—to the 1933 exemption limits the amount of money that Internet. Websites such as Kickstarter have Act.2 In addition, a growing number of states a company may raise from any investor. been used to fund various projects including enacted exemptions for crowdfunding from With respect to investors having an annual financing films and other forms of art, as their blue sky laws.3 As this article went to income or net worth below $100,000, a well as for charitable solicitations. These and press, a bill to create a North Carolina crowd- company may not sell securities to any

10 FALL 2016 Fastest smartest malpractice insurance. Period.

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investor exceeding the greater of either mitted is advertising that directs interested ous questions, and affirm that they under- $2,000 or 5% of the investor’s annual investors to the funding portal or broker stand the risk of loss. The broker or regis- income or net worth within a 12-month handling the offering. The company may not tered funding portal will also be required to period. For investors over the $100,000 compensate promoters of the offering unless investigate the background of regulatory annual income or net worth threshold, the the compensation is disclosed. The exemp- compliance by the company’s officers, direc- 12-month investment is capped at 10% of tion also imposes reporting obligations tors, and major shareholders. The broker or the investor’s annual income or net worth, beyond the offering. For companies not sub- funding portal must make certain informa- but may not exceed $100,000 over the 12- ject to the Securities Exchange Act’s periodic tion available to investors and the SEC at month period. reporting requirements, crowdfunded com- least 21 days in advance of the offering. The The federal crowdfunding exemption is panies must file annual reports and provide broker or funding portal must also follow conditioned on providing investors with cer- investors with reports detailing results of SEC rules designed to assure that purchasers tain disclosures that must also be filed with operations and financial statements annually. have not exceeded the investment cap for all the SEC. The required disclosures include The JOBS Act further directs the SEC to crowdfunding offerings by any issuer during the offering’s purpose, the targeted amount exempt—conditionally or unconditional- a 12-month period. The exemption further to be raised, the deadline for reaching such ly—companies relying on the crowdfunding requires the broker or funding portal to be amount, and the offering price. Significantly, exemption from the 1934 Act’s registration sure that the offering proceeds are turned risks to investors also must be disclosed as and periodic reporting obligations. over to the issuer only when the target offer- well as any additional information as the The intermediary for a crowdfunding ing amount is reached. SEC may prescribe. The crowdfunding offering must be registered with the SEC The JOBS Act also addressed the role of exemption expressly requires information either as a broker-dealer, or under the new the states in crowdfunding regulation. State about the company, its officers, directors, registration category as a crowdfunding por- blue sky law registration requirements for and major shareholders in addition to a tal. In addition to SEC registration, the SEC public offerings are preempted unless the description of the company’s business, busi- is directed to adopt rules requiring the broker issuer of the securities has its principal place ness plan, capital structure, and financial or funding portal to provide disclosures to of business in the state, or more than 50% of condition. Audited financial statements are investors relating to risks and investor educa- the crowdfunding offering’s proceeds are required for offerings over $500,000 and for tion materials. These rules require the broker purchasers residing in the state. Thus, it is any other thresholds that may be imposed by or funding portal to take steps to ensure that possible that two states could simultaneously SEC rulemaking. The only advertising per- investors review the disclosures, answer vari- impose their registration requirements if one

THE NORTH CAROLINA STATE BAR JOURNAL 11 state is the company’s principal place of business and the other state is where more than The North Carolina PACES Act half of the offering’s proceeds are raised. In addition, preemption extends to regulation of funding portals except for the state of the After several attempts, a much-awaited the legislation. After the rules are in place, crowdfunding portal’s principal place of state crowdfunding bill is set to become law investors and small businesses can connect business. The funding portal’s principal place in the coming weeks when Governor Pat on capital raises similarly to the way that of business may regulate the portal, but not McCrory is expected to sign the North donors today sign up for a Kickstarter-type by imposing standards greater than those Carolina PACES Act. PACES, which crowdfunding campaign. However, unlike imposed by the SEC. expands to “Providing Access to Capital for donation-based crowdfunding sites, under In late October 2013 the SEC proposed Entrepreneurs and Small Business,” com- the PACES Act, businesses can sell stock or its crowdfunding rules, which became effec- fortably sailed through the General issue debt to raise capital for their ventures. tive on May 16, 2016.4 Assembly in June, winning nearly unani- Unlike Kickstarter, however, investor funds mous support in both chambers. are at risk. Summary of Crowdfunding as The PACES Act will allow businesses in The PACES Act creates a new exemp- Implemented by SEC Rulemaking the state to raise up to $2 million in capital tion from registration for a securities offer- As noted above, the SEC’s crowdfunding from Main Street investors by issuing secu- ing as required by N.C.G.S. §78A-24. To rules became effective in May 2016. The rities in transactions likely conducted online qualify, issuers, i.e. businesses that sell secu- rules are found in Regulation CF and are through registered websites. For North rities, have to provide certain required dis- codified in 17 C.F.R. §§ 227.100 et seq. Carolina investors, the new legislation per- closures about the business while highlight- Among other things, the rules provide that mits average investors to harness the so- ing the heavy risks of such offerings. crowdfunding offerings will not be integrat- called “wisdom of the crowds” to invest in Numerous studies have shown that early- ed with other exempt offerings. It thus is promising state ventures. stage businesses suffer a much higher fail- likely that many companies will have crowd- NC Secretary of State Elaine F. ure rate than mature companies. Issuers funding and Regulation D offerings (or Marshall, whose office is tasked with have an obligation to provide potential other exempt offerings) side by side. administering and enforcing the law, called investors with all of the material informa- Not all companies are eligible to rely on the legislation a win-win for investors and tion necessary to make an informed invest- the crowdfunding exemption. Companies small businesses. ment decision. that are not eligible include non-US compa- “All over our state, many new and small Absent an exemption or federal preemp- nies, companies that are Exchange Act businesses find it difficult to access financial tion, state law requires all securities offerings reporting companies, certain investment capital to start their venture, or to fund to be registered prior to any offers being companies, companies that are disqualified expanding their operations,” Marshall said. made to investors. Noncompliance can be under the SEC disqualification rules, compa- “A new form of capital formation has disastrous for issuers. State and federal reg- nies that have failed to comply with the emerged in the marketplace in recent ulators can impose penalties, require funds annual reporting requirements under years—crowdfunding—that allows compa- to be returned to investors with interest and Regulation Crowdfunding during the two nies to openly solicit and sell to main-street attorney fees, and can investigate com- years immediately preceding the filing of the investors, through the internet and else- plaints. If disclosures are misleading or offering statement, and companies that have where, and this legislation will permit small materially deficient, investors can sue issuers no specific business plan or have indicated investors to invest this way in North and its promoters for fraud. their business plan is to engage in a merger or Carolina.” The NC Secretary of State’s Securities acquisition with an unidentified company or “In an era where access to capital is Division is the leading financial securities companies. extremely challenging, crowdfunding has regulator and investor protection law Resale restrictions apply to securities pur- the potential to be an innovative new way enforcement agency in North Carolina. chased pursuant to the crowdfunding to infuse much-needed financial capital Anyone interested in making an investment exemption. There is a one year holding peri- into these sectors,” said Marshall. should always first call 1-800-688-4507 to od for purchasers of securities in an offering Importantly, the legislation includes the make sure the person offering the invest- pursuant to the crowdfunding exemption. In right mix of investor protections and lim- ment, and the investment itself, are proper- addition, holders of crowdfunding securities its, she said. “As we enter these new ly registered. Visit the North Carolina do not count toward the threshold that uncharted financial regulatory waters, we Secretary of State, Securities Division, requires an issuer to register its securities with must remain vigilant in our efforts to pro- online at sosnc.gov for other helpful infor- the commission under Section 12(g) of the tect investors and the public from scams mation on avoiding scams. Securities Exchange Act of 1934, provided and fraud.” the issuer is current in its annual crowdfund- The PACES Act grants the Securities Written by Kevin Harrington who is the ing reporting obligation, retains the services Division of the Secretary of State’s Office director of the Securities Division at the NC of a registered transfer agent, and has less abbreviated rule making authority related to Secretary of State’s Office. than $25 million in assets. The SEC’s crowdfunding rules impose

12 FALL 2016 disclosure requirements on companies relying on the exemption. This information The lalawl aawwf firmirm ofof must be filed with the SEC, and provided to investors and to the intermediary or por- BarnwellBBaarnwarnwell WhaleWhaleyy tal facilitating the crowdfunding offering. is pleasedpleased ttoo annannouncennounce its eexpansionxppaanssion intintoo The offering document disclosures must include: NNorthorrtth carolina • Information about officers and directors as well as owners of 20% or more of the Chris HinnantHinnantn issuer; MemberMemberA AtAttorneyt • A description of the issuer’s business and WilminWilmingtongtt the use of proceeds from the offering; • The price to the public of the securities • Business lalaww or the method for determining the price, the • Civil litigation target offering amount, the deadline to reach • Medical malpractice the target offering amount, and whether the issuer will accept investments in excess of the • PrProfessionalofessional liability target offering amount; • Premises liability • Certain related-party transactions; • Construction litigationn • A discussion of the issuer’s financial condition; and [email protected]@barnwell-whaley 75

• Financial statements of the issuer that 1938-2013 YEARS are, depending on the amount offered and sold during a 12-month period, accompa- AttorneysAttorneys foforr bubusinessessinesses & professionalsprofessionals sincesince 19381938 nied by information from the issuer’s tax Charleston • Wilmington returns, reviewed by an independent public www.barnwell-whaley.com @barnwellwhaley accountant, or audited by an independent 1427 Military Cutoff Road Suite 202. Wilmington auditor. An issuer relying on these rules for 910.679.1388 the first time would be permitted to provide reviewed rather than audited financial statements, unless financial statements of the issuer are available that have been audited by platform; and Boshamer Distinguished Professor of Law at an independent auditor. • Facilitate the offer and sale of crowd- The University of North Carolina at Chapel In addition, while the offering is ongoing, funded securities. Hill. This article is in large part adapted from the offering documents must be amended to The SEC rules prohibit funding portals Thomas Lee Hazen, Treatise on the Law of reflect material developments and to update from: Securities Regulation § 4:52 (7th ed. 2016) the company’s progress in reaching the tar- • Offering investment advice or making and Thomas Lee Hazen, Crowdfunding or geted amount of the offering. Following an recommendations; Fraudfunding? Social Networks and the offering exempt under the crowdfunding • Soliciting purchases, sales, or offers to Securities Laws—Why any Specially rules, the company must file an annual buy securities offered or displayed on its plat- Tailored Exemption Must Be Conditioned report with the SEC and also provide that form; on Meaningful Disclosure, 90 N.C.L. Rev. report to investors. • Compensating promoters and others for 1735 (2012). In order to qualify for the crowdfunding solicitations or based on the sale of securities; exemption, the offering must be conducted and Endnotes solely through a crowdfunding portal regis- • Holding, possessing, or handling 1. See, e.g., Tania Kishore Jaleel, Funding Ideas for Returns, tered with the SEC or an SEC-registered investor funds or securities. Business Standard, 2011 WLNR 8685196 (May 5, 2011) (discussing crowdfunding in India); Crowdcube, broker-dealer. Registered crowdfunding por- The SEC rules provide a safe harbor crowdcube.com (last visited Sept. 7, 2011) (capital rais- tals and broker-dealers conducting a crowd- under which funding portals can engage in ing crowdfunding cite in the UK). funding offering must: certain activities consistent with these restric- 2. Jumpstart Our Business Startups Act § 103, H.R. • Provide investors with educational tions. 3606, 112 Cong. 2d sess. (2012). materials; The foregoing disclosure requirements 3. 15 U.S.C. § 77d(a)(6). • Take measures to reduce the risk of clearly have a cost. This cost is justified by 4. E.g., Code of Ala. § 8-6-11(14); Ga. Comp. R. & fraud; the need to protect investors. However, at the Regs. R. 590-4-2-.08; Ind. Code Ann. § 23-19-2- 2(27); Tenn. Code. Ann. § 48-1-103(a)(13); Wis. Stat. • Make available information about the same time it may prove that many crowd- § 551.202. n issuer and the offering; funding offerings are not cost effective. 5. See Crowdfunding, Sec. Act Rel. No. 33-9974, Sec. • Provide communication channels to Exch. Act Rel. No. 24-76324, 2015 WL 7273273 permit discussions about offerings on the Thomas Lee Hazen is the Cary C. (SEC Oct. 30, 2015).

THE NORTH CAROLINA STATE BAR JOURNAL 13 The District Court at 50

B Y J AMES C. DRENNAN

his December the North (Tyrrell, Hyde, Washington, Martin, and Carolina District Court Beaufort Counties) has had only had eight turns 50.1 If one created a different judges over that same period. district court time capsule Today, there are 270 judges currently serv- covering those fifty years, ing the district court, in a state with over 10 nearlyT every change that impacted the state million residents, 800,000 of whom are of would be in full view. The court’s role would Hispanic origin. Fifty-four percent of the always be the same—applying the resources judges are white males, 25% are white females, of the courts to the most difficult social prob- 7% are black males, and 12% are black lems facing the state, one case at a time; how- females. There are now 44 districts. The largest ever, the way it approached that role would district, still Mecklenburg, has 21 judges. The be quite different. Here are a few issues for two smallest, 9A and 20A, have two judges. comparison: Caseloads have grown as well: In 2014-15, • An evolving view of gender equality; over two million criminal and traffic cases • A changing definition of family; were filed. Like North Carolina as a whole, • A concern about substance abuse and its that growth is uneven. Urban areas have judges of all courts lower than the superior impact on public safety; grown dramatically, while many rural court courts. For example they will bear little • A concern about what to do with kids districts have stable caseloads. The percentage resemblance to the recorder’s court since who are adrift; of traffic cases disposed of without a court they will hold a position of substantially • The browning and graying of North appearance has dropped to around 30%. increased power and responsibility... Carolina; and So, much has changed, and much has Election of mediocre or unqualified men • A recognition that private violence in a stayed the same. First, let’s go over the things would severely handicap our new system.3 family is a public concern. that have changed. There is no litmus test to verify whether This article is an overview of that 50 year Many of the judges who started the dis- Governor Moore’s hopes were realized. But if history. trict court had served in some of the local one looks at the jurisdictional responsibilities But first, some numbers to provide a per- courts that handled traffic and minor offens- assigned to the court, it is reasonable to infer spective on the growth of the court, which is es. Some local courts had civil and criminal that the General Assembly has confidence in perhaps the most obvious change. In 19702 jurisdiction that involved more complex the court. If they didn’t, they would not have there were just over five million NC resi- offenses, but they were the exception. In pushed as many complicated cases as they dents, 74,000 of whom were of Hispanic ori- 1966, when the district court was rolled out have into the court. gin. There were 112 judges on the bench— in six districts, the superior court was the Another indicator of the growing under- three were females and two were African- court of general jurisdiction and it handled standing of the complexity of the role assigned American. There were 30 judicial districts, almost every serious case, including family to district judges was the passage in 1980 of a the largest of which (Mecklenburg County) and juvenile matters. The district court had a constitutional amendment to require that all had seven judges. There were six districts that hill to climb to build its reputation as a court judges be authorized to practice law. Lay had only two judges. In 1972 there were worthy of inclusion in a new General Court judges, of which there were several elected to 117,000 civil cases and 811,000 criminal of Justice (the formal name of the current the district court in the 1970s, were grandfa- cases disposed of. Two-thirds of the traffic court system). It was viewed by many as a thered in office, but by the year 2000, all cases were disposed by a guilty plea and the replacement for a series of lesser courts, espe- active judges were licensed attorneys. offender never appeared in court. cially the ubiquitous recorder’s court, with In the nearly 50 years since 1970, 847 dif- which nearly everyone was familiar. Civil Jurisdiction ferent people have held the office of district Governor Dan Moore’s opinion, expressed From its inception, a defining fact about court judge. One district—the 26th below in an editorial, was common among district court was its exclusive jurisdiction (Mecklenburg)—has had 73 different judges state leaders of the time: over domestic relations matters. These cases during that time. The second district The district court judges will replace included divorce, alimony, child support,

14 FALL 2016 and custody decisions. That jurisdiction has pute. Many are also done by self-represented Constitution to require the state to observe gotten much more complex since 1970. litigants. Forms designed for lay persons the basic protections afforded to adults in Here are some examples: encourage that process, as mandated by the criminal court in handling juvenile delin- Equitable Distribution. Many of these legislature. It is rare that the legislature gets quency cases. While the standard—the best domestic cases involve time-honored princi- into details like form design, but the fact that interest of the child—remained the same, the ples still applicable. King Solomon had a dif- it did reflects the level of public interest in means to get there changed dramatically. ficult child custody case, for example.4 But this type of case. It is now a rare session of the Despite whatever else Gault may have done, other things do change, and one was a legislature that does not tweak the domestic things got more complicated, which for rethinking of how property should be divid- violence law. It is the primary, but certainly courts almost always means more time and ed when couples divorce. Traditionally, dur- not the only, example of the General resources to dispose of a case. ing a divorce, the property in the marriage Assembly recognizing the need for court Since 1970, North Carolina’s delinquen- belonged to the person holding the title. involvement in a difficult social problem, cy laws have been rewritten twice. The most That often meant that all the property was in and choosing the district court as the arm of recent rewrite, in 1998, imposed an the male partner’s name. That cultural phe- the court to handle the problem. approach to dispositions that was conceptu- nomenon often worked to the female’s detri- Juvenile Court. A constant in society is ally similar to the adult “Structured ment. A 19815 act of the General Assembly that there will always be young people who Sentencing” model used in North Carolina established an “Equitable Distribution” sys- are either endangered or unable to conform since 1994. In the current framework, a tem, and changed all that by resorting to to society’s norms, but the approaches taken judge must consider the seriousness of the principles of equity instead of property title to dealing with them have been anything but offense and the juvenile’s prior history to when marital property was distributed. It constant. place the case on a grid that limits or man- was a game changer. District courts began to There are essentially two juvenile sys- dates the judge’s dispositional decision. hear cases involving tens of millions of dol- tems—one for children who have bad things The child protection version of juvenile lars or controlling interests in major corpora- done to them, and another for juveniles who court has also not been static. Federal man- tions, cases that required delving into com- do bad things to others. Juvenile court has dates designed to provide permanent place- plex corporate structures, pension systems, become an increasingly complex area of ments for abused and neglected children have and emotional disputes over who should get North Carolina law, which has changed sev- been in place for decades. The federal laws the family china chest. Trials became more eral times in the life of the district court. It is provide resources for courts, but they come complicated, and those lasting several weeks a big part of the work of the district court, with mandates about timing and frequency were not unheard of. It was a court far and seems to get more complicated with of hearings and priorities about outcomes. removed from one that took guilty pleas in every change. Hearings have also become more com- traffic court. And the trend has not let up. While specialized juvenile courts were plex, as more parties and more attorneys get Domestic Violence. At around the same established first in Chicago in 1899, the dis- involved. Acting on a desire to create a better time, new social trends began to filter into trict court was the first uniform approach to outcome, the legislature in 1983 created a the court. Violence against one’s significant juvenile court in North Carolina, by which special Guardian Ad Litem program to assist other has been a problem for eons. But it was all cases were handled by the same kind of the court in handling abuse, neglect, or often not a problem that the justice system judge with the same jurisdiction. dependency cases.9 While this has largely addressed. Cultural norms of family struc- The prevailing view in the early days of been a beneficial addition to the court’s abil- ture and gender roles kept the problems and juvenile court was that the court should ity to reach a positive outcome, it means that the pain inside the family. As those walls stand in the place of the parent. That meant the court now has to consider information began to break down and hostility inside the that the role of the court was to do what par- provided by advocates for the state (county family came to be viewed as violence and not ents should do—guide the offender toward departments of social services, who represent a family problem, the courts began to get life as a responsible, law-abiding adult. To do the child), the guardian ad litem (typically involved. In 1979, a specific chapter of the that, courts needed wide discretion and did through an attorney who works with a vol- General Statutes was added to provide not view punishment as an end itself, as is unteer assigned to the child’s case and whose detailed procedures for the courts to handle often the case in adult criminal court. By the only role is to provide an independent view domestic violence issues.6 Those laws 1960s that view was being questioned in of what is in the best interest of the child), include tight time limits for court action, high places. and both parents who are also represented by mandatory cooling-off periods, specific and In 1966 the US Supreme Court noted, an attorney(s). More attorneys can lead to sometimes mandatory sanctions, and provi- “that there may be grounds for concern that better results, but not usually to quicker sions for restraining orders. They involve the child receives the worst of both worlds ones. Juvenile court is as important as ever. It people under great stress, and the potential [in juvenile courts]: that he gets neither the is just more complex. for further violence is always present. The protections accorded to adults nor the solici- Family Court. In the late 1990s, the idea risk assessments judges make in shaping tous care and regenerative treatment postu- of a “family court” began to appear regularly sanctions are difficult and imprecise. Many lated for children.”7 In 1967 the US in court administration circles. The idea was of the proceedings are ex parte, which always Supreme Court, in the landmark Gault 8 simple—every aspect of a case involving a poses a special challenge for a judge in decid- case, fundamentally changed the way these family should be heard by a single judge. ing a matter without hearing all sides of a dis- cases are handled by interpreting the US Typically the judge would be specialized in

THE NORTH CAROLINA STATE BAR JOURNAL 15 such cases, and he or she would be aided by came to be known, dramatically changed the ing, and other needs. Judges are cheerleaders a case manager who would keep the case impaired driving statutes, and created a and counselors. It is a dramatic departure moving. None of these changes have affected unique five-level sentencing structure, with from the neutral umpire role for judges. the basic domestic relations law. They many mandates and collateral conse- For some, this departure from the tradi- instead provide a different way to handle quences.13 The result for the district court tional role is extremely uncomfortable. For those cases. Beginning in 1998, North was a significantly more complex process to others, it is the most meaningful work they Carolina created pilot programs to establish impose sentence. In 2006 the General do. Over time, drug courts became generally “family courts,” building on the recommen- Assembly revisited the law and enacted sever- presided over by judges who embrace the dations of the Futures Commission.10 As of al changes which had a cumulative effect of new role of a therapeutic court. These courts December 31, 2015, there are family courts making both the trial and sentencing process grew rapidly, but in the recent recession in 14 district court districts that serve 22 more complicated.14 DWI cases now take funding began to lag. Federal funding, which counties and 45.4% of North Carolina’s significantly longer to reach disposition and typically covers only start-up costs, merely population.11 For much of the 1990s and take more court time. As one experienced lasts for a few years. The General Assembly 2000s, the court system’s goal was to expand judge put it: “When I took the bench 21 picked up many of the courts, but in 2015 it family court to all districts. In 2015, family years ago we could try the typical DWI case eliminated all funding for drug courts. court funding was threatened for elimina- in 20 minutes, and only a small percentage The problems associated with handling tion, in part because it was not a statewide of the cases were appealed. Today it is rare to substance abusing and mentally ill defen- program. There are obviously two ways to spend less than an hour in a DWI trial in dis- dants are still around, however, and the state remedy that—make it statewide or eliminate trict court. Just recently we had a DWI trial continues to struggle to find the best means it. Given the status of the state budget, the that lasted all day...Pretrial motions are rou- to address the problems. Some local court choice most often has been to propose elim- tine...Attorneys make more demands for dis- officials have cobbled together enough ination, although the court system’s leaders covery, particularly videos.” DWI cases are resources to keep their therapeutic courts in have resisted that budget cut, and family now qualitatively different from any other operation. It is another example of the goal court remains an active program in the places criminal offense. And since DWI is one of of uniformity in local courts being chal- where it has been established, at least for the most frequently charged criminal offens- lenged, as some localities provide this now. The long term future of the family es in North Carolina, the resources that must resource and others do not. court model appears to still be an open ques- be devoted to those cases have risen dispro- Felony Pleas. When the district court was tion for North Carolina’s courts. portionately. But alcohol is now involved in established, all felonies were disposed of in 37% of traffic deaths. For whatever reason— superior court. District court heard misde- Criminal Jurisdiction and the criminal justice system’s role is signif- meanors, and conducted some preliminary The district court’s role in handling crim- icant if not the only reason—the harm hearings in felony cases. That changed in inal cases has also changed and grown more caused by impaired driving, as a statistical 1996 when the General Assembly expanded complex. Three examples are the changing matter, is moving in the right direction. district court jurisdiction to include the han- nature of DWI litigation, the role of thera- Therapeutic Justice. Family court chal- dling of guilty pleas in Class H and I peutic courts, and an expanding role in the lenged conventional wisdom about how felonies.15 While that seems to be a small handling of felony cases. family law cases should be handled. change, class H and I felonies are 64 % of all Impaired Driving. In 1970, driving Therapeutic courts did the same for some felonies; 26% of all felony pleas to these under the influence was a standard crime, criminal courts. It began with judges offenses were taken in district court in 2013- not much different than any other misde- rethinking how they handled substance 14.16 The jurisdiction is unusual in that it is meanor. Alcohol was involved in 70% of abuse cases. Traditional criminal sentencing not uniformly available. It is only available if traffic deaths.12 By the early 1980s, with the had very few success stories in leading drug the prosecution and the defendant agree that advent of advocacy organizations like offenders to a drug-free life. In the 1990s the the district court should handle the case and MADD and SADD, extensive media expo- federal government created funding incen- a superior court judge transfers the case to sure to the tragic consequences of many tives for “drug courts” that use a different the district court. Barely two decades after impaired driving episodes, and changing model of judging. Instead of a traditional the leaders of the Bell Commission and the social mores about drinking, impaired driv- advocacy structure, cases in drug court are original Courts Commission fought so stren- ing became a hot issue. In 1982-83, handled by a team consisting of the judge, a uously for jurisdictional rules that were the Governor Hunt’s administration and a study case manager, defense and prosecution, treat- same in every local court district, there are commission developed a comprehensive ment professionals, probation officers, and again different rules in different counties revision of those laws. It was so important to others as available. Sanctions and incentives about who would handle these cases. the administration that the governor per- are decided by the team. Instead of the nor- suaded each house of the legislature to allow mal sequence of sentencing followed by Challenges the recommendations to be in the very first supervision by probation or prison authori- North Carolina is a much different state bills introduced in each house (Senate Bill 1, ties, a therapeutic court defendant appears than it was 50 years ago. It is bigger—much and House Bill 1), a place usually reserved for reviews in court regularly over a period of bigger. It is ethnically and culturally diverse. It for the leadership to include start-up matters. a year or more. Courts assume responsibility has suffered economically as major industries The “Safe Roads Act,” as the 1983 legislation for helping defendants find treatment, hous- like tobacco, textiles, and furniture have

16 FALL 2016 declined dramatically as a source of good they constantly have to decide when, in the • District courts hearing felonies; manufacturing jobs. It has attracted sun-seek- interest of justice, to intervene and when to • Problem-solving courts; ing retirees by the thousands. It has a vibrant say nothing when a SRL is making a mistake • Family courts; technology sector in some parts of the state. in presenting a case. There is a growing con- • Local government providing funding All of these trends impact the court system, sensus that judges do not need to treat for court employees; including the district court. And they all pose lawyers and SRL’s exactly the same way, but • Court costs funding local programs; and challenges for the future, as the district court the boundaries of any additional considera- • Local government funding, or obtain- turns the page on its first 50 years. tion given to SRL’s are not settled. It is anoth- ing grants for unique local programs for Cultural Diversity. To provide a fair hear- er area where education and judicial practices juvenile, criminal, or domestic cases. ing, a court has to communicate with the will be reshaping the district court culture in Local court funding for employees is a par- people with whom it is dealing. When those North Carolina. ticularly difficult practice to reconcile with the people don’t speak or understand English, Elections Rules. District judges are elected ideal of a court system that is fully state fund- some means to translate different languages is in their districts for four-year terms. They ed. It is understandable that localities with required. In recent years, one constant item in almost never leave the counties in their dis- resources want to improve the services avail- court system budget requests has been trict. A large component of their work able to their communities. They are often not increased funding for interpreter services. involves hearing matters without a jury in willing to wait for the state to provide the level There is now a separate division within the which the party being charged with a crime of support they want for their courts, even if Administrative Office of the Courts that does is a voting citizen. The politics of retaining they agree that it should not be necessary. But nothing else. One future challenge will be to their seats are unique, even among court not every community has the will or the meet what appears to be an ever-increasing elections. For most of the 50 years in ques- resources to offer that support. Tensions need for these services. The challenges are tion, that path involved partisan politics. In among competing principles are inevitable in financial, but they are also administrative. “red” or “blue” districts, that system shifted such a system. As the practice becomes more Scheduling interpreters, especially for the essential election to the party primary. In widespread, it is clearly a strain on the founda- uncommon languages, inevitably slows down “purple” districts, which tended to be in tional principle of uniform state funding. proceedings and takes administrators’ time. urban areas, in national wave elections it was While it is a complicated issue and one that Cultural diversity poses other challenges not uncommon for most of the district court pitted state court officials against local officials as well. American courts take for granted bench to be voted out of office when their for decades, in 1999 the General Assembly American cultural norms. When people party was not the one favored by national formally recognized the practice and made from other cultures bring different perspec- trends. In 2001 the elections became non- optional local funding the policy of the tives on things like family norms, gender partisan. While nonpartisan elections don’t state.17 In 2016, 14 counties had employees roles, deference to authority, or similar cul- eliminate party politics, the incidents of funded by local governments. While the tural norms, it poses difficult questions for “sweep” elections were mitigated. In recent employees funded range from deputy clerks to judges in deciding what is fair, or just, or rea- legislative sessions, frustrations about the dif- administrative support staff, to pay for retired sonable. Training on matters like implicit ficulty of choosing judges without the bene- judges, most of the funds are for assistant dis- bias and cultural competency can help judges fit of party affiliation has led to legislative district attorneys and support staff in DA offices. make consistent judgments about such mat- cussion about reintroduction of partisan Mecklenburg County courts are the single ters, but it is likely to be an ongoing chal- elections. The elections are still nonpartisan, largest recipients. The District Attorney’s lenge for the district courts as the state’s cul- but it is clear that finding the right balance in Office in Mecklenburg County has funding tural diversity increases. a judicial election system is a never-ending from Mecklenburg County and the city of Self-Represented Litigants. An increasing question, as the district court experience Charlotte for over 25 assistant prosecutors and trend in courts generally, and especially in illustrates. a similar number of support positions. In the district court, is the growth in the num- Uniformity. There was no value more 2015-16 the court system in Mecklenburg ber of people who choose to represent them- important to court reform leaders in North received over $3.2 million.18 selves. Often that choice is because the party Carolina than uniformity—in subject matter In yet another pressure on the original cannot afford a lawyer. It is especially preva- and geographical jurisdiction, in costs, in notion of uniformity, the districts used to lent in civil cases. One chief judge reported available programs, in how judges are select- administer the courts have also changed in that in a recent year, 70% of all domestic ed. The district court, as the replacement for two important respects. In 1970, in all dis- cases in the district had one self-represented the over 250 local courts of the 1950s, was tricts the same lines were applied to district litigant (SRL) and 40% had only SRL’s in the the crown jewel of that effort. In 1970, that court, superior court, and prosecutor dis- case. Dealing with a SRL makes the judge’s goal was largely achieved. It would not be tricts. Beginning in 1975, districts began to job more complicated. Lawyers know the long, however, before the local pressures to be subdivided, but it was often the case that rules, so things don’t have to be explained to shape courts to meet local desires would the division applied only to prosecutors, or them. SRL’s don’t. When there are no lawyers reappear. It would not be too much longer to prosecutors and superior courts. As a involved, the longstanding practice of direct- before kinks in the idea of uniformity began result, none of the three functions today have ing a lawyer to provide a draft of an order is to appear. Here are some examples of court the same district lines, which creates chal- not an option for the judge. The cases also administration programs or jurisdiction not lenging administrative problems when coor- pose challenging ethical issues for judges, as available in every district: dination across the functions is needed.

THE NORTH CAROLINA STATE BAR JOURNAL 17 In addition, the scale of the districts is Future to change are the most important things: now much different. In 1970 the ratio of The future of the district court is likely to The courts will be staffed by people who largest to smallest district, by population, was be much like its past. Its work will grow seek to do justice, who are mostly idealists four to one. In 2015 it was 16.9 to one. That more complicated. It will be focused on peo- at heart. They will do the important work disparity has implications for the cost of run- ple problems that society doesn’t always of applying the court’s authority to ning a district, and makes the job in small address adequately in other forums. There address the state’s most pressing prob- districts qualitatively different from the job will be more work. And there will be new lems, one case at a time. They will be con- in larger districts. problems or new approaches to old problems tinuing the job assigned to the courts over As these examples suggest, the tension that we don’t currently know about. 200 years ago in Federalist Paper 51: between providing a uniform court experi- There are a few places where some mod- “Justice is the end of government. It is the ence across the state and responding to local est predictions are possible, however. Family end of civil society. It ever has been and pressures to adopt unique or special compo- structures will continue to present new com- ever will be pursued until it be obtained, nents is powerful. It certainly appears that in plications for the courts. The recognition of or until liberty be lost in the pursuit.” many cases uniformity is losing. a constitutional right to marry a person of Some things never change. n Financing. The clear vision of those one’s own sex will likely bring new parties responsible for court reform was that opera- into court. Conflict based on different James Drennan is the Albert Coates tional costs would be borne by the state, and understandings of gender identity will likely Professor of Public Law and Government (part- that those costs would primarily be paid find its way into our courts. Medical science’s time, semi-retired) at the UNC School of from general tax revenues, and not from user ability to aid in the reproductive process will Government. Since 1974 he has helped the fees. The underlying principle is that court inevitably create conflict that only courts can school provide educational resources to the operations are an essential part of the state’s address. A new time capsule 50 years from North Carolina District Court. In the mid government institutions, and are worthy of now will be full of such challenges. 1990s he took a leave of absence for nearly three support without relying on user fees. That The role of the judge will almost certainly years to serve as the director of the was the philosophy behind the original court continue to evolve. One area of frequent Administrative Office of the Courts, and he has cost structure of the district court. In 1970 conversation is whether some of the work of been fascinated by court administration as a there were four items in a typical bill of costs the district court can be handled by other field of study ever since. for a criminal case. Court costs accounted for officials, such as magistrates, or diverted under 40% of the costs of operating the from the court system altogether. That con- Endnotes courts. In 2015 there were 16 items that versation is not likely to go away. 1. For a description of the events leading up to the forma- could be included in a criminal bill of costs. Judges will continue to seek and retain tion of the district court, see M. Crowell, The Origins of the North Carolina District Court, North Carolina Court costs now offset nearly 60% of the their seats in a political environment. The State Bar Journal, Spring 2016. cost of the court system. These trends (more details of that may change, as election and/or 2. The system was phased in over three election cycles— costs and increased user fee funding) have appointment rules change. What will not 1966, 1968, and 1970. By December of 1970 every been accelerating since the recession of 2008. change is that judges are public officials who county had a district court in operation. It is yet another example of the difficulty of constantly have to navigate both a political 3. Highly Qualified Judges Needed for New District Court maintaining the vision of a uniform, state- world in which getting and keeping the job System, Gov. Dan K. Moore, The Robesonian, June 22, 1966. funded court system the Bell Commission is the primary goal, and a judicial world in 4. 1 Kings 3:16-28. that others fought so hard to make a reality. which neutral, independent application of 5. SL 1981, Ch. 815, codified as GS 50-20 and 50-21. Social Media. In 1970, courts used man- legal principles is the goal. The tensions 6. SL 1979, Ch. 761. ual typewriters. There were no fax machines, between the two are often severe. How the 7. Kent v. United States, 383 US 541 (1966). no email, no cell phones, no personal com- system finds the balance between accounta- 8. In Re Gault, 387 US 1, (1987). puters, no cable television. Today’s judges bility measures and the need for judicial 9. SL 1983, Ch. 761, originally codified as GS Ch. 7A, work in a world where tweets, Facebook independence may change, but it will always Article 39, now codified as G.S. Ch. 7B, Article 12. posts, 24 hour cable news—both local and be a work in progress. How individual judges 10. For a more complete explanation of the work of the national—and blogs are everywhere. These navigate those pressures will continue to be Futures Commission, see Crowell. new media offer great opportunities to inter- one measure of the effectiveness of the dis- 11. 2016 Annual Report of the Administrative Office of act with the public, and many judges effec- trict court. the Courts, Annual Report on North Carolina’s Unified Family Court Programs, March 2016, avail- tively use the proliferation of media outlets Technology will continue to play an able at nccourts.org/Citizens/CPrograms/Family/ to better inform the public. But in a world increasingly important role in how the courts Documents/2016_FC_AnnualReport.pdf. where everyone with a computer can be a are run. The resources needed to provide 12. report.nih.gov/nihfactsheets/viewfactsheet.aspx?csid publisher, the potential for abusive informa- technological support for the courts have not +24. tion is great. When a judge finds himself or kept up with the needs—that fact is widely 13. SL 1983, Ch. 435. herself in an internet storm precipitated by a acknowledged. Addressing that imbalance 14. SL 2006-253. controversial decision, there is often little the will be a significant factor in how the future 15. SL 1995, (Reg. Sess. 1996), Ch. 725. judge can do to defend himself or herself. of the district court unfolds. 16. North Carolina Sentencing and Policy Advisory Judging in 2016 poses challenges that judges The only sure prediction is that there will in 1970 could not even contemplate. be change. A lot of it. But what is not likely CONTINUED ON PAGE 37

18 FALL 2016

Retirement Planning and the Transitioning Lawyers Commission

B Y W OODY C ONNETTE AND M ARK S CRUGGS

ow what? We’ve made it this far. We’ve developed successful practices. We have devoted clients whom we have served for decades. We’re known and respected in our communities.N We’re at the top of our games. And now what? Every phase of our professional lives is ©iStockphoto.com entangled with personal challenges. Lawyers in the early years of their careers struggle with the stark challenge of finding a comfortable work/life balance: how do we shelter time for the families we love while perfecting our lawyer skills and getting ahead with our careers? We struggle to accommodate those • My value to this community is as a colleagues at the bar helping one another. demands for time and attention, and years lawyer. That’s who I am. What can I do to TLC evolved from the Retiring with pass. The issues become more nuanced. How find that level of meaning and engagement if Dignity Task Force created by NCBA do we finance our kids and our lifestyle choic- I retire? President Michael Wells in 2012. The initia- es while doing work we find personally • I can’t afford to retire. What if I live to be tive grew with early support from the NCBA rewarding: my family or my soul? 90? I’d outlive my savings way before that. Senior Lawyers Division and the Solo, Small And now what? By the time we reach our • I’m having fun. I’m happy just to keep Firm, and General Practice Section. Nan 60s, after 30 or more years of practice, those working forever. I’d rather be carried out of Hannah chaired TLC for almost three years, work/life issues are wrinkled and graying. Our my office on a gurney than to rot away in a bringing vision and passion that has made contemporaries are retiring; some in ways we nursing home. her almost synonymous with TLC. Brad admire, others in ways we don’t. Some of our So, now what? To answer these questions, Schulz took the helm next and has been a contemporaries are starting to die, sometimes the North Carolina Bar Association offers a tireless advocate for the work of the TLC. without ever having experienced the pleasure little TLC. First, TLC (Transitioning Lawyers Now in its fourth year of existence, TLC is of playing golf or fishing on a school day or Commission) has been designated by the committed to serving North Carolina watching the grandkids perform in the school State Bar as a Lawyers Assistance Program for lawyers and the public. play on a Wednesday. We are moving up in purposes of Rule 1.6(c) of the Rules of TLC serves three groups: lawyers who the rotation. Professional Conduct. Communications with need to retire but will not, lawyers who want Listen to lawyers entering their 60s and or about lawyers who may need assistance to retire but need help with strategic planning, you will hear comments like these: from TLC are confidential and are exempted and caregivers dealing with dementia-related • I don’t know what I’d do if I retire. I’d go from any obligation to report ethical viola- issues of loved ones. crazy if all I had to do was play golf or watch tions to the State Bar. This is of critical impor- TV every day. tance to the lawyers on TLC and the lawyers Identifying and Intervening with • My clients appreciate my counsel. We’ve we serve. Second, working with TLC is com- Lawyers Impaired by Dementia and worked together for decades. I’d miss them. pletely voluntary. TLC is not the State Bar; it Other Cognitive Issues What will happen to them? has no enforcement power. TLC is friends and In its early stages, task force members were

20 FALL 2016 concerned by the number of attorneys who when attorneys with dementia or cognitive the issues and challenges can be obtained and were determined to continue practicing decline are identified and a confidential refer- a plan developed to address the issues. despite advancing dementia that impaired ral is made to TLC. The team leader can use neuropsychologi- their ability to adequately represent their Referrals come from many sources. Judges, cal and other professional resources through clients. In many instances, these impaired court personnel, and other attorneys most HRC as needed. No two cases are the same, lawyers had not planned adequately for their often see aging attorneys who are suffering but team leaders generally decide how to retirements and felt that they could not afford decline. Sometimes the affected attorney’s approach the affected attorney and identify to retire, particularly with the economic partners or staff members become concerned. who should participate in an initial meeting. downturn in 2008. Others had stayed at the In other instances clients or family members The team leader may participate in that initial bar too long: they had no outside interests or might make referrals. meeting, or perhaps a trusted friend, col- hobbies. Practicing law was all they knew to To initiate a confidential referral, anyone league, or judge will take part. The initial goal do. Their sole identity was as a lawyer, but can call the North Carolina Bar Association at is to engage the affected attorney in a discus- now their practice skills were failing. 800-662-7407 or send an email to sion of his or her circumstances and the per- Obviously, the bar needs to protect the [email protected]. These confidential calls are formance concerns that have been identified. public by assuring that licensed attorneys are screened by staff, and in appropriate cases the The attorney may request cognitive testing, competent to practice. Something needed to cases are referred to TLC team leaders to and initial costs are covered by TLC. be done in the cases of aging lawyers with investigate and respond. The LAP designation One thing TLC has learned in administer- dementia. To address these cases, the task force is critical beginning at this point, because the ing this program over the last three years is ultimately sought and obtained designation of team leader may discover information which, that there are pharmaceutical and medical TLC as a Lawyers Assistance Program (LAP). without that designation, would require a issues that can result in cognitive impairment. TLC has commissioned HRC Behavioral report to the State Bar. Instead, a combination Our team leaders have been trained not sim- (HRC)—a group of psychologists and psychi- of a program-imposed confidentiality, Ethics ply to assume the outcome will be retirement atrists who have worked with BarCARES for Rule 1.6 imposed confidentiality, and the or the end of a career, but instead to work with years—to help develop an intervention LAP exemption from the duty to report pur- lawyers experiencing cognitive issues by pro- process. As noted earlier, we have now tested suant to Ethics Rule 8.3, allows the team viding resources available for assessment. In the model and believe it works. TLC has leader to have open and honest conversations cases where impaired functioning is con- trained over 20 “team leaders” to lead inter- with the lawyer and his or her friends and firmed, TLC seeks to persuade the attorney to ventions. These leaders are able to respond family so that a complete understanding of retire voluntarily, with as little fuss as possible.

THE NORTH CAROLINA STATE BAR JOURNAL 21 need to know when to say when, lest we stay ethical thicket of winding down or transition- COURTHOUSE RESEARCHER: too long at the bar. We deserve to be remem- ing a law practice. It is available through the This is a part time position with great bered for our excellence, rather than for the North Carolina Bar Association. On TLC’s potential. Perfect for a paralegal or any- mediocrity or incompetence that comes with webpage, there are links to many other “toolk- one who visits one or more county age-related cognitive decline. its,” checklists, and publications that can help courthouses in North Carolina on a reg- in this process. ular basis. We need information from Lawyers who Want to Retire but Need TLC can help in good times, as well as in probate files. Should take about fifteen Help with Strategic Planning not-so-good times. TLC works with lawyers minutes if done once a week. Monthly Another important mission of TLC is experiencing cognitive impairment issues and fee plus possible commissions. Reply to education. We want to teach lawyers how to encourages lawyers to prepare for unexpected [email protected] plan for the unexpected, as well as the death or disability. But there is also the joyful expected. Issues range from unanticipated transition to another phase of life. The word death or disability to the planned transition “retirement” is too often viewed as a dead end. In cases of advanced dementia, immediate to life after the law. Issues such as succession It does not have to be. Those who “retire” retirement may be necessary. In other cases, planning for your law practice, preparing from the practice of law can still find meaning there may be time for an orderly winding oneself emotionally for life away from the and fulfillment using their knowledge and down or transition of the practice. day-to-day practice of law, and preparing skills to benefit society, while decreasing the A goal of TLC this year is to add to our financially for a retirement are just some of level of stress imposed by a demanding law roster of team leaders, and to increase the geo- the issues on TLC’s agenda. practice. TLC’s charge is to educate lawyers on graphic, ethnic, and gender diversity of our An issue of particular importance, especial- how they might prepare for a successful and team leaders. Not surprisingly, we have found ly to the sole practitioner, is planning for the fulfilling life away from the daily grind. In there is a better chance of a successful out- orderly transfer or winding down of his or her September 2015, TLC organized a CLE pro- come if a local lawyer who is respected by the law practice in the event of sudden death or gram sponsored by the Bar Association enti- area bar is part of the team. We are planning a disability. This is not just a good idea; it’s good tled: “Retiring Well: Developing Strategies for 2016 training session for new and existing ethics. Comment [5] to Rule 1.3 states “the a Successful Transition.” The full-day program team leaders, so now is the time to get duty of diligence may require that each sole consisted of caregivers, doctors, lawyers, and involved. If you are interested in learning practitioner prepare a plan, in conformity financial professionals addressing issues of more about how you can be a part of this with applicable rules, that designates another importance to lawyers desiring to plan well for important work, please contact Woody competent lawyer to review client files, notify life after the law. Have you ever thought about Connette of Essex Richards PLLC in each client of the lawyer’s death or disability, selling your law practice? It is an idea whose Charlotte. Woody is co-chair of TLC. and determine whether there is a need for time has come, and it was one of the topics In many ways, TLC’s work is akin to con- immediate protective action.” This is a task discussed at TLC’s seminar. Selected portions vincing an aging parent that it’s time to give akin to preparing a will and other estate plan- of the seminar are available on the Bar up the car keys. Some of those conversations ning documents. We would just as soon not Association’s website as an “On Demand” go well and the parent goes gently. Others go think about it—everything will get taken care video CLE entitled “Strategies for Success: not so well. TLC strives to make the process of one way or another. But why leave this How Does a Lawyer Retire?” The manuscript tender, caring, and confidential. However, work to a grieving family member or the State for the complete CLE program is also avail- there are cases where the lawyer denies an Bar? Why not arrange now for the orderly able from the Bar Association. obvious impairment or lack of competency transfer or winding down of the practice? TLC is working in many areas affecting and is determined to continue practicing as an Begin by selecting a trusted colleague to and of interest to lawyers who are looking impaired lawyer. In those cases, the State Bar assist in the process when you are no longer toward retirement. To learn all that TLC has has its own grievance and investigation able to do so. Make sure the financial to offer, visit TLC’s webpage on the North processes to assure that the public is protect- resources are there to pay staff and perhaps Carolina Bar Association’s website: ed—although it is never the TLC that makes the assisting attorney during the winding ncbar.org/members/committees/transition- the report. down process. Make sure the assisting attor- ing-lawyers-commission. n Lawyers of a certain age remember the ney has the tools to carry out the assignment. great Cal Ripken, the Iron Man who played A complete client list with contact informa- Woody Connette practices with Essex in 2,632 consecutive games for the Baltimore tion is a necessity, as is the ability to handle Richards, PA in Charlotte. He co-chairs the Orioles. In 2001 he voluntarily retired, rec- the trust account. Transitioning Lawyers Commission with Mark ognizing that he no longer was at the top of TLC is a resource for lawyers who want to Scruggs and is a past member of the NCBA his game. Most professional athletes, like Cal begin this process. TLC is working to update Board of Governors. Ripken, recognize the point where they need Turning Out the Lights: Planning for Closing Formerly a partner with Spear, Barnes, to take themselves out of the game. Some Your Law Practice. This popular book was first Baker, Wainio & Scruggs, LLP in Durham, continue to play, and their years of greatness published in 2003 as an initiative of the Solo, Mark Scruggs joined Lawyers Mutual in March are blurred in fans’ memories by their years Small Firm, and General Practice Section of 2001 as claims counsel. He serves as co-chair of in decline. the North Carolina Bar Association and has the North Carolina Bar Association’s As with professional athletes, we as lawyers guided many a lawyer through the legal and Transitioning Lawyers Commission.

22 FALL 2016 President’s Message (cont.) done prior to the proliferation of internet these issues should remain constant. The core providers. Hopefully, all are in agreement that values of our profession that have guided nonlawyer providers of legal services need to lawyers for generations are contained in our cannot afford to retain a lawyer. be regulated; however, before they can be Rules of Professional Responsibility and 6. Regulation of the Profession— properly regulated, we have to clearly define include: (1) undivided loyalty to clients; (2) Regulation presents two areas of concern: reg- what constitutes legal services and the practice duty to exercise our independent legal judge- ulation of lawyers and regulation of non- of law. Over ten years ago, an American Bar ment for the benefit of our clients; (3) duty of lawyers who offer services traditionally pro- Association task force was unable to draft an client confidentiality; (4) duty to avoid con- vided by lawyers. Since lawyers, until recently, acceptable model definition of the practice of flicts of interest; (5) duty to promote access to were generally the only providers of legal serv- law, and left the issue up to individual states to justice; and (6) duty to act as an officer of the ices, regulation was directed at lawyers and define it. The Legal Professionalism legal system. If we continue to adhere to these was accomplished through the adoption of Committee of the Chief Justice’s North core values, we can and will, working together, rules of professional conduct, with miscon- Carolina Commission on the Administration be successful in formulating new policies and duct resulting in discipline including suspen- of Law and Justice acknowledged in its inter- procedures for tackling these issues. sion or disbarment. Lawyers have traditional- im report that this issue needs to be addressed. My challenge to each of you is to study ly self-regulated with supervision by state The items addressed above are just a few of these issues, and share your knowledge, expe- Supreme Courts or state legislatures. Some the challenges facing our profession. As the rience, and expertise with the State Bar, the states are reassessing whether and to what methods and means of delivering legal services North Carolina Bar Association, and other extent lawyers should be permitted to self- continue to change and develop, and techno- organized Bars that have the responsibility of regulate. logical advances are unveiled almost on a daily addressing these matters. Please let your voices Regulation of nonlawyers who provide basis, we will continue to face increasingly be heard so that you can help shape the future what many lawyers consider to be legal servic- complex issues and be called upon to make of our profession. n es is more difficult because there is not a difficult decisions that will have a profound national definition of what constitutes the effect on our profession and on the public we Margaret M. Hunt, an alumnus of Wake practice of law. Various definitions have been strive to protect. Forest University Law School, has practiced law crafted by both the courts and legislatures While these issues will continue to change, in Brevard since being admitted to practice in across the country, and many of these were the values and principles we use to address North Carolina in 1975.

2. For State Bar purposes, judicial districts are cotermi- “platinum,” “gold,” or “silver” levels, platinum being the State Bar Outlook (cont.) nous with prosecutorial districts, except in the case of highest level of certification attainable. High Point, which has a district that is coterminous 5. Well, not forever, as our groundlease is only for 99 years. with the High Point Superior Court District. See prescribed by that estimable gentleman, the 6. The IOLTA Board of Trustees, the Board of Continuing N.C.G.S. 84-19. State Bar expects, hopes, and resolves to Legal Education, the Board of Legal Specialization, the 3. If we had to pay for their time, we would almost certainly spend less than it receives this year, so that Board of Paralegal Certification, and the Client Security be miserable, in the Micawberean sense. Fund’s Board of Trustees. even as it advances the general welfare by the 4. Leadership in Energy and Environmental Design. 7. Another fine lawyer who became an administrator. application of substantial sums of your Certification is based on accumulation of points at the money, it will preserve and enhance a widespread sense of professional wellbeing akin, dare we say, to happiness. I trust you’ll be watching and holding us to it, not unlike Mr. Speakers Bureau Now Available Micawber who, after many years of separa- tion from his protégé, offered this very reas- Speakers on topics relative to the North Carolina State Bar’s regulatory mission are suring sentiment in closing his last letter to available at no charge for presentations in North Carolina to lawyers and to members of David Copperfield: the public. Topics include the State Bar’s role in the regulation of the legal profession; the Among the eyes elevated towards you from State Bar’s disciplinary process; how the State Bar provides ethical guidance to lawyers; this portion of the globe, will ever be found, the Lawyer Assistance Program of the State Bar; the Client Security Fund; IOLTA: while it has light and life, the eye appertain- Advancing Justice for more than 20 Years; LegalZoom, HB 436, and updating concepts ing to Wilkins Micawber, Magistrate. n of the practice of law; and anti-trust questions for the regulation of the practice of law in North Carolina. Requests for speakers on other relevant topics are welcomed. For more L. Thomas Lunsford II is the executive direc- information, call or email Lanice Heidbrink at the State Bar: 919-828-4630 or lheid- tor of the North Carolina State Bar. [email protected]. The purpose of the Speakers Bureau is to provide information about the State Bar’s Endnotes regulatory functions to members of the Bar and members of the public. Speakers will not 1. The State Bar pays 72 of its employees from its opera- be asked to satisfy the requirements for CLE accreditation; therefore, sponsors of CLE tional budget. The other 14 employees are compensated programs are encouraged to look elsewhere for presenters. by programs having their own revenue streams.

THE NORTH CAROLINA STATE BAR JOURNAL 23 Legal Ethics and Social Media

B Y C HRIS M C L AUGHLIN

he number of lawyers using

Facebook, Twitter, LinkedIn,

and other social media net-

works grows daily. So too ©iStockphoto.com does theT number of lawyers doing foolish and unethical things on those networks. Be it insulting Tweets, deceitful Facebook friend requests, or “reply all” mistakes, lawyers continue to wade into trouble on the Internet in varied and creative ways.

Social media is not inherently bad, of • 33% of lawyers have a presence on ney was fired and subject to Bar discipline in course. Lawyers can and do use evolving Facebook; 2013 when she tweeted insulting comments technologies to benefit themselves, their • 10% of lawyers maintain a Twitter about former Kansas Attorney General Phill clients, and the public without drawing the account; Kline during his own disciplinary hearing ire of the courts or the State Bar. This article • 8% of lawyers maintain a legal blog. concerning alleged lies about his agency’s seeks to empower more lawyers to use social For law firms, the figures are even higher: investigations into abortion providers. The media in more appropriate fashion. It high- 52% on Facebook, 19% on Twitter, 24% research attorney, Sarah Peterson Herr, lights some of the more egregious social with blogs. tweeted that Kline was a “naughty, naughty media missteps made by lawyers in recent boy” and then criticized his facial expression years in the hope that other lawyers won’t The Easily Avoidable Gaffes during the disciplinary hearing: “Why is Phil repeat them. It then analyzes how the Rules Many lawyers find themselves in trouble Klein [sic] smiling?” she wrote. “There is of Professional Conduct apply to Internet after social media missteps because they for- nothing to smile about, [derogatory name].” activity both generally and in specific con- got the basic rules of civility that our parents (Apparently Herr’s spelling needs as much texts such as investigations, litigation, client tried to teach us as kids: be nice, play well work as her impulse control.) Herr later testimonials, and inadvertent emails. with others, treat everybody like you’d like to apologized, saying “I didn’t stop to think that be treated. None of those guidelines are in addition to communicating with a few of The Stats unique to social media; it’s simply that when my friends on Twitter I was also communi- The ABA’s annual Legal Technology we ignore them on the Internet our miscon- cating with the public at large.” report suggests that lots and lots of lawyers duct is memorialized for ridicule and quite are on social media. The 2014 survey results possibly legal discipline. You’re Not Funny, Just Offensive included these stats: Oceans of ink have been spilled over the • 96% of attorneys have a LinkedIn Think It, Don’t Tweet It ongoing email scandal at the Pennsylvania account; A Kansas court of appeals research attor- Supreme Court. So far Justice Seamus

24 FALL 2016 McCaffery has resigned and Justice both you and your audience without being Micheal Eakins has been suspended for disbarred or fired. Check out Don Willett, Law Firm of Military Veterans is seeking sending not-safe-for-work photos and jokes the Twitter laureate of Texas, who also hap- Veterans for their growing law firm. PI about minorities and women. Eakins pens to serve on that state’s supreme court. Jr Associate Attorneys (0-3 years’ experi- argued that his emails were just harmless He tweets using the handle @JusticeWillett. ence and recent grads). Salary commen- “male banter” and “locker room” humor. In The justice has been written up in the New surate with experience. Please send cover late 2015 the Pennsylvania judicial discipli- York Times for his “oblique political com- letter and resume with references to nary board disagreed, concluding that the mentary (‘When it comes to legislating from [email protected] jokes “tainted the Pennsylvania judiciary in the bench—I literally can’t even’), savvy cul- the eyes of the public.” tural references, and good-natured sports talk.” Or UNC School of Government fac- Social Media Ethics Guidelines issued by the Disguises Work for Batman and ulty member Jamie Markham, whose enter- New York State Bar Association in June 2015 Superman but Not for Online Lawyers taining and informative Tweets cover every- for an excellent summary of the most recent Former Arkansas Circuit Court Judge thing from sentencing law to the scary face rules and opinions on the use of social media Mike Maggio is apparently a huge LSU fan, he once found in a jalapeno. Find him on for investigations. often posting on a popular LSU fan board Twitter @jamie_markham. (The author, a It’s not just legal ethics you need to worry under the pseudonym “Geauxjudge.” Many proud Blue Devil, notes approvingly that about when using social media for investiga- of those posts were full of offensive jokes and both of these smart and funny attorneys are tions, especially when those investigations insults to women, while one disclosed confi- Duke Law grads.) arise in the employment setting. dential information about the adoption of a Consider clients who wish to investigate baby by movie star Charlize Theron that The Rules potential hires using Facebook or other social took place in his courthouse. Unfortunately None of the Rules of Professional media networks. So long as the attorney for Maggio, the state judicial ethics board Conduct that govern lawyers in NC is aimed doesn’t advise the client to conceal its identi- had little difficulty piercing the veil of his specifically at the use of social media. But ty on Facebook, this activity probably would pseudonym and permanently barring him that doesn’t mean that attorneys are free to not trigger any legal ethics concerns. But it from serving as a judge. Maggio won’t have act as they wish online. The same rules that could lead to employment law problems if to worry about finding a job anytime soon, restrict deceptive, offensive, or inappropriate the client stumbles upon protected informa- however, as he’ll be spending the next few behavior by attorneys in the real world also tion about job candidates (religion, disability, years in federal prison for accepting a bribe to restrict attorney behavior in the digital sexual orientation, etc.). For more guidance reduce a jury verdict against a nursing home world. If an attorney can’t do something in on this issue, please see School of from $5 million to $1 million. person, she can’t do it online either. Government Public Employment Law A few examples: Bulletin #38, Using the Internet to Conduct No Selfies in the Courthouse Social Media Investigations Background Checks on Applicants for Attorneys aren’t immune to the urge to Rules 4.2 and Rules 4.3 limit an attor- Employment, October 2010, by Diane snap cute photos with their phones and share ney’s ability to interact with third parties who Juffras. them with their Facebook friends. But those are represented by counsel or who may be Similar employment law concerns arise selfies can lead to trouble when you take adverse to her client’s interests. Combined if an attorney assists a client’s social media them in the courthouse. In 2015 Wisconsin with Rule 8.4, the general prohibition investigation into potential misconduct by Criminal Defense Attorney Anthony Cotton against deceitful conduct, these rules mean current employees. Those legal risks got in hot water with a judge after capturing attorneys must be careful when using social increase tremendously if the client uses a courtroom selfie with his client after a not media to investigate opposing parties, wit- coercion to obtain access to nonpublic guilty verdict in a murder trial. The judge nesses, and potential litigants. Facebook posts. Forcing an employee to was concerned that the photo might trauma- Although the North Carolina State Bar provide access to a Facebook account (be it tize the victim’s family or inadvertently show has not issued any opinions on this issue, the her account or that of another employee jurors’ identities. Also in 2015, Pittsburgh lessons from other state bars are fairly consis- with whom she is a Facebook friend) could Assistant District Attorney Julie Jones tent. All public Facebook posts are generally violate state laws prohibiting that practice as angered her boss by posing with weapons fair game for viewing by attorneys. But an well as the federal Stored Communications that had been entered into evidence in a attorney can never send a Facebook friend Act. Although North Carolina has not criminal case. After the photo was posted on request to a represented person or to jurors. adopted any prohibition on this issue, more a colleague’s Facebook page, the district It’s also a no-no for attorneys to conceal their than two dozen other states have. See attorney’s office commented that Jones’ con- identities when sending Facebook friend ncsl.org for a summary of state laws conduct was “contrary to office protocol with requests for investigatory purposes by using cerning employer access to employee’s social respect to the handling of evidence” and was pseudonyms or other peoples’ Facebook media accounts. Ehling v. Monmouth-Ocean being investigated. accounts. Some states require an attorney Hospital Service Corp., 961 F.Supp.2d 659 who sends an investigatory friend request to (D.N.J. Aug 20, 2013) discusses how the The Good Tweeters fully disclose his identity as an attorney Stored Communications Act applies to It is possible to use social media to benefit involved in a particular legal dispute. See the nonpublic Facebook posts.

THE NORTH CAROLINA STATE BAR JOURNAL 25 Scrubbing Your Client’s Social Media and testimonials. It’s fine for attorneys to Systems, 2009 WL 4261214, (D. Idaho) for Sites accept (and even request) these reviews so an example of how a court would typically Attorneys need to worry about their own long as they conform to traditional rules gov- deal with confidential communications inad- clients’ Facebook pages as well as those of erning lawyer advertising. In particular, vertently sent to opposing parties via email. opposing parties. The “competency” require- attorneys should make sure those reviews The court bases its analysis largely on discov- ment in Rule 1.1 obligates attorneys to coun- don’t contain references to specific jury ery and evidentiary rules that forgive the sel clients on the potential legal impact of award amounts or promises that the attorney inadvertent production of privileged materi- their social media activity. NC 2014 Formal can get the same results for other clients. See als in the discovery process so long as the Ethics Opinion 5. This guidance makes clear NC 2012 Formal Ethics Opinion 8. sender took reasonable steps to prevent the that it is not only wise for attorneys to rec- If you happen to get a bad online review, disclosure and to remedy it once it occurred. ommend that clients filter their social media feel free to respond, but take care not to See North Carolina Rule of Civil Procedure posts, but obligatory. reveal confidential client information while 26(b)(5)(B), the nearly identical Federal Rule An attorney can go too far in this direc- doing so. Consider Illinois Employment of Civil Procedure 26(b)(5)(B), and Federal tion, however. Deleting existing Facebook Lawyer Betty Tsamis who replied to multiple Rule of Evidence 502(b). posts and failing to preserve copies for dis- negative online reviews thru the Avvo web- But repeated email mistakes could covery purposes might violate rules govern- site with this: demonstrate that the attorney was not taking ing the spoliation of evidence and violate “I dislike it very much when my clients reasonable steps to protect the confidential ethical rules requiring candor to the court lose, but I cannot invent positive facts for information. (Did you know you can install and opposing parties. See Lester v. Allied clients when they are not there. I feel badly a pop-up warning box for “reply all” emails? Concrete Co., 2011 Va. Cir. LEXIS 245 (Va. for him, but his own actions in beating up a Google the “TuneReplyAll” add-on for Cir. Ct. 2011 Sept. 6, 2011) for an extreme female co-worker are what caused the conse- Outlook.) A court could then conclude that example (and for proof that it’s rarely a good quences he is now so upset about.” any privilege attached to the misdirected idea to wear an “I ♥ hot moms” t-shirt). The Illinois State Bar reprimanded emails was waived while also questioning In Lester, a wrongful death plaintiff lost Tsamis for disclosing confidential informa- that attorney’s competence under Rule 1.1. his young wife in a tragic accident and tion about the client while “exceeding what It’s not just the sending attorneys who claimed severe emotional distress as a result. was necessary” to respond to the negative need to worry about misdirected emails. The Yet prominently displayed on his Facebook review. recipient of an email that was clearly not page were photos of him drinking beer while “Reply All” and Misdirected Emails intended for that attorney has an ethical obli- surrounded by young female adults and It’s not just new social media networks gation under Rule 4.4 to “promptly notify wearing the questionable t-shirt. Reasonably that present ethical dangers for attorneys. the sender.” The rule does not explicitly fearing that these posts undermined his Good old email can create just as many require the recipient to stop reading or client’s claims, the attorney ordered the client headaches. Consider the seemingly innocu- destroy the misdirected email. to delete his Facebook account. The defen- ous “reply all” button. How many times That said, the wisest course of action for dant had already submitted discovery have you seen that button misused on your an attorney who receives information she requests, including a request for all social office? Misdirected emails can do more than knows she wasn’t supposed to receive is to media postings by the plaintiff. Nevertheless, embarrass the sender and annoy the recipi- seek guidance from the sending party or the the attorney concluded that he could still ents. When they occur in connection with court as to how she should proceed. See certify that the client had no social media litigation, they can violate the ethical restric- “Inadvertent Disclosure and the Attorney- accounts because the Facebook page had tions against communicating with a repre- Client Privilege,” California Bar Journal been deleted before the attorney signed the sented party and raise attorney-client privi- (Wendy L. Patrick, August 2011), and discovery response. The court and the State lege concerns. “What Do You Do With Misdirected Bar took a dim view of the attorney’s actions, NC 2012 FEO 7 discusses how and Documents?” Florida Bar News (Jeffrey M. sanctioning him for $700,000 of the defen- when the ethical prohibition against con- Hazen, June 2010) as well as New York City dant’s legal fees and suspending him from tacting represented parties in Rule 4.2(a) is Bar Association Formal Opinion 2003-04. practice for five years. violated thru use of the “reply all” button. In The NC State Bar has not issued an opin- Communicating with Judges general, an attorney may not email an ion directly on point. But a 2009 opinion It’s fine to be friends with a judge. But be opposing party without the explicit consent barring attorneys from using confidential careful when accepting a Facebook friend of that party’s attorney. The fact that an information inadvertently in an electronic request or a LinkedIn invitation from a judge attorney cc’ed her client in an email to the communication as embedded metadata sug- before whom you regularly appear. And defi- opposing attorney does not automatically gests that North Carolina would also frown nitely do not use social media to contact a give the opposing attorney permission to upon attorneys who used confidential infor- judge during a pending proceeding for fear of email that client thru use of the “reply all” mation in emails that clearly were not meant violating the ban on ex parte communica- button. for their eyes. See 2009 FEO 1. n tions. See NC 2014 Formal Ethics Opinion 8. A misdirected email usually will not be Online Reviews fatal to the attorney-client privilege so long as Chris McLaughlin is an associate professor Facebook, LinkedIn, Avvo, and other the sender takes quick action to remedy the of public law and government and the UNC sites offer the opportunity for client reviews mistake. See Multiquip v. Water Management School of Government.

26 FALL 2016 New Rules for Permanent Relinquishment of State Bar Membership

B Y E RIC M. FINK

Until recently, North Carolina attorneys Carolina only by satisfying the require- 1st & 14th Amendments, come into play. who ceased to practice law in the state had ments applicable to a first-time applicant Of course, “a state may constitutionally no recognized means of voluntarily termi- for admission to the State Bar; and that the condition the right to practice law upon nating their membership in the State Bar.1 confidentiality provisions of Subchapter membership in an integrated bar associa- New rules adopted last Fall2 now establish 1B, Rule .0129 will not apply to any infor- tion.”4 Compulsory Bar membership for a process and conditions for permanent mation pertaining to professional miscon- practicing attorneys is justified by the relinquishment of State Bar membership. duct that the State Bar receives after entry state’s compelling interest in regulating the With this change, North Carolina joins the of the order of relinquishment. legal profession and enhancing the quality majority of US jurisdictions with similar The procedures and conditions under the of legal services.5 provisions for voluntary resignation outside new rules provide a two-fold safeguard But if an attorney is willing to give up the disciplinary context. against manipulative resignations by attor- the right to practice of law, imposing con- Under the new rules, “A member of the neys hoping to evade their professional tinued Bar membership becomes constitu- State Bar may petition the council to enter responsibilities. Review of petitions by the tionally suspect. Even without the imposi- an order of relinquishment.”3 The rules State Bar Council provides an opportunity to tion of fees or other membership obliga- spell out conditions that an attorney must identify any pending complaints or unful- tions, the inability to resign amounts to a satisfy before the council will grant the filled obligations before granting relinquish- state-compelled association. While many order of relinquishment: ment. Retaining jurisdiction over prerelin- might view that association as cherished, or • There must not be any unresolved quishment misconduct enables the State Bar at least benign, for others it may be a tie complaints of professional misconduct to investigate and remedy any complaints that chafes at the conscience. Having sur- against the petitioner. that only come to light after the fact. rendered the rights and privileges of bar • The petitioner must not have any out- Attorneys may have different reasons for admission, they should be permitted to standing financial obligations to the State wanting to resign from the Bar. Some juris- sever the associational tie as well. Bar (i.e. “all membership fees, Client dictions do not offer the option of inactive North Carolina’s new rules for voluntar- Security Fund assessments, late fees, and or retired status for nonpracticing mem- ily relinquishing State Bar membership costs assessed by the North Carolina State bers. In those jurisdictions, resignation strike an appropriate balance between the Bar or the Disciplinary Hearing may be the only way to avoid the contin- institutional and individual interests at Commission, and all fees, fines, and penal- ued expense of maintaining a license that stake. The conditions for relinquishment ties owed to the Board of Continuing Legal the attorney no longer intends to use. preserve the State Bar’s ability to hold attor- Education.”) Even in jurisdictions like North neys to their professional responsibilities. • The petitioner must have completed Carolina, where inactive or retired mem- Subject to those reasonable conditions, the wind-down of their law practice, pur- bers are excused from payment of annual attorneys who, for whatever reason, wish to suant to the terms of Subchapter 1B, Rule fees, a lawyer might desire to relinquish Bar give up the practice of law in North .0124 and any other applicable law. membership for nonfinancial reasons. An Carolina and the associational tie it entails • The petitioner must acknowledge that attorney might conclude that the activities now have that option. n the State Bar retains investigative and disci- or positions of the Bar are inconsistent with plinary authority for any alleged miscon- their beliefs, and may want to resign as a Eric M. Fink is an associate professor of law duct by the petitioner prior to the order of matter of protest or principle. In such at Elon University School of Law. relinquishment; that the petitioner may cases, constitutional principles, most regain a license to practice law in North notably the right of association under the CONTINUED ON PAGE 31

THE NORTH CAROLINA STATE BAR JOURNAL 27 BarCARES and LAP—Working in Harmony

B Y Z EB B ARNHARDT AND R OBYNN M ORAITES

here is some confusion for some between

the NC Lawyer Assistance Program (NC

LAP) and BarCARES. We hope to clear

up the confusion. Both programs assist ©iStockphoto.com

Tlawyers who need counseling, medications, or treatment for the full panoply of addictions and mental health issues. Both are confidential programs. Both are also free of charge. But they operate very differently—each working as a superb complement to the other.

NC LAP is a program of the NC State Bar, All BarCARES contact is made through provides an initial consult to determine what and the BarCARES Program is sponsored by HRC Behavioral Health & Psychiatry, PA, issues most need attention and assistance. NC the NC Bar Association (NCBA). BarCARES the organization that administers and LAP then refers lawyers to counseling services provides referral for counseling services to arranges counseling provider services for the that are likely the best fit, or makes treatment lawyers who are either members of the NCBA BarCARES program. BarCARES has a net- recommendations based on the unique needs or of local bar associations that have sub- work of counselors and therapists across the of the lawyer. NC LAP may pull from its net- scribed to the program. The program also state who specialize in treating a wide variety work of over 200 lawyer and judge volunteers serves district court judges, paralegals, and of mental health and addiction conditions, as across the state who have overcome similar members of the Eastern Bankruptcy Institute. well as work with normal stress and personal issues, and connect the lawyer with a peer sup- Members in qualifying districts are entitled to dilemmas that could interfere with lawyer port person or a lawyer discussion group. For three free visits a year with a counselor in the performance and/or quality of life. lawyers who are recovering from any drug or BarCARES referral network. In many dis- NC LAP provides services to all lawyers, alcohol problems, NC LAP supports them tricts, a unique feature of BarCARES is that judges (both federal and state), and law stu- when they return from treatment for the first any of the three free annual visits may be used dents in the state. While NC LAP has three few years with mentor pairing, support by a family member and are not limited to full-time, licensed counselors on staff and pro- groups, and case management. NC LAP also only the lawyer. Following the free visits vides some short-term or targeted direct coun- runs peer support and discussion groups offered within BarCARES, an attorney can seling services, most of their work involves ini- across the state. These groups are not limited generally continue work with the same coun- tial assessment, referral, and longer-term sup- to lawyers recovering from alcohol or drug selor, if need be, using insurance benefits. port and case management. First, NC LAP problems—lawyers dealing with stress,

28 FALL 2016 depression, and other issues also benefit. comforting ear, sometimes we need a kick in confer about what would be most helpful to Many lawyers who engage with NC LAP long the rear. Getting that match right is impor- the lawyer along the way. Lawyers who take term eventually become volunteers. NC LAP tant. Sometimes a lawyer has a unique issue advantage of these programs fare incredibly provides ongoing training for its volunteers, that requires a specialized counselor. When well and receive a network of support enjoyed and through its support groups and annual NC LAP has requested that lawyers be paired by few. conferences, volunteers and clients become a with such specialists, BarCARES has agreed to Both programs are confidential and work tight-knit community across the state. bring those NC LAP-recommended coun- together for the good of North Carolina’s legal BarCARES and NC LAP work coopera- selors “in network” for the benefit of the community. Each program can be contacted tively and cross-refer. For example, if a lawyer lawyer. This has proved especially helpful in independently. Few states have such compre- contacts NC LAP and is located in a smaller, more rural districts. Similarly, if a hensive resources available to their lawyers and BarCARES district, in the event long-term lawyer has been seeing a counselor in the judges. We should count ourselves lucky. n counseling is recommended (and it almost BarCARES network, and the counselor always is), NC LAP will match the lawyer thinks the lawyer would benefit from addi- Zeb Barnhardt practiced for 30 years in cor- with the most suitable counselor in the tional support like speaking to peers who have porate and securities law. He was a member of BarCARES network, so that the first three vis- overcome similar issues, or that the lawyer the founding Board of Directors of BarCARES of its each year are free. For example, NC LAP needs more comprehensive, engaged support North Carolina; chaired a task force to bring counselors know which counselors in the than traditional therapy can provide, the BarCARES and the NC LAP together to focus BarCARES network specialize in career coun- BarCARES counselor will recommend that on common goals; and now serves as president of seling, divorce, depression, and the like. And the lawyer contact NC LAP. Lawyers who are LAP Foundation of North Carolina, Inc. NC LAP can pair client and therapist person- cross-referred in this way sign releases allowing Robynn Moraites is the director of the North alities and approaches—sometimes we need a the BarCARES and NC LAP counselors to Carolina Lawyer Assistance Program.

The Robin Williams in Each of Us believes the person they are with has insight sonal and professional life. Left uncorrect- By Ronnie Ansley and understanding they could only wish for. ed, this type of thinking can be deadly. Far When you look in the mirror, do you They turn their problems over to the lawyer too often we lose brothers and sisters in our ever see Robin Williams staring back at you? and allow their problems to leave them. The profession to depression, drug/alcohol Every attorney who has ever dealt with a problems are heaped upon the lawyer, who abuse, or suicide. client is in many ways like Robin Williams, is left to deal with them—deal with them in IF you or someone you know is suffer- in more ways than you may have consid- a way that will make the client the good ing, feeling alone, or is at the end of the ered. No, we are not funny all of the time, guy, no matter what the problem is. The rope, please know YOU ARE NOT but we are relieving the pressures life can client feels the attorney should make him or ALONE. Talk to a friend or colleague, talk heap upon our clients, whether by their her laugh, cry, forget the problems, feel bet- to a counselor, or contact the BarCARES own doing or by someone else’s. Each of us ter—take the weight of the world off of Program or the NC Lawyer Assistance is called upon to deal with the part of our his/her shoulders and put it on thier own. Program. We are very fortunate in NC to population which, in many cases, cannot When the client leaves the venue, the have some of the best resources in the coun- handle their own problems without the attorneys, like Robin Williams, must study, try when it comes to lawyers’ mental health. assistance of the professional who can say work, review, prepare, practice, and spend We all need somewhere and someone to and do the things which will ease their situ- countless hours getting ready for the next turn to, to lean on, and to rely upon when ation, even if only for a short time. client/show/battle. The client is long gone, we have reached the end of our rope. You When the audience arrives, the curtain leaving the attorney to not only do the work have options. You have friends. You are not goes up, and no matter what is going on in and heavy lifting, but also the worrying alone. Reaching out for assistance is a sign the life of the performer—whether Robin about the client’s situation. Over time, bit of strength, not weakness. We lost Robin Williams or the attorney—the nerves must by bit, the pressure begins to wear on the Williams far too soon. You are an important steady, the brain must switch on, and the attorney and his/her mental attitude. part of our legal family, the legal communi- words that come out must comfort, con- Comedians are always supposed to be ty, and we need you healthy and happy for sole, amuse, or otherwise ease the crowd. funny, and attorneys are always supposed many years to come. n When information is conveyed that makes to be mentally strong, fighting for the the audience/client uncomfortable, some- client’s desired outcome, no matter what. Ronnie Ansley practices primarily in the thing must follow that will ease the crowd We all know this is NOT correct nor a areas of criminal & juvenile law, from traffic and make them feel as if they have not healthy way to live. However, too many of tickets to murder cases. Ronnie also works with wasted their money on useless babble. our colleagues buy into this way of think- parents of defiant children and offers consult- While a client is with the lawyer, the ing, which is detrimental to the attorney, ing services to fellow attorneys helping them stage is lit and the performer is the most the attorney’s family, the attorney’s busi- develop a “theory of the case” for upcoming insightful person in the world. The client ness, and every part of the attorney’s per- criminal and civil trials.

THE NORTH CAROLINA STATE BAR JOURNAL 29 Fulfillment through Pro Bono Publico—An Interview with Carole Bruce

B Y J OHN G EHRING

arole Bruce and our fami- friends both white and black and would parer. I never considered law school as an ly have been friends since lend a hand to anyone. It was quite a option until one Saturday night in early Jane (my wife) and Carole dichotomy to know that he believed it was January 1977. At dinner, Roger Soles, then entered Wake Forest his duty to follow orders and to go with the president of Jefferson Standard Life University School of Law him to black folks’ homes and meet them Insurance Company, said to me, “Carole, in C1977. In particular, this friendship has on a one-to-one basis. I think that taught you prepare my income tax return, but you centered upon exchanges of thoughts about me that we’re all human beings. can’t sign it; you need to go to law school.” how the world turns and how it should My mother worked in the credit depart- I thought about that on Sunday and on turn. Carole has taken the philosophy of ment of Busch’s Credit Jewelers; their Monday morning, I called Wake Forest pro bono publico as a personal goal toward a advertising line was, “50 cents down and Law School to see what I needed to do to full and satisfying life. How did this all 50 cents a week.” During summers and apply. happen? Let us find out. holidays, I’d work there wrapping packages One of my earliest mentors was Mildred John Gehring (JG): Thank you for tak- and working on files. At the end of my first Mashburn, a CPA and partner of A.M. ing my interview questions. Please talk day during the Christmas season, Mother Pullen & Co. Millie was a trailblazer as one about your childhood and your early adult- said to me, “Carole Jeanne, you need to of the first women to become a partner in hood, and how your life then has molded learn that every gift someone buys is very a large CPA firm. She was also active in the the person you are today. What was special to that person, and you need to treat Greensboro community and the chair of Birmingham like in the 1950s and 1960s that person and their gift with respect.” the Greensboro ABC Board. Her term and what was the school and racial atmos- That’s a lesson I remember often. ended shortly after I finished at Wake, and phere like? (JG): When did you decide that you she encouraged the city to appoint me to Carole Bruce (CB): Birmingham of the wanted to be an attorney, and what was the ABC Board. That was my first volun- 1950s and early 60s was a totally segregated your pathway toward that goal? When did teer activity, which I have jokingly said was city. My dad was a Birmingham City the idea of public service enter the equa- representing the women drinkers of policeman and he was enforcing segregation, and what (or who) guided you in that Greensboro. tion laws, so I saw life from his point of direction? I found that I really enjoyed being a part view. From 1955 through 1959, I rode the (CB): When I was lucky enough to of an effort to make a difference in people’s city bus to grammar school every day, from receive two scholarships to Auburn lives and was asked to participate on the East Lake to West End, from one end of University, I thought the highest and best boards of United Way, Hospice of the city to the other, and changed buses in career I could possibly have was to become Greensboro, and Cone Hospital. Over the downtown Birmingham. That experience a shorthand and typing teacher, so I began years I have developed a personal philoso- gave me another view of the efforts to inte- majoring in Business Education. An aha phy that social and economic justice can grate public facilities, which at time were moment for me was my first day in grow when all people have access to a frightening. I think I realized fairly early on Accounting 101; when I understood that healthy lifestyle, education, and economic that enforcing segregation was very harm- debits equal credits, the world made sense opportunity. Most of my volunteer work ful to my dad’s mental health, and that to me and I knew I wanted to be an has been centered in these areas. treating all people as equals was the fair and accountant. After about seven years with a (JG): It has been said that the “conserv- right thing to do. Greensboro CPA firm in their tax depart- atives” and the “progressives/liberals” of our My dad would take my older brother ment, I joined the law firm of Smith nation and state have similar ideas of the and me to all parts of Birmingham; he had Moore Smith Schell & Hunter as a tax pre- needs of our people (such as food, clothing,

30 FALL 2016 shelter, medical care, education, and peace Currently I’m very excited about work- of mind), but cannot agree on how to meet ing on the Union Square Campus project, those needs. Yet, your public service efforts the Greensboro-Randolph Megasite, the have succeeded in bringing people of dif- Greensboro Science Center fundraising, ferent philosophies together toward com- the Greensboro Police Foundation Board, mon goals. How have you accomplished and the Cone Health Board. I think this miracle and, in particular, how have Greensboro and the Triad are on the cusp you balanced the requirements of a busy of recapturing economic vitality and law practice with your other efforts? opportunity for all its citizens. (CB): I agree that most people in our (JG): Who have been your mentors and country want equal opportunity for all who are your heroes? In your spare time, people. I think in all settings we need to and I cannot imagine when you find spare hold that goal as our highest goal and work time, what are your hobbies? towards it. When we can listen more that (CB): I have had incredible opportuni- we talk and always put the goal above our ties to work with and learn from so many egos and personal objectives, I think we committed and caring people over the continue to make progress. We need so years—too many to name—and yet each many different people at the table to make one has taught me a special lesson I’ll certain we understand as well as we can the always remember. I am truly thankful for diverse issues and challenges people face. each one. Over the years I have learned from so many In my spare time, I’m still struggling to people the importance of the process and learn to play golf, I’m trying to work out of perseverance toward the goals we have regularly, and I’m spending time with my established. junkyard rescue dog, Buddy. On the golf On the question of life balance, I have front, I’m lucky to be on the boards of The joked that I spend 50% of my time practic- First Tee of the Triad and the Wyndham ing law, 50% volunteering, and 50% with Championship, so I get to share my love of my family. I think each one of us makes golf with those activities. WWee add value to your time for the things that we believe are (JG): What advice do you have for the important. One of my rules is to partici- young lawyer, and us gray hairs, for using practice by extending your pate only in volunteer activities about our talents to make North Carolina a better expertise and helping your which I am passionate, that makes me find place in which to live? Any other thoughts clients reachreach their the time. about your life in the law? philanthrphilanthropicopic goals. (JG): For those of us in the legal profes- (CB): I think each one of us needs to sion, the concept of pro bono usually means find our own joy and peace in life, and offering legal services for free to those who that’s probably different for each and every CALL 800.532.1349800.532.1349 cannot afford to pay. Please describe your one. For some, the practice of law is all ful- NCCONCCOMMUNITYFOUNDATION.ORGMMUNITYFOUNDAATTTION.ORGION idea of public service and why you have filling, and for others, more diversity is expanded this philosophy beyond the law desirable. The important thing to me is to office. Would you comment on some of be joyous and thankful each day. than for a client-friend to say to me, your current projects? My life in the law is so very meaningful “You’ve meant so much to our family.” n (CB): My volunteer work has been very to me because of the relationships with separate from my legal practice. That sepa- people I’ve had over the years. Given the John Gehring, a former State Bar coun- ration of focus gives me variety and joy in nature of my practice—tax and estates—I cilor and chair of the Publications both my practice and my volunteer activi- have worked with many clients for many Committee, is now semi-retired, which means ties. I’ve enjoyed meeting people from all years. There’s nothing more special to me that he “works less and enjoys it more.” over the community and from all walks of life, which makes me a more understanding person. One perspective I think about is the fact is governed by the State Bar’s Discipline & Disability Relinquishment of Rules, 27 NCAC 1B, Rule .0117. that I don’t have any children, and that 2. 27 NCAC 1A, Section .0300. children give many people a sense of legacy Membership (cont.) 3. 27 NCAC 1A, Rule .0302 that is very meaningful. I hope in some Endnotes 4. See Keller v. State Bar of California, 496 US 1, 8 (1990), small way, some of the projects I’ve worked quoting Lathrop v. Donohue, 367 US 820, 849 (1961) on will create a better community for all of 1. L. Thomas Lunsford II, Hello! You Must Be Going!, (Harlan, J., concurring). us, which will be a legacy for me to leave 18(1) NC State Bar Journal, Spring 2013, Resignation 5. Keller, 496 US at 7-9, 13-14; Lathrop, 367 US at 842- behind. by attorneys under investigation for alleged misconduct 33.

THE NORTH CAROLINA STATE BAR JOURNAL 31 Special Education Team Impacts System

B Y E LAINE W HITFORD

ong time legal aid attorney Christine Trottier has retired from the practice of law, but leaves a

vibrant legacy at Disability Rights North Carolina—the Special Education Juvenile Justice Project

(SEJJP). Lisa Rabon, her longtime colleague in the project, said, “Working with Chris taught me

everything about special education law. She was my mentor, she guided me, and really not only helped me to learnL the laws of special education, but also how to be a better advocate for my clients than I had ever been before.”

The SEJJP was the brainchild of attorneys Deborah Greenblatt and Christine Trottier. The two attorneys helped launch Carolina Legal Assistance (CLA), the predecessor of Disability Rights NC. CLA was active in litigation on behalf of disadvantaged and vulnerable people with disabilities, including prison inmates, nursing home residents, troubled adolescents, and people with intellectual and developmental disabilities. Christine Trottier celebrating being the first recipient of the Adele Foschia Award for Lifetime Cross-Disability Some of CLA’s early accomplishments Advocacy with her family: son and daughter-in-law, Ben and Liz Heinberg, and spouse, Richard Trottier. include: • CLA co-counseled with Pamlico Legal Services to force the state to improve the qual- • A patient at a psychiatric hospital statute was eventually repealed. ity of care of nursing home residents. A three- refused treatment for cancer and was Every state has a designated protection year lawsuit ended in a settlement in which declared incompetent through the “lunacy and advocacy system, mandated and funded the state agreed to regulate nursing homes by statute,” without notice or hearing. CLA by the federal government to enforce the establishing guidelines and enforcing them filed suit on behalf of the patient and fought Americans with Disabilities Act and other through inspections, investigations, and for the repeal of the lunacy statute before a disability rights laws. CLA’s track record of penalties for violations. commission of the General Assembly. The effectively fighting for the rights of people

32 FALL 2016 with disabilities made the agency a natural fit can be devastating, contributing to what is staff and administrators of Aaron’s school to to be designated as North Carolina’s protec- commonly called the “school to prison include positive behavioral intervention tion and advocacy system in 2007. CLA was pipeline.” strategies. The staff, administrators, and dis- renamed Disability Rights North Carolina The Southern Poverty Law Center report- trict officials would also receive training on that year. ed in 2007 that “up to 85% of children in disciplinary procedures, manifestation deter- As a legally-based advocacy organization, juvenile detention facilities have disabilities minations, and the appropriate programming Disability Rights NC has a staff knowledge- that make them eligible for special education for students on suspension. able in the laws protecting people with dis- services, yet only 37% had been receiving any Aaron’s situation has improved greatly. He abilities and can take legal action to effect kind of services in their school.”2 was placed in a classroom with one other stu- change impacting large populations. Obviously, students who leave school and dent, a highly skilled special education Disability Rights NC employs a blend of end up in the juvenile justice system have low teacher, and an assistant teacher with the goal investigatory action, individual representa- prospects for gainful employment and inde- of a gradual transition back to the regular tion, educational outreach, and systems advo- pendent living. It is an outcome that is tragic classroom. His behavior problems have cacy to ensure that the 1.9 million children and altogether too common. reduced significantly, and he has made aca- and adults with disabilities living in North The education team at Disability Rights demic improvements as well. Carolina have a full opportunity to live safely North Carolina wants to know two things Under the second systemic complaint, and with dignity in the community of their when they take a case. Can they help a child DPI went on to look at whether the district choice. Its attorneys and advocates provide who has been denied a free and appropriate provided a free and appropriate public edu- services at no charge. public education? And can they bring change cation to students with disabilities who were As an integral part of that work, the SEJJP to a system that has failed to provide that free suspended longer than ten consecutive days. is housed on the Education Team, which was and appropriate public education for a num- DPI found that the school system was not led by Chris Trottier prior to her retirement. ber of children? So when the attorneys at adequately serving students with disabilities. Understanding that illiteracy and disability- Disability Rights NC heard from the mother DPI required the district to develop a pro- related behaviors are the biggest predictors for of “Aaron,” they knew they had to help him. tocol for obtaining technical assistance and school suspensions, Chris advocated for the Aaron had been frequently suspended for consultation when students with disabilities rights of suspended students to receive the a few days at a time for behavioral problems, are suspended for ten days or more, and for special education services to which they are once for ten days. He was given only packets implementing FAPE, including proper com- entitled by law. of worksheets to keep him current on his munication, documentation, manifestation Jane Wettach, director of the Children’s schoolwork while at home, and received no determinations, Functional Behavior Law Clinic at Duke Law School, worked special education services during that time. Assessments/Behavior Intervention Plans, with Chris on statewide special education When Disability Rights NC took the case, specially designed instruction, and education- reform. Jane applauded Chris for being “a his time on suspension added up to 50 days al services. In addition to the protocols, DPI great inspirer.” She recalled, “Chris was of the 185-day school year. Aaron was 8 required training of all administrators respon- always willing to challenge the status quo to years old. sible for discipline in the district, and all say ‘that’s not right,’ and to be a leader by This is the kind of case that fits the criteria exceptional children’s instructional and being the one to say ‘what can we do about of the Special Education Juvenile Justice administrative staff. These systemic changes, that, can we change the law, can we change Project (SEJJP), administered by Disability prompted by the complaint filed on Aaron’s the policy, let’s try to fix the system.’ She Rights NC and funded by IOLTA. The behalf, stand to benefit a large number of stu- always wanted to use our tools as lawyers to SEJJP addresses this problem and has a track dents within the school district. make things better.” record of keeping kids with disabilities in Clients served through the SEJJP also The Individuals with Disabilities school where they can receive the educational included a seventh grader reading on a sec- Education Act (IDEA) requires that state services described in their IEPs. Many times, ond-grade level, referred to the juvenile court and local education agencies provide a free compensatory services are in order; if a child system for school conduct violations. Because and appropriate public education (FAPE) has missed instructional time, he is entitled of Disability Rights NC’s advocacy, he for all children with disabilities. The IDEA by law to have those hours made up. received comprehensive evaluations and read- does not allow school systems to exclude stu- When a complaint was filed with the ing assessments, which revealed a learning dents who are too severely disabled. It does Department of Public Instruction (DPI), disability that impacted his ability to read. not allow them to reduce services to children DPI separated the complaint into individual The school provided compensatory educa- who are difficult to serve. Yet students with and systemic complaints and addressed the tion including specialized reading instruction disabilities are frequently excluded from individual concerns first so Aaron’s situation during the summer with a trained specialist. school based on behaviors related to their could be resolved quickly. The student successfully returned to disabilities. DPI required the school to provide Aaron school, and the case served as a catalyst for the A study by The Civil Rights Project with 175 hours of compensatory education, school system to train special education and found that students with disabilities are sus- to include 50 hours of reading instruction, 50 regular education teachers in data collection pended twice as often as students without hours of math instruction, 50 hours of social for effective behavior plans, rather than relying disabilities.1 And the consequences of let- skills training, and 25 hours of counseling as ting these children slip through the cracks a related service. DPI required training for the CONTINUED ON PAGE 35

THE NORTH CAROLINA STATE BAR JOURNAL 33 An Interview with Christine Trottier

Q: Why did you help start Carolina Legal and colleagues, I learned to value and appre- available avenue for achieving success. Assistance? ciate cases that presented issues compatible However, often you have to advocate for When I graduated from law school in with multidisciplinary strategies consisting of education to become available, accessible, 1978, I was awarded the Reginald Heber public education and training, public policy and appropriate for everyone, especially stu- Smith Law Fellowship, which was a poverty advocacy, and litigation. We were more suc- dents with disabilities. law grant from the Legal Services cessful with our cases when we pursued mul- Q: How did you develop the strategy to Corporation. I knew when I went to law tiple strategies. For example, the litigation have the greatest impact? school that I wanted to focus on representing referenced above was a catalyst for repealing Despite and because of limited resources, low-income clients. Two years before I start- the “lunacy” statute. Another example was CLA pursued collaboration and coalition- ed law school, I had the opportunity to work when I co-counseled with Jack Hansel of building among local and statewide groups for a legal aid program. My work experience Pamlico Legal Services to enforce the rights in order to continue working toward the goal coupled with my family background helped of nursing home patients. Our litigation cul- of advancing the rights of people with dis- me realize that I wanted to work with people minated in a settlement agreement establish- abilities. In 1998 when CLA lost all sources toward the goal of leveling the playing field ing the state’s responsibilities to regulate of stable funding and most of its staff, we for everyone. The legal profession provided nursing homes, document violations, assess submitted more grant applications. IOLTA the best opportunity for realizing that goal. It financial penalties, and protect nursing home was our boot-strap. An increase in our still does. patients’ rights to adequate care. We also IOLTA grant allowed CLA to diversify its I was assigned to a special client project trained licensure staff about the rationale for funding base to include training and advoca- that became Carolina Legal Assistance and relationship between the new patient cy contracts and projects. One project, The (CLA). CLA started as a special project of the care guidelines and the settlement agreement Special Education Juvenile Justice Project, American Bar Association and the Wake when performing inspections and investiga- helped juveniles and youth with disabilities County Bar Association in 1977. The pro- tions in nursing homes. In addition, this lit- stay in school through legal representation, gram provided civil legal services to indigent igation was a catalyst for the enactment of and by helping parents and stakeholders patients at Dorothea Dix state psychiatric legislation establishing a system for imposing (juvenile justice, mental health, and child hospital. When I joined CLA, it had recently penalties against nursing homes for viola- advocates) through public education and affiliated with the confederation known as tions of patients’ rights. training. To address system-wide violations, Legal Services of North Carolina. I had a Q: Why did you begin working on educa- CLA—now Disability Rights NC—filed foreshadowing of CLA’s potential and tion issues? state administrative complaints against impact when its first director, John Decker, The Willie M. systemic litigation CLA school systems for illegally suspending our along with colleague Georgia Springer, filed pursued with private counsel (Melinda clients from school and denying them their a lawsuit on behalf of a woman who was Lawrence, Sandra Johnson, Jerry Hartzell, rights to special education. Our clients declared incompetent through the “lunacy” and Robert McDonnell) and a public inter- taught us that it was not enough to have statute without notice or hearing because she est attorney (Loren Warboys) along with our them return to school, they also needed to refused surgery as a cancer treatment. individual cases consistently reminded me receive appropriate educational services in Because of the vision of my colleagues, that special education was a crucial boot- order to learn how to read. The success of Debbie Greenblatt and Roger Manus, CLA strap for children and youth having to navi- our administrative complaints often allowed evolved from a traditional legal aid program gate the intertwining disadvantages related to us to improve educational services not only serving patients in state psychiatric hospitals, poverty and disability. Access to appropriate for our clients, but also similarly situated stu- to a statewide mental disability law reform educational services helped our clients dents throughout the school system. program. We pursued strategies to make the become literate and acquire other skills need- Q: How do you feel about passing the service delivery systems more responsive to ed to become employable. Illiteracy remains SEJJP to younger attorneys? our clients’ needs. We represented clients the biggest predictor for school suspensions, I feel fortunate to know that this project who, because of their disabilities and poverty, school drop-out, and juvenile court referrals. will continue to operate with a dedicated were lost in the public and institutional serv- Education is also an opportunity for our legal team. This team and Disability Rights ice systems that were supposed to help them. clients (and everyone) to feel competent, NC continue to champion the rights of the We wanted to change that. which helps motivate them to continue with most vulnerable, and achieve the best legal Q: What kinds of issues did you want to see their education and pursue challenges. outcomes for our clients. I am proud (and addressed by CLA? On a personal note, all of my grandpar- lucky) to have worked with creative, com- Every client’s case presented crucial issues, ents were immigrants, and so education mitted, and generous individuals who repre- as we only accepted cases consistent with our became a religion in my family. However you sent the best qualities of our profession. It mission and priorities. Because of my clients define success, education is one crucial and doesn’t get better than that. n

34 FALL 2016 New Statewide Pro Bono Resource Center Launched

B Y J ARED S MITH

n 2010, the North Carolina State Center director,” said Chief Justice Martin. the 2011-2012 Strategic Planning Pro Bono Bar adopted Rule 6.1, Voluntary Pro “As a national leader on pro bono, she will Task Force. While at UNC, Sylvia served as Bono Publico Service, which states in bring an unparalleled enthusiasm and profes- an advisory board member for the Carolina part: “Every lawyer has a profession- sionalism to this new position.” Center for Public Service. Throughout her al responsibility to provide legal Sylvia comes to this role after nearly 20 career, Sylvia has made frequent presenta- servicesI to those unable to pay. A lawyer years of service to the University of North tions about pro bono and public interest law should aspire to render at least 50 Carolina School of Law, where at conferencess. n hours of pro bono publico legal serv- she most recently held the role of ices per year.” In 2016, North assistant dean for public service Jared Smith is the communications specialist Carolina lawyers now have a programs. During her tenure at at the NC Equal Access to Justice Commission. statewide, comprehensive initiative Carolina Law, Sylvia founded and The NC Equal Access to Justice Commission to support them in fulfilling this advised the UNC Law Pro Bono was established in November 2005 by order of professional responsibility. Program, a national model for the North Carolina Supreme Court and is Chief Justice Mark D. Martin inspiring students and alumni to chaired by Chief Justice Mark D. Martin. The is pleased to announce the launch participate in pro bono service. She mission of the commission is to expand access to Novinsky of the North Carolina Pro Bono has also served as the institution’s civil legal representation for people of low income Resource Center, the newest program of the associate director for public interest law, assis- and modest means across North Carolina. To North Carolina Equal Access to Justice tant dean for student affairs, and associate learn more about the North Carolina Pro Bono Commission. The Pro Bono Resource Center dean for student affairs. Sylvia also spends Resource Center, visit ncprobono.org. is tasked with increasing pro bono participa- time inside the classroom as an adjunct profes- tion statewide, initially focusing on connect- sor, teaching Spanish for American Lawyers. ing recent law graduates with projects that In addition to her career in higher educa- address unmet legal needs in Wake and tion, Sylvia has experience working for legal Mecklenburg counties. It will also provide a aid. After receiving her JD from The Special Education Team way for North Carolina lawyers to report their American University’s Washington College of (cont.) pro bono service, and will encourage and sup- Law, Sylvia litigated federal employment- port such service through recruitment, train- related issues and administrative unemploy- on suspension and juvenile court referrals to ing, and communication. The center will be ment, wage, and hour claims, and consumer address challenging behaviors. one of only a handful of statewide pro bono cases for Peninsula Legal Aid in Virginia. She Chris Trottier may have retired, but her resource centers in the country. “We have also has an understanding of legal aid program legacy lives on in the SEJJP program and the worked to establish a statewide pro bono administration from her time as legal director education team at Disability Rights NC. n resource for years, and we have finally for the Center for Immigrants’ Rights in New achieved that goal,” said Jennifer Lechner, York, New York. Elaine Whitford joined Disability Rights NC executive director of the NC Equal Access to Finally, Sylvia has been a long-time advo- in February 2010 as its first director of develop- Justice Commission. “I know the center will cate for pro bono and other access to justice ment. increase the capacity to serve unmet legal issues in North Carolina. She was appointed needs and recognize the many pro bono efforts to the commission in 2014 and served as co- Endnotes of North Carolina attorneys.” chair of the Pro Bono Committee. Sylvia pre- 1. Losen, Daniel J. and Gillespie, Jonathan, Opportunities At the helm of the Pro Bono Resource viously chaired the NC Bar Association’s Pro Suspended: The Disparate Impact of Disciplinary Exclusion from School, The Civil Rights Project, August 2012, p. 13. Center is Sylvia K. Novinsky, its inaugural Bono Activities Committee, and has also 2. splcenter.org/news/2007/09/11/splc-launches-school- director. “I could not be more excited to have served as a chair and member of the NCBA’s prison-reform-project-help-risk-children-get-special- Sylvia Novinsky as our first Pro Bono Resource Latino Affairs Committee and member of education.

THE NORTH CAROLINA STATE BAR JOURNAL 35 Voter Education is the Key to Judicial Elections

C HARLES E. RAYNAL IV O N B EHALF OF THE NCBA’S J UDICIAL P ERFORMANCE E VALUATION C OMMITTEE

s we approach the general election in November, cable news

networks, local papers, and social media saturate the public

with information about the presidential race and statewide

elections. But ask an average North Carolina voter which candidatesA they support for superior court and district court, and most voters respond with blank stares. Given the importance of our trial court judges, the lack of informed voters is a problem that we, the members of the North Carolina Bar, have the opportunity and the obligation to address.

It is beyond debate that North Carolina of our trial judges. Campaign funding fol- ty for the legal system to alter behavior that citizens are often uninformed about judicial lows suit, with only meagre attention given can keep them out of our justice system and candidates. There are many reasons for this. to our trial judges. change the course of their life. Most of these By most measures, our trial court judges are But the impact of our superior court and cases never reach the appellate courts, but not politicians, but instead are public ser- district court judges on the daily lives of each of them affects our citizens, often in vants who spend most of their time serving ordinary North Carolina citizens cannot be profound ways. their communities and a small amount of overstated. Each year our district court Although our superior court judges pre- time campaigning. Most of us prefer our sys- judges handle tens of thousands of cases of side over fewer cases, they oversee civil and tem to operate that way. Meanwhile, the domestic violence, child custody, juvenile criminal dockets in cases, both large and media does cover the appellate court races— matters, criminal cases, and a range of other small, that have significant impacts on our perhaps because there is a view that our court civil cases, which impact the lives of our cit- communities, including constitutional ques- of appeals judges and Supreme Court justices izens and the harmony of our communities. tions, zoning matters, and violent crimes have a broader impact on our communities Our district court judges often are a juve- including rape and murder cases. Our judi- and our state’s policies because they interpret nile criminal defendant’s first encounter cial system is not perfect, but ensuring that the law and establish binding precedent— with the legal system, and for that reason we have excellent trial judges is a first step but the media gives short shrift to elections are perhaps the defendant’s best opportuni- toward getting it right.

36 FALL 2016 With this backdrop, what is or should be been substantial and has been certified as sta- the role of members of the North Carolina tistically reliable. Once reviewed, the survey Bar during election season with regard to results are reported and publicly available at educating the public about trial court judges? ElectNCJudges.org. The members of the Bar are uniquely situat- The JPE Committee works during non- ed to assess the qualifications and experience election years to improve the survey, includ- of our trial court judges and judicial candi- ing to address concerns expressed by candidates. In addition to court personnel, the dates and survey participants. For example, members of the Bar who appear in court are members of the Bar and candidates have the only citizens who regularly see our judges occasionally speculated that the survey in action and have a basis to evaluate their results could be skewed if local Bar mem- demeanor, judicial temperament, judgment, bers conspire or collude to support or and ethics. oppose a particular candidate in the survey. Over the last decade, the North Carolina (To the best of the JPE Committee’s knowl- Bar Association’s Judicial Performance edge, there has been no confirmed instance Evaluation Committee (the JPE Committee) of collusion in the survey process.) A more has facilitated a survey of incumbent judges important concern—consistently discussed and challenging candidates. The JPE by the JPE Committee—is that the survey Committee’s members include over a dozen results could be impacted by subconscious retired judges, practitioners, and nonlawyer gender or racial bias. The JPE Committee representatives throughout the state. The Bar has taken steps to address this concern and Association takes seriously its aim of having communicate clearly to survey participants the JPE Committee be representative of the to avoid subconscious biases, asking partic- members of the Bar and the citizens of this ipants to focus on objective criteria and state, in terms of ethnic and gender diversity concrete experiences with particular judges and geography. in evaluating them rather than on the sur- For each of the last three election cycles, vey participants’ general impressions of the the members of the Bar have risen to the candidates. The JPE continues to evaluate occasion, completing over 35,000 evalua- the phenomenon of survey bias and to tions in each cycle. The 2016 statistics for solicit and receive comments from members participation are impressive: of the Bar. The Bar Association has now released sur- Phase I (Incumbent Judge Survey) vey results of our 173 trial judges for the Unique Attorney Participants 3,788 2016 election, and needs the help of the legal Evaluations Completed 29,131 community to get these results to the voting District Court Judges in Survey 146 public. There are at least four things we all Superior Court Judges in Survey 15 can do regardless of whether we are litigators or tax lawyers, real estate lawyers or in-house Phase II (Challenging Candidate counsel. First, in just five minutes we can Survey) each review the survey results online to edu- Unique Attorney Participants 2,164 cate ourselves about our local candidates and Charles E. Raynal IV is a partner at Parker Evaluations Completed 7,219 how our peers have evaluated them. Second, Poe. He litigates business cases in federal and Total Candidates in Survey 80 for those of us who participate in LinkedIn, state courts, arbitrations, and government This level of participation in the survey is Facebook, or other social media, with the agency proceedings. He is the current chair of high considering that the vast majority of the click of a button we can share the survey the NCBA’s Judicial Performance Evaluation 23,000 North Carolina lawyers do not regu- results with our friends and colleagues. Committee. larly, if ever, appear in court. Third, we can ask our local Bar in all 100 Survey participants rate each candidate counties to take note of the survey results on a five point scale in five discrete cate- and report on local elections in Bar meetings gories: (a) integrity and impartiality; (b) legal and publications. Finally, we can forward the ability; (c) professionalism; (d) communica- survey results to local newspapers, television, District Court (cont.) tion; and (e) administrative skills. The survey and radio outlets to make sure the survey data is collected anonymously by independ- results are reported and reach North Commission, nccourts.org/Courts/CRS/Councils/ ent consultant BDO Seidman and then Carolina voters. spac/Documents/statisticalrpt_fy13-14.pdf. reviewed independently by a statistician at On behalf of the JPE Committee, thank 17. SL 1999, Ch. 237, s 17.17. 18. 2016 Report on Local Government Contracts for the NC State University. This year, as in prior you for participating in the survey and for Provision of Services, North Carolina Administrative cycles, the data that has been collected has sharing the survey results. n Office of the Courts, March 1, 2016.

THE NORTH CAROLINA STATE BAR JOURNAL 37 LEGAL ETHICS

The Privilege of Mentoring

B Y S UZANNE L EVER

t its meeting on July 21, that protégés are agents of their mentors or al ethics. The attorney-client privilege 2016, the Ethics of their mentor’s clients. This omission is and work-product doctrine apply in Committee voted to not inadvertent. Whether an agency rela- judicial and other proceedings in which revise the editor’s note for tionship exists is a matter of agency law. a lawyer may be called as a witness or 2014 Formal Ethics The Ethics Committee opines on lawyers’ otherwise required to produce evidence OpinionA 1, Protecting Confidential Client professional conduct as governed by the concerning a client. The rule of client- Information When Mentoring, an opinion Rules of Professional Conduct. In general, lawyer confidentiality applies in situa- that was adopted by the council on the Ethics Committee will not respond to tions other than those where evidence is February 1, 2016. The editor’s note now ethics inquiries that seek an opinion on an sought from the lawyer through com- cites a recent court of appeals opinion on issue of law. 27 N.C.A.C. 1D § .0102(g). pulsion of law. The confidentiality rule, whether a third party is an agent of the Another issue of law raised by the for example, applies not only to matters lawyer or the client such that the attorney- inquiry in 2014 FEO 1 relates to the attor- communicated in confidence by the client privilege is not waived although the ney-client privilege. Although the opinion client, but also to all information third party is privy to client-lawyer commu- examines the application of the ethical duty acquired during the representation, nications. The committee concluded that a of confidentiality to communications to whatever its source. A lawyer may not lawyer should consider this appellate opin- which a protégé may be privy, the opinion disclose such information except as ion when analyzing whether a protégé’s references—but does not determine—the authorized or required by the Rules of presence during a client-lawyer consultation effect the presence of a protégé may have on Professional Conduct or other law. will waive the attorney-client privilege. The the attachment of the attorney-client privi- Privileged information is always confi- court of appeals opinion is Berens v. Berens, lege. Again, the omission is not inadvertent. dential information, but confidential infor- No. COA15–230, 2016 WL 1569215 Ethics counsel receives numerous mation may not be privileged. In general, a (N.C. April 19, 2016). inquiries from lawyers regarding the attor- lawyer has an ethical duty to protect a Berens v. Berens is an interesting case. In ney-client privilege as a consequence of client’s information under Rule 1.6(a). The Berens, the North Carolina Court of lawyers’ misconception that the privilege is duty of confidentiality “applies not only to Appeals considered whether the attorney- encompassed within the Rules of matters communicated in confidence by client privilege is waived when a person— Professional Conduct. Although the con- the client, but also to all information who has been designated by the client as the cepts of confidentiality and attorney-client acquired during the representation, whatev- client’s agent—participates in private com- privilege are often used interchangeably, only er its source.” In contrast, client informa- munications between the lawyer and the the duty of confidentiality is governed by the tion is deemed privileged only if: (1) the client. The Berens court stated that an Rules of Professional Conduct. See Rule 1.6. relation of attorney and client existed at the agency relationship arises when an agent has The attorney-client privilege is a matter of time the communication was made, (2) the the express or implied authority to act for a common law and the law of evidence. The communication was made in confidence, principal and the principal has control over Ethics Committee can only speak to the (3) the communication relates to a matter the agent. application of the Rules of Professional about which the attorney is being profes- Based on several unique factors, the Conduct. sionally consulted, (4) the communication Berens court held that an agency relation- Another distinction between the ethical was made in the course of giving or seeking ship did exist between the client and her duty of confidentiality and the attorney- legal advice for a proper purpose although friend/”personal advisor,” an inactive mem- client privilege is that the privilege applies litigation need not be contemplated, and ber of the State Bar, for the purpose of to a much narrower category of client (5) the client has not waived the privilege. assisting the client in her litigation against information than does the ethical duty of State v. McIntosh, 336 NC 517, 444 S.E.2d her spouse. Because the friend was an agent confidentiality. Comment [3] to Rule 1.6 438 (1994). of the client, her presence and participation explains: To reiterate, the attorney-client privilege in private communications between the [3] The principle of client-lawyer confi- is not governed by our professional rules. client and her lawyer remained subject to dentiality is given effect by related bodies Neither is the attachment or the waiver of the attorney-client privilege. of law: the attorney-client privilege, the the privilege. For that reason, 2014 FEO 1 2014 FEO 1 offers no opinion on work product doctrine, and the rule of whether Berens supports the proposition confidentiality established in profession- CONTINUED ON PAGE 49

38 FALL 2016 LEGAL SPECIALIZATION

An Interview with Robert “Bob” Mason, Board Certified Specialist in Elder Law

B Y L ANICE H EIDBRINK

Q: What motivated you to become a spe- bar in everything from criminal law to one of the world’s smallest firms in Asheboro. cialist? trademark law. In the big firm, it may be one of those tickets I moved to North Carolina from a state Q: What piece of advice would you give you need to get punched to make partner. In (Georgia) that had (and has) no system of lawyers who are interested in pursuing cer- the small town, it can be the one thing that legal specialization. So the very existence of tification? sets you apart, gets the public to realize what the system was a direct challenge to me. I’m Do it! And start early. If you are a younger you do, and perhaps even enables you to get a competitive guy and when you put a attorney who thinks you might be interested, on the path to building a regional practice. It challenge in front of me I may well grab it. take a look at the subject matter covered by is comforting for clients to know they are get- I also thought I’d be the local your exam and make a conscious ting the same level of expertise “right at chief of a satellite office of a big effort to take cases involving a home” that they might otherwise have to go law firm that merged with a larg- variety of issues. Work on to the Big City to access. er out-of-state firm shortly after being...well...a specialist. Q: What are the hot topics in elder law I arrived. I liked Asheboro, but I Q: What would you tell some- right now? realized I better make a mark one who is intimidated by the Asset protection, trusts and trust taxation, quickly if I wanted to “get the thought of sitting for a certifica- and elder financial abuse. word out” and stay. Going for a tion exam? Q: How does certification benefit the public? certification seemed like the Mason Tell yourself, “I can do this Selecting an attorney is stressful. There right thing to do. thing!” You’re smart. You passed are two general elements: competence and Q: You are currently serving as vice-chair on the bar exam. Look at what you need to personal chemistry. There are plenty of good the Board of Legal Specialization. What do cover, chop it up into segments, identify noncertified attorneys out there, but certifi- you like best about serving on the board? where you are weakest, and then attack it. cation is an objective “Good Housekeeping” What challenges have you encountered in But start where you’re weakest. seal of approval. That’s half the battle for the serving on the board? Find a certified specialist/mentor to client. I can’t believe that I have ended up on the help you through it. The best would be a Q: How has specialization changed since Board of Legal Specialization! For years I was friend who is not afraid to hold your feet to you became a specialist? very involved in elder law matters. I served the fire. A scholarly marine drill instructor It’s becoming even more specialized. two tours as Bar Association section chair, on who happens to be a specialist in your area We’ve added several specializations since I various committees, and the like. I have been might be good if you can’t provide that came on the board. It’s becoming more like involved in various elder law organizations internal motivation to study an arcane cor- medicine in that it is tougher for someone to nationally. It was all elder law. On the board, ner of the specialty four or five months be a good general practitioner. There is sim- I have had an opportunity to get acquainted before the exam. ply too much there. with different specialists. I have cast votes Commit to the effort. It won’t be easy. Q: Finish this sentence: “I’m excited about affecting other specialties. I have served on You won’t be able to knock this off with a the future of legal specialization because…” committees affecting the course of specializa- weekend of “looking things over.” But you It is becoming more the norm than the tion over many areas. It’s good to be remind- can do it if you make the effort. If it was too exception. ed that I am a lawyer first, an elder law attor- easy, it wouldn’t be special. But clearing that Q: Name the top three benefits you’ve expe- ney second. I feel most privileged to have hurdle can be the happiest day since you rienced as a result of becoming a specialist. been given the opportunity of making passed the bar. Maybe happier. Great colleagues, an enriched practice, a friends from around the state who are truly Q: How would you explain the benefits of sense of accomplishment. “special” lawyers and judges. specialization to someone who says, “I prac- Q: You have always been a strong advocate My biggest challenge? Walking into a tice in a small town; specialization is for for elder law continuing legal education meeting and getting out of my elder law lawyers in large law firms in large cities”? and regularly travel to present on elder law skin! I have to remind myself that I am Well, I’ve done both. I practiced with one serving the interests of the public and the of the world’s biggest firms in Atlanta, and CONTINUED ON PAGE 49

THE NORTH CAROLINA STATE BAR JOURNAL 39 THE DISCIPLINARY DEPARTMENT

Grievance Committee and DHC Actions

pliance with numerous conditions. tain accurate client ledgers, and did not Disbarments Sandra C. Kullmann of Charlotte was properly maintain and disburse entrusted Robert M. Chandler Jr. of Rocky Mount suspended by the DHC for three years. The funds. As a result they disbursed client surrendered his law license to the Wake DHC concluded that Kullmann commin- funds for purposes other than instructed by County Superior Court and was disbarred. gled personal funds with entrusted funds, the client and received payments for legal Chandler acknowledged that he misappro- did not maintain client ledgers, did not rec- fees before the fees were earned. After serv- priated entrusted funds totaling at least oncile her trust account, and did not proper- ing six months active suspension, they will $117,300. ly maintain and disburse entrusted funds. be eligible to apply for a stay of the balance The DHC disbarred William I. Diggs of The suspension is stayed for three years upon upon showing compliance with numerous Myrtle Beach, South Carolina. Diggs her compliance with numerous conditions. conditions. acknowledged that he misappropriated The DHC concluded that Christopher entrusted funds totaling at least $100,000. W. Livingston of White Oak assisted a debt Censures J. Hal Kinlaw Jr. of Lumberton tendered elimination organization in the unauthorized Randolph Hill of Raleigh was censured his affidavit of surrender and was disbarred practice of law, attempted to share a legal fee by the Grievance Committee. Hill did not by the council. Kinlaw pled guilty in the US with a nonlawyer, filed frivolous pleadings, participate in the State Bar’s fee dispute reso- District Court for the Eastern District of knowingly made a false statement of material lution program and did not respond to the North Carolina to the felony offense of bank fact to a third person, engaged in conduct Grievance Committee. fraud. prejudicial to the administration of justice, The Grievance Committee censured Scott McCormick of Winston-Salem and used means that had no substantial pur- Marlon Howard of Durham. Howard pro- surrendered his law license to the Wake pose other than to burden or embarrass a vided legal services to North Carolina resi- County Superior Court and was disbarred. third person. The DHC suspended dents as “of counsel” to an out-of-state law McCormick acknowledged that he misap- Livingston for five years. After serving two firm, thereby aiding others in the unautho- propriated entrusted funds totaling at least years active suspension, Livingston will be rized practice of law and in debt adjusting, a $3,000. eligible to apply for a stay of the balance crime in North Carolina. Howard also made upon showing compliance with numerous false or misleading statements about his serv- Suspensions & Stayed Suspensions conditions. ices, shared a fee with a nonattorney, and col- Keith C. Booker of China Grove was sus- Marlon B. Messer of Altadena, lected an illegal fee. pended by the DHC for five years. The California, was suspended by the DHC for DHC concluded that Booker neglected mul- two years. The DHC concluded that Reprimands tiple clients, unintentionally misappropriat- Messer aided a California business in debt Wayne Crumwell of Reidsville was repri- ed entrusted funds, and did not maintain adjusting and in the unauthorized practice manded by the Grievance Committee. proper trust account records. of law in multiple states. The suspension is Crumwell engaged in conduct involving Winston-Salem lawyer Michael Paul stayed upon his compliance with numerous deceit or misrepresentation by failing to dis- Crowe was suspended by the DHC for three conditions. close professional discipline on his initial years. In two criminal cases, Crowe subpoe- John Brooks Reitzel Jr. of High Point was application to the Dispute Resolution naed State’s witnesses to depositions in his suspended by the DHC for four years. The Commission for certification as a mediator, office without notifying the ADA. The DHC concluded that Reitzel engaged in the and repeatedly failing to disclose pending DHC concluded that he also engaged in a unauthorized practice of law in South disciplinary proceedings and civil judgments conflict of interest and dishonest conduct in Carolina, a felony in that state. After serving on renewal applications. an unrelated matter. After serving 18 months two years active suspension, Reitzel will be R. Kelly Calloway of Hendersonville was active suspension, Crowe will be eligible to eligible to apply for a stay of the balance reprimanded by the Grievance Committee. apply for a stay of the balance upon showing upon showing compliance with numerous Calloway did not refund an unearned fee, compliance with numerous conditions. conditions. did not participate in the State Bar’s fee dis- John “Monte” Holmes of Sanford was Sean David Soboleski and Jane pute resolution program, and did not convicted of criminal offenses including (Soboleski) Dearwester, husband and wife respond timely to the Grievance Committee. assault on a government official during an who practiced together in Asheville, were episode of public intoxication. The DHC suspended by the DHC for three years. The Transfers to Disability Inactive Status suspended him for three years. The suspen- DHC concluded that they did not properly The DHC transferred V. Lamar Gudger sion is stayed for three years upon his com- reconcile their trust accounts, did not main- III of Asheville to disability inactive status. n

40 FALL 2016

PARALEGAL CERTIFICATION

How to Work for Multiple Attorneys and Thrive

B Y J ACQUELINE K ING

Let’s be honest, managing our bosses can most important job you have when working call me Cinderella.) When this happen to feel like a cross between taking care of our for multiple attorneys. Knowing your limits you, don’t hesitate to tell each attorney that children and our significant other. Much like is the second. something has to take precedence. They rely children, we are tasked with keeping them I’m lucky enough to have four great boss- on you to keep them tasked and make sure organized, maintaining their schedules, es, each a mentor to me. Even better, I’m a they don’t miss deadlines. You are doing preparing them, and making sure they have rock star to them. I handle my business and yourself, or them, no favors if you don’t tell food at the necessary times. A “hangry” boss I get the job done. The down side? I work for one attorney he has to wait because the is no fun. When things go bad, we take the four of them. My sanity is questionable at other one has a deadline ahead of him. brunt of any moods and roll our eyes behind times. Ask my husband. My firm is a small Next, organization is key to alleviating closed doors, like we do with our significant firm, but is leading the technology game in some stress. (If you ever find a way to be others. Then we dive in head first and fix the our area. It ascends above the norm in sup- stress free, bottle it and sell it. Hello, million- problem. It seems impossible at times, espe- plying me with the necessary tools to do my aire!) Organization also maintains a happy cially when they are playing tug-o-war and job and do it well. boss when you have four of them. It is guar- you are the rope. Other times there isn’t The most essential tool I have is a task anteed your attorney is going to be unorgan- enough ibuprofen in Walgreens to get system. If you don’t have one, get one. Now. ized. (I believe it is a prerequisite to obtaining through the day. Do not break. You can sur- Your top priority for yourself, and your firm, your JD, along with passing a sloppy hand- vive. I promise. is to find a task system. It is imperative to writing class.) We are paid to stop that from When I started in this field 13 years ago, effectively manage your work. A missed spiraling too far out of control. When they I worked for one attorney. That appears to be deadline is a work death sentence—say hello are pulling their hair out and cannot locate the norm: one paralegal to one attorney. to the guillotine. Next, once you have it, use the letter they just signed, we should be able Now I get the pleasure of working for four. it. I know people who don’t. It was nice to produce it with a smile almost immediate- Yes, that’s right, four—three partners and an working with them. Remember, it wasn’t ly. If I have to climb to the top of Mount associate. Sometimes I feel like my office that long ago that the only way to function Correspondenceville (yes, that’s a real place) should be a padded room. All I need is a was with a list of tasks on a piece of paper, or to get it—because I haven’t filed in two straitjacket. Two attorneys thankfully have a sticky note stuck to your monitor. Of months—then the chances of me surviving additional paralegals, and two have just me. course, the most important sticky note was in this field are slim to none. My boss is The workload, which is the nature of the always the one that fell off. It would stick to going to throw a temper tantrum when I beast in this field, isn’t the only difficult something else, or worse, it ended up being can’t produce what he needs, when he needs aspect. Prioritizing tasks and keeping each trashed. Now we live in a world with a mass it. Think two-year old in full meltdown attorney organized is equally stressful and amount of technology available at our finger- mode because he can’t have ice cream for din- difficult. tips. There is no reason to miss a deadline, or ner. I’m guaranteed to miss something if my The other day I was in my office, mind- worse, a statute of limitation. desk looks like the aftermath of a Category 5 ing my own business (filing my nails, as my When all four attorneys expect that you hurricane. supervising attorney says). I looked up and I will get that demand letter out, file the lien, Here is where I also have to advocate for had one attorney sitting in the chair in my prepare the accounting, and draft that going completely paperless. Yes, getting there office and two standing outside my door. answer, all at the same time, a task manage- will test every ounce of patience you have and Kind of similar to when you’re riding down ment system allows you to enter all of my make you question your sanity. You may look the road and you see three or four vultures tasks in one place. The task management around and think it isn’t possible, but I have circling in the air. You feel an immediate system allows me to see what deadlines I lived to tell the tale. It really is possible. Once onset of sympathy for the dead animal you have coming up and manage my weekly you go paperless, you will never put labels on know is in the field. That’s me—the poor workload by deadlines and importance, not another folder again! When your boss is animal getting ready to be picked apart by solely by answering whichever attorney is yelling for you to find that one interrogatory the vultures. Each had a task they needed screaming the loudest. (Sometimes I almost response in a sea of thousands of responses, completed. Each task was equally important expect steam to start coming out of their being able to pull the response in less than to them. My job? Handle it all. The ability to ears and their head to explode. Don’t get me two minutes is like winning a paralegal gold manage your workflow, and their workflow, wrong. It could be entertaining. But, you and manage it sufficiently and timely, is the know who would be left with the mess. Just CONTINUED ON PAGE 51

42 FALL 2016 LAWYER ASSISTANCE PROGRAM

Messy, Unruly, Chaotic Life

B Y R OBYNN M ORAITES

fter working at the NC strength, and de-pathologizing normal struggle Lawyer Assistance cannot be overstated. So much of our journey Program (LAP) for the (here, in life) involves learning to accept our past five years, I can say humanness. It is not easy work. And it involves with confidence that evolution of our consciousness. most of what we see As an example, many lawyers are anxious clinically is lawyers’ and judges’ responses to or depressed because they are deeply the Aserious difficulties of life and a career in unhappy in their current professional law. Not that there isn’t true psychopathology, circumstance. They don’t have a practice because there certainly is. But it is a teeny-tiny area that suits their particular talents or fraction of what we encounter in the lawyers personality, or their firm’s culture is not a we see and work with day to day. good fit for them. Instead of accepting that NC LAP follows a medical model as it fact and taking action to make a change, relates to alcoholism. We have given they mentally grit their teeth with grim hundreds of CLE talks emphasizing the determination to stay in their present biological factors in the brain that contribute circumstance. They tough it out because involves asking for help and being willing to to the development of the disease of they think they should for various reasons. take suggestion and direction from others to alcoholism as it is defined by the American Maybe they are worried about financial do something they think will serve no useful Medical Association. It is a medically insecurity even though they have substantial purpose (only to discover the glorious benefit researched and documented reality that once savings and can afford to make a move. once they have taken the action). If experience certain chemicals enter the brain, it will create Maybe they are striving to live up to an ideal has shown us anything, it is that we can learn a craving response for some people. However, their parents (alive or deceased) set for them and grow from any circumstance if we are that is only part of the picture. We sometimes about what it means to be a success. Maybe willing. joke in recovery that for an alcoholic, once they are worried a spouse will leave if they Growth and change are at the center of the you remove the “alcohol,” you are left with are honest about wanting to make a change. disruptions that bring people to LAP. the “ic.” That is: you are left with the The real work involves identifying these Something that used to work is not working emotional turmoil and struggle to accept life underlying issues, fears, and motivations anymore, whether it is our drinking or our as it comes at you. And that is most of what that are often hidden to the person thinking. What used to work to ease the we see and deal with at LAP, whether a struggling with depression or anxiety. nerves or create success in our lives is no person drank over it or not. It is there where While medication can be helpful for longer effective. Our usual first response is to the real transformational work happens. How depression and anxiety, especially in the early double down and try that tried-and-true do we deal with life on Life’s terms (rather stages of treatment and stabilization, it is not technique even harder. But here is a secret I than our own)? a permanent stand-alone solution to the have learned in my time in recovery: anything Life is messy, unruly, chaotic, and scenarios outlined above. One can only we do we will eventually outgrow, no matter unpredictable. We all know it—we live it medicate misery for so long before reaching a how good and effective it may have once every day. People do not behave as they breaking point. While clearly depression, been. We either leave it behind or it will should. Our well-trained, mellow dog anxiety, and a host of other issues exist, it is boomerang on us. And when that boomerang suddenly snaps at a neighbor’s toddler. Good rarely effective to view them as stand-alone hits, it hits us pretty hard. Lawyers usually children get into trouble. Spouses and illnesses to be treated as diseases using only a come to LAP after the boomerang has hit teenagers spend money faster than we can medical model. NC LAP utilizes a model of them in the head…a couple of times. make it. Loved ones get sick; they die. An assistance based on collaboration between Many lawyers think LAP is about not aunt visits for a weekend and forgets to turn lawyers, their peers, and their counselors. Our drinking. Sometimes it is. Mostly, however, off the second floor bathroom sink faucet role is to find and activate the lawyer’s internal it is about transformation of consciousness. when going to bed, and the first floor ceiling resources and to teach, model, and share It is about learning how to stay relatively sane collapses from water damage in the middle of healthy tools and coping mechanisms. For and reasonably happy in a pretty insane the night. (True stories. All of them.) many lawyers, stoic self-reliance has been the The power of emphasizing resilience and architect of their downfall, and their learning CONTINUED ON PAGE 46

THE NORTH CAROLINA STATE BAR JOURNAL 43 IOLTA UPDATE

IOLTA Prepares to Make Grants with New Funding

Income nated for the provision of civil legal aid to IOLTA administers the state funding for Though we were pleased to see an the poor. Receiving our portion of the first legal aid on behalf of the NC State Bar. increase in income from IOLTA accounts in funding distribution for IOLTA programs Total state funding distributed for the 2015, that trend has not continued. The included in the settlement with Bank of 2013-14 fiscal year was $3.5 million. The first quarter of 2016 showed a 3% decrease America ($842,896) was crucial to our abil- state budget adjustments beginning in in income from the accounts as banks con- ity to make 2016 grants. 2014-15 eliminated the appropriation for tinue to adjust their interest rates down- The IOLTA Trustees decided to use half legal aid work ($671,250 at that time). wards and a number of bank mergers result of the Bank of America settlement funds, Total state funding distributed for the in less favorable bank policies. We are work- leaving half to remain invested to use in 2014-15 fiscal year from filing fees alone ing on again strengthening our relationship 2017, as otherwise our reserve would be just was just under $2.8 million, and just over with the NC Bankers Association, and will under $250,000. We were able to make just $2.7 million for 2015-16. The Equal begin a communication strategy with banks over a 3% increase in the individual grants Access to Justice Commission and the NC to encourage more favorable policies. and to bring total grants back to $2 mil- Bar Association continue to work to sustain Revisions to the trust account rules now lion—an emotional boost to all. Though the and improve the funding for legal aid. include credit unions under the definition of settlement funds are restricted to foreclosure bank. We are working with the Carolinas work, we do have six strong legal aid pro- IOLTA Leadership Credit Union League to help them commu- grams that have been collaboratively han- The State Bar Council appointed John B. nicate to their constituent members how to dling significant foreclosure work. That McMillan and Edward C. Winslow III as become eligible to hold IOLTA accounts. work is highlighted in an article in the chair and vice-chair of the NC IOLTA As previously reported, we have received Winter issue of the North Carolina State Bar Board of Trustees for 2016-17. McMillan, a a second distribution of funds from the Journal. As other funds for this work are former NC State Bar president, is in private Bank of America (BoA) settlement with the decreasing or ending, these funds will pro- practice in Raleigh and also currently serves Department of Justice in the amount of vide significant support to continue the on the Equal Access to Justice Commission. $12,071,404. As with the first BoA settle- foreclosure projects. Winslow, who was also appointed to a sec- ment funds received, these funds come with The IOLTA trustees decided to open a ond three-year term as IOLTA trustee, has significant restrictions as to grants. The separate grant cycle in 2016-17 to begin to just completed service as managing partner funds are to be distributed to legal aid make grants with the additional Bank of at Brooks Pierce law firm in Greensboro organizations in the state of North Carolina America settlement funds received in 2016. where he practices in the areas of banking to be used for foreclosure prevention legal Applications for that cycle are due August 1, and financial services, including represent- assistance and community redevelopment decisions will be made at the September ing bankers associations and banks within assistance. board meeting, and grant distributions will and outside North Carolina. begin in the last quarter of 2016 on October In addition to reappointing Winslow, Grants 1. NC IOLTA has prepared a grant program the council appointed two new trustees: 1) As previously reported, the IOLTA description for this cycle that includes defi- Maria Missé, attorney at law, who repre- trustees dramatically reduced the number of nitions of terms used in the restrictions sents clients in counties throughout north- grants beginning in 2010 as we dealt with a applied to the funding and a description of eastern North Carolina, including significantly changed income environment the reporting that all IOLTA programs have Hertford, Bertie, Northampton, Gates, due to the economic downturn, which has agreed to make to the National Association Pasquotank, Camden, Currituck, seen unprecedented low interest rates being of IOLTA Programs regarding work com- Perquimans, Chowan, Dare, Halifax, paid on lower principal balances in the pleted using the funding. Martin, Washington, Beaufort, Tyrrell, accounts. The trustees decided to focus Given the large amount of funds received Hyde, and Pitt and 2) Steven D. Michael grant-making on organizations providing in the second BoA settlement distribution of Sharp, Michael, Graham and Baker in core legal aid services. Even with that and the time required for some community Kitty Hawk, whose varied legal experience change, IOLTA grants have dramatically redevelopment projects, it is expected that includes service as an assistant district decreased by over 50% from their highest these restricted funds will be granted over a attorney, a superior court judge, and a cer- level of just over $4 million in 2008 and number of years. tified mediator. When he served as NC 2009. During this downturn in income State Bar president, he worked with the Bar from IOLTA accounts, we have relied heav- State Funds and IOLTA trustees to move to a mandato- ily on cy pres and other court awards desig- In addition to its own funds, NC ry program in North Carolina. n

44 FALL 2016 TRUST ACCOUNTING

Amended Trust Accounting Rules Approved by the Supreme Court

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

n June 9, 2016, the CLE course taught by the State Bar’s Trust Supreme Court Account Compliance Counsel after January approved the amend- 1, 2015, satisfies the requirement. Additional Escrow Consulting ments to Rule 1.15 courses that satisfy the CLE requirement will that were discussed in be identified on the CLE website. & Accounting, LLC detail in the last edi- To clear up any confusion, lawyers may Protecting Your Trust Accounts tion of the Journal. While there are many sig- still sign checks and reconcile the trust nificantO changes to the rules and its subparts, account; only nonlawyers are prohibited including a new quarterly review require- from performing both functions. Rule 1.15- Are YYourour TTrustrust Accounts in ment, the most talked about change seems to 2(s) also includes new prohibitions against Accordance with Rule 1.15? be the requirement that any signatory to a signature stamps, electronic check signatures, Protecting your business byby...y.... trust account check complete a one-hour and preprinted signature lines on checks. ࠮*VUMPYTPUN4VU[OS`HUK8\HY[LYS` trust account management CLE. Lawyers and law firms should promptly 9LJVUJPSPH[PVUZ4LL[5*)HY9\SLZ Newly approved Rule 1.15-2(s)(2) refrain from using these processes. requires checks drawn on a trust account to The new rules became effective as of June ࠮=HSPKH[PUN*SPLU[;Y\Z[3LKNLYZ(YL be signed by a lawyer or by an employee who 9, 2016; therefore, lawyers should act quick- -\SS`-\UKLK is not responsible for performing monthly or ly to come into compliance. However, the ࠮,UZ\YPUN;Y\Z[(JJV\U[Z(YLPU quarterly reconciliations. Any lawyer or State Bar knows that there will be a learning *VTWSPHUJLHUK4HRPUN5LJLZZHY` supervised employee with check signing curve for the new requirements and plans to 3LKNLY*VYYLJ[PVUZ authority must take a one-hour trust account reasonably enforce compliance with that management CLE course approved by the understanding. ࠮:LY]PJLZ]HY`MYVTHVUL[PTLYL]PL^ State Bar for this purpose. To allow CLE To help lawyers comply with the new VMJSPLU[WYLWHYLKYLWVY[Z[V,*( YLJVUJPSPUN[OL[Y\Z[HJJV\U[ZVUH providers time to develop and obtain reconciliation and review requirements, TVU[OS`IHZPZ approval for appropriate courses and to allow three separate fillable forms are available on a reasonable time for all law firms to come the State Bar’s website, ncbar.gov/for- into compliance, the CLE requirement may lawyers/trust-accounting. You can also get be satisfied in 2017; however, compliance updates and guidance on rule changes by with the other signature requirements for following the State Bar on Twitter at trust account checks should be prompt. @NCStateBar. Completion of a one-hour trust accounting While word of mouth is helpful, don’t rely solely on what you’re told by colleagues about the new rules. Read the revised Dawn Cash-Salau Lawyers Trust Account Handbook (revisions to Thank You to Our be completed in August 2016) and contact 252.531.4241 us at the Bar with any questions about the TrustComplianceNC.com Meeting Sponsors new rules. We can be reached at (919) 828- 4620, or via email at [email protected] with 20 years of professional accounting experience or [email protected]. Thank you to Lawyers Mutual Liability Insurance Company and The Title Third Quarter Audit Selection selected judicial districts used to generate the Company of North Carolina for Lawyers randomly selected for audit are list for the third quarter of 2016 are District sponsoring the State Bar’s quarterly meeting. drawn from a list generated from the State 15B, composed of Chatham and Orange Bar’s database based upon judicial district counties, and District 27B, composed of membership designations. The randomly Cleveland and Lincoln counties. n

THE NORTH CAROLINA STATE BAR JOURNAL 45 PROPOSED OPINIONS

Council Approves Opinion Allowing Non-Equity Firm Lawyers to be Held Out as “Partners”

Council Actions ties arising from the designation. At its meeting on July 22, 2016, the State 2016 Formal Ethics Opinion 2 Bar Council adopted the ethics opinions Duty of Defense Counsel Appointed after Public Information summarized below: Defendant Files Pro Se Motion for 2015 Formal Ethics Opinion 8 Appropriate Relief The Ethics Committee’s meetings are Representing One Spouse on Domestic Opinion rules that, when advancing public, and materials submitted for con- and Estate Matters After Representing Both claims on behalf of a criminal defendant who sideration are generally NOT held in Spouses filed a pro se motion for appropriate relief, sub- confidence. Persons submitting requests Opinion rules that a lawyer who previ- sequently appointed defense counsel must for advice are cautioned that inquiries ously represented a husband and wife in sev- correct erroneous claims and statements of law should not disclose client confidences or eral matters may not represent one spouse in or fact set out in the previous pro se filing. sensitive information that is not neces- a subsequent domestic action against the sary to the resolution of the ethical ques- other spouse without the consent of the Ethics Committee Actions tions presented. other spouse unless, after thoughtful and At its meeting on July 21, 2016, the thorough analysis of a number of factors rel- Ethics Committee voted to revise the editor’s evant to the prior representations, the lawyer note for 2014 Formal Ethics Opinion 1, privilege. The ethics opinion, with the determines that there is no substantial rela- Protecting Confidential Client Information revised editor’s note, can be found in the tionship between the prior representations When Mentoring, an opinion that was ethics opinions section of the State Bar web- and the domestic matter. adopted by the council on February 1, 2016. site: ncbar.gov/for-lawyers/ethics/adopted- 2015 Formal Ethics Opinion 9 The editor’s note cites a recent court of opinions/2014-formal-ethics-opinion-1. Holding Out Non-Equity Firm Lawyers appeals opinion on whether a third party is At the July 21, 2016, meeting, the com- as “Partners” an agent of the lawyer or the client such that mittee also voted to continue to table pro- Opinion rules that a lawyer who does not the attorney-client privilege is not waived posed 2016 Formal Ethics Opinion 1, own equity in a law firm may be held out to although the third party is privy to client- Contesting Opposing Counsel’s Fee Request the public by the designation “partner,” lawyer communications. The committee to Industrial Commission, pending the “income partner,” or “non-equity partner,” concluded that a lawyer should consider this issuance of an opinion on similar facts by the provided the lawyer was officially promoted appellate opinion when analyzing whether a court of appeals. based upon legitimate criteria and the lawyer protégé’s presence during a client-lawyer No new opinions were proposed by the complies with the professional responsibili- consultation will waive the attorney-client committee. n

LAP (cont.) awareness of our reactions and behaviors. We happens to us. n can become skillful at making choices that do world and tough profession. It is about not harm ourselves or others. We can learn to The North Carolina Lawyer Assistance learning to accept life as it comes, without pause when agitated or doubtful. We can ask Program is a confidential program of assistance for wearing ourselves and others out trying to for someone’s opinion or even their help. We all North Carolina lawyers, judges, and law make it be what we want. It is also about can stay open minded to the possibility that students, which helps address problems of stress, learning to accept ourselves and our human our way may not be the best way. We can depression, alcoholism, addiction, or other reactions for what they are, without denying become willing to try something different. We problems that may impair a lawyer’s ability to them or overemphasizing them. It is about can learn to take responsibility for our lives and practice. If you would like more information, go actively participating in our own growth and learn from what our past choices have to nclap.org or call: Cathy Killian (for Charlotte the evolution of our own consciousness. wrought. In many ways, we are the authors of and areas west) at 704-910-2310, Towanda Life—messy, chaotic, unruly life—is going our own lives, not in terms of what happens Garner (in the Piedmont area) at 919-719- to happen. There is nothing we can do about to us, but in terms of what we do with what 9290, or Nicole Ellington (for Raleigh and down it. What we can do is practice mindful, honest happens to us and what we learn from what east) at 919-719-9267.

46 FALL 2016 RULE AMENDMENTS

Amendments Approved by the Supreme Court

On June 9, 2016, the North Carolina that the exemption from CLE require- Supreme Court approved the following ments for members who teach law-related amendments to the rules of the North courses at professional schools has reference Highlights Carolina State Bar (for the complete text see only to graduate level courses; require a the Fall and Winter 2015 editions of the sponsor of the Professionalism for New · Supreme Court approves amend- Journal, unless otherwise noted, or visit the Attorneys Program to be an accredited ments to trust accounting rules that State Bar website): sponsor; and allow credit to be granted to will facilitate the early detection of private/in-house CLE programs on profes- internal theft and errors. Amendments to the Rules Governing sional responsibility and professional negli- · Court also approves standards for the Board of Law Examiners gence/malpractice under certain circum- new utilities law specialty. 27 N.C.A.C. 1C, Section .0100, Board of stances. · Council approves and sends to the Law Examiners Supreme Court proposed amendments Amendments to Rule .0101, Election, Amendments to the Standards for the to the procedural rules for the were recommended by the North Carolina Estate Planning and Probate Law Disciplinary Hearing Commission. Board of Law Examiners to modernize the Specialty outdated rule and to conform provisions of 27 N.C.A.C. 1D, Section .2300, the rule to current practice in regard to the Certification Standards for the Estate determining whether an applicant is hon- appointment of members of the board. Planning and Probate Law Specialty est, trustworthy, and fit to be certified as a The amendments to the standards for the paralegal. An amendment to the rules on Amendments to the Rules and estate planning specialty eliminate the sub- paralegal continuing education eliminates Regulations Governing the ject matter listings for related-field CLE and the $75 accreditation fee for any program Administration of the CLE Program for the exam, and explain that these listings that is presented without charge to atten- 27 N.C.A.C. 1D, Section .1500, Rules will be posted on the specialization website. dees. Governing the Administration of the Continuing Legal Education Program; Standards for a New Specialty in Amendments to the Trust Accounting Section .1600, Regulations Governing the Utilities Law Rule in the Rules of Professional Administration of the Continuing Legal 27 N.C.A.C. 1D, Section .3200, Conduct Education Program Certification Standards for Utilities Law 27 N.C.A.C. 2, Rules of Professional The amendments to Specialty Conduct, Rule 1.15, Safekeeping Property the CLE rules clarify A new section of the rules for the Amendments to Rule 1.15, Safekeeping specialization program sets forth stan- Property (and its subparts, Rule 1.15-1,

N O R T H CA R O L INA dards for a specialty in utilities law. Rule 1.15-2, and Rule 1.15-3), and to Rule ST ATE BAR The 2016 Lawyer’s H andbook The standards are comparable to the 8.5, Misconduct, add requirements that Download standards for the other areas of specialty will facilitate the early detection of internal certification. theft and errors, and adjust the trust account recordkeeping requirements to the 2016 Administrative Rules ......

C 2-1 ontinuin g Legal Ind Educatio ex to Eth n (CLE) ics Opin D ...... 5 ions . Amendments to the Plan for iscip . -22 . . . line and Gen. Stat. Chapter 84 ...... 1 .0 Disabil . -277 accommodate “paperless” work environ- ity ...... Fe ...... 3- e Disput . 1 e Resolu IOLTA Q&A ...... 1-1 tion ...... IO ...... 5- LTA . . . . 9 Rules of Professional Conduct ...... 11-1 ...... Leg ...... 5-1 Certification of Paralegals al S 6 pecializa R 9-1 tion . . ules Ind ments. A new subpart—Rule 1.15-4, . e ...... x . . . . Lawyer’s ...... Membe . .5-31 ...... rship ...... 9-79 ...... Paraleg . . . .2-1 al Certifi cation ...... The North Carolina State Bar Lawyer’s Professio . . .7-1 nal Orga Handbook 2016 (Abridged) nizations 27 N.C.A.C. 1G, Section .0100, The Alternative Trust Account Management ...... Ethics Opinions ...... 6-1 An official publication of the North Carolina State Bar containing the most frequently referenced rules of the 10-1 North Carolina State Bar, annotated Rules of Professional Conduct, all ethics opinions adopted under the Rules and Handbook Superseded (1985) Rules, and trust account guidelines. Plan for Certification of Paralegals; Procedure for Multiple-Member Firm— Section .0200, Rules Governing creates a procedure whereby a firm with The digital version of the 2016 Continuing Paralegal Education two or more lawyers may designate a firm Lawyer’s Handbook is now available for Amendments to the standards for certi- principal to serve as the “trust account download and is free of charge. Visit fication of paralegals add the disciplinary oversight officer” to oversee the administra- the State Bar’s website at suspension or revocation of an occupation- tion of the firm’s general trust accounts in ncbar.gov/news-and- al or professional (non-legal) license and conformity with the requirements of Rule publications/lawyers-handbook. the unauthorized practice of law to the list 1.15. The amendments, when proposed, of conduct that may be considered by the were published in the Spring, Summer, and Board of Paralegal Certification when Fall 2015 editions of the Journal.

THE NORTH CAROLINA STATE BAR JOURNAL 47 Amendments Pending Approval of the Supreme Court

At its meetings on February 1, 2016, conclusive evidence of conviction of a Proposed amendments to Rule .0905 April 22, 2016, and July 22, 2016, the crime and the procedure for obtaining an specify that pro bono practice status for an council of the North Carolina State Bar interim suspension. out-of-state lawyer ends when the lawyer voted to adopt the following rule amend- With the division of existing Rule .0114 ceases working under the supervision of a ments for transmission to the North into five shorter rules, existing Rule .0115 North Carolina legal aid lawyer, and clarify Carolina Supreme Court for approval (for and all subsequent rules in this section will that the status may be revoked by the council the complete text of the proposed rule be renumbered, and cross references to other without notice to the out-of-state lawyer or amendments see the Spring 2016 and rules throughout the section will be renum- an opportunity to be heard. Summer 2016 editions of the Journal unless bered accordingly. otherwise noted): The proposed amendments to Rule Proposed Amendments to the .0129, Confidentiality, clarify that the Continuing Legal Education Rules Proposed Amendments to the Rules State Bar may disclose the fact that a com- 27 N.C.A.C. 1D, Section .1500, Rules on the Organization of the State Bar plaint was filed before the Disciplinary Governing the Administration of the 27 N.C.A.C. 1A, Section .0700, Hearing Commission pursuant to Rule Continuing Legal Education Program Standing Committees of the Council .0113(j)(4), .0113(l)(4), or .0113(m)(4), The proposed amendments to Rule The proposed amendments establish the because the defendant rejected discipline .1512 clarify that the sponsor/attendees fee Technology and Social Media Committee as imposed by the Grievance Committee (1) charged for each hour of CLE credit is a standing committee of the State Bar after the DHC proceeding is concluded, or earned for every hour reported regardless of Council. (2) to address publicity not initiated by the subsequently claimed exemption or adjust- State Bar. ment in reported hours. In addition, pro- Proposed Amendments to the posed amendments to Rule .1517 add full- Discipline and Disability Rules Proposed Amendments to the Rules time tribal chiefs and vice-chiefs to the list of 27 N.C.A.C. 1B, Section .0100, Governing the Board of Law Examiners lawyers holding political office who are Discipline and Disability of Attorneys 27 N.C.A.C. 1C, Section .0100, Board of exempt from mandatory CLE. The proposed amendments to the Law Examiners Discipline and Disability Rules separate A proposed amendment to Rule .0105, Proposed Amendments to the Rule .0114, Formal Hearing, into five Approval of Law Schools, recommended by Specialization Rules shorter rules, to wit: Rule .0114, the Board of Law Examiners, eliminates the 27 N.C.A.C. 1D, Section .1800, Hearing Proceedings Before the Disciplinary ten year experience requirement from the and Appeal Rules of the Board of Legal Hearing Commission: General Rules rule which allows a graduate of a non-ABA Specialization; Section .2400, Certification Applicable to All Proceedings; Rule .0115, accredited law school to be considered for Standards for the Family Law Specialty; Proceedings Before the Disciplinary admission to the State Bar if the graduate was Section .2700, Certification Standards for Hearing Commission: Pleadings and previously admitted to the bar of another the Workers’ Compensation Specialty Prehearing Procedure; Rule .0116, jurisdiction and remained in good standing Proposed amendments to Rule .1804 of Proceedings Before the Disciplinary with that bar for ten years. For the text of the the hearing rules for the specialization pro- Hearing Commission: Formal Hearing; proposed amendment see the Fall 2015 gram simplify the procedure for a failed Rule .0117, Proceedings Before the Journal. applicant to appeal a final certification Disciplinary Hearing Commission: Post- decision of the Board of Legal trial Motions; and Rule .0118, Proceedings Proposed Amendments to the Specialization to the council. The proposed Before the Disciplinary Hearing Procedures for the Administrative amendment to the standards for the family Commission: Stayed Suspensions. In addi- Committee law specialty will permit a family law spe- tion, the content of existing Rule .0114 is 27 N.C.A.C. 1D, Section .0900, cialist who was elected or appointed to the reorganized within this five-rule structure, Procedures for Administrative Committee district court bench to meet the substantial and numerous substantive changes are pro- Proposed amendments to the rules on involvement requirement for recertification posed, including amendments to the provi- reinstatement from inactive status and if the specialist’s service on the bench sions on mandatory scheduling confer- administrative suspension eliminate from the involved hearing a substantial number of ences, settlement conferences, default, CLE requirements for reinstatement the family law cases. The proposed amendment sanctions, and post-hearing procedures rel- condition that five of the 12 CLE credit to the standards for recertification in the ative to stayed suspensions. Proposed hours required for each year of inactive or workers’ compensation specialty clarifies amendments to the substance of existing suspended status must be earned by taking that a specialist must earn at least six CLE Rule .0115, Effect of a Finding of Guilt in practical skills courses. For the text of the credits in workers’ compensation law Any Criminal Case (renumbered as Rule proposed amendments see the Fall 2015 courses in each year of the five year period .0119), explain the documents constituting Journal. of certification.

48 FALL 2016 Proposed Amendments to the Rules of Professional Conduct Legal Specialization (cont.) on those topics. 27 N.C.A.C. 2, Rules of Professional Q: What do you like to do when you’re not Conduct working? The proposed amendments to Rule 1.0, topics. What CLE presentations are you Since my son went off to App State, those Terminology, replace the term “Partner” with currently working on? things have changed a bit. Cook. Write. In the more generic and apt term “Principal,” and I often present on CLE topics locally and fact, I write a regular column for the local modify the definition of the term to include in North Carolina. I have also started an edu- English language (as opposed to legalese) lawyers who have management authority over cational resource for elder law attorneys and daily on a variety of topics. I try to leaven it a legal department of a company, organization, special needs law attorneys tackling the intri- with a bit of humor. That’s not hard to do or government entity. In accordance with this cacies of public benefits, trusts, and trust tax- these days. n change in terminology, proposed amendments ation called “TrustChimp.” I love getting in the other rules (and the comments thereto) around the country and teaching (and For more information about becoming a replace the word “partner” with the word demystifying) trust and trust taxation issues board certified specialist, please visit nclawspe- “principal” where appropriate. n for other attorneys struggling to get a handle cialists.gov or call our office at 919-828-4620.

Legal Ethics (cont.) informed consent to the protégé’s presence. issues pertaining to the waiver of the attor- As stated in 2014 FEO 1, “[i]f the lawyer ney-client privilege only arise with commu- concludes that the [protégé’s] presence will nications that otherwise would be protected does not opine on any legal issues pertain- jeopardize the attachment of the privilege by the privilege. As outlined above, the priv- ing to the application/waiver of the attor- and the resulting harm to the client’s interests ilege only applies if the factors set out in State ney-client privilege. is substantial, the lawyer should consider v. McIntosh are present. The representation of The take away from 2014 FEO 1 is that carefully whether it is appropriate to ask the a client typically includes many activities that individual lawyers participating in mentor- client to consent to the protege’s presence do not meet the McIntosh criteria, for exam- ing relationships have an ethical duty to during the consultation.” ple: real estate closings, court proceedings, research the law pertaining to the attorney- Formal and informal mentoring arrange- and witness interviews. Therefore, there will client privilege and determine whether—in ments are an important part of a law stu- generally be many opportunities for a pro- their own professional judgment—the pres- dent’s education as well as a valuable resource tégé to observe and learn from a lawyer/men- ence of a protégé in a confidential client con- for newly licensed lawyers. 2014 FEO 1 tor without implicating the attorney-client sultation will jeopardize the attachment of encourages lawyers to become involved in privilege. n the attorney-client privilege. The lawyer also mentoring programs, while reminding has an ethical duty to discuss any potential lawyers that their primary ethical duty is to Suzanne Lever is assistant ethics counsel for risks with the client and seek the client’s their clients. It is important to note that the North Carolina State Bar.

Wilson Nominated as Vice-President

Winston-Salem Silverstein will also stand for election to pres- of Directors of Lawyers Mutual Liability attorney G. Gray ident-elect. Insurance Company, and has been chair of the Wilson was selected Wilson is a cum laude graduate of board since 2015. by the State Bar’s Davidson College, and earned is JD from Wilson was a North Carolina State Bar Nominating Com- Duke University School of Law. He was Councilor from 2007-2015, during which mittee to stand for admitted to the practice of law in North time he was vice-chair of the Grievance II election to the office Carolina in 1976. He is a currently a senior Subcommittee, and chair of the Board of of vice-president of partner at Wilson & Helms. Paralegal Certification and Publications the North Carolina Wilson’s professional activities include Committee. State Bar. The elec- serving as a district councilor for the Forsyth In addition to his numerous professional tion will take place in October at the State County Bar Association. He also served the activities, Wilson is also involved with his Bar’s annual meeting. Charlotte attorney North Carolina Bar Association on its Board community, serving his church as a deacon, Mark W. Merritt will assume the office of of Governors, and was president from 2004- and working with the Old Hickory Council president, and Raleigh attorney John M. 2005. Since 2006 he has served on the Board of the Boy Scouts of America. n

THE NORTH CAROLINA STATE BAR JOURNAL 49 BAR UPDATES

Client Security Fund Reimburses Victims

At its July 21, 2016, meeting, the North that purpose and failed to make a refund to The board determined that Ferrell was Carolina State Bar Client Security Fund the client. retained to handle a couple’s personal Board of Trustees approved payments of 6. An award of $363 to a former client injury claims resulting from an auto acci- $247,511.82 to 16 applicants who suffered of Garey M. Ballance. The board deter- dent. Ferrell’s employees settled the wife’s financial losses due to the misconduct of mined that Ballance was retained to handle claim without her knowledge or consent, North Carolina lawyers. a client’s speeding ticket. Ballance failed to forged her name on the settlement check, The payments authorized were: get the client’s matter resolved prior to his and misappropriated the proceeds. The 1. An award of $370 to a former client disbarment, causing his client to get a husband received a property damage check of Garey M. Ballance of Warrenton. The license suspension letter from the DMV. directly from the insurance company, but board determined that Ballance was Ballance also failed to pay the client’s costs wasn’t satisfied with the amount and sent retained to handle a client’s speeding ticket. and failed to make a refund to the client. the check to the firm, as directed, to get a Ballance failed to provide any valuable legal 7. An award of $63,730 to an applicant new settlement negotiated. Ferrell’s services for the fee paid, failed to pay the who suffered a loss because of L. J. employees forged the husband’s endorse- client’s costs he had received, and failed to Blackwood II of Greensboro. The board ment on the check and misappropriated make a refund to the client. Ballance was determined that Blackwood was co-trustee those funds as well. Due to his employees’ disbarred on November 13, 2015. The of a family trust, and later appointed as dishonest conduct in the nature of embez- board previously reimbursed one other administrator CTA of the trust creator’s zlement, Ferrell’s trust account balance is Ballance client a total of $370. wife’s estate. Blackwood misappropriated insufficient to pay all his client obligations. 2. An award of $150 to a former client funds from both the trust and the wife’s The board previously reimbursed two other of Garey M. Ballance. The board deter- estate. Blackwood was disbarred on Ferrell clients a total of $2,415. mined that Ballance was retained to handle November 20, 2015. 11. An award of $82,800 to former a client’s speeding ticket. Ballance failed to 8. An award of $810.39 to an applicant clients of Ronald T. Ferrell. The board get the client’s matter resolved prior to his who suffered a loss because of Robert M. determined that Ferrell was retained to disbarment, causing his client to be called Chandler Jr. of Rocky Mount. The board handle a couple’s personal injury claims and failed. determined that Chandler was retained to resulting from two auto accidents. Ferrell’s 3. An award of $900 to a former client handle a client’s personal injury claim. employees settled the claims and deposited of Garey M. Ballance. The board deter- Chandler settled the matter, paid himself into the trust account the liability and mined that Ballance was retained to get a and the client, and retained funds from the property damage checks from both claims client’s assault charge expunged. Ballance settlement proceeds to pay to his client’s without the clients’ knowledge, consent, or failed to provide any valuable legal services medical providers. Chandler failed to pay signatures. Due to his employees’ dishonest for the fee paid prior to the surrender of his any of the medical providers. Due to misconduct in the nature of embezzlement, license. appropriation, Chandler’s trust account Ferrell’s trust account balance is insufficient 4. An award of $950 to a former client balance is not sufficient to pay all his to pay all his client obligations. of Garey M. Ballance. The board deter- client’s obligations. Chandler was suspend- 12. An award of $32,644.33 to a for- mined that Ballance was retained to handle ed on July 11, 2016, and was disbarred mer client of R. Alfred Patrick of a client’s two serious traffic charges. effective August 10, 2016. Greenville. The board determined that Ballance failed to provide any valuable legal 9. An award of $238 to a former client Patrick was retained to represent a client in services for the fee paid. Some of the pay- of Scott C. Dorman of Whiteville. The recovering damages for injuries suffered in ments to Ballance were made after the sur- board determined that Dorman was both a motor vehicle accident and a slip render of his license. retained to handle the client’s speeding and fall accident. Patrick settled the client’s 5. An award of $370 to a former client ticket. Although he got the client’s charge claims without his knowledge and con- of Garey M. Ballance. The board deter- reduced, he failed to pay the client’s costs sent. When the client learned from the mined that Ballance was retained to handle from the funds he had received for that insurance company that Patrick had been a client’s speeding ticket. Ballance failed to purpose prior to absconding to Las Vegas. paid and confronted him, Patrick delivered get the client’s matter resolved prior to his Dorman was suspended on March 16, a check to the client. However, after taking disbarment causing his client to be called 2015. his fee, Patrick failed to pay any of the and failed. Ballance also failed to pay the 10. An award of $10,598.27 to former client’s medical providers or disburse the client’s costs from funds he received for clients of Ronald T. Ferrell of Wilkesboro. remaining funds to the client. Due to his

50 FALL 2016 misappropriation, Patrick’s trust account was retained to handle a client’s personal Winston-Salem if Mitchell failed to pay the balance is insufficient to pay all his client injury claim from an auto accident. client himself within 60 days. Mitchell was obligations. Patrick was suspended on June Thomas settled the matter without the not able to pay the client by the deadline. 22, 2016. client’s knowledge or consent, took his fee Pursuant to the rules adopted by the 13. An award of $1,500 to a former from the settlement check, and never noti- Supreme Court of North Carolina for client of Daniel L. Taylor of Troutman. The fied the client of the check nor disbursed operation of the Client Security Fund, the board determined that Taylor was retained any of the funds to the client. Thomas also Board of Trustees of the Client Security to set up an estate for a client’s deceased received a med-pay check, but he never Fund “shall operate the Fund so that, tak- mother in order to dispute a claim from advised the client of nor disbursed to her. ing into account assessments ordered by Medicaid against the estate. Taylor failed to Due to misappropriation, Thomas’s trust the Supreme Court but not yet received provide any valuable legal service for the fee account balance is insufficient to pay all his and anticipated investment earnings, a paid. Taylor died on December 25, 2013. client obligations. Thomas was disbarred principal balance of approximately The board previously reimbursed 11 other on April 20, 2016. The board previously $1,000,000 is maintained.” 27 N.C.A.C. applicants and clients of Taylor a total of reimbursed three other Thomas clients a 1D, § .1418(e). Adding uncollected assess- $86,866.58. total of $46,050.67. ment income and investment revenue to 14. An award of $8,000 to a former 16. An award of $1,400 to a former the June 30, 2016, fund balance, less antic- client of Daniel L. Taylor. The board deter- client of Devin F. Thomas. The board ipated expenses for the rest of the current mined that Taylor was retained to set up an determined that Thomas was retained to fiscal year, which ends on September 30, asset protection strategy and apply for handle a client’s personal injury claim from leaves the fund balance of the Client Medicaid for a client. The same week the an auto accident. Thomas settled the mat- Security Fund at $1,006,531.25. Thus client paid, Taylor suffered a stroke and ter, took his fee, and paid a medical bill, reimbursement will be made to the nine never recovered prior to his death. Taylor but failed to disburse the remaining funds applicants with the smallest awards totaling failed to provide any valuable legal services to the client. Due to misappropriation, $5,551.39, and the seven remaining appli- for the fee paid and neither he nor his Thomas’ trust account balance is insuffi- cants will not be reimbursed until a new estate made a refund to the client. cient to pay all his client obligations. assessment order is in place for the next fis- 15. An award of $42,687.83 to a former At its meeting in April 2016, the board cal year. After the April 2016 meeting, client of Devin F. Thomas of Winston- made a conditional award of $2,500 to a awards totaling $181,856.75 to two appli- Salem. The board determined that Thomas former client of A. Stanley Mitchell of cants were not paid for the same reason. n

Paralegal Certification the “magic button” each one believes exists, his or her working style by properly manag- staying until midnight to get a brief filed, or ing their tasks and files, you will find that (cont.) handling another person’s work, I had a your everyday life becomes less stressful and problem with saying no and becoming over- your work flows much easier. medal. We are the champions, my friend. As whelmed. I still have that problem to a Heck, you might even learn how to for your boss, that makes him happier than a degree, but I have learned to go to the attor- thrive… n pig in mud. Document management soft- ney to ask for help. We all have the “if you ware, a desktop scanner, and a paperless want it done right, you have to do it your- Jacqueline “Jackie” King is a North office have saved my sanity on more than self” mentality. In this field though, it is Carolina State Bar Certified Paralegal for Rose one occasion. important to find at least one other paralegal, Harrison & Gilreath, PC, in Kill Devil Hills, Now that I can somewhat manage myself or legal assistant, that you trust to help you North Carolina. Jackie is a 2005 graduate of and my stable of bosses, knowing my limits when you’re overwhelmed. Even if it is just Halifax Community College with an Associate has been the hardest part. I’m a bit of a peo- making copies, scanning, or mass mailing, of Paralegal Technology, a 2014 graduate of ple pleaser. I suppose we all are to a degree. we need that help occasionally. Remember, Pennsylvania State University with a Bachelor We all want to do our jobs, and do them to we are all in this high stress profession of Law & Society, and a current student at West the best of our ability. If I make a mistake, I together: stable of bosses, lost Post-Its, wine Virginia University where she is working to want to learn from it and fix it. Sometimes I bathing, and all. earn her Masters in Legal Studies. Jackie’s cur- want to bathe in wine, but that isn’t as pro- At face value, working for multiple attor- rent workload includes federal and state litiga- ductive as fixing the problem, I suppose. I neys seems daunting. I don’t proclaim to be tion, estate planning, and estate administra- take pride in my work, and I want my bosses the best at it. I am constantly striving to tion. She may be contacted at JackieKing to take that same pride in my work. And in improve my abilities. However, somehow [email protected]. me. Always volunteering, always saying yes I’ve managed to not get a wisdom hair yet, or Reprinted with permission from The and taking on too much has been the biggest maybe that’s the dye. I also sleep most nights Paralegal Society, a social forum created to edu- struggle of working for four attorneys. without being gripped in terror. Once you cate, motivate, and inspire paralegals. Be sure to Whether it is fixing a technology issue with learn how each attorney operates and cater to check it out.

THE NORTH CAROLINA STATE BAR JOURNAL 51 BAR UPDATES

Law School Briefs

grant of $150,000 from the Z. Smith CharlotteLaw trial team competed at the Campbell University School of Law Reynolds Foundation that has been Estrella Trial Advocacy Competition in San Campbell Law mentorship program wins matched by other donors is making this Juan, Puerto Rico, and came in first place prestigious ABA Gambrell Award— effort possible. among 16 teams from across the country. Campbell Law School’s Connections mentorship program has been selected to receive Charlotte School of Law Duke Law School the 2016 E. Smythe Gambrell Center for Compliance and Ethics (CCE) Gift expands reach for human rights pro- Professionalism Award from the American hosts first event—On June 14, 2016, the gram—A $500,000 gift to the International Bar Association (ABA). Connections expos- center hosted a two-part expert panel on the Human Rights Clinic from the Donald and es students and newly minted attorneys to CharlotteLaw campus focusing on current Alice Noble Foundation has allowed Duke valuable learning opportunities and experi- issues and challenges in the compliance Law to expand its human rights program in ences by partnering them with practicing industry. The event brought in over 60 com- terms of experiential learning opportunities legal professionals. pliance professionals from the Charlotte for students and impact. In particular, by Campbell Law will formally collect the region representing corporations such as supporting the hire of Sarah Adamczyk as award and a cash prize of $3,500 at the ABA Duke Energy, Bank of America, Snyder- human rights clinical fellow and supervising Annual Meeting in San Francisco on Lance, and Wal-Mart. The panel, as well as attorney, the gift has enabled expanded clin- Saturday, August 6. a recent article published by Emma Best, ic enrollment, the establishment of an The honor marks the second time a CCE Executive Director in the Compliance advanced clinic, and increased mentoring Campbell Law program has received the and Ethics Journal, sets the stage for a and career advising of students. Directed by coveted award, as the law school previously Compliance Symposium in October 2016. Clinical Professor Jayne Huckerby, the clin- collected it in 2003 for the First-Year The cornerstone of the center is the ics enable students to engage with com- Professionalism Development Series. Corporate Compliance Certificate, an pelling human rights issues, institutions, Ashley Campbell to head community law online program for lawyers or nonlawyers and law in both domestic and international clinic—Experienced trial attorney Ashley who want to sit for the CCEP exam. More settings. Campbell has been tapped to lead the information can be found at charlottecorpo- New governing faculty—Michael Frakes, Campbell Community Law Clinic. ratecompliance.com. a law and economics scholar and legal Campbell will guide law school students as Mock trial team partners with empiricist who focuses on health law, patent they assist area organizations in providing Mecklenburg County court system— law, and innovation policy, came to Duke legal services to members of the community CharlotteLaw’s mock trial team hosted Law from Northwestern University Pritzker in need. The clinic—Campbell Law’s “Court Camp” which educates students on School of Law, where he was an associate fourth—will open with the upcoming fall how trials and investigations really work in professor and faculty fellow of the 2016 semester and will serve the community contrast to what is seen on television. The Northwestern Institute for Policy Research. from the historic Horton-Beckham-Bretsch team provided the problem and mentored He is also a faculty research fellow in the House in downtown Raleigh. students as they held their own mock trial. Health Care Group of the National Bureau Campbell is a partner at Ragsdale Liggett CharlotteLaw professor cited by Arizona of Economic Research. PLLC in Raleigh, where she will continue to Supreme Court—Professor Megan Annitto Ofer Eldar, an emerging empirical schol- practice law in addition to leading the clinic. has been cited by the Arizona Supreme ar of corporate law, corporate governance, She is also the current president-elect of the Court in a recent, important Fourth financial regulation, and law and economics Wake County Bar Association and Tenth Amendment decision (caselaw.findlaw.com/ with extensive practice experience, has Judicial District Bar. az-court-of-appeals/1702106.html). In State recently completed a PhD in financial eco- The Community Law Clinic of v. Valenzuela, the Arizona Supreme Court nomics from the Yale School of Campbell Law will provide backup legal decided a case concerning the state’s implied Management. One strand of his work services free of charge to area nonprofit consent law. In its discussion regarding this applies the econometric skills he acquired agencies and their clients when legal issues current legal question, the Court cited through training in financial economics to complicate such important steps as acquir- Professor Annitto’s article, “Consent Searches assess different corporate governance ing housing or employment. The clinic will of Minors,” 38 N.Y.U. Rev. L. & Soc. regimes. support organizations like StepUp Ministry, Change 1 (2014). Stephen Roady, an environmental litiga- Urban Ministries of Wake County, and the CharlotteLaw trial team wins first tor and policymaker, holds a joint appoint- Raleigh Rescue Mission among others. A place—On April 10, 2016, the ment at Duke Law, where he has taught

52 FALL 2016 since 2003, and at the Nicholas Institute for Environmental Policy Solutions. As a senior In Memoriam Kenneth Richard Hoyle attorney at Earthjustice, Roady pioneered Sanford, NC innovative litigation strategies to preserve ocean resources, and litigated precedent-set- Jeffrey M. Acker Ellen Earle Hunter ting cases that protect water resources and Winston-Salem, NC Belmont, NC improve the nation’s air quality, among oth- Everett Jackson Bowman John Rowe Milliken ers. He will continue teaching and help cre- Charlotte, NC Monroe, NC ate interdisciplinary teams to examine Robert Burren Morgan approaches to large-scale environmental Ben Oshel Bridgers Lillington, NC problems. Sylva, NC Frank Joseph Contrivo Patrick Burgess Ochsenreiter Elon University School of Law Asheville, NC Asheville, NC Commencement—In his commence- Billy R. Craig Robert Harrison Owen III ment address to Elon University School of Winston-Salem, NC Asheville, NC Law’s Class of 2016, Judge Albert Diaz of the US Court of Appeals for the Fourth Tracy Chappell Curtner Anthony John Pijerov Circuit encouraged graduates to use their Raleigh, NC Charlotte, NC legal education to help “reason, law, and William Louis Daisy Regan Hungerford Rozier precedent triumph over might, caprice, Greensboro, NC Wilmington, NC and whim.” The story Diaz shared on May 21 of his pro bono work highlighted a Gustavus Latham Donnelly Sr. Lynne Ann Rupp broader message to Elon Law’s 88 gradu- Mount Airy, NC Durham, NC ates: “Use your newly acquired skills to Albert A. Foster Jr. Sergei Vladimirovich Semyrog ensure that people’s rights don’t suffer just Charlotte, NC Matthews, NC because they are poor, or powerless, or unpopular.” William Gaston Holland John Meredith Simms “Ask A Lawyer” with WECT—Viewers Dallas, NC Salem, VA of WECT-TV in Wilmington, North Douglas Milton Holmes Ralph Nichols Strayhorn Jr. Carolina, shared a host of queries and woes Fayetteville, NC Winston-Salem, NC on June 21 in the inaugural Elon Law & WECT “Ask A Lawyer” call-in program, Stephen Francis Horne II Lindsay C. Warren Jr. broadcast into homes across the southeast- Greenville, NC Goldsboro, NC ern corner of the state. The Elon Law/WECT Ask a Lawyer partnership served as a representation of the law school’s father, Whitney North Seymour, who get populations throughout the country, commitment to service in the community, served as president of the American Bar especially in the Mid-Atlantic and innovation in the ways it partners with Association in the 1950s. Northeast regions. With these grant funds, alumni, and the value given to students NCCU School of Law will invest in the when exposed to practicing attorneys. The North Carolina Central School of Law virtualization of our existing telepresence North Carolina Bar Association and Legal NCCU School of Law received a new and HD video conferencing capabilities, Aid of North Carolina helped make the call- grant from the Norflet Progress Fund to and expand the provision of much needed in program possible. support the expansion of the Virtual Justice legal information to communities through- Honored students—Joshua R. Bonney, Project (VJP). The VJP provides two dis- out the country. This effort complements who graduated from Elon Law in May, tance learning pre-law courses— the law school’s nationally ranked clinical traveled to Chicago earlier in the spring for Introduction to Law and the Legal Process program, which covers 13 practice areas the 2016 Fundamentals of Municipal and The Basics of Legal Writing—to stu- and provides legal services to low-income Bond Law Seminar. He was one of five dents interested in pursuing law school. community members. recipients of the Frederic L. Ballard Jr. The VJP also provides a Know Your Rights Memorial Scholarship from the National Seminar Series to individuals seeking University of North Carolina School Association of Bond Lawyers. Current stu- empowerment in critical areas of the law, of Law dent Abigail Seymour has been named a including Family and Child Custody Law; Carolina Law achieves historic $1M member of the American Bar Association’s Consumer Protection Law; Juvenile Law; annual fund milestone—For the first time inaugural Civil Rights and Social Justice Criminal Law; and Tax and Financial in the school’s history, the Carolina Law Law Student Committee. Seymour will be Literacy. The law school will broaden the Annual Fund exceeded $1 million for the the seventh attorney in her family over the use of technology to offer more distance 2016 fiscal year. This historic milestone rep- past four generations, including her grand- learning courses and programs to wider tar- resents more than a 20% increase over the

THE NORTH CAROLINA STATE BAR JOURNAL 53 previous best ever annual giving total. UNC School of Law is pleased to welcome resource for our students because it gives us Because of the generous gifts of alumni, fac- six new full-time faculty members, includ- access to a real trial courtroom and it’s a ulty, staff, and friends, Carolina Law is able ing Kevin Bennardo, Kate Elengold, wonderful thing for the community.” to provide scholarships that bring outstand- Andrew Hessick, Carissa Hessick, Eisha Judge Marion Warren, director of the NC ing law students to the school, retain nation- Jain, and Jonas Monast. Administrative Office of the Courts ally-recognized faculty, support programs Professor Erika Wilson’s research on (NCAOC), says, “This court begins a new that produce public spirited lawyers, and school segregation was recognized by Yale relationship that opens the door to greater continue to keep Carolina Law both great Law School and published in the Cornell opportunities for the unified North and truly public. Law Review, and her article on affirmative Carolina court system to serve its citizens, “Gifts to the annual fund feed the law action was published in the UCLA Law its business owners, and the international school’s most basic needs,” says Dean Review. business community.” Michael Lindsay Martin H. Brinkley ‘92, who celebrated his Professor Kathleen Thomas presented Robinson was sworn in on July 1, 2016, as one-year anniversary as dean in July. “We are two of her published papers to economists at special superior court judge for complex grateful for the support, and are more ener- the US Department of Treasury’s Office of business cases for the new court. North gized than ever to tackle the ambitious goals Tax Analysis, proposing ways the govern- Carolina Business Court Chief Justice we’ve set for the school over the next fiscal ment could improve compliance and James L. Gale presided over the ceremony year.” decrease tax evasion through behavioral eco- that had an estimated 150 attendees, International Jurist Magazine recognizes nomics. including members of the North Carolina Carolina Law’s LL.M. program as Best in Supreme Court, the North Carolina Court Academics and Experience—The one-year Wake Forest University School of Law of Appeals, the North Carolina Fifth degree program for international lawyers The Wake Forest University School of Division Superior Court, the Forsyth was included on the lists for best LL.M. pro- Law will soon be home to the newest County District Court, the North Carolina grams for academics and law school experi- North Carolina Business Court. The court Bar Association, and the Forsyth County ence for attorneys outside the United States. is slated to be ready to take cases in January Bar Association. Judge Robinson’s children, The incoming 2016-17 LL.M. class will 2017, says Wake Forest Law Dean Suzanne grandchildren, friends, and former col- have 10-15 students. Reynolds (JD ‘77). “This is a terrific leagues at Robinson & Lawling LLP were New faculty hires and recognitions— opportunity. It will provide an excellent also present. n

John B. McMillan Distinguished Service Award

William O. King whose contributions have demonstrated the Mr. King is a former partner at Walker, William ‘Bill” O. King was awarded the highest commitment to genuine profession- Lambe, Rhudy, Costley & Gill, PLLC, and John B. McMillan Distinguished Service alism and the highest standards of legal currently serves as “of counsel” for the firm. Award at the 14th Judicial District Bar ethics.” Annual Meeting on Wednesday June 8, After nine years as a North Carolina State Seeking Award Nominations 2016. Bar councilor, Mr. King served the legal pro- The John B. McMillan Distinguished Throughout his legal career, Mr. King fession as president of the State Bar. While Service Award honors current and retired established himself as an outstanding lawyer on the State Bar Council, he was chair of the members of the North Carolina State Bar and leader, serving on the National Board State Bar’s Grievance Committee. Thereafter, who have demonstrated exemplary service to of the American Board of Trial Advocates he served two five-year terms on the State the legal profession. Awards will be presented and as a past-president for the North Bar’s Client Security Fund (twice as chair). in recipients’ districts, with the State Bar Carolina Eastern District. He has also Mr. King is a current member of the North councilor from the recipient’s district intro- served as president of the North Carolina Carolina State Bar Disciplinary Hearing ducing the recipient and presenting the cer- Academy of Trial Lawyers and the 14th Committee. He has served as a delegate to tificate. Recipients will also be recognized in Judicial District Bar. the American Bar Association and on the the Journal and honored at the State Bar’s Mr. King served for six years on the Executive Committee of the National annual meeting in Raleigh. Judicial Standards Commission, was a mem- Conference of Bar Presidents. Members of the bar are encouraged to ber of the Chief Justice’s Commission on Mr. King was also a visiting professor of nominate colleagues who have demonstrated Professionalism Board, and is a recipient of law at Campbell University’s School of Law outstanding service to the profession. The the North Carolina Chief Justice’s for ten years, providing instruction in the nomination form is available on the State Professionalism Award which is “presented areas of trial practice, ethics, and law practice Bar’s website, ncbar.gov. Please direct ques- annually to an individual or organization management. tions to Suzanne Lever, SLever@ ncbar.gov n

54 FALL 2016

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

Fall 2016

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