THE NORTH CAROLINA STATE BAR FALL JOURNAL2020 IN THIS ISSUE “Justice Isn’t Always Blind” page 6 Surviving and Thriving Following a Pandemic page 9 Uniform Collaborative Law Act page 15 IMPORTANT NOTICE REGARDING STATE BAR EMAILS As a member of the North Carolina State Bar, you are routinely sent critical emails regarding dues notices, CLE report forms, etc. As the State Bar continues to seek ways to increase efficiency and reduce waste, some reports and forms that were previously mailed will now only be emailed. To receive these emails, make sure you have a current email address on file. You can check membership information by logging into your account at ncbar.gov/member‐login. If you have unsubscribed or fear your email has been cleaned from our email list, you can resubscribe by going to bit.ly/NCBarResubscribe. Thank you for your attention to this important matter. THE NORTH CAROLINA STATE BAR JOURNAL FEATURES Fall 2020 Volume 25, Number 3 6 “Justice Isn’t Always Blind” Editor By Judge Ashleigh Parker Dunston Jennifer R. Duncan 9 Surviving and Thriving Following a Pandemic By Camille Stell © Copyright 2020 by the North Carolina State Bar. All rights reserved. Periodicals 13 Selecting the Best Medical Expert postage paid at Raleigh, NC, and additional Witness offices. Opinions expressed by contributors By Joe D. Haines are not necessarily those of the North Carolina State Bar. POSTMASTER: Send 15 Uniform Collaborative Law Act address changes to the North Carolina State Enacted—Now More than Ever, Bar, PO Box 25908, Raleigh, NC 27611. Collaborative Law is Open for The North Carolina Bar Journal invites the Business submission of unsolicited, original articles, essays, and book reviews. Submissions may By Aida Doss Havel and John Sarratt be made by mail or email (jduncan@ 18 Remarks on the 200th Anniversary of ncbar.gov) to the editor. Publishing and edi- torial decisions are based on the Publications the North Carolina Supreme Court Committee’s and the editor’s judgment of By Cheslie Kryst the quality of the writing, the timeliness of the article, and the potential interest to the readers of the Journal. The Journal reserves the right to edit all manuscripts. The North Carolina State Bar Journal (ISSN 10928626) is published four times per year in March, June, September, and December under the direction and supervision of the council of the North Carolina State Bar, PO Box 25908, Raleigh, NC 27611. Member rate of $6.00 per year is included in dues. Nonmember rates $10.73 per year. Single copies $5.36. The Lawyer’s Handbook $16.09. Advertising rates available upon request. Direct inquiries to Director of Communications, the North Carolina State Bar, PO Box 25908, Raleigh, North Carolina 27611, tel. (919) 828-4620. ncbar.gov Follow us at: Twitter: @NCStateBar Facebook: facebook.com/NCStateBar THE NORTH CAROLINA STATE BAR JOURNAL 3 DEPARTMENTS 29 Pathways to Well-being BAR UPDATES 5 President’s Message 31 Legal Ethics 42 In Memoriam 20 The Disciplinary Department 33 Proposed Ethics Opinions 50 Resolution of Appreciation 22 IOLTA Update 37 Rule Amendments 52 Client Security Fund 23 Legal Specialization 43 Proposed Amendments to Rules 54 Law School Briefs 25 Lawyer Assistance Program on Lawyer Advertising 28 Upcoming Appointments Officers 16: Dorothy Hairston Mitchell, 40: Anna Hamrick, Asheville Durham 41: H. Russell Neighbors, Marion C. Colon Willoughby Jr., Raleigh William S. Mills, Durham 42: Michael A. Lovejoy, President 2019-2020 17: Charles E. Davis, Mebane Hendersonville Barbara R. Christy, Greensboro 18: Charles Gordon Brown, Chapel Hill 43: Gerald R. Collins Jr., Murphy President-Elect 2019-2020 19: William C. Fields Jr., Raeford Darrin D. Jordan, Salisbury 20: Joshua Dale Malcolm, Pembroke Public Members Vice- President 2019-2020 21: Richard Buckner, Rockingham Patricia Head, Raleigh G. Gray Wilson, Winston-Salem 22: Matthew W. Smith, Eden Dr. Joseph E. Johnson, Greensboro Past-President 2019-2020 23: Thomas W. Anderson, Pilot Mohan Venkataraman, Morrisville Alice Neece Mine, Chapel Hill Mountain Secretary-Treasurer 24: Patrice A. Hinnant, Greensboro Executive Director Stephen E. Robertson, Greensboro Alice Neece Mine Councilors 24H: Raymond A. Bretzmann, High By Judicial District Point Assistant Executive Director 1: C. Everett Thompson II, Elizabeth 25: Jay White, Concord Peter Bolac City 26: David N. Allen, Charlotte 2: Thomas D. Anglim, Washington Robert C. Bowers, Charlotte Counsel 3: Charles R. Hardee, Greenville A. Todd Brown, Charlotte Katherine Jean 4: Scott C. Hart, New Bern Mark P. Henriques, Charlotte 5: Kevin Joseph Kiernan, Clinton Dewitt McCarley, Charlotte Editor 6: W. Allen Cobb Jr., Wilmington Gena Graham Morris, Charlotte Jennifer R. Duncan 7: Takiya Fae Lewis, Ahoskie Eben T. Rawls, Charlotte 8: Charles S. Rountree III, Tarboro 27: Jennifer Davis Hammond, Salisbury Publications Editorial Board 9: C. Branson Vickory III, Goldsboro 28: John Webster, Albemarle Andrea Capua, Chair 10: Julie L. Bell, Raleigh 29: Richard Costanza, Southern Pines Stephen E. Robertson, Vice Chair Heidi C. Bloom, Raleigh 30: H. Ligon Bundy, Monroe Thomas W. Anderson Walter E. Brock Jr., Raleigh 31: George M. Cleland IV, Winston- Phillip Bantz (Advisory Member) Theodore C. Edwards II, Raleigh Salem Heidi C. Bloom Katherine Ann Frye, Raleigh Kevin G. Williams, Winston- Margaret Dickson (Advisory Member) Fred M. Morelock, Raleigh Salem Anthony S. diSanti (Advisory Member) Robert Rader, Raleigh 32: Kimberly S. Taylor, Taylorsville John Gehring (Advisory Member) Warren Savage, Raleigh 33: Sally Strohacker, Mocksville Ashley London (Advisory Member) 11: James Thomas Burnette, Oxford 34: John S. Willardson, Wilkesboro L. Thomas Lunsford II (Advisory Member) 12: Eddie S. Winstead III, Sanford 35: Andrea N. Capua, Boone Camille Stell (Advisory Member) 13: Dionne Loy Fortner , Smithfield 36: M. Alan LeCroy, Morganton John Webster 14: Harold Lee Boughman Jr., 37: Clark R. Bell, Asheboro Fayetteville 38: Timothy L. Patti, Gastonia 15: Michael R. Ramos, Shallotte 39: Rebecca J. Pomeroy, Lincolnton 4 FALL 2020 THE PRESIDENT’S MESSAGE The Impacts of the Pandemic on the Practice of Law B Y C. COLON WILLOUGHBY JR . Four score and seven years ago...I have migrations within our country. North Carolina Bar Associations and been waiting for a chance to begin with that Despite that grim reality, North Carolina required examination of all law students. opening and have finally gotten the oppor- lawyers were focused on raising ethical stan- Even now, as we experience a pandemic tunity. Our North Carolina State Bar was dards and improving our profession. Many and economic uncertainty, the leadership of brought forth into existence 87 years ago in in the leadership of the NCBA favored cre- our bar organizations and courts are focused 1933. Its creation was at a ating a new bar organization on improving the profession and access to difficult time for our nation, and worked tirelessly to justice for many who legitimately believe our state, and our profes- make it happen. I. M. Bailey, they are not heard or protected in civil or sion. The North Carolina a lawyer representative from criminal courts. Increased attention and Bar Association had been in Onslow County, was one of efforts to ensure that lawyers recognize the existence since 1899 and was the key driving forces for unmet needs and respond in appropriate flourishing. The call for the forming a mandatory regula- fashion are being well received across the creation of a mandatory bar tory bar, and he went on to state. Thousands of lawyers have responded to regulate legal education be the first president of the to the call for pro bono and “low bono” serv- and control the licensing North Carolina State Bar. ices to assist clients. Last year, more than and disbarment of attorneys His son, Ruffin, and grand- 1,200 lawyers publicly reported that they came in 1921 from then son, Jim, followed in his heeded the call and donated tens of thou- NCBA President Thomas footsteps as lawyers. Lawyers sands of hours to those in need of represen- W. Davis. The NCBA lead- like Bailey felt raising stan- tation. Even more met the call and provided ership believed that the creation of a manda- dards and making legal services more widely pro bono services without recognition. tory regulatory bar would raise the status, available were for the good of the public and Hundreds more provided “low bono” servic- dignity, and ethical standards of the bar. It the profession, and they took bold steps to es through their work representing indi- took 12 years and steady persistence from make it happen. gents, charities, and small businesses. the original call for creation of the North Creation of the State Bar was not with- As many of us are learning to work with Carolina State Bar to bring the organization out its challenges or detractors. Some of the new environments and technology, we are into existence by our General Assembly. same issues that confront us today were hot also encountering new clients and new While we think that our health and eco- buttons at that time. Originally, Bar dues problems. Employment, housing, health, nomic situations now are the most dire and were proposed to be $4, but that caused and insolvency issues have exploded and most unique that have ever existed, we such a ruckus they were scaled back to $3. increased in complexity. Furloughed and should remember that those days were also One of the legislative representatives stated displaced employees face mounting bills, as challenging. The Spanish flu pandemic of that he did not want to pay for anything do their employers and landlords. Loss of 1918-20 infected about one third of the that cost more than $1 unless he could eat it health insurance and childcare services, evic- world’s population, and the death toll is esti- or wear it.