journal 17,3 Layout 1 · 2016. 4. 12. · 6A: Gilbert W. Chichester, Roanoke Rapids 6B: Lloyd C....

THE NORTH CAROLINA STATE BAR

JOURNALFALL

2012

IN THIS ISSUE

The North Carolina Racial Justice Act page 10Undocumented Immigrants and Access to the Courts page 20

Full Disclosure to Investors in Legal Education page 30

Update Membership Information: Members who need to update their membershipinformation must do so by contacting the Membership Department via one of the fourfollowing methods: (1) log on to the Member Access section of the State Bar's website(www.ncbar.gov); (2) mail changes to: NC State Bar, Membership Dept., PO Box 26088,Raleigh, NC 27611-5908; (3) call (919) 828-4620; or (4) send an e-mail [email protected]. In deciding what address to list with the State Bar, be advised thatthis address will be used for all official correspondence from the State Bar and thatmembership information is a public record pursuant to the NC Public Records Act.

THENORTH CAROLINA

STATE BAR

JOURNALFall 2012

Volume 17, Number 3

EditorJennifer R. Duncan

Publications CommitteeMargaret J. McCreary, ChairJohn E. Gehring, Vice-Chair

Marcia ArmstrongDorothy Bernholz

Lauren CollinsHarry B. Crow

Margaret H. DicksonRebecca Eggers-Gryder

Forrest A. FerrellDouglas R. GillJames W. HallAnna Hamrick

Charles R. HardeeGeorge L. Jenkins Jr.

Darrin D. JordanRobert MontgomeryNancy Black Norelli

Carlyn G. PooleHarold G. Pope

Jimmy D. ReevesBarbara B. Weyher

G. Gray WilsonAlan D. Woodlief Jr.

© Copyright 2012 by the North Carolina State Bar. All

rights reserved. Periodicals postage paid at Raleigh, NC,

and additional offices. Opinions expressed by contributors

are not necessarily those of the North Carolina State Bar.

POSTMASTER: Send address changes to the North

Carolina State Bar, PO Box 25908, Raleigh, NC 27611.

The North Carolina Bar Journal invites the submission of

unsolicited, original articles, essays, and book reviews.

Submissions may be made by mail or e-mail (ncbar@bell-

south.net) to the editor. Publishing and editorial decisions

are based on the Publications Committee's and the editor's

judgment of the quality of the writing, the timeliness of

the article, and the potential interest to the readers of the

Journal. The Journal reserves the right to edit all manu-

scripts.

www.ncbar.gov

PRINTED ON RECYCLED PAPER

F E A T U R E S

10 The North Carolina Racial Justice Act from Two ViewpointsBy Thomas J. Keith and Robert E. Campbell

20 Undocumented Immigrants and Access to the CourtsBy Deborah M. Weissman

26 Access to Justice: The TALIAS SolutionBy Pamela S. Glean

30 Full Disclosure to Investors in Legal EducationBy Stuart Russell

34 Change in the Legal Profession: Danger or Opportunity?By Andrew Cioffi

36 The Piddling ShedBy Tonya Lanier2012 Fiction Writing Competition First Prize Winner

39 Pro Bono—How Working Toward the Greater Good Can Make a Positive Impact on your PracticeBy Rose G. Proto

Continued on page 4.

3THE NORTH CAROLINA STATE BAR JOURNAL

D E P A R T M E N T S

6 President’s Message

8 State Bar Outlook

40 Profile in Specialization

42 Lawyer Assistance Program

44 Trust Accounting

45 The Disciplinary Department

46 IOLTA Update

47 Featured Artist

48 Proposed Ethics Opinions

53 Rule Amendments

B A R U P D A T E S

57 Distinguished Service Award

57 Gibson Nominated as

Vice-President

58 Law School Briefs

60 Client Security Fund

60 In Memoriam

62 Selected Financial Data

OfficersJames R. Fox, Winston-Salem - President 2011-2012M. Keith Kapp, Raleigh - President-Elect 2011-2012Ronald G. Baker Sr., Ahoskie - Vice-President 2011-2012L. Thomas Lunsford II, Raleigh - Secretary-TreasurerAnthony S. di Santi, Boone - Past-President 2011-2012

CouncilorsBy Judicial District1: Donald C. Prentiss, Elizabeth City2: G. Thomas Davis Jr., Swan Quarter3A: Charles R. Hardee, Greenville3B: Debra L. Massie, Beaufort4: Robert W. Detwiler, Jacksonville5: Harold L. Pollock, Burgaw6A: Gilbert W. Chichester, Roanoke Rapids6B: Lloyd C. Smith Jr., Windsor7: Randall B. Pridgen, Rocky Mount8: George L. Jenkins Jr., Kinston9: Julius E. Banzet III, Warrenton9A: R. Lee Farmer, Yanceyville10: Nicholas J. Dombalis II, Raleigh

John N. (Nick) Fountain, RaleighDavid W. Long, RaleighCarlyn G. Poole, RaleighDonna R. Rascoe, RaleighSally H. Scherer, RaleighJohn M. Silverstein, RaleighCynthia L. Wittmer, Raleigh

11A: Donald E. Harrop Jr., Dunn11B: Marcia H. Armstrong, Smithfield12: Lonnie M. Player Jr., Fayetteville13: Harold G. Pope, Whiteville14: John A. Bowman, Durham

Margaret J. McCreary, Durham15A: Steven H. Messick, Burlington15B: Dorothy Bernholz, Chapel Hill16A: William R. Purcell II, Laurinburg16B: C. Christopher Smith, Lumberton17A: Joseph G. Maddrey, Eden17B: John E. Gehring, Walnut Cove18: Barbara R. Christy, Greensboro

Robert C. Cone, GreensboroRichard S. Towers, High Point

19A: James D. Foster, Concord19B: W. Edward Bunch, Asheboro19C: Darrin D. Jordan, Salisbury19D: Douglas R. Gill, Southern Pines20A: Frederick D. Poisson Jr., Wadesboro20B: Harry B. Crow Jr., Monroe21: Michael L Robinson, Winston-Salem

G. Gray Wilson, Winston-Salem22: Kimberly S. Taylor, Taylorsville22B: Roger S. Tripp, Lexington23: Jimmy D. Reeves, West Jefferson24: Rebecca Eggers-Gryder, Boone25: Forrest A. Ferrell, Hickory26: David N. Allen, Charlotte

Robert J. Bernhardt, CharlotteRonald L. Gibson, CharlotteF. Fincher Jarrell, CharlotteMark W. Merritt, CharlotteNancy Black Norelli, CharlotteMujeeb Shah-Khan, Charlotte

27A: Sonya Campbell McGraw, Gastonia27B: Ralph W. Meekins, Lincolnton28: Howard L. Gum, Asheville29A: Marvin R. Sparrow, Rutherfordton29B: Margaret M. Hunt, Brevard30: W. David Sumpter III, Murphy

Public MembersMargaret H. Dickson, FayettevillePaul L. Fulton, Winston-SalemJames W. Hall, Ahoskie

StaffRoger Allen, InvestigatorCarmen H. Bannon, Deputy Counsel

Betsy C. Barham, ReceptionistTim Batchelor, InvestigatorKelly Beck, Compliance Coordinator, Membership/CLEKrista Bennett, Fee Dispute Facilitator, ACAPMichael D. Blan, Systems Analyst/ProgrammerPeter Bolac, District Bar Liaison/Trust AccountCompliance CounselElizabeth E. Bolton, ReceptionistEddie Capel, InvestigatorBecky B. Carroll, ParalegalMargaret Cloutier, Senior Deputy CounselJoseph J. Commisso, Director of InvestigationsLuella C. Crane, Director of ACAPBruno E. DeMolli, Staff Auditor & InvestigatorSharon Denton, Events ManagerJennifer R. Duncan, Director of CommunicationsA. Root Edmonson, Deputy CounselWilliam N. Farrell Jr., Deputy CounselKelly Farrow, Asst. Dir., Paralegal CertificationMartha Fletcher, Admin. Asst., AdministrationTowanda Garner, Piedmont LAP CoordinatorLanice Heidbrink, Exec. Asst., AdministrationJeffery Hill, Computer Systems AdministratorLeanor Hodge, Deputy CounselJoshua Hoffman, Admin. Asst., Office of CounselDebra P. Holland, Asst. Director, CLEBuffy Holt, Admin. Asst., LAPTammy Jackson, Membership DirectorKatherine Jean, Counsel and Assistant Executive Dir.David R. Johnson, Deputy CounselBarbara Kerr, ArchivistMelanie Kincaid, ParalegalErica Leventhall, Grant Data Asst., IOLTASuzanne Lever, Asst. Ethics CounselJoyce L. Lindsay, Exec. Asst., AdministrationL. Thomas Lunsford II, Executive DirectorAdam Maner, Professional Organization CoordinatorBeth McIntire, IT ManagerJessica M. McKeever, ParalegalBeth McLamb, Payment Coordinator, MembershipNichole P. McLaughlin, Deputy CounselBarry S. McNeill, Deputy CounselDiane Melching, Admin. Asst., ACAPSandra R. Melvin, Office ManagerDottie K. Miani, Facilities Manager/Deputy Clerk of DHCClaire U. Mills, Accounts Manager, IOLTAAlice Neece Mine, Asst. Executive Dir., Dir. of CLE,Specialization, & Paralegal CertificationRobynn E. Moraites, LAP DirectorGeorge Muench, InvestigatorDenise Mullen, Asst. Director of SpecializationPat Murphy, Deputy CounselLoriann Nicolicchia, Accreditation Coordinator, CLEEmily Oakes, Attendance Compliance Coordinator, CLEBrian Oten, Deputy CounselLisanne Palacios, Accounting ManagerHeather Pattle, Administrator, Office of CounselC. Fred Patton Jr., InvestigatorWondella Payne, ParalegalScott Perry, AP InvestigatorAaliyah Pierce, Acct. Data Asst., IOLTAAngel Pitts, Mail/Copy ClerkJennifer Porter, Deputy Counsel Evelyn Pursley, Executive Dir., IOLTASonja B. Puryear, Admin. Asst., InvestigationsLori Reams, Admin. Asst., Office of CounselJoan Renken, Admin. Asst., LAPRandall C. Ross, InvestigatorWhit Ruark, InvestigatorSandra L. Saxton, Public Liaison, ACAPSonya Sells, ParalegalFern Gunn Simeon, Deputy CounselJaya Singh, Accounting Asst.Jennifer Slattery, ParalegalJudith Treadwell, Public Liaison, ACAPEdmund F. Ward, Asst. Director, LAPA. Dawn Whaley, Admin. Asst., InvestigationsEdward R. White, InvestigatorMary D. Winstead, Deputy CounselChristiane Woods, Admin Asst., Investigations

FALL 20124

The North Carolina State Bar Journal (ISSN

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the North Carolina State Bar, 208 Fayetteville

Street, Raleigh, NC 27601. Member rate of

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rates $10.78 per year. Single copies $3.21. The

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available upon request. Direct inquiries to

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Carolina State Bar, PO Box 25908, Raleigh,

North Carolina 27611, tel. (919) 828-4620.

Actually, there are many stories. Every oneof them about someone in the legal field.

Lawyers are as vulnerable to personal andprofessional problems as anyone else.

Competition, constant stress, long hours,and high expectations can wear down even themost competent and energetic lawyer. This canlead to depression, stress, career problems,relationship issues, financial problems, or alco-hol and substance abuse.

So where's the uplifting part? That's wherewe come in.

The Lawyer Assistance Program was createdby lawyers for lawyers. While we started as away for attorneys to deal with alcohol relatedproblems, we now address any personal issueconfronted by those in the legal profession.

Our message to anyone who may have a per-sonal issue, whether a lawyer, a judge, or a lawstudent, is don't wait. Every call we take is

confidential and is received by a professionalstaff person. You can be confident that you'retalking to the right person and that no one willknow about it.

We understand what it's like to face person-al problems within the profession, because weonly help lawyers.

Our service is not only confidential, it'sfree, paid for with your yearly bar fees.

If you have a personal issue, or know some-one who does, we can be the crucial first stepin turning things around, a role we've playedfor many of your peers.

We have countless success stories we couldtell, and yes, they are uplifting. But we do ourwork quietly, confidentially, and professionallyso the stories will stay with us.

We're here for you. Visit www.nclap.org,call 1-800-720-7257 or [email protected].

We can help if you get in touch with us.

F O R T H E I S S U E S O F L I F E I N L A W

DEPRESSION, STRESS, CAREER ISSUES, AND ADDICTIONS.BELIEVE IT OR NOT, THIS IS AN UPLIFTING STORY.

Below you will find a few remarks Irecently made at a “topping out” ceremonyfor our new State Bar building. Until shortlybefore the ceremony, I must admit I was notfamiliar with this custom. Forthose of you who are likewiseunaware, I offer a few wordsof explanation.

Topping out is a ceremo-ny held when the last beam isplaced at the top of a build-ing. It is also used to refer tothe overall completion of thebuilding’s structure or someimportantintermediate event.Generally, the beam is signedby those participating in theceremony, and is then hoistedinto place as the last piece of structural iron-work. Along with the beam, a tree or leafybranch symbolizing good luck is fixed inplace, accompanied by state and local flags.

If you have an interest in the history of thispractice, it is often traced to an ancientScandinavian religious custom of placing atree on top of a new (mostly wooden) build-ing to appease the tree-dwelling spirits ofancestors displaced by the construction. Forour topping out ceremony we used all threesymbols involved. We signed the last beam,which was hoisted to its final resting place atthe top of the building’s framework, accompa-nied by an evergreen tree and North Carolinaand American flags. I do not know if we wereable to propitiate any outraged tree spirits, butthe ceremony was a media event of sorts towhich Bar members, potential donors, andvarious luminaries were invited. It was bothmeaningful and enjoyable. (You can check outthe pictures on the State Bar’s website of theevent and construction progress.)

On a more practical note, as I write this inlate July, the building is approximately onethird finished and on schedule for completionand dedication by our quarterly meeting nextApril. We have also received all $600,000 ofearnest money due on the $2.7 million pur-

chase of our old building, with closing tooccur in the next month or so. Staff will con-tinue to occupy the old headquarters under aleaseback arrangement until the new building

is complete. In another pieceof good news, the State BarFoundation, formed to raisefitting and finishing outmoney for the building, ismaking great progress.Thanks to all the fundrais-ers and all of you who willcontribute or have alreadydone so.

We look forward to see-ing any who can make it atthe dedication next April.

The history of the State Bar is the historyof public spirited people working throughadversity toward a common goal.

It seems that nothing worthwhile is eververy easy. So it has been for this organization.Even its very formation was born in contro-versy. Efforts to organize the Bar in NorthCarolina began as early as the 1880s. Butorganization was a contentious issue, and ittook 50 years—until 1933—for legislation tobe introduced to incorporate the NorthCarolina State Bar as a state agency. The billpassed only after hot debate. According to afine article by John McMillan in the fall 2008issue of the Bar Journal, the bill resulted inlegislators calling each other out as liars on thefloor of the General Assembly. A major issuewas dues, with one legislator colorfully takingthe position that “…[a]nything you want meto join that costs over $1, I don’t want itunless I can eat it or wear it.” Nevertheless,finally on April 3, 1933, the legislation estab-lishing the North Carolina State Bar passed.

My purpose in asking you to endure thishistorical footnote is simply to note the paral-lel between the effort required to establish theNorth Carolina State Bar and the effortrequired to move this building from conceptto reality.

Any enterprise with so many moving partsis bound to have its ups and downs. Thisproject started in the presidential year ofHank Hankins, who was instrumental insupplying it with the needed momentum.Hank appointed our Facilities Committee,which started on the difficult work of findingan appropriate location. One was found, anda 99-year lease was obtained on it from thestate. This was a very time consuming exer-cise and brought with it oversight issues thatinevitably slowed the project even more.

Similarly, sale of our current buildinghad its challenges. The first contract fellthrough, but persistence and hiring of agood broker allowed us to find another pur-chaser. Our architects, CJMW Architecture,provided us with a beautifully designedbuilding, but then we were required toreconfigure the building on the site which,in turn, required modifications to thedesign. Unexpectedly, we also had to com-pensate the state to reconfigure parkingspaces on other parts of the block where thebuilding was to be constructed.

These are but some of the difficultiesencountered. Happily, we probably emergedwith a better building as a result of some ofthese issues. In that regard, we appreciate theinput we have gotten from the Departmentof Administration, the State ConstructionOffice, and our architects.

This project owes much to wise leadershipand administration over the years, which hasleft us in sound financial condition and ableto finance this project without a duesincrease. Tom Lunsford’s stewardship andthat of a long line of past officers is largelyresponsible for this. I also want to mentionthe members of our Facilities Committee andin that connection past Facilities CommitteeChair Keith Kapp, who ably chaired thiscommittee through some very choppy waters.It is also incumbent upon me to single outJohn McMillan, chair of the North CarolinaState Bar Foundation Board of Trustees, andthe other trustees for their fine effort and the

6 FALL 2012

Our Bar, Our BuildingB Y J A M E S R . F O X

T H E P R E S I D E N T ’ S M E S S A G E

great results they are getting in raising fundsto put some finishing touches and a few addi-tional amenities into the building. Thetrustees are a distinguished group of formerpresidents of the State Bar. The FoundationCampaign Leadership Team is an equally dis-tinguished and public spirited group of peo-ple. Thank you all.

We should also reflect for a moment onthe people and programs that make thisbuilding necessary. We have 25,000 membersand grow at a rate of 3-4% a year. The selfregulation privilege we enjoy carries with itthe obligation to exercise that privilege effec-tively, and we do so through a grievanceprocess that processes 1,500 or more griev-ances a year. Just performing the grievanceprocess requires 46 councilors and publicmembers, five non-attorney staff, and 14lawyers. They have never in my institutionalmemory of about 20 years had adequatephysical facilities to do their jobs. The com-pletion of this facility cannot come too soonfor them, as well as the additional councilorsand staff who pursue the missions of ourAuthorized Practice and Ethics Committees.

We also need to keep in mind the func-tions the staff carries on in addition to theirregulatory responsibilities. Just as thoseresponsibilities can’t be properly carried out ina building that is bursting at the seams, nei-ther does such a facility allow for effectivelydelivering a lot of other benefits the lawyers ofNorth Carolina enjoy.

Without the new building we couldn’teffectively:

• Run the Attorney Client AssistanceCommittee, which last year answered over14,000 telephone calls, 2,300 letters, and 550email messages, thereby avoiding the filing ofa large number of grievances.

• Administer the Bar’s CLE program.• Certify and regulate North Carolina

paralegals.• Provide a means for various North

Carolina lawyers to be certified as specialistsin their chosen areas of practice.

• Oversee an IOLTA program, whichsince 1983 has made more than $68 millionin grants to legal services programs.

• Manage a Client Security Fund, whichover its existence has paid out over $9.2 mil-lion in compensation to injured clients of dis-honest lawyers.

• Reduce the incidence of misappropria-tion of client funds by conducting randomaudits and making available a TrustAccounting Handbook.

• Handle a fee dispute resolution pro-gram, which annually forestalls a large num-ber of grievances.

• Run a highly successful Lawyers’Assistance Program, which has provided cru-

cial and timely assistance to lawyers sufferingfrom substance abuse and mental healthproblems.

These are just the major non-regulatoryservices the North Carolina State Bar pro-vides for its members and the public. Trustme, many of these programs have been nearthe breaking point for a long time. At a min-imum they would have sharply reducedeffectiveness without this new building. Sowhile what you will shortly see on this streetcorner is a properly imposing symbol of ourprofession, it is much more—a remarkableaccomplishment in the best traditions of theState Bar, that is, as I said at the outset, theproduct of well-intentioned people workingtogether to meet critical public and profes-sional needs. �

James R. Fox is a trial lawyer and senior part-ner in the firm of Bell, Davis & Pitt, PA inWinston-Salem.

THE NORTH CAROLINA STATE BAR JOURNAL 7

In conjunction with the topping outceremony, the NC State Bar Foundation,Inc. publically announced that it hadraised close to $2 million in private fundsto assist with construction. However,since that announcement, the campaignhas surpassed the $2.1 million mark incommitments.

The NC State Bar Foundation, a501(c)(3) charitable corporation formed in2010, exists for the sole purpose of raisingfunds for the new building. TheFoundation’s Board of Trustees is made up

of seven past presidents of the State Barfrom across the state. The foundation’scampaign is chaired by Hank Hankins ofCharlotte and Bonnie Weyher of Raleigh,two of the foundation’s trustees.

Efforts to achieve the $2.5 million cam-paign goal were led by an initial gift of$500,000 from the NC Board of ParalegalCertification. Over the past several months,many of the state’s law firms have followedsuit to surpass the $2 million mark.

“The most gratifying aspect of the cam-paign is the enthusiastic participation of the

lawyers who know best the work of theState Bar,” said John McMillan, chairmanof the Foundation’s Board of Trustees.

The campaign is now statewide andoffering a broad group of organizations andindividuals the opportunity to participate.Funds raised by the foundation will be usedprimarily to assure Gold LEED certificationin the building, and to enhance the build-ing’s technology and meeting capabilities.

For more information about the NCState Bar Foundation, Inc., please visitNCStateBarFoundation.org. �

Those precepts, as has been noted in thisspace on several prior occasions, have pro-found professional, as well as personal, appli-cation. So it should not be surprising that Ihave yet again found an episode of the oldAndy Griffith Show (AGS) that appears toinform the consideration of an importantissue pending before the State Bar Counciland the Board of Law Examiners, to wit;whether the rules and policies governingadmission to practice ought to be modified tofacilitate the admission of lawyers who happento be the spouses of military personnel postedin our state.

The AGS episode that comes to mind is,of course, “Man in a Hurry.” This charminginstallment is a perennial favorite of thecognoscenti, prominently featured on every“top ten” list of which I am aware since its ini-tial broadcast in the mid-60s. The story ispretty straightforward. It is Sunday afternoon,just after church, when Malcolm Tucker, aprominent businessman from out-of-town,experiences car trouble while passing throughMayberry. We are given to understand that hehas an important appointment in Charlotte,of all places, on Monday morning, and isdetermined to get his car fixed immediately soas not to miss the engagement. This is the“situation.” The “complication” is that thetown’s only competent mechanic, a man inwhose honor Wally’s Filling Station was pre-

sumably named, will notwork on Sunday. Mild hilari-ty ensues as Mr. Tucker, in afutile effort to regain thehighway, brings to bear vari-ous means of persuasion—bluster and intimidation,mainly—that are usually effective in the bigcity, but are totally unavailing in the smalltown. Real understanding is achieved as hegradually becomes aware that neither theforce of his personality nor the importance ofhis commercial affairs is sufficient to overbearthe peaceful inertia of the community.Instead of what he wants, he is offered whathe needs. Hospitality. He’s not enabled exact-ly, but he is genuinely welcomed and richlyaccommodated. He’s offered a place at Andy’stable and the use of Opie’s bed.1 He receivespro bono auto service from a couple of simplemen who want nothing more for their laborthan the “privilege” of working on a fine auto-mobile.2 He’s taught how to peel an applewithout lifting the knife, he’s encouraged tosing along on the front porch, and he’s madeprivy to Deputy Fife’s personal plans for theevening.3 In the end, when his car is readyand it appears that nothing gentle can bedone to restrain him, he’s given a sack of AuntBee’s fried chicken and a wedge of pie withthe assurance that the food will be better thananything he might get on the road. The result

of all this is, predictably and reassuringly, thathe learns to slow down, and to accept andappreciate a different way of life.

For us, the real lesson isn’t that bucolic isbetter, although it may very well be. It’s thathospitality can be, and often is, transforma-tive for the guest and ennobling for the host.There can be real social value for all con-

cerned in the graciousaccommodation of the wor-thy stranger. And there maybe professional value as well.Indeed, it seems to me thatthe policy question refer-enced above presents us, thelawyers of North Carolina,with a fine opportunity to dogood by being good hosts,and to be improved individu-ally and collectively in thebargain.

North Carolina has thefourth largest population of military person-nel among the 50 states. Servicemembers areconstantly moving in and out of our state,remaining among us for less than three yearson average before moving on to their nextduty stations. Understandably, most service-members are inclined to relocate theirdependents as they move about the country.Generally speaking, this is in the best interestof the servicemember and the country. It iswell understood that, particularly in times ofnational emergency, the preparedness andeffectiveness of our soldiers and sailors is afunction of how well they are supported bytheir families and how well their families aresupported by the broader community wher-ever they happen to be. Servicememberswhose families are intact, at hand, and well-integrated into the local social and economicmilieu are in a much better position to suc-ceed militarily and personally than thosewhose families are stressed by separation, dis-tance, and professional disqualification.

Speaking of professional disqualification, itis now virtually impossible for the spouse of a

8 FALL 2012

S T A T E B A R O U T L O O K

Southern HospitalityB Y L . T H O M A S L U N S F O R D I I

For those of us of a certain age who were raised in North Carolina, the

death of Andy Griffith this summer has engendered much reflection. It

has prompted us to be mindful of our own mortality, to be sure, but more

significantly, it has caused us to reconsider the many

moral lessons that we have learned during our periodic visits to Mayberry.

servicemember, who has been admitted to theBar in one state or another, to sustain her lawpractice if she wishes to accompany her spousefrom posting to posting across the UnitedStates. The obstacles are many and are remark-ably consistent from jurisdiction to jurisdic-tion. The cost, as you may recall from yourown dealings with the Board of LawExaminers, is considerable. In NorthCarolina, for instance, it costs $1,500 to takethe bar exam.4 A comity applicant5 is charged$2,000. Just imagine if you had to make thatkind of investment every two or three years inorder to become eligible to continue pursuingyour profession. The time involved in gainingadmission is also problematic, as is the timingof critical events in the process. In our state,like most states, the bar examination is admin-istered only twice a year and applications mustbe submitted six months in advance. Sinceservicemembers are typically given only a fewmonths notice to as where they will next bestationed, they often learn of their prospectiveassignment in the “goodliest land under thecope of heaven”6 too late to sign up for thenext test. Even when the timing of events ismost fortuitous, the amount of time it takes toapply, to be examined, to be advised of theresults, and to be sworn-in is enormous whencompared to the scant period in which thenewly-licensed military spouse is likely to bearound to practice among us.

Unfortunately, the comity applicant to ourBar is in no better position when it comes todelay. By rule,7 the law examiners may noteven consider comity applications until sixmonths after they are filed, and my under-standing is that it sometimes takes muchlonger for final decisions to be made. Pleaseknow that none of this is meant to be criticalof the manner in which the Board of LawExaminers is doing its job. To the contrary, Iam confident that the members of that Board,all of whom were appointed by the State BarCouncil, are doing precisely what they arerequired to do in a very responsible and dili-gent fashion. Even so, however, it is quiteapparent that the process they administer is alengthy and expensive one that ill suits thetransient military spouse.

Leaving aside considerations of time andmoney, it would seem that comity admissionshould provide a relatively easy means ofaccommodating applicants like militaryspouse attorneys, who have already been vet-ted as to competence and character in otherjurisdictions, and are members in good

standing of at least one other State Bar.Regrettably, that is not the case because of acouple of other impediments. For one thing,admission “on motion” is only available on a“reciprocal” basis. If Virginia agrees to admitour people as a matter of comity, we willreturn the favor. But if Virginia insists onmaking our folks take their bar exam, we willfollow suit. Currently, North Carolina hasreciprocity with only 26 other states, notincluding five of the top ten states with thehighest population of active duty militarypersonnel.8 Even when comity admission isavailable, in theory, it is often practicallyunavailable to military spouses because ofwhat is sometimes referred to as the “years ofpractice requirement.” The North CarolinaRules Governing Admission require that thecomity applicant show that he or she hasbeen “actively and substantially engaged inthe full-time practice of law” for four out ofthe last six years.9 As applied by the Board ofLaw Examiners, this requirement has refer-ence only to practice within the reciprocaljurisdiction. While most comity applicantsshouldn’t have difficulty demonstrating satis-faction of that requirement, military spouses,who are obliged to decamp much more fre-quently than the average American lawyer,are almost always stymied.

Earlier this year, a group of lawyers identi-fying themselves as the “Military Spouse JDNetwork” petitioned the State Bar and theBoard of Law Examiners to “adopt a rule eas-ing some of the burdens of comity licensurefor military spouses who are active attorneysin good standing in other US jurisdictions,and who are residing in North Carolina due tomilitary orders.”10 They submitted a pro-posed rule that they believe will suffice fortheir purpose, while ensuring the competenceand integrity of any persons licensed pursuantthereto. In essence, the proposal would elimi-nate the reciprocity rule and the “years of prac-tice requirement.” It would also provide forexpedited processing of applications for comi-ty admission and for a reduced application fee.There would be no relaxation of character andfitness requirements, or continuing educationrequirements.

In April, the proponents of the proposalpresented their petition to the State Bar’sIssues Committee. Perceiving that the reliefsought is most directly within the purview ofthe Board of Law Examiners, the IssuesCommittee recommended that the matter bereferred to a special Joint Committee of the

Council and the Board. This committee hassince been duly constituted and is presently atwork considering the issues presented. Areport is anticipated later this year.

My purpose in writing on this subject atthis time is not to suggest any specific courseof action, but simply to note that we are high-ly indebted to the members of our armed serv-ices and their families, and have in conse-quence thereof an extraordinary obligation ofhospitality. That these people are, likeMalcolm Tucker, reluctant guests, is quitebeside the point. Invitation is incidental tohospitality, welcome is its essence. In my per-sonal opinion, which is unofficial, as yet unin-formed by opposing points of view, and notnecessarily shared by the State Bar’s officers,the Joint Committee, the council, or theBoard of Law Examiners, we ought to dowhatever we reasonably can to accommodatethese exceptionally deserving strangers, solong as the public is not imperiled. We owe itto them for their service. I think we owe it tothem as our honored guests. And we owe it toour profession, which would be honored toaccommodate the displaced warrior and herfamily. �

L. Thomas Lunsford II is the executive direc-tor of the North Carolina State Bar.

Endnotes1. A not entirely selfless offer on Opie’s part, it being con-

templated that his ouster would lead inevitably to“adventure sleeping” on the ironing board between twochairs.

2. In the interest of full disclosure, it is noted that Goobertook the “liberty” of taking Gomer’s picture beside thecar “with the hood up.”

3. Fife noted, repeatedly, that he intended to “go home,take a shower, go over to Thelma Lou’s, and watchsome TV.”

4. Not to mention the staggering expense associated withthe typical “cram course.”

5. Persons who have been admitted to practice in otherstates can be admitted in North Carolina “on motion”without having to pass our bar examination, if theysatisfy all other admissions criteria. Such admission by“comity” is available only to lawyers licensed in statesthat have “reciprocity” with North Carolina, andagree to admit our lawyers to their Bars on the samebasis.

6. North Carolina.

7. N.C. Rules Governing Admission to Practice Law,Rule .0502(2).

8. California, Virginia, Florida, Hawaii, and Kentucky.

9. N.C. Rules Governing Admission to Practice Law,Rule .0502(3).

10. Military Spouse JD Network, Report to the IssuesCommittee of the North Carolina State Bar, January 25,2012.


10 FALL 2012

Jarndyce v. Jarndyce

Drones On: A History of

the Racial Justice Act

B Y T H O M A S J . K E I T H

In 2009, North Carolina’s Racial JusticeAct (RJA) became the second law of its kindin the nation, and the first to allow statisticalevidence—without more—to be used toprove that racial discrimination played a sig-nificant role in a defendant’s death sentence.The law also applies retroactively, giving cur-rent death-row inmates the opportunity toappeal their capital convictions.Undoubtedly, the goal of the RJA and theremedy it aspires to provide is laudable andshould continue to be explored. The 2009version of this law, however, quickly provedto be unwieldy, misinformed, and woefullyinadequate at achieving its noble purpose.On July 7, 2012, the North CarolinaGeneral Assembly overrode a veto of SB 416and amended the RJA.

Realities of Prosecutorial DiscretionA key argument posited by supporters of

the RJA and the defendants bringing claimsunder the 2009 law is that prosecutors havediscriminated against first degree murderdefendants based on their race when decid-ing to pursue a capital conviction. A reviewof these practicalities reveals that, prior to achange in North Carolina law in 2001, theUnited States Constitution, the NorthCarolina General Assembly, and the trialcourt had far more discretion and input intocapital charging decisions while leaving verylittle, if any, to prosecutors. The 2001 change

in North Carolina’s capital punishment lawsonly allowed prosecutors the discretion todecline a capital charge and did not increasetheir ability to pursue the death penalty. It isodd, then, that RJA supporters and defen-dants claim that prosecutors acted in a dis-criminatory manner when electing to pursuea death sentence when such decisions were,in fact, largely out of the prosecutor’s hands.

In Woodson v. North Carolina, 428 US280 (1976), the United States SupremeCourt in a 5-4 decision found the NorthCarolina statute requiring death for all firstdegree murders unconstitutional becausejurors had no discretion to award a sentenceof life in prison. The Court held that death isunlike any other punishment in degree andkind, and that the changing values of societywarranted a particularized review of individ-

ual defendants and their crimes before a cap-ital punishment is inflicted in order to passthe Eighth Amendment’s requirementsagainst cruel and unusual punishment. Inresponse to this decision and effective June 1,1977, the North Carolina legislature set out11 statutory aggravating factors to determinewhether a first degree murder is punishableby death. N.C.G.S. § 15A-2000(e) (2012).The legislature also established mitigatingfactors to consider. N.C.G.S. § 15A-2000(f)(2012). These aggravating and mitigatingfactors are the only considerations taken intoaccount when deciding to pursue a capitalconviction. If none of the aggravating factorsare present, or if mitigating factors outweighany aggravating factors, then a district attor-ney is not allowed to seek the death penalty.

Additionally, the North Carolina

The North Carolina RacialJustice Act from Two Viewpoints

B Y T H O M A S J . K E I T H A N D R O B E R T E . C A M P B E L L

Defendant Marcus Robinson, left, sits with his lawyers during the final day of his hearing under theRacial Justice Act. NC Superior Court Judge Greg Weeks decided that the Marcus Robinson trialwas tainted by the racially influenced decisions of prosecutors, and that he should be removed fromdeath row and serve a life sentence. Photo courtesy of the Fayetteville Observer.

Supreme Court recommended in 1984 thata hearing be held shortly after a defendanthas been indicted for a crime punishable bydeath in order to determine if any aggravat-ing factors are present. State v. Watson, 310NC 384, 388 (1984). Commonly referred toas a Watson hearing, this procedure has sincebeen codified and is required by Rule 24 ofthe General Rules of Practice for Superior andDistrict Courts for every person indicted for acapital crime. Prior to 2001, if the trial courtfound at this hearing that an aggravating fac-tor was present, the district attorney wasrequired to seek a capital punishment. As theNorth Carolina Supreme Court once stated,“evidence or lack of evidence of an aggravat-ing circumstance, not the district attorney’sdiscretion, dictates whether the defendanttried for first degree murder will be subject toa capital sentencing proceeding if convictedor adjudicated guilty of the capital felony.”State v. Rorie, 348 NC 266, 271 (1998). Itshould be abundantly clear, therefore, thatthe 11 strictly defined aggravating factorsadopted by the General Assembly—and nota prosecutor’s whims, as some would sug-gest—dictate whether or not a defendantwill face a capital charge.

In effect, this “additional” prosecutorialdiscretion provides a mechanism to reducethe number of capital trials without the pos-sibility of increasing that number, which isexactly what has happened. As reported inthe News & Observer by Frank Baumgartneron January 24, 2010, the frequency of capitaltrials in North Carolina has dropped offsharply since 2001, even though the totalamount of murders in the state has remainedroughly the same. In North Carolina from1996 to 2000 there were approximately 55to 65 capital trials per year. In 2002 and2003, however, there were only 35 and 22,respectively. 2008 and 2009 saw only 12 cap-ital trials each.

In light of this, it is difficult to argue thatNorth Carolina prosecutors have discrimi-nated against defendants based on race dur-ing capital sentencing decisions because thestrict criteria on which a capital sentencingdecision is based (the 11 aggravating factors)is narrowly defined by statute, removing thevast majority of any “discretion” required tomake such decisions. One answer to this crit-icism might be to go back to the pre-2001days when the district attorney had no dis-cretion whatsoever, and rely on the Rule 24hearings to determine whether a trial will

proceed capitally or not. This will increasethe number of capital trials and swell thenumber of death row inmates. I doubt thiswill quiet critics of the death penalty.

Fully Understanding Racial DivergenceStudies alleging the presence of dispari-

ties in capital litigation outcomes using sim-ilarly constructed data have been presentedto the courts since McCleskey v. Kemp, 481US 279 (1987). In that case there was analleged pattern of discrimination in theapplication of the death penalty in Georgia'scapital punishment litigation. WarrenMcCleskey was charged in a Georgia statecourt with the capital first degree murder ofa police officer. The officer was white.McCleskey, who was black, was convictedand was sentenced to death. The jury foundtwo aggravating factors: (1) the murder wascommitted during an armed robbery, and(2) the victim was a police officer killed dur-ing the discharge of his duties. The defen-dant offered no mitigating evidence. TheGeorgia Supreme Court upheld the convic-tion and sentence of death. State v.McCleskey, 245 GA 108 (1980).

In the appeal from the Georgia SupremeCourt to the United States Supreme Court,McCleskey specifically claimed that caseswith black defendants and white victimswere treated differently than other defen-

dant-victim race combinations. The statisti-cal study that was prepared and presented todemonstrate this alleged differential treat-ment was authored by Professors DavidBaldus, George Woodworth, and CharlesPulaski ("Baldus Study"). WarrenMcCleskey was represented in his federalclaim by attorney John Charles Boger, nowdean of the University of North CarolinaSchool of Law. Boger would later claim toproduce similar evidence in North Carolinaof differential outcomes in a study donewith Professor Isaac Unah, a PoliticalScience professor at UNC-Chapel Hill. TheBaldus Study contended that there was a dis-parity in receiving the death sentence basedon whether the victim was white or black.The Baldus Study is cited by RJA supportersto argue that prosecutors in Georgia did notvalue the lives of black victims as much aswhite victims in their prosecutions.

In the McClesky case, the state of Georgiaretained Joseph L. Katz, Ph.D., to reviewstatistics gathered by the NAACP LegalDefense Fund in their Georgia ChargingCivil Sentencing Study (GCSS), which exam-ined Georgia’s capital punishment systemafter Furman v. Georgia, 408 US 238(1972). The Furman Court found that thedeath penalty was arbitrary and thereforeunconstitutional, which invalidated thedeath penalty until state legislatures could


Katz's Patterns of Homicide

Aggravating Factor Black on White White on White Black on Black White on Black

Victim killed during robbery 67.1% 20.2% 6.6% 22.2%

Victim raped 9.8% 11.4% 3.2% 0.0%

Victim beaten 11.2% 4.1% 6.4% 3.8%

Victim witness to crime 36.4% 12.7 % 3.1% 12.5%

Execution style murder 33.1% 22.5% 7.2% 12.5%

Victim mutilated 17.5% 13.8% 2.8% 3.8%

Killing unnecessaryto finish crime 37.9% 9.7% 4.6% 0.0%

12 FALL 2012

revise their death penalty statutes. TheCourt subsequently approved revised deathpenalty statutes in Gregg v. Georgia, 428 US153 (1976), and effectively reinstated thedeath penalty. Dr. Katz also used the GCSSdata to show that each race has different pat-terns of crime. The numbers and data col-lected by the defense team led Katz to con-clude that interracial homicides most often arethe result of robberies or other serious crimesthat aggravate a homicide to the level of a cap-ital murder (emphasis added).

A US District Court found substantialflaws in the collection of data by Baldus, con-cluded that no single murderer using the sta-tistics alone could establish he received thedeath penalty because he killed a white vic-tim, and dismissed McCleskey’s petition.McCleskey v. Zant, 580 F. Supp. 338 (N. D.GA 1984). The 11th Circuit Court ofAppeals affirmed, 753 F.2d 877 (11th Cir.1985), and the US Supreme Court in their 5to 4 decision affirmed and held that theBaldus Study (assuming that it was notflawed) did not entitle McCleskey to relief.The Supreme Court in McCleskey noted thatthe decision to impose the death penalty wasnot arbitrary. The jury had discretion toreturn a verdict of life in prison. Thestatewide statistics, while showing racial dis-crepancies, did not show that McCleskey’sjury did not exercise their discretion in theirverdict. Neither could the statistics presentedby the defense show any significant discrim-ination in McCleskey’s individual situation.In a follow-up article in 1991, titled WarrenMcCleskey v. Ralph Kemp, Is the Death Penaltyin Georgia Racially Biased? (www.ourpaws.info/cramer/death/katz.htm), Katzused the GCSS data and examined four dif-ferent combinations of murders by race ofperpetrator and victim. He then examinedthe presence or absence of various aggravat-ing and mitigating factors present in thecrimes of the Georgia murderers on deathrow. The Georgia death penalty statute isalmost identical to North Carolina’s inregard to statutory aggravating factors; Dr.Katz found the distribution of aggravatingfactors in homicide cases in the data present-ed in the box on the previous page. Katzconcluded:

The four defendant-victim racial combi-nations provide the key that unlocks therace-of-victim sentencing puzzle. Eachdefendant-victim racial combination por-trays a fundamentally different homicide

pattern emphasis added). The blackdefendant/white victim cases are themost aggravated of all four defendant-victim racial combinations. In 67.1% ofthe cases, the homicide results from anarmed robbery, whereas only 18.2% ofthe homicides are precipitated by a dis-pute. The interracial nature of this kindof homicide minimizes the possibilitythat the killing arose due to a family dis-pute, a quarrel between lovers, or argu-ments between friends and relatives,which are commonly mitigating factorsthat preclude death sentences. The vic-tim was a stranger 70.6% of the time,and a family member or friend in only4.9% of the cases. As this suggests, blackdefendant/white victim killings are verycommonly linked to felony circumstances,which legally qualifies the defendant for adeath sentence (emphasis added).The McCleskey decision effectively ended

the series of attacks on the death penalty inthe US Supreme Court. However, the lastparagraph of Justice Powell’s majority opin-ion sets the stage for the next step in thedeath penalty debate.

The North Carolina Racial Justice ActIn 2009, the North Carolina Legislature

accepted Justice Powell’s invitation inMcCleskey to “evaluate the results of statisti-cal studies in terms of their own local condi-tions” and passed the Racial Justice Act, SB461. Proponents of the RJA touted theresults of several unpublished studies whichwere given to the media and referenced inthe public debate at the legislature. Thestudies cited included a University of NorthCarolina at Chapel Hill (UNC) study byIsaac Unah and John Charles Boger and anunfinished and unpublished Michigan StateUniversity (MSU) study by Catherine M.Grosso and Barbara O’Brien.

As was the case with the Baldus Study,both the UNC and MSU studies concludedthat defendants were several times more like-ly to get the death penalty for the first degreemurder of a white victim than a black victim.Additionally, the MSU study found thatblacks were struck from first degree capitaljury panels by prosecutors at over twice therate of whites. The RJA provides that anyoneaffected could file what would becomeknown as an RJA Motion within one yearfrom passage. N.C.G.S. §15A-2012(2). TheRJA motion would be filed as a standard

Motion for Appropriate Relief underN.C.G.S. §15A-1420 - 1422. As a result, allbut three inmates on death row filed RJAMotions. As of May 1, 2012, there were 156inmates on death row of which 81 (51%)were black and 63 (40%) were white. Of allfirst degree murderers in North Carolinaprisons on that date, 63% were black and33% were white; for second degree murder-ers, 65% were black and 31% were white.Ostensibly, black murderers on death row areunderrepresented and white murderers areoverrepresented as compared to the appro-priate pool of non-capital first and seconddegree murderers in prison in NorthCarolina. See www.doc.state.nc.us/rap/index.htm.

The most puzzling portion of the 2009RJA is a provision that allows the defendantsto use “sworn testimony of...prosecutors...irrespective of statutory factors...” as evi-dence that death sentences were sought morefrequently on one race than another.N.C.G.S. §15A-2011(b). This means that ifa prosecutor is asked to explain why heselected a murder case to be tried as a capitalcase, he cannot use as an explanation thedecisions of the US Supreme Court, thedecisions of the NC Supreme Court, or thelaws passed by the NC General Assembly!This conundrum is even more exaggerated inthe pre-2001 cases when prosecutors had nodiscretion to decline seeking a capital sen-tence, because if any statutory aggravatingfactors were present, the prosecutor had totry the murders capitally or as a seconddegree. The prosecutor could not try them asnon-capital first degree cases. This is truly a“Catch-22” for prosecutors because any deci-sion made will be wrong.

Anyone filing a 2009 RJA Motion canuse “statistical evidence” in order to helpprove their case “at the time the death wassought or imposed.” N.C.G.S. §15A-2011(b)(1). There is no explanation as towhat kind of statistical evidence or how longa time period is permissible. These issues arejust a sampling of the poor legislative draft-ing that has thrust the North Carolina legalsystem into an epic struggle to define andinterpret the meaning of the RJA amid theconstant volley of differing viewpoints fromprosecutors, defense attorneys, legislators,pundits, and civil rights groups.

2009 Racial Justice Act DeficienciesThe state contends that the language of

the enabling section of N.C.G.S. §15A-2011(a) (“that race was a significant factor indecisions to seek or impose the sentence ofdeath”) is too vague to apply consistentlyand intelligently. This ambiguous andinconsistent drafting will—and indeedhas—led to completely different interpreta-tions by the courts in two RJA cases thathave moved forward to date.

In their effort to prevail on their 2009RJA motions, the defense argues that statis-tics dating back to 1990 (as far back as theAdministrative Office of the Court’s com-puterized records go) will show that mur-derers of one race across the state were sig-nificantly more likely to receive the deathpenalty than murderers belonging toanother race. Alternatively, these defen-dants posit that prosecutors used racial biasin jury selection. No doubt the sponsors ofthe RJA, the witnesses before the subcom-mittees, and the senators and representa-tives who spoke in favor of the bill thoughtthey were correcting the ills identified inthe UNC and MSU Studies. Unfortunatelyfor lawmakers, the RJA’s vague classifica-tion of basic concepts and procedures has

turned the RJA into a law not about dis-crimination, but about stalling a defen-dant’s death sentence. While the EqualProtection Clause of the US Constitutionwould not allow the RJA to contain race-specific legislation, the purpose of the actdoes not seem to be served when membersof one race are able to use alleged discrimi-nation of another race to escape their deathsentences.

The 2009 Racial Justice Act also providesa time period for the defendant to use statis-tical evidence of discrimination. However, asis the case with most of the act, the law onlyprovides for evidence “at the time the deathsentence was sought.” There is a consider-able problem in the application of thisambiguous portion of the statute. The statecontends that the clause “at the time thedeath sentence was sought” means a year ofstatistical evidence proving discrimination.A Forsyth County judge has ruled that thepart of the statute in question means fiveyears. The defense would argue that thistime period is a 20-year span.

Not only does the 2009 RJA present avalid constitutional challenge based on the

vagueness of the statute, but it also suffersfrom the exceeding breadth the defense hasto use statistical evidence in their clients’cases. The 2009 RJA statute provides thatthe defense can use statistics from the coun-ty of conviction, prosecutorial district, judi-cial district, or state as a whole to prove dis-crimination in charging decisions or juryselection, irrespective of whether it had anyeffect upon the defendant’s conviction.Again, the defense maintains that the 2009RJA provides them relief even if the allegeddiscrimination did not affect the defendant’scase in any way. N.C.G.S. §15A-2011(b)(3). Appropriately, the state con-tends that discrimination must be case-spe-cific. The death row inmate must show actu-al racial discrimination in the county orprosecutorial district of conviction, at thetime the death sentence was sought orimposed, and that such discrimination was asignificant factor in the defendant’s owncase. The state’s contentions have not fallenon completely deaf ears. In the ForsythCounty cases of State v. Moses and State v.Moseley, the judge agreed with the state oncase-specific discrimination.


UNC StudyA source frequently cited by RJA propo-

nents is a research project done by UNCProfessors Unah and Boger. The UNC Studyexamined a subsection of capital cases inNorth Carolina from 1993 to 1997. Unahand Boger’s research and analysis has evolvedinto different iterations, but all are based onthe same underlying data initially collected.In their 2001 paper, Race and the DeathPenalty in North Carolina: An EmpiricalAnalysis, Professors Unah and Boger statethe following in their preliminary findingssection:

Our principal finding to date is that racialdisparities continue to plague NorthCarolina’s capital punishment system inthe 1990s—especially discriminationagainst defendants (of whatever race)whose murder victims are white. Thisfinding is confirmed by numerous indi-vidual analyses we have conducted,employing different methods, and lookingat various decision points throughout thecapital charging and sentencing system.Race matters in the initial decision whetherto charge a defendant with first degree mur-der, second degree murder, or manslaughter;it matters in the decision whether to go for-ward to trial; it matters in the decisionwhether to seek a death sentence; it mattersin the jury’s life-or-death decision at thepenalty phase of a capital trial (emphasisadded).The 2001 report contends that black and

white defendants who murder persons of dif-ferent races than themselves receive the deathpenalty at different rates. These results werepresented to the North Carolina GeneralAssembly and the media in support of theRJA; however, none of the underlying datawas released. Reading through these reportsreveals that part of the disparity was based ona selection of all murders within the UNCstudy and not those cases with statutoryaggravating factors, which are the only caseseligible for the death penalty. Table 1 in theirpaper gives the death-sentencing rate amongall cases, whereas Table 2 shows the resultsfrom death-eligible cases. Neither set ofresults is a controlled analysis and does nottake into account the combinations of statu-tory factors involved in any of the particularcases. Interestingly their 2009 paper, Race,Politics, and the Process of Capital Punishmentin North Carolina, which was presented atthe North Carolina Political Science

Association Meeting in Greensboro, con-tained a different set of conclusions in termsof assessing the prosecutors in NorthCarolina. This report was based on the samedata set as the 2001 report:

State prosecutors who once made prima-rily race-conscious decisions to “go fordeath,” now appear race-neutral. Ouranalysis also displays evidence of continuity,pointing to politically unaccountable jurorsrather than to elected prosecutors as theactors most culpable for racial disparity incapital sentencing in North Carolina.Broader implications of these findingsare discussed.Indeed, our study provides reasons tobelieve that prosecutors are more race-neutral in the 1990s than they werewhen Baldus et al. first conducted theirstudy. Adaptation to a new political land-scape that includes politically attunedand active minority voting populationsmakes this insight plausible.Our key finding that racial disparity doesnot reside in the prosecutorial stage wouldsurely seem counter-intuitive to manybecause it contradicts the old-style racismthesis, and it contradicts conclusionsreached by the Baldus study. However, wethink our finding makes theoretical sense……the most surprising finding is that prose-cutors are not exhibiting racially conscioustendencies in their decision to seek the deathpenalty. This represents a change fromthe traditional view of North Carolinaprosecutors. Of course, individual dis-tricts might not exhibit the same tenden-cies as we report, but overall we are con-fident that North Carolina prosecutors asa whole are exhibiting signs of change(emphasis added).It is strange, then, that the same set of

data taken from the same set of cases couldlead to such divergent conclusions.

Michigan State University StudyIn addition to the UNC study, RJA pro-

ponents and defendants cite another statisti-cal study to support their claims of racial dis-crimination in capital litigation. This secondstudy was conducted at the University ofMichigan by Professors Barbara O’Brienand Catherine Grosso. Dr. GeorgeWoodworth, who assisted the defense in theMcClesky litigation, contributed to O’Brienand Grosso’s work. The criminal discoveryin the MSU study is composed of over one

million pages, 300,000 of which pertain tojury selection. The drafters of the MSUstudy came up with over 200 factors, similarto what was done in the Baldus Study usedin McCleskey, to explain why black defen-dants are 2.6 times more likely to receive thedeath penalty than white defendants ininterracial homicides. The state will never beable to examine the basis for these conclu-sions since the access codes to the 300,000pages of jury selection data were deleted bythe authors of the MSU study.

Professor David Baldus also helpedProfessors Grosso and O’Brien in construct-ing the MSU study. The MSU study suffersfrom the same cherry-picking problems asthe UNC study in terms of the cases includ-ed in the database. As the researchers testifiedto on the stand in the Cumberland Countyhearing, the dataset was “not a random sam-ple of capital cases.” In fact, O’Brien testifiedthat “it was a judgment sampling” based on“a practical consideration.” As ProfessorO’Brien stated, the cases that were used inthe research—the 173 proceedings for all thedefendants on death row at the time thestudy started and had to be completed—didnot include inmates executed, those whowere tried capitally but received a life sen-tence, and those who were removed fromdeath row for many other reasons. Thoughtheir charging and sentencing study identi-fied over 5,000 cases from the 20-year timeperiod that was under consideration, only173 cases were included.

The MSU researchers made their owndetermination as to whether the state had avalid reason to strike a juror, basing theirmodeling and constructed variables on onessimilar to those Professors Baldus andWoodworth used. This reliance on a sim-plistic approach led to some troublesomeresults in their dataset. The law studentsrecruited to read the jury selection tran-scripts counted some black jurors excused bythe state for valid strategic reasons, such asopposition to the death penalty, but uponreview by the state left out many more withsimilar viewpoints. In many instances thesevalid, race-neutral strikes were counted bythe MSU study as racially biased attempts tokeep non-white jurors off the panel when infact there are other explanations that prose-cutors provided. These direct explanationswere eschewed by the MSU researchers, whoinstead relied on a much broader level ofanalysis that improperly gave them a race-

14 FALL 2012

based explanation. The individual variables that the

researchers constructed to measure variousattributes of potential jury members are rifewith problems. For example, one variablemeant to capture whether or not a potentialjuror has a criminal record failed to distin-guish between a person who had been con-victed of speeding and one who had beenconvicted of murder. In the MSU studythese people were treated the same! Yetanother example is a classification thatdescribes potential jurors based on their rela-tionships with people involved in the courtsystem. The variable employed to capturethis factor treated people who had a prose-cutor in the family the same as one with adefense attorney in the family. Numerousexamples such as these highlight the MSUstudy’s lack of useful categorization, thoughthese inherent problems in the study’s statis-tical method is buried in the 300,000 pagesof materials turned over to the state. Theresearchers have admitted that there was noway in which their model could capturegood reasons to strike jurors that were onlytrue in a few cases. They constructed theirmodel and analysis to generate results basedon large characteristics present in the data—such as race—regardless of whether itexplained anything.

Batson Challenges Are SufficientThe Supreme Court in Batson v.

Kentucky, 476 US 79 (1986), found thatperemptorily excluding potential jurorsfrom serving on a petit jury based on thevenire member’s race violated theConstitution’s Due Process Clause.

According to Batson, a defendant whobelieves that the state is excusing potentialjurors based on race may make a motionalleging as much at the time the peremptorystrike is made, in front of the trial judge andwhile the questioned juror is present.This isan excellent practice because any claims ofracial discrimination are made before thesame judge presiding over the case and juryselection and are made immediately onceracial discrimination is suspected, not 20years later after the nuanced particularitiesof a capital trial have all but been forgotten.

It is noteworthy, too, that MarcusRobinson, the first person removed fromdeath row under the RJA and who was triedin Cumberland County in 1994, never chal-lenged any of the state’s peremptory strikes.

In fact, in a majority of the capital trials andjury selections on which the MSU studyrelies, no Batson motions were ever made.The most likely reason for this lack of Batsonchallenges is because the defendants’ attor-neys did not think race was an issue.Furthermore, there has never been a capitalcase in North Carolina in which a Batsonclaim was made that has been reversed bythe North Carolina Supreme Court, and todate every Batson challenge that has beenmade has already been litigated before theNorth Carolina Supreme Court. This aloneshould be sufficient to bar the present MSUaccusations of juror strikes based on race byprecluding the issue.

Those making claims under the RJAcontend that the defense attorneys across thestate were intimidated by the state and thatthe trial judges did not do their job to catchrace-based juror strikes. Such claims cannotbe taken seriously. At least one defense attor-ney who is currently assisting a defendant tobring a claim under the RJA represented adifferent client in a capital trial that wasincluded in the MSU jury study. TheCumberland County judge who grantedMarcus Robinson’s RJA motion and accept-ed the MSU study actually presided over atrial that was included in the study’s dataset.Not only are our state prosecutors beingimproperly accused of racial bias, but theseRJA claims implicitly accuse the state’s supe-rior court judges and our supremely compe-tent capital defense bar of systematic incom-petence.

2012 Amendment The 2012 amendment attempted to cure

many of the problems with the 2009 versionof the RJA. The applicable time period forestablishing a history of discrimination isnow ten years before the offense and twoyears after. The defendant can only use datafrom the county of conviction or prosecuto-rial district where convicted. Statistical evi-dence alone is insufficient to meet the defen-dant’s burden of proof. Judges can testify foreither side, reversing the trial court’s opinionin the Robinson case in Cumberland County.The State v. Bowden problem was addressedso if an RJA defendant prevails, he cannotclaim his pre-1993 life sentence means any-thing but life in prison without possibility ofparole. The 2012 law would apply to allcases unless there was an evidentiary hearingas in Robinson. However, if Robinson is

reversed, then the 2012 law would apply.Understandably, this amendment opens upwhole new areas for appeals based upon alle-gations that the 2012 RJA is applied ex postfacto, it violates due process, and it is a Billof Attainder.

ConclusionThe decision to seek the death penalty

cannot be quantified by complex statisticalmodels. The patterns of crime by race andtheir interaction with North Carolina’sstatutory aggravating factors explain anyracial disparities on death row. Commonsense explains why the state peremptorilystrikes black or white jurors alike who ini-tially express doubts about their ability tovote for the death penalty. The fact that nodeath penalty case has ever been reversed ona Batson challenge should end the discussionabout any conspiracy between prosecutorsand judges to keep black jurors from beingon a North Carolina jury panel or whitedefendants off death row.

The state cannot develop any statisticalmethod to try black defendants for capitalmurder that does not smack of racial quotas.Such quotas would probably require thestate to try more murderers in order toachieve a perfect one-to-one ratio. Norcould the state ever receive a fair trial with-out striking white or black jurors who ini-tially express reservations about the deathpenalty.

The 2012 amendment allows a defen-dant to press any claim of racial discrimina-tion using statistical evidence in the countyor prosecutorial district of conviction over atwelve year period. However, the families ofthe murder victims will have to wait foranother generation of lawyers to be bornand trained to argue all the legal issues aris-ing out of the 2009 RJA and the 2012amendment, which is exactly what the pro-ponents anticipated: a de facto moratoriumon the death penalty. Charles Dickenswould understand. �

Tom Keith is a retired district attorney forForsyth County. He graduated from UNC-CHin 1967 and Wake Forest Law School in 1970.He has been president of the NC Conference ofDistrict Attorneys, a member of the Board ofGovernors of the NCBA, and an advisor to theCommission for the Future of Justice and theCourts. He just completed a three-year contractto assist prosecutors on RJA issues.


“Skip a Rope”

B Y R O B E R T E . C A M P B E L L

I wonder what the children had to say,running through the streets of Salisbury, asthree men hung there, bleeding and dead,tortured by an angry mob of killers. Thethree black men had been charged with thebrutal killing of a white family in Salisburyin 1906. The death of this family stirred theemotions of the community such that alarge group of citizens stormed the jail, over-powered the captors, and ultimately lynchedthree of the six defendants charged in thecase. There was no trial to determine theirguilt or innocence. The three remainingdefendants’ cases were transferred to nearbyIredell County, where they were ultimatelyacquitted.

When the Racial Justice Act (RJA) passedin 2009, I recall being in the “back room” ofthe Alexander County Courthouse, a roomwhere the lawyers gather to discuss theircases with the assistant district attorneyassigned to the one day of criminal court oursmall county has each week; a room that hasno doubt seen and heard a lot in its time. Aswe gathered before court, I had a brief con-versation about the recent legislation with afriend, a black lawyer from Statesville, whoimmediately recommended that I read AGame Called Salisbury. Before the next weekhad passed, he had given me the book.

The book was written by Susan BarringerWells. She explores in great detail the Lyerlymurders and the lynching of three of the sixdefendants charged with their murders. Thebook is a captivating historical investigationabout then existing racial attitudes, politics,and the media’s influence on public percep-tion about the facts of the case. The authortells—in graphic detail—about the brutalaxe murders of Isaac Lyerly, his wife,Augusta Lyerly, and their two youngest chil-dren.

The author begins the book by describ-ing the events of a children’s game mimick-ing a lynching. The stories are from newspa-per articles in the state describing childrenplaying lynching games in the aftermath ofthe events in Salisbury. The author uses aquote by James Baldwin to drive home thepoint that children learn from their elders:“Children have never been very good at listen-ing to their elders, but they have never failed to

imitate them.”After 20 years of practicing law, I pause

and question the evolution of my viewsabout race and the death penalty. As a whiteRepublican from a small rural town in theSouth, my views about race and the deathpenalty have been varied. While in college, Iheld a very “conservative” and supportiveview of the death penalty. When hearingarguments about racial discrimination andits impact on those in the criminal justicesystem, I had a disinterested view and mere-ly thought of such as “race card” arguments.On the side of an abandoned building in myhome county appeared the words “COL-ORED ENTRANCE.” When I first startedmy law practice in the early 90s, peopleclaiming to be Klan members held a rallyover the arrest of a black male high schoolstudent who was caught having sex withanother student. Although the sex consistedof a mutual, consensual act, he was chargedwith crime against nature. The willing co-participant, a white female, was not charged,even though she was equally guilty of therarely charged crime. As I represented thisyoung man, I saw the unfairness of beingcharged merely because of the color of hisskin.

Historically, black Americans have beentreated unequally and unfairly, from thedays of slavery and the Jim Crow laws to themany civil rights violations that occurred inthe past. The question remains: has our societyevolved to the point where historical racistviews are absent from the criminal justice sys-tem and, particularly, absent from the capitalpunishment process? In 1906, fueled byhatred, an angry mob of white people hungthree black defendants who were likelyinnocent. Not only were they killed, butthey were also tortured, which demonstratesthe high level of hatred that existed on thatnight in Salisbury. That hatred and bigotryhas no doubt lessened with the passage oftime; but has it disappeared, or is it the “ele-phant” in the jury box that no one wants totalk about?

To answer this question, we need onlylook around. On May 26, 2012, inHarmony, NC, the Ku Klux Klan held arally, complete with a flyer advertising thegathering. Certainly people have a right toassemble and express their views. This free-dom is the foundation of our free society.We live in the oldest constitutional democ-racy in the world. The rule of law and the

maintenance of our freedoms are the reasonsour democracy has survived. Although theright to assemble in this fashion cannot bechallenged, the underlying current and pur-pose of such a gathering can be examined inthe debate over the Racial Justice Act. Thegenerations that have followed those thatenslaved people of color, those that deniedbasic freedoms and civil rights, and thosethat participated in the 1906 lynchings inSalisbury have continued to advance racialbiases through the years. “Children havenever been very good at listening to their elders,but they have never failed to imitate them.”

The perpetual bigotry that still remainsundoubtedly exists in our criminal justicesystem. The following paragraph is anexcerpt from a brief of Amici Curiae of his-torians and law professors prepared by AprilG. Dawson in State vs. LeGrande:

As recently as May 2010, the StatesvilleRecord and Landmark published com-ments that openly called for lynching ablack man accused of killing two whites.One writer urged, “just stand him up…and let family members of those he killedso cowardly have at him.” Others wrote,“he should have been hung before sun-down on the day of his arrest” and “savethe tax payer money…bring backHANGING.” Bluntly racist commentsincluded “HANG THAT MONKEY!”Another writer provided a terse, but rich-ly symbolic expression of the past’s vigor-ous influence on the present: “I wish Iwere in Dixie.”These stark examples in today’s society

confirm that vestiges of racism still exist. Thefootprints of racism don’t stop at the court-house door. In an effort to ensure that a per-son’s race does not play a significant factor inthe imposition of the death penalty or juryselection, the legislature passed the RacialJustice Act in 2009. Under this act, no per-son shall be subject to or given the deathpenalty on the basis of race. Evidence toestablish that race was a “significant factor”in a death penalty case may include statisticalevidence showing that race played a role indecisions to exercise peremptory challengesduring jury selection.

Researchers at Michigan State University,after studying murder cases from 1990 to2010 in North Carolina, determined that,statewide, qualified black jurors are morethan twice as likely to be dismissed by prose-cutors than qualified white jurors. This study

16 FALL 2012


was used in the first case to be heard underthe Racial Justice Act, State vs. Robinson,Cumberland County. In this case, theHonorable Gregory A. Weeks held the fol-lowing:

• Statewide from 2005 through 2010 theState struck eligible black venire members atan average rate of 56.4%, but struck all othervenire members at an average rate of only25.4%. Thus, the prosecutors were 2.2 timesmore likely to strike qualified black veniremembers.

• Prosecutors have intentionally discrimi-nated against black venire members duringjury selection when seeking to impose deathsentences in capital cases in North Carolinabetween January 1, 1990, and July 1, 2010.

• The prosecutor at Robinson’s trialadmitted that unconscious racial bias mayhave influenced his jury selection.

An important aspect of Judge Week’sorder is the following:

That the balance of this collective evi-dence and argument overwhelminglysupports a finding that race was a signifi-cant factor in jury selection statewide…The role of government sanctioned and

enforced racial discrimination againstAfrican-Americans in North Carolinaduring significant historical time peri-ods—Antebellum slavery, post-Reconstruction race codes, Jim Crow, andthe pre-Furman era—is likely to haveinfluenced our jury selection procedureand culture in ways that are difficult toparse out scientifically. That history, how-ever, can and should serve as a caution toprovide deference to the scientific evidence ofdiscrimination in jury selection (emphasisadded).It is our ugly history of racism that makes

the statistical evidence important and worthyof such deference. Racism in the courtroomhas been difficult to discover in our judicialsystem, before the passage of the RacialJustice Act as it existed in 2009. No one willlikely answer questions posed by timidlawyers about race in a courtroom settinghonestly. Do jurors (and prosecutors alike)have the presence of mind and self-awarenessto remove all bias from cultural norms that“they have never failed to imitate?” There arethose people who have grown up in theSouth—in our culture that gave rise to

hatred and bigotry—who have feelings basedon racial bias even today. Yet no one wants totalk about it, and certainly very few willadmit their own racial prejudices in the jurybox in the presence of judges and other courtofficials. It is the “elephant” in the jury box.If people are not likely to admit their failingsin this regard, how do we then decide if itexists? The most accurate method is to exam-ine the statistical data. Prosecutors and othersopposed to the Racial Justice Act argue thatstatistical data should not be allowed as evi-dence of race as a significant factor in thecapital punishment process. Researchers atMichigan State University discovered thatprosecutors were more than twice as likely tostrike qualified black jurors as other jurors.

To discover the true extent of hiddenracial bias with the death penalty, one onlyneed go as far as the Department ofCorrections’ website, which contains infor-mation on all of the executions since 1910 inNorth Carolina. There have been 43 execu-tions since 1984. The race of the victim isrecorded by the Department of Correctionsin each case. The victim was black in only 8cases out of 43 (6 black females and 2 black

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males). The racial discrimination from thisstatistic alone is clear. There are two raciallysignificant possibilities that can be derivedfrom this statistic. First, predominatelywhite juries are not likely to hand down asentence of death when the victim is black(particularly a black male). Second, prosecu-tors do not seek the death penalty as oftenwhen the victim was black. How manyblack male victims have been brutally mur-dered since 1984? Yet only two such defen-dants have been executed for killing a blackmale since 1984.

Also of particular interest from theDepartment of Corrections’ website are thestatistics from individual counties for per-sons executed since 1910. For instance, from1910 to 1992, 19 people were executed inForsyth County and all 19 defendants wereblack. Since 1992, four defendants havebeen executed in Forsyth County and 50%of those were black. Remarkably, since 1910,21 out of 23 defendants executed in ForsythCounty have been black. Therefore, 91% of thepeople executed from Forsyth County since1910 have been black. These statistics can befound at: doc.state.nc.us/dop/deathpenal-ty/personsexecuted.htm.

After Judge Weeks’ order, my fellowRepublicans amended the Racial Justice Actto strip the law of its effectiveness. Theamended law limits the use of statistical evi-dence. The act includes the following lan-guage: “statistical evidence alone is insufficientto establish that race was a significant factorunder this Article.” The change also limitsthe review of race to the individual countyand prosecutorial district involved in thetrial of the case and removes any review ofracial discrimination state-wide. The debatewhich surrounded the efforts to change theAct was political in nature. Missing in thisdebate were discussions of historical andcurrent attitudes involving racism (such asthe advertising of a Klan rally in Harmonythis year). Rather than seek the opinions ofthose who witness the unfairness of racismand the degree of its existence in the courtsystem, the politicians running for officeopted to center the debate on fear. First, thepoliticians argued that the implementationof the Racial Justice Act would cause mur-derers to walk free. Next, the politiciansargued that the Racial Justice Act was anattempt to abolish the death penalty. Ratherthan focus the debate on the real problem ofremoving racism in the death penalty

process, various legislators chose to use polit-ical rhetoric to bolster their positions.

District attorneys also argue that the costis too great and the time needed to defendRJA claims is too extensive. If our society isgoing to have the death penalty as a form ofpunishment for the worst of the worst, thenthe process has to be fair. Decisions aboutlife or death and the process of selectingthose who make that decision should neverbe based on race; not in a free society andnot in a society that has a cornerstone prin-ciple that all men are created equal. Costand time to determine the guilt or inno-cence in a traffic matter or even a minormisdemeanor might be a factor; but whenthe punishment is life or death, the “costand time” argument falls pitifully short.

The last few years have seen significantproblems with various results from the SBILaboratory in criminal cases, which have ledto guilty verdicts for innocent people.People have been locked up for years, claim-ing their innocence, only to learn that thestate’s crime lab got it wrong. Is it too costlyand too time consuming to fix those cases?For years, the culture in our system was toplace the SBI Laboratory results on apedestal, free from fault or misdoing. It wasdifficult to shed light on the problems withthe SBI Laboratory because of the culture ofbelief in the practices of the state’s forensicexperts. Without the time and expenseinvolved in the exposure of the failings ofthe laboratory, the grave problems that ledto unreliable results would have never beendiscovered. Similarly, there is a culture ofdisbelief that racism exists in jury selectionand the process surrounding the prosecutionof death penalty cases. Death as a punish-ment is different. The ears of justice must bemore attune to inequities involving racewhen death as a punishment is on the line,and time and expense arguments must fail.

The question remains: has our societyevolved to the point where historical racistviews are absent from the criminal justice sys-tem and, particularly, absent from the capitalpunishment process? In addition to Klan fly-ers, racist comments published in newspa-pers, and statistics that reveal the nakedtruth, we must only listen to what the “chil-dren” say (the children of a historically racistsociety). I once heard an assistant districtattorney in Winston-Salem say “the reasonwe are seeking the death penalty is becausethe victim’s family said we don’t seek the

death penalty enough when the victim isblack.” Was race a significant factor in thedecision to seek the death penalty in thatcase?

The game played by children surround-ing the lynching of innocent men inSalisbury reminds me of a song titled Skip aRope by Henson Cargill. The song dealswith issues such as domestic violence, hon-esty, and racism, and ends with blamingwhat children do and say on their parents.

Skip a rope, skip a rope! Listen to the childrenwhile they play.Ain't it kinda funny what the kids all say, skipa rope!

Daddy hates mommy, mommy hates dad.Last night you should've heard the fight theyhad.Gave little sister another bad dream, she wokeus all up with a terrible scream.Skip a rope, skip a rope...

Cheat on your taxes don't be a fool what wasthat they said about the golden rule.Never mind the rules just play to win and hateyour neighbor for the shade of his skin.Skip a rope, skip a rope...

Stab 'em in the back, that's the name of thegame.And mommy and daddy are the ones to blame.Skip a rope, skip a rope. Listen to the childrenwhile they play.It's not really funny what the children say, skipa rope.Skip a rope, skip a rope!

We are all a product of our environmentand the undisputed fact is that our environ-ment in the South has included racial bigotryand hatred. Although tempered by time,racial bigotry, hatred, and discrimination stillremain, and those who continue in opposi-tion to an effective Racial Justice Act are notbeing honest with themselves and continueto skip a rope. �

Robert Campbell has engaged in the generalpractice of law in Taylorsville, NC, since 1992.His practice includes civil and criminal litiga-tion, local government representation, domesticlaw, and capital murder defense. He has anundergraduate degree in criminal justice fromUNC-Chapel Hill and a Juris Doctorate degreefrom NC Central University.

18 FALL 2012

20 FALL 2012

North Carolina is very much a part of thenational experience. Since the 1990s, the statehas become a favored destination for immi-grants, the majority of whom originate fromLatin America. Recent census data serve to setin relief notable demographic shifts during the

last ten years: the Latino population in NorthCarolina has increased 110% and presentlyconstitutes 8.4% of the state's total population.New immigrants during the 1990s wereattracted to North Carolina by the favorablelabor market and active employer recruitment.

The influx of new Latin American immigra-tion during the 2000s has decreased, due prin-cipally to the economic downturn, increasedimmigration enforcement at the border, andhostility in a number of communities acrossthe state. The recent decrease in the number of

Undocumented Immigrants andAccess to the Courts

B Y D E B O R A H M . W E I S S M A N

Migration is a phe-

nomenon intrin-

sic to human

society. Virtually

every modern nation-state has developed out of a migra-

tion experience. People migrate for various reasons. They

leave their home countries to seek new freedoms and to

escape old oppressions, for economic opportunity and

political security: that is, in search of a better life. The

history of the United States is rich with the celebration of

immigration, with the single most enduring founding narrative of the United States inscribed in the very national icon of liberty: “Give

me your tired, your poor/Your huddled masses yearning to breathe free.”1

Kino Brod/Illustration Source

new immigrants notwithstanding, a salientdemographic facet of North Carolina remains:the Latino population will continue toincrease.2

The presence of immigrants in NorthCarolina raises a number of vital concerns.North Carolina has welcomed the salutaryeffects of international trade in goods, services,and information, and has been receptive to theexpansion of international finance. But migra-tion of people, and especially unauthorizedmigration, has been a less-than-welcomed out-come of global exchanges.3 The absence oflegal status in the United States has served toshape decisively the perceptions of undocu-mented immigrants’ rights, and whether andto what extent they may obtain access to thecourts to protect rights they possess.

I. The Need for AccessUndocumented immigrants lack legal sta-

tus in the United States. But preciselybecause they lack legal status, they need legalprotections. In 1982, the US Supreme Courtin Plyler v. Doe described the heightened vul-nerability experienced by undocumentedimmigrants who constitute a population“whose presence is tolerated, whose employ-ment is perhaps even welcomed, but who arevirtually defenseless against any abuse,exploitation, or callous neglect to which thestate’s natural citizens and business organiza-tions may wish to subject them.”4

Instances of such vulnerabilities are wide-spread in North Carolina. Undocumentedimmigrants are likely to be subject to wagetheft and other unscrupulous labor practicesthat often violate employment laws.5 Theyare frequently assigned hazardous jobs andhave suffered fatal accidents in dispropor-tionate numbers compared with non-immi-grant populations due principally to danger-ous—but easily preventable—workplaceconditions.6 They are more likely to be vic-tims of consumer credit fraud and exploita-tive mortgage loan practices.7 In the housingsector, they are often obliged to pay exorbi-tant rents and live in uninhabitable condi-tions as a result of discrimination by privatelandlords.8 Law enforcement agencies oftentarget Latino immigrants through illegal pro-filing.9 Immigrants are subject to longer staysin jail, even for minor traffic offenses, and areoften required to pay higher bail fees.10

II. Right of AccessThe judicial system is charged with the

responsibility to protect rights and remedywrongs in a system that is fundamental to thestructure of a democratic society. The court isdesigned to function as the arbiter of humanrights, values, and ideals, thus making accessto the courts indispensable. Indeed, access tofull standing in the courts is considered a hal-lowed principle, one that is affirmed in boththe United States and North CarolinaConstitutions.11 This principle applies noless to those who have entered the UnitedStates unlawfully, who work without author-ization, and who otherwise might be in vio-lation of immigration law. Even the mostegregious law-breakers have constitutionally-sanctioned access to the legal system.Convicted criminals and incarcerated indi-viduals do not forfeit their rights to access thecourts. They may bring suit challenging theirconditions of confinement and seek redressfor all variety of civil rights violations, fileactions for torts claims, breach of contract, orfor matters pertaining to family law issues.12

Issues pertaining to access to justice forunauthorized immigrants and the parame-ters of their legal rights are complicated bylegal uncertainties and procedural ambigui-ties. Some question whether undocumentedimmigrants should obtain unfettered accessto the courts, and whether such rights shouldbe truncated by subject matter or procedure.That these issues appear at first sight to bedetermined by the legal status of an immi-grant, it is important to consider the tempo-ral significance of unauthorized immigrantstatus, often referred to as “illegal alien” sta-tus, that is, whether the condition of “illegalalien” is in fact a permanent and unchangingcondition.

A. Understanding the Meaning ofUnlawful Presence: The Complexity ofImmigration Law

For most people other than immigrationattorneys, the most accurate answer to therhetorical question posed by advocates ofstricter enforcement of immigration laws—“What part of ‘illegal’ don’t you under-stand?”—might be: “Mostly all of it.”Whether an individual is present in theUnited States unlawfully or not is a complexlegal matter made more complicated by thefact that “illegal” immigrants may nonethe-less be fully entitled to legalize their status inthe United States.13 Some individuals mayenter the United States in violation of thelaw, but still succeed in a rightful claim to

asylum status and eventually gain lawful per-manent residency.14 Immigrants from Cubawho entered the country illegally, for exam-ple, may by-pass immigration proceduresand obtain lawful permanent residency.Others may be present illegally but subse-quently qualify for Temporary ProtectedStatus as a result of a natural disaster or polit-ical upheaval in their home country. DavidA. Martin, legal scholar and deputy counselgeneral for the US Department ofHomeland Security, has used the term “twi-light status” to describe the circumstances ofa sizeable percentage of the undocumentedimmigrant population.15 These individualsmay be “illegal,” but they may be eligible toregularize their status through family rela-tions or employment. Others may qualify forvisas created for victims of certain crimes.16

Immigrants who enter the country illegallybut who are victims of trafficking, as well aschildren who enter with their parents, mayconstitute a group who lack agency in thematter of their unlawful presence in theUnited States and thus may find pathways tolawful permanent residence.17 Still others,despite their illegal presence, may be granteddiscretionary relief and allowed to remainlawfully in the United States based on thelength of residence, coupled with the hard-ship their removal would cause to their UScitizen spouse or child. Many immigrants are“unlawful aliens” at a given moment, but yethave legal claims by which they may adjusttheir status to lawful presence.

These circumstances suggest the need forcareful consideration when determiningwhat rights may be afforded to “illegalaliens.” Illegal presence is not a permanentcondition, and may indeed be a transitorycircumstance, a factor considered by the USSupreme Court in Plyer. The Court settledthe issue that “illegal alien” children had theright to public education, in part, as a matterof contingency, that is, that “illegal alien”children might in fact remain in the UnitedStates without being subject to deporta-tion.18 The Court noted too that undocu-mented status is not “an absolutelyimmutable characteristic,”19 and that manyof the children were potentially “docu-mentable,”20 warning of the dire conse-quences of efforts to abridge their rights onthe basis of their illegal presence:

The situation raises the specter of a per-manent caste of undocumented residentaliens encouraged by some to remain here


22 FALL 2012

as a source of cheap labor, but neverthe-less denied the benefits that our societymakes available to citizens and lawful res-idents. The existence of such an under-class presents most difficult problems fora Nation that prides itself on adherence toprinciples of equality under law.21

State and local law enforcement—no lessthan judicial officials and attorneys who donot practice immigration law—often lackfamiliarity with the nuances of immigrationstatus. These circumstances suggest the needfor heightened vigilance in protecting therights of all persons, regardless of an individ-ual’s actual or perceived immigration statusto access the judicial system.

B. Sources of the Right of UnlawfullyPresent Immigrants to Access theCourts

For unauthorized immigrants who havenot yet—or cannot—avail themselves of aparticular pathway to lawful presence, the USConstitution nonetheless guarantees the rightof access to the courts that cannot be deniedon the basis of one’s unlawful presence. TheFifth and Fourteenth Amendments bestowdue process and equal protection rights upon“persons,” not “citizens.”22

Federal statutory provisions similarly pro-vide rights to access to the courts by undocu-mented immigrants. The Civil Rights Act of1866 established that “[a]ll persons within thejurisdiction of the United States shall have thesame right … to make and enforce contracts,to sue, be parties, give evidence, and to the fulland equal benefit of all laws and proceedings….”23 The Supreme Court has declared thatthese protections apply to all persons, includ-ing unlawfully present foreigners. In Yick Wov. Hopkins, the Court declared that the protec-tions offered by the Fourteenth Amendmentapplied to every person within the territorialjurisdiction of the United States.24 The Courtreaffirmed this principle in Plyler v. Doe, not-ing that “[a]liens, even aliens whose presencein this country is unlawful, have long beenrecognized as ‘persons’ guaranteed due processof law by the Fifth and FourteenthAmendments.”25 Additionally, internationallegal norms and treaties, including the UNDeclaration on Human Rights and theInternational Covenant on Civil and PoliticalRights, bind the United States to provide aneffective legal remedy for claims of rights vio-lations to everyone within its jurisdiction.26

Federal courts have applied these principles of

access and have determined that an immi-grant’s undocumented status is irrelevant to avariety of matters including, for example,claims under the Fair Labor Standards Act,workers’ compensation statutes, torts actions,and suits for employment discrimination.27

State courts across the country have uni-formly recognized that unauthorized immi-grants have the right of access to state judicialsystems. Although it does not appear that anyNorth Carolina court has yet directly con-fronted the question of whether unlawfullypresent immigrants have the right to accessthe courts generally, our courts have upheldtheir rights to sue with regard to the particularsubject matter at hand. For example, in Ruizv. Belk Masonry Co., Inc. the court of appealsupheld the right of an immigrant to seekworkers’ compensation.28 The court ofappeals also rejected an employer’s claim thatan injured worker’s illegal status constituted aconstructive refusal to perform vocationalrehabilitation and refused to allow theemployer to terminate benefits on suchgrounds.29 Additionally, the court of appealsupheld a trial court’s refusal to admit evidenceof the purported illegal status of one of the vic-tims, deeming it irrelevant.30

It should be noted that due process andequal protection guarantees, and the right tothe “full and equal benefit of all laws and pro-ceedings” do not mean, however, that unlaw-fully-present immigrants whose rights havebeen violated are always entitled to the sameremedies available to US citizens. For exam-ple, the US Supreme Court ruled in HoffmanPlastics Compound, Inc. v. NLRB that unau-thorized immigrants whose rights under theNational Labor Relations Act have been vio-lated are nonetheless not entitled to receiveback pay.31 Efforts to extend the Court’s rul-ing in Hoffman to other claims by illegalimmigrants, however, have largely failed.32

III. Obstacles and BarriersThe implementation of the right of access

by undocumented immigrants to federal andstate courts has been hindered by factorsrelated to fear and animosity, a lack of clarityof lawyers’ ethical responsibilities under theRules of Professional Conduct, and insuffi-cient allocation of resources to the judicialsystem generally.

A. Fear and AnimosityImmigrants without authorization of res-

idence often face significant barriers to the

exercise of their legal rights. They typicallylack sufficient knowledge about their legalprotections and how to obtain access to thelegal system. They are most likely to refrainfrom exercising their legal rights out of fearof retaliation from the persons or institutionsagainst whom they seek legal remedy. Anti-immigrant sentiment has further con-tributed to the apprehensions among undoc-umented immigrants who fear—often cor-rectly—that by seeking legal recourse, theyrisk deportation to even worse conditions ofpoverty, violence, and persecution. Manyundocumented workers who are victims ofwage theft fail to take legal action due tothreats by their employers to call immigra-tion should they seek to recover wagesowed.33 Immigrants who live in uninhabit-able conditions forego requests for repair forfear of retaliation from landlords. Unlawfulimmigrants often fail to report crimes, fearfulthat communication with law enforcementauthorities places them in jeopardy of depor-tation, thus compromising public safety forcitizens and non-citizens alike.34 Mostnotably, undocumented immigrant victimsof domestic violence in need of police pro-tection are disinclined to expose their immi-gration status by contacting law enforce-ment, particularly if they are dependent onthe abuser for their lawful residency.Congressman David Price expressed his con-cern that “rumors ripple through the immi-grant community that reporting a crime suchas domestic violence results in the personreporting the crime or the victim ‘wouldthemselves then face deportation or somedire consequence.’”35 These victims thus feelcompelled to remain in dangerous relation-ships.

These circumstances are further compli-cated by a general political anti-immigrantenvironment. As a region, the South—including North Carolina—has exhibitedstronger anti-immigration sentiment andnativist hostility than other regions in thecountry.36 A poll conducted by theUniversity of North Carolina at Chapel HillSchool of Journalism found that approxi-mately two-thirds of those NorthCarolinians interviewed indicated theywould not welcome Latinos into their neigh-borhoods.37 One study determined thatmany North Carolina communities havebecome increasingly less hospitable towardtheir new Latino immigrant neighbors.38

This ambience also contributes to the reluc-

tance of undocumented immigrants to pur-sue legal protections.

B. North Carolina Lawyers’ EthicalResponsibilities to UndocumentedImmigrants

Lawyers may wittingly or unwittinglycontribute to the barriers that undocument-ed immigrants face when they need toaddress legal grievances in the courts.Anecdotal evidence suggests that undocu-mented witnesses and litigants have oftenfaced deportation threats as a result of pursu-ing their claims.39 Indeed, several storieshave surfaced indicating that at least one vic-tim of domestic violence was detained byImmigration Customs and Enforcement(ICE) at the conclusion of her protectionorder hearing in North Carolina, causingspeculation that her efforts to obtain legalrelief resulted in retaliatory actions by theopposing party.40 These events demonstratethe need for lawyers to refrain from engagingin conduct that hinders undocumentedimmigrants from asserting their rights, toconform their conduct to their ethical obli-gations, and to insist that their clients simi-larly refrain from undermining the rights ofothers.

Two North Carolina State Bar formalethics opinions directly address a lawyer’sobligations with regard to the threat of, oractual disclosure of, a litigant’s unauthorizedstatus. The first opinion, issued in 2005, pro-hibits lawyers from using the threat ofreporting an opposing party or a witness toimmigration officials in settlement negotia-tions on behalf of a client in a civil matter.41

The ethics committee opined that “the threatto expose a party's undocumented immigra-tion status serves no other purpose than togain leverage in the settlement negotiationsfor a civil dispute and furthers no legitimateinterest of our adjudicative system.” The sec-ond opinion in 2009 regulates the behaviorof lawyers who discover that a litigant or wit-ness to the proceedings is undocumented.This opinion prohibits lawyers from inform-ing ICE of the person’s unlawful status,unless federal or state law otherwiserequires.42 The Ethics Committee noted thatthe prohibition applies to individuals whoare not parties to the litigation, citing Rule8.4 (d) of the Rules of Professional Conduct,which forbids lawyers from using “meansthat have no substantial purpose other thanto embarrass, delay, or burden a third per-

son.”43 The committee additionally notedthat “paragraph (d) should be read broadly toproscribe a wide variety of conduct, includ-ing conduct that occurs outside the scope ofjudicial proceedings.”44

Lawyers familiar with these opinions andthe rationale upon which they are based canavoid any actions that contribute to the fearand intimidation experienced by undocu-mented litigants. They should counsel clientsabout the impropriety of using the threat ofdeportation to gain leverage in any type oflawsuit and should take all necessary steps toavoid complicity with such tactics whichserve to undermine justice and the legal sys-tem.45

In addition to professional ethics thatproscribe the reporting of undocumentedimmigrants, the Rules of ProfessionalConduct provides additional guidance aboutwhether—and under what circumstances—the immigration status of a party or witnesscan be disclosed.46 Compliance with theserules serves to minimize the possibility thatimmigrants will forgo their right to seek rem-edy for grievances while assuring that litiga-tion proceeds according to the Rules of CivilProcedure. For example, lawyers who repre-sent undocumented workers must decidewhether they are obliged to disclose, upondiscovery demand, a client’s immigration sta-tus, a decision that is based first on whethersuch information is relevant to the litigation,and if so, whether privilege mandates againstdisclosure.47 Lawyers who understand theseethical concepts should, where possible, tai-lor their claims on behalf of undocumentedimmigrants in ways that render immigrationstatus irrelevant.48 If immigration status isnot relevant to the proceedings, lawyers maywithhold such information where rules ofconfidentiality mandate against disclosure.49

Perhaps most importantly, Rule 4.4(a) ofthe Rules of Professional Conduct states that“[i]n representing a client, a lawyer shall notuse means that have no substantial purposeother than to embarrass, delay, or burden athird person, or use methods of obtainingevidence that violate the legal rights of such aperson.”50 Rule 8.4(d) prohibits lawyersfrom “engage[ing] in conduct prejudicial tothe administration of justice.” The com-ments to this rule provide that actual preju-dice is not required, rather that the act that “areasonable likelihood of prejudicing theadministration of justice.”51 Lawyers shouldlimit the circumstances where they seek to

discover a litigant’s immigration status toassure it is done for purposes relevant to thelitigation, and to otherwise promote access tothe legal system for unauthorized immi-grants as they would any litigant seeking toresolve disputes.52

C. Insufficient Allocation of Resourcesto the Judiciary: The Need forCertified Interpreters in All NorthCarolina Proceedings

The efficacy with which the legal needs ofundocumented immigrants are met are oftenfurther complicated by language barriers.English is the national language and serves asthe foundation of all political processes andgovernmental functions, including thecourts. Census data indicates that 8% ofNorth Carolinians speak a language otherthan English in their homes, with the mostcommon foreign language being Spanish.53

For immigrants lacking English languageproficiency, access to English is a necessaryprelude to access to the courts. NorthCarolina presently lacks a state statutory oradministrative guarantee to a competent for-eign-language court interpreter.54 Moreover,foreign interpreters are not provided in allcourt proceedings. Courts often improviseand rely on whoever is available, includingfamily members or unknown persons whohappen to be present, to interpret.55 As aresult, limited English-proficient (LEP) liti-gants are often denied meaningful access tothe courts.56

In criminal matters, the right to a foreignlanguage interpreter is found in the USConstitution pursuant to the Fifth andFourteenth Amendment Due ProcessClauses, as well as the Sixth Amendmentright to confront and cross-examine witness-es and to have effective assistance ofcounsel.57 The Federal Court Interpreter Actrequires the use of interpreters in criminaland civil actions filed by the United States infederal district courts when a party's abilityto comprehend proceedings or otherwisecommunicate with counsel is inhibited.58

The Act also requires the courts to use a cer-tified interpreter unless one is not reasonablyavailable, in which case the non-certifiedinterpreter is required, at a minimum, to becompetent.59

Title VI of the Civil Rights Act of 1964 isthe most comprehensive federal statute thatcreates the right to an interpreter in all legalproceedings, both civil and criminal.60 As


24 FALL 2012

determined by the Civil Rights Division ofthe Department of Justice charged with over-seeing compliance with Title VI, such pro-ceedings include:

child custody hearings; child supporthearings, civil no-contact order 50C pro-ceedings, foreclosures, and divorce pro-ceedings; all small claims court matters,which can include wage disputes and evic-tion proceedings; non-indigent defen-dants for criminal and traffic matters,non-indigent respondents in domesticviolence 50B proceedings and involuntarycommitment proceedings, and non-indi-gent parents in juvenile proceedings; andpost-judgment services centers where adefendant’s sentence is coordinated andmonitored. (Footnotes omitted.)61

In March 2012, the US Department ofJustice (US DOJ) found that the NorthCarolina Administrative Office of the Courts(AOC) failed to provide Latino and othernational origin minority LEP individualswith “meaningful access to court proceedingsand operations” and thus failed to complywith Title VI and implementing regulations,as well as related contractual agreements.62

In addition to finding that the AOC failed toprovide interpreters at no cost to litigants inall legal proceedings, the US DOJ deter-mined that the AOC “fail[ed] to meet itsown standards even in the limited circum-stances where free interpreters are author-ized.”63 The US DOJ stated that “[b]udgetconstraints do not excuse the AOC’s failureto provide LEP individuals with meaningfulaccess to court operations;” moreover, itnoted that “the amount of funding that theAOC itself has estimated would be necessaryto provide fuller interpreter coverage is rela-tively small.”64

The US DOJ and the AOC are currentlyworking towards a compliance agreement.Systemic problems within the NorthCarolina foreign language court interpreta-tion system are readily capable of beingaddressed. Attorneys and judicial officersalike must become familiar with the legal,ethnical, and practical issues relevant to work-ing with interpreters. Without such efforts,whether or not newcomers to North Carolinahave legal status will be a secondary consider-ation to the larger question of meaningfulaccess and due process protections for all.

ConclusionThe presence of unauthorized immi-

grants in North Carolina and the currentdebate about immigration policies evokediverse and often divisive responses amongmembers of the legal profession. However,on the matter of the need to protect therights of undocumented immigrants entitledto access to the courts, the law is clear.Lawyers most assuredly share a commitmentto fundamental civil and human rights to allpersons. Justice requires acknowledgementof the risk of denying individuals of theprocesses and substance of the rule of law,and that without guaranteeing access to thecourts for all, “an unpalatable social and legalhierarchy” will be established.65

Undocumented individuals are persons enti-tled to fundamental legal protections andrights within the meaning of the US andNorth Carolina Constitutions. There are nodisadvantages to offering affirmative protec-tion of the rights of these individuals whilerefraining from practices and behaviors thatserve to chill the exercise of such rights.Anything less risks creating effective impunityfor those who would prey on a vulnerablepopulation and would have pernicious impli-cations for the judicial system at large. �

Deborah M. Weissman is a Reef C. Ivey IIDistinguished Professor of Law at theUniversity of North Carolina School of Law.

Endnotes1. Emma Lazarus, The New Colossus (1883), engraved on

a plaque and mounted at the pedestal of the Statue ofLiberty.

2. Julia Preston, Births Outpace Immigration for Mexican-Americans Report Says, NY Times, July 15, 2011, at 15.

3. This article uses the term “unauthorized” or “undocu-mented” to refer to persons in the United States wholack legal status. The statutory term used to refer tothese persons is “illegal alien.” As Elie Wiesel,Holocaust survivor and Nobel Peace Prize winner stat-ed, “You who are so-called illegal aliens must know thatno human being is ‘illegal.’ That is a contradiction interms. Human beings can be beautiful or more beauti-ful, they can be fat or skinny, they can be right orwrong, but illegal? How can a human being be illegal?”Elie Wiesel, The Refugee, 10 in Sanctuary: A ResourceGuide for Understanding and Participating in the CentralAmerican Refugees' Struggle (Gary MacEoin ed., 1985).

4. 457 US 202, 219 n. 18 (1982).

5. UNC School of Law Immigration/Human RightsPolicy Clinic, Picking Empty Pockets (May 2012) (onfile with author).

6. Tom O’Connor, Tobi Lippin, and Peter Kostin, NorthCarolina: Dying for Job, A Report on North CarolinaWorker Fatalities in 2011, coshnetwork.org/north-car-olina-workers-dying-job. Joseph G. Grzywacz, et al.,Occupational Injury and Work Organization amongImmigrant Latino Residential Construction Workers, 10Am. J. Ind. Med., Jan. 2102. onlinelibrary.wiley.

com.libproxy.lib.unc.edu/doi/10.1002/ajim.22014/pdf,Joanne Scharer, How Well is it Working?, News &Observer (Raleigh, NC), Aug. 15, 1999, at 21A.

7. Eric Rodriquez, Assessing the Damage of Predatory Lendingby Countrywide: The Fallout for Latino Families, Testimony,Examining Lending Discrimination Practices andForeclosure Abuses Submitted to United State SenateCommittee on the Judiciary, March 7, 2012, judiciary.sen-ate.gov/pdf/12-3-7RodriguezTestimony.pdf.

8. See Anita R. Brown-Graham, Housing Discriminationagainst Hispanics in Private Rental Markets, PopularGov't, Fall 1999, at 45, 46.

9. Mai Thi Nguyen & Hannah Gill, The 287(g) Program:The Costs and Consequences of Local ImmigrationEnforcement in North Carolina Communities, Feb.2010, isa.unc.edu/migration/resources.asp. The Policiesand Politics of Local Immigration Enforcement Laws:287(g) Program in North Carolina, Immigration &Human Rights Policy Clinic at UNC Chapel Hill andthe ACLU-NC, February 2009, law.unc.edu/docu-ments/clinicalprograms/287gpolicyreview.pdf.

10. See Jen Góez, Latinos Voice Bail Concerns to Prosecutor,News & Observer (Raleigh, NC), Apr. 28, 2000, at 3B.

11. The United States Constitution provides that “[n]ostate shall...deny to any person within its jurisdictionthe equal protection of the laws.” US Const. Amend.XIV,§1. Similarly, the North Carolina Constitutionstates that “[n]o person shall be denied the equal pro-tection of the laws.” NC Const. Art. I, § 19. Morespecifically, the North Carolina Constitution providesthat “[a]ll courts shall be open; every person for aninjury done him in his lands, goods, person, or reputa-tion shall have remedy by due course of law; and rightand justice shall be administered without favor, denial,or delay.” NC Const. Art. I, §18.

12. See Christine Cimini, Ask, Don't Tell: Ethical IssuesSurrounding Undocumented Workers' Status inEmployment Litigation, 61 Stan. L. Rev. 355, 375 (2008).

13. For an overview of the fluid nature of the status of“illegal aliens” see Hiroshi Motomura, ImmigrationOutside the Law, 108 Colum. L. Rev. 2037 (2008). Seealso Michael R. Curran, Flickering Lamp Beside theGolden Door: Immigration, the Constitution, &Undocumented Aliens in the 1990s, 30 Case W. Res. J.Int’l L. 57, 101 (1998).

14. Cuban Refugee Act of 1966, Pub. L. No. 89-732, 80Stat. 1161 (codified as amended at 8 USC §1255n(2006)) (“The Act”). The Act was amended by theImmigration and Nationality Act Amendments of1976. Pub. L. No. 94-571, §9, 90 Stat. 2703, 2707(codified as amended at 8 USC §1153 (2006)).

15. David A. Martin, Twilight Statuses: A Closer Look atthe Unauthorized Population (2005), migrationpolicy.org/pubs/MPI_PB_6.05.pdf.

16. Immigration and Naturalization Act § 101(a)(15)(U),8 USC § 1101(a)(15)(U).

17. See Trafficking Victims Protection Act (creation of Tvisas for victims of trafficking). For information on theproposed Dream Act, which would allow undocument-ed immigrant youth to seek lawful permanent status,see White House Fact Sheet, The Dream Act: Good forOur Economy, Good for Our Security, Good for OurNation, whitehouse.gov/sites/default/files/DREAM-Act-WhiteHouse-FactSheet.pdf.

18. Plyer v. Doe, 457 US at 218-219. See Motomora, supranote 13, at 2047-2049.

C O N T I N U E D O N P A G E 3 2

26 FALL 2012

Unfortunately, Ms. Parker’s problem isnot unique. Throughout North Carolinathere are moderate and low-income peoplewho cannot afford private attorneys to helpthem navigate their legal problems, especial-ly during economic downturns. Many livein rural communities, while others live inurban areas but lack the resources of homecomputers, internet, and broadband con-nections to access the benefits of their com-munity. Desperate and un-informed, theyoften fall prey to scam agencies that purportto help them. Like Ms. Parker, they eithercan’t afford a private attorney or don’t realizethat legal information and assistance canhelp them resolve many of their problems.

Access to Justice: The TALIASSolutionTechnology Assisted Legal Instruction and Services

B Y P A M E L A S . G L E A N

“It wasn’t long after I was appointed as senior counselor for Access to Justice that I realized how central a role technology would have to play in anyeffort to close the justice gap faced by poor and working class people—including those who reside in rural communities and on Indian reservations.”—Laurence Tribe, former senior counselor for Access to Justice, United States Department of Justice at the National Telecommunication and InformationAdministration Announcement of NCCU School of Law as a broadband grant recipient.1

In March 2011, Jane Parker, a resident of

Fayetteville, North Carolina, awoke with the grim

prospect of losing her home in the next few

weeks.2 She could not convince the mortgage

holder that she was up to date on her mortgage payments, and

foreclosure seemed imminent. She had sought help from vari-

ous private attorneys and agencies, but all of them charged fees that had to be paid in advance. A

woman of modest income, Ms. Parker had no money to pay for legal assistance. She saw a public

service announcement about a foreclosure assistance workshop at Fayetteville State University and

decided to attend. She knew that the workshop would be held by videoconference, but she was

doubtful whether it would help her communicate effectively enough to really help her.

Nevertheless, Jane was running out of options. This workshop was free. What did she have to lose?

The crisis in access to civil legal justicehas been well documented throughout theUnited States. Locally, many leaders in thelegal academy have used various platformsto document the growing need in NorthCarolina for private attorneys to assist mod-est and low-income individuals.

Poverty has always been the catalyst forthe demand for free legal assistance, andduring economic downturns more peoplefind themselves in poverty. Of the 10 mil-lion people who reside in North Carolina,17.25% have incomes that put them at orbelow the poverty level.3 Forty of the 100counties in our state are considered econom-ically distressed, and 67 counties are consid-ered rural.4 According to The ProgressivePulse, poverty has disproportionatelyimpacted certain geographic communitiesin the state. The poverty rate in urban coun-ties is 19.1%, 3.7% higher than the ruralpoverty rate of 15.4%. Yet, the more ruralcounties in the state have some of the high-est poverty rates.5 Poverty impacts minoritypopulations at disproportionate rates. Theeconomic situation for minorities was farfrom stable even before the recession hit in

2007.6 In 2010, the Center for AmericanProgress reported that Blacks and Hispanicshad higher unemployment, lower householdincome and wages, and higher poverty ratesacross America.7 According to the mostrecent census, North Carolina’s minoritypopulation is approximately 31.5%, 21.5%of whom are black.8

These demographics set the scene formany social issues including access to jus-tice. Minority populations, those who live inpoverty, and those who live in remote areasdisproportionately suffer from the conse-quences of economic and other crises thatplague our country from time to time. Thesecommunities face the continuing challengesof privation, inequality, indignity, and inad-equate development and opportunity.9

Access to legal information and legal servicesallows individuals to combat the personaland systemic consequences of their condi-tion.

The solution to improving access to civillegal justice is more complex than expand-ing the pool of pro bono attorneys, however.Harvard Law Professor Laurence Tribe, thefirst senior counselor for Access to Justice in

the United States Department of Justice,defines access to justice “not in a narrow ortechnical sense that focuses simply onlawyers and courts, but in a broad sense thatlooks at how well people can achieve fairoutcomes in matters that are of majorimportance to the way they live.”10

How do we reach the disenfranchisedpeople in our communities? The UnitedStates Department of CommerceBroadband Technology OpportunityProgram is guided by the theory that broad-band provides a wide range of resources thatenhance the lives of individuals like JaneParker. “Broadband can be the great enablerthat restores America's economic well-beingand opens doors of opportunity for allAmericans to pass through, no matter whothey are, where they live, or the particularcircumstances of their individual lives.”11

Broadband is expensive, however, and it isnot a coincidence that many of the samecommunities and individuals who lackaccess to justice also lack access to the inter-net, especially broadband.

With this backdrop, it made perfectsense that in 2010 the North Carolina


Central University (NCCU) School ofLaw—a historically black university(HBCU) and a national leader in clinicallegal education and technology—applied fora grant to expand broadband technology toseveral HBCUs and Legal Aid of NorthCarolina offices across the state. The previousyear, The American Recovery andReinvestment Act allocated $7.2 billion tothe Department of Agriculture’s RuralUtilities Service (RUS) and the Departmentof Commerce’s National Telecommunic-ations Information Administration (NTIA)to fund the Broadband TechnologyOpportunity Project (BTOP). The long-term goal of the BTOP was to begin tobridge the digital divide, thereby improvingaccess to education and healthcare services,and to boost economic development forcommunities held back by limited or noaccess to broadband.12 NCCU’s grant pro-posal, led by Greg Clinton, director of infor-mation technology at NCCU Law, expand-ed the goal. Inspired by the mission ofNCCU School of Law to produce sociallyresponsible attorneys, our vision was to uti-lize technology to improve the efficiency ofpro bono legal services for the legally under-served residents of North Carolina byexpanding the reach of the legal clinic. Wedecided to place video-conferencing tech-nology in institutions that serve the commu-nities and individuals who could not accessbroadband internet and the critical informa-tion that could improve their lives. Ourbroader vision was to use technology toincrease the representation of ethnic andeconomic minorities in the legal professionby offering courses that prepare students forthe study of law.

The successful grant proposal culminat-ed on September 16, 2010, when we wereamong the very few grant recipients invitedto Washington, DC, for the announcementof our grant by Laurence Strickling, assistantsecretary for communication and informa-tion, United States Department ofCommerce, and Laurence Tribe, then seniorcounselor for Access to Justice for theUnited States Department of Justice.13 Bothspeakers acknowledged the inability of ournation to meet the demand for civil access tojustice for low-income individuals, and inti-mated that our project would become amodel for the nation as it continues toaddress this issue—a daunting prediction.

Upon our return, we began the TALIAS

project and built a high definition video-conference telepresence room at NCCUSchool of Law and smaller versions of theroom at four other North Carolina HBCUs:Elizabeth City State University, FayettevilleState University, North Carolina A&T StateUniversity, and Winston-Salem StateUniversity. We also provided portable highdefinition video-conferencing equipment tothe 16 Legal Aid of North Carolina officesacross the state that survived the crippling2010 budget cuts, three Pisgah LegalServices offices, and two mediation centersin Durham and Orange county.Geographically, the TALIAS network wasdesigned to reach across North Carolinafrom far east Elizabeth City to far west Sylva,North Carolina.

From Vision to RealityWhen you walk into the telepresence

room at NCCU School of Law you maythink that you have entered another dimen-sion. The room is impressive. An RPXvideo-conference room designed byPolycom, Inc., it is equipped with high def-inition cameras, four large viewing screens,and high definition microphone and speak-ers, all of which provide an almost real pres-ence experience for those who use it. Thepartner universities have smaller versions ofthe room on their campuses and areequipped with document cameras thatallow users to share documents in real time.The video-conferencing facilitated by thisequipment is not basic Skype or FaceTime.TALIAS utilizes a secure internet connec-tion with software that protects the confi-dentiality of those who utilize it. The highquality of audio and video allows users tohear the nuances in the speaker’s voice andclearly see the subtle body language madeduring the conversation; a critical active-lis-tening technique that supports a clearunderstanding between the attorney andthe client.14 Nearly every user has com-mented that the system is user-friendly andeasy to adjust to.

More impressive than the room itself ishow it is being used. On the afternoon inMarch 2011, Jane Parker walked into thetelepresence room at Fayetteville StateUniversity and took her seat. She wasamazed that she could clearly see and hearattorney Timothy Peterkin, who was 88miles and over an hour away in a similarroom at North Carolina Central University

School of Law. She adjusted quickly to thetechnology around her and focused on thereason she was there. Attorney Peterkinspoke with Ms. Parker, answered all of herquestions, and gave her the information sheneeded to advocate for herself at the upcom-ing hearing. Over one year later, Parker stillowns her home as she waits for the mortgageholder to comply with her request forrecords that Peterkin coached her through.

Since that day in March, the TALIASproject has facilitated individual consulta-tions and community education programson other topics including unemploymentrights and remedies, domestic violence,child custody and support, landlord andtenant, and immigration. The NCCU EagleEmpowerment Series sponsored by theOffice of Student Affairs has broadcastedprograms to fellow students at all the partneruniversity sites on the criminal justice sys-tem, credit and money management, entre-preneurship, and social networking. OneEagle Empowerment Program reached 321people. Overall, TALIAS programs and serv-ices have reached 1,032 people across thestate in just 15 months. In addition to work-shops, clinic attorneys have utilized the sys-tem to consult with clients who otherwisemay not have been able to receive assistance.

Legal Aid-NC and Pisgah Legal Servicesoffices hold virtual statewide office meetingsand save valuable time and critical fundsthat would otherwise be used toward travel.In celebration of the American BarAssociation’s Pro Bono Week in October2011, TALIAS and Legal Aid sponsored acontinuing legal education program on re-entry for 171 staff and volunteer attorneyswho participated from NCCU School ofLaw and 15 Legal Aid locations across thestate.

The Future: Access to LegalInformation, Representation, andJustice

Technology provides the infrastructure toreach the underserved population in NorthCarolina, but the success of TALIAS is builton the foundation of an enduring relation-ship between NCCU’s Legal Clinic andLegal Aid of North Carolina-Durham. Thisrelationship expanded as we installed thevideo-conferencing systems across the state.A team from NCCU visited every Legal Aidoffice in the state and spoke with staff mem-bers about not only how to use the technol-

28 FALL 2012


ogy, but also why we use it. We spoke of ourshared objective to meet the consistentlygrowing demand from low-income peoplefor free legal services, and the shared frustra-tion when we fail to meet that objective. Weall agreed that one of the most obviousresults of this failure has been the increasingnumber of pro se litigants in our court sys-tem, especially in civil and family matters.

Before TALIAS, NCCU and Legal Aidof North Carolina developed communityeducation programs to prepare these pro selitigants for court. In response to the over-whelming demand for representation inchild custody matters, NCCU School ofLaw’s Family Law Clinic began to hold FileIt Yourself child custody workshops to pro-vide the information and forms required toaccess the court, and more importantly, thecourt-annexed custody mediator. Thesemonthly workshops attracted as many as 30people per session in Durham Countyalone, and the concept of community edu-cation and pro se support began to grow.Legal Aid offices also hold communityworkshops on divorce and tenant rights,often using volunteer attorneys who see this

forum as a convenient alternative to individ-ual pro se representation.

Now, TALIAS is the mechanism thatmakes legal information and assistance moreefficient. Community education programslike those described above can be conductedby one attorney at one location, and broad-cast to each of the 27 partner locationssimultaneously, reaching more people moreoften. Individual representation in legal spe-cialty areas such as tax can be provided toindividuals without geographical restriction.For example, any eligible person can go tothe nearest TALIAS location and receiveservices from one of only three low-incometaxpayer clinics in the state.

Another contributing factor to the issueof access to justice is that many low-incomeindividuals require advocacy in areas that arenot provided by Legal Aid-NC, LegalServices, or law school clinics.Consequently, one of the most excitingresults achieved through TALIAS is thenumber of attorneys who have volunteeredto consult with individuals or conduct com-munity workshops in their area of specialty.TALIAS recently sponsored four sessions on

immigration, all conducted by volunteerattorneys from various locations in the stateand broadcast to participants at TALIASsites. TALIAS facilitates a future with morepro bono representation because the technol-ogy reduces the time and cost required forthe attorney and client to meet in person,eliminating a common barrier to pro bonoservices. The software that bridges the video-conference call can be temporarily installedin a personal computer with high speedbroadband connection and allow a privateattorney in Warrenton to hold a conferencewith a client in Asheville!

These are just a few examples of the pos-sibilities that TALIAS brings to the under-served residents of our state. While our grantwill end this year, our advocacy will not. Weare determined to continue to build a net-work of organizations, attorneys, and indi-viduals who will help us realize more possi-bilities for an efficient and effective deliveryof legal information and services; possibili-ties for reaching many of those who havepreviously been socially, economically, and


30 FALL 2012

While students should be free to choosethe law as a profession and the school of theirchoice, they should be able to make aninformed decision. Thus, the bar should sup-port efforts to require more accurate report-ing by law schools, including the new accred-itation standard preliminary approved by theAmerican Bar Association’s (ABA’s) Councilof the Section of Legal Education andAdmission to the Bar (“Council”).

While it is common knowledge that lawschool is expensive, the financial statisticswhich support this perception are sobering.According to US News & World Report, theaverage 2010 law school graduate had

$98,055 in law school debt.1 Assuming ablended interest rate of 7.3%, a law schoolgraduate with this average debt load canexpect to pay $1,158.96 per month over 10years, or $715.14 per month over 25 years.2

These figures may be especially shocking tomore senior members of the bar since theaverage 1987 law school graduate only car-ried $31,577 in law school debt, after adjust-ing for inflation.3

In most cases, new lawyers will notreceive a comfortable six-figure income inexchange for their six-figure debt burden.Specifically, the National Association for LawPlacement (NALP) reports that the national

median salary for the Class of 2010 was$63,000 and the national mean was$84,111.4 Furthermore, NALP’s survey ofthe Class of 2010 indicates that the medianstarting salary for new law school graduatesdropped 13% and the mean salary fell 10%.5

Within the Class of 2010, only 64% wereemployed in a full-time job requiring barpassage, and nearly 1 in 5 jobs (excludingclerkships) were reported as temporary.6

Even those in the Class of 2010 who landedlaw firm jobs earned starting salaries thatwere 20% less than in 2009.7 These prob-lems will not quickly go away since roughly45,000 students are expected to graduate

Would you invest over $100,000 in a

company that did not give you infor-

mation to calculate a projected rate of

return? What if you invested

$100,000 in a company that gave you misleading information? Recently, law students have

been making six-figure investments in laws schools either without good information about

their employment prospects or with hopes falsely inflated by misleading information. This is

not fair and should not be tolerated by a profession that demands honesty and accountability

from its members.

Full Disclosure to Investors inLegal Education

B Y S T U A R T R U S S E L L

Bruno Budrovic/Illustration Source

from law schools in the next three years.8

In addition to the problems of a bleak jobmarket, when the total cost of a legal educa-tion is compared to the average startingsalary of a new lawyer fortunate enough tobe working, most law students pay toomuch for their education. In a thorougheconomic analysis, Dean Jim Chen of theUniversity of Louisville Brandeis School ofLaw used mortgage eligibility standards toevaluate law school affordability.9

Ultimately, Dean Chen created a table(located below), which linked first yearsalaries of good, adequate, and marginal via-bility with annual law school tuition.

Based on these figures, a 2010 law schoolgraduate who paid $32,000 in annual tuitionand earned the median or mean startingsalary for his class did not make an econom-ically viable investment. While the top tier oflaw school graduates will receive a goodreturn on their law school investment, lawschool remains a poor economic choice forfar too many students. As the job marketcontinues to falter, this reality may worsen.

While the invisible hand of market forcesmay eventually restore the financial viabilityof a JD, for now, law school tuition contin-ues to increase and the number of law schoolapplicants continues to surpass availableseats. In 2011, 87,900 candidates soughtonly 60,000 seats at ABA-approved lawschools.10 Furthermore, approximately43,000 JDs were awarded in 2009, which is11% more than a decade earlier.11

Although there are many reasons that stu-dents continue to overpay for a legal educa-tion, it appears that laws schools have con-tributed to this problem by not accuratelydisclosing the employment prospects of theirgraduates. In 1996, the ABA Section ofLegal Education adopted interpretation 509-1 to ABA Standard 509 (“Standard 509”),which prescribed job placement rates andbar passage data to be published by everyaccredited law school.12 Although intended

to give law students an accurate picture ofthe legal profession, law schools have exploit-ed Standard 509 to focus more on theirranking than to provide accurate informa-tion to prospective students. For example,until recently, law schools could report that agraduate waiting tables within nine monthsof graduation was “employed.”13

Additionally, the ABA’s law school surveysare not audited, which creates a conflict ofinterest for schools concerned about howtheir survey reports will affect their rank-ing.14 Furthermore, the survey data gatheredby law schools are skewed because employedgraduates are far more likely to respond thanunemployed ones, who are excluded fromthe results.15 The failure of the ABA’s report-ing requirements has culminated in severalclass actions involving at least 15 law schoolsalleging misrepresentation of employmentoutcomes.16

Recently, the ABA has recommended thatlaw schools be required to follow more strin-gent reporting requirements. On March 17,2012, the Council gave its preliminaryapproval to revising Section 509 as proposedby a special standards review committee.17

The Council approved changes to Section509, which would require law schools to dis-close on their websites: admissions data,tuition rates and fees, enrollment data, facul-ty size, curricular offerings, library resourcesand facilities, employment data, and bar pas-sage rates.18 Under the changes, any schoolsalary figures must disclose the number ofgraduates who were included in their calcu-lation.19 Also, schools will be required toreport the number of graduates employed injobs that require bar passage, jobs in which aJD is preferred, professional and nonprofes-sional jobs, and the number of graduates pur-suing further education unemployed.20

However, the Council did not follow therecommendation of the standards reviewcommittee to require that schools report the25th, 50th, and 75th percentile salaries their

graduates earn.21 Advocates for law schoolssupport this outcome because they maintainthat it is difficult to get their graduates torespond to salary surveys.22 But if lawschools could only report salary figures basedon a minimum number of responses, thiswould reduce the chance of statistically inac-curate results.23 Also, if schools wererequired to report the percentage of gradu-ates who responded to their salary surveys,students could use the difference in responserates to determine which law schools hadgraduates that were most enthusiastic abouttheir employment after law school.24 Sincemany students have naively entered lawschool with false expectations about theirfuture earning potential, the Council’s rejec-tion of more detailed salary reportingrequirements overlooks a huge part of thelaw school reporting problem.

The Council will be holding a publiccomment period in the near future and againvote on the revised standard for Section509.25 Although the Council’s preliminaryapproval of the new accreditation standard isa step in the right direction, students deserveto have more disclosure on the salary statis-tics of the law schools they are considering.Indeed, if law schools are expected to teachlegal ethics, this profession cannot ignoretheir flawed marketing practices of the past.While the bar should not discourage youngstudents from pursuing a legal education, itis essential that it take a more active role inensuring that those students have access toaccurate and consistent employment infor-mation about law schools. There will alwaysbe those who pursue a legal career to fulfill alifelong dream or passion regardless of thefinancial outcome. But too many studentshave chosen to pursue law school after for-mulating unrealistic expectations of financialsuccess from misleading marketing material.Furthermore, despite the idealistic motiva-tions of some students, law school is aninvestment for most. Contributing to thepublic comments on the proposed revisionto Section 509 is the most immediate stepattorneys can take to make sure that ourfuture generation of lawyers makes aninformed decision about investing in theirfutures. �

Mr. Russell is a partner at Wilson Helms &Cartledge in Winston-Salem. He is a 2004graduate of Duke University School of Law andpractices civil litigation.


Dean Chen Table

Annual Tuition Salary needed Salary needed Salary needed for good viability for adequate viability for marginal viability

$16,000 $96,000 $48,000 $32,000$32,000 $192,000 $96,000 $64,000$48,000 $288,000 $144,000 $96,000

32 FALL 2012

Endnotes1. US News Spreadsheet (Class of 2009). See

l awschoo l t r an spa rency. com/wp-conten t /uploads/2011/04/Class-of-2009-US-News.xls.

2. direct.ed.gov/RepayCalc/dlentry1.html.

3. Law School Debt, abcny.org/pdf.report/lawSchoolDebt.pdf. The $31,577 figure is adjusted for 3% annu-al inflation.

4. NALP, Class of 2010 Graduates Saddled with FallingAverage Starting Salaries as Private Practice Jobs Erode.

5. Id.

6. Id.

7. Id.

8. David Seagal, For 2nd Year, a Sharp Drop in Law SchoolEntrance Tests, New York Times, March 19, 2012.

9. Jim Chen, A Degree of Practical Wisdom: The Ratio ofEducational Debt to Income as Basic Measurement of LawSchool Graduates’ Economic Viability, ssrn.com/abstract=1967266.

10. Law School Admissions Council.

11. Is Law School a Losing Game, David Seagal.

12. A Way Forward, pp. 6-7.

13. Is Law School a Losing Game, David Seagal.

14. Id.

15. Id.

14. Breaking: 12 More Law Schools Facing Class Actions,lawschooltransparency.com/category/deceptive-prac-

tices. As of the date of this article, one of those classactions was dismissed at the trial level but the plaintiffs’attorney plans on appealing the decision.

17 law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202546229913&slreturn=1.

18. Id.

19 Id.

20. Id.

21. Id.

22. Id.

23. Id.

24. Id.

25. Id.

Undocumented Immigrants(cont.)

19. Id. at 220.

20. Id. at 236 (Blackmun, J. concurring).

21. Id. at 202, 226.

22. “Nor shall any state deprive any person of life, liberty,or property without due process of law; nor deny to anyperson within its jurisdiction the equal protection ofthe laws.” US Const. Amend. XIV § 1.

23. 42 USCA §1981.

24. 118 US 356, 369 (1886). See also Wong Wing v.United States, 163 US 228, 238, (1896); Shaughnessy v.Mezei, 345 US 206, 212 (1953).

25. 457 US 202, 210 (1982).

26. UN Declaration….Articles 2(3), 14(1) of theInternational Covenant on Civil and Political Rights.See also Article 5 of the Convention on the Eliminationof Race Discrimination.

27. See generally Christine N. Cimini, UndocumentedWorkers and Concepts of Fault, 65 Vand. L. Rev. 389(2012).

28. 148 NC App. 675, 559 S.E. 2d 249 NC App., 2002.

29. Gayton v. Gage Carolina Metals, Inc. 149 NC App.346, 560 S.E.2d 870 NC App., 2002.

30. State v. Little, 182 NC App. 176, 641 S.E.2d 417 NCApp., 2007.

31. 535 US 137 (2002).

32. See Christopher David Ruiz Cameron, The Borders ofCollective Representation: Comparing the Rights ofUndocumented Workers to Organize under United Statesand International Labor Standards, 44 U.S.F. L. Rev.431, 449-450 n.90 (2009) (noting that state and fed-eral courts were not following Hoffman Plastics). KeithCunningham-Parmeter, Fear of Discovery: ImmigrantWorkers and the Fifth Amendment, 41 Cornell J. Int’l L.J. 27, 39, 40, nn. 80, 88(2008) (reviewing the types ofclaims that have been held not to be affected by the rul-ing in Hoffman including tort claims, medical malprac-tice, negligence, workers’ compensation claims, unpaidwage claims, and labor complaints in general).

33. See Picking Empty Pockets, supra note 4. See A Failureof Discretion, NY Times, June 8, 2012 at A26 (referenc-ing the “Southern 32,” and the impending deportationof “dozens of people who spoke out against abuses likedangerous working conditions, unlawful arrests,unpaid wages, racial profiling, and retaliation againstthose trying to organize”).

34. See The Policies and Politics of Local ImmigrationEnforcement Law, 287(g) Program in North Carolina,34 (Feb. 2009).

35. Stuart Powell, ICE Chief Welcomes UndocumentedImmigrants Who Report Domestic Violence, Mar. 8,2012, blog.chron.com/txpotomac/2012/03/ice-chief-welcomes-undocumented-immigrants-who-report-domestic-violence/.

36. Krista M. Perreira, Mexican Families in NorthCarolina, 51 Southeastern Geographer 260, 276(2011).

37. See James H. Johnson Jr. et al., A Profile of HispanicNewcomers to North Carolina, 9 Popular Gov't, Fall1999.

38. Jeff Popke, Latino Migration and Neoliberalism in theUS South, 51 Southeastern Geographer 242, 245(2011).

39. On several occasions, victims of domestic violencehave been apprehended after seeking police protectionand/or pursuing a domestic violence protection order.See Southern Poverty Law Center, Sexual Abuse,Discrimination, April 2009, splcenter.org/publica-tions/under-siege-life-low-income-latinos-south/4-sex-ual-abuse-discrimination.

40. Information on file with the author.

41. NC State Bar, 2005 Formal Ethics Opinion 3, July14, 2005, Immigration Prosecution to Gain anAdvantage in a Civil Matter.

42. NC State Bar, 2009 Formal Ethics Opinion 5,January 22, 2009, Reporting Opposing Party'sCitizenship Status to ICE.

43. Id.

44. Id.

45. Cimini notes that lawyers who represent employersmust also exercise caution when considering whether toseek or provide information about the immigration sta-tus of the client’s employees. Cimini, supra note 12, at364.

46. For a comprehensive overview of the ethical issuesinvolved in representing undocumented workers, seeCimini, supra note 12.

47. The privilege against self-incrimination pursuant tothe 5th Amendment to the US Constitution may beinvoked, although there are possible consequencesincluding negative inferences, or even the possibility ofdismissal of the action. Under certain circumstances,the attorney-client privilege can be invoked. SeeCimini, supra note 12, at 388-390.

48. Cimini, supra note 12, at 392 (observing that inclaims under the National Labor Relations Act, lawyerscan forego requests for back-pay and reinstatement as a

way of eliminating immigration status from the realmof relevancy to the suit.

49. NC Rules of Professional Conduct, Rule 1.6. SeeCimini, supra note 12, at 398-404 for a full analysis ofthe Model Rules on this point.

50. NC Rules of Professional Conduct, Rule 4.4(a).

51. NC Rules of Professional Conduct, Rule 8.4(d). StateBar v. DuMont 52 NC App. 1, 277 S.E.2d 827 (1981),mod. on other grounds, 304 NC 627, 286 S.E.2d 89(1982).

52. Preamble: A Lawyer’s Professional Responsibilities,NC Rules of Professional Conduct (2011).

53. See US Department of Justice, Findings: Investigationof the North Carolina Administrative Office of the Courts,Complaint No. 171-54M-8, Mar. 8, 2012, Cover let-ter, p.1 (hereinafter DOJ Findings: NCAOC),justice.gov/crt/about/cor/TitleVI/030812_DOJ_Letter_to_NC_AOC.pdf.

54. The Administrative Office of the Courts of NorthCarolina has promulgated “best practices,” whichinclude guidelines for payment of interpreters on thoseoccasions where they are provided by the court. SeeAOC Policies and Best Practices for the Use of ForeignLanguage Interpreting and Translating Services in theNorth Carolina Court System, Feb. 2007,nccourts.org/Citizens/CPrograms/Foreign/Documents/guidelines.pdf.

55. See Emily Kirby, Sarah Long, & Sonal Raja, AnAnalysis of the Systemic Problems Regarding ForeignLanguage Interpretation in the North Carolina CourtSystem and Potential Solutions, May 2010,law.unc.edu/documents/clinicalprograms/foreignlan-guageinterpretationproblemsnc.pdf.

56. Id. See also Deborah M. Weissman, Between Principlesand Practice: The Need for Certified Court Interpreters inNorth Carolina, 78 N.C. L. Rev. 1899 (2000).

57. See United States v. Carrion, 488 F.2d 12, 14 (1st Cir.973) (per curiam); United States ex rel. Negrón, 434,F.2d 389 (2nd Cir. 1970).

58. See 28 USC § § 1827(d)(1), 1828(a).

59. See 28 USC § 1827(b)(2), (d)(1).

60. 42 USC §§ 2000d to 2000d-7 (1994).

61. DOJ Report of Findings: NCAOC, supra note 53, atp.2.

62. DOJ Report of Findings: NCAOC.

63. Id. at p. 6.

64. Id. 15-17.

65. D. Carolina Nuñez, Inside the Border, Outside the Law:Undocumented Immigrants and the Fourth Amendment,85 S. Cal. L. Rev. 85, 118 (2011).

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34 FALL 2012

Most lawyers in North Carolina canprobably identify some way in which theirpractice has been affected by these changesregardless of the size of their practice, thetype of work they do, or their length of timein the profession. It is too early to knowwhether the legal world is undergoing a per-manent sea change economically, as somepredict, or merely shifting with the latestfinancial tides, as others suggest. Only timewill tell. What is clear is that, in the short

term, lawyers are getting buffeted by a varietyof economic, cultural, and technologicalchanges that affect the way they do business.What will matter in the long run is the wayeach lawyer is able to adapt or embrace suchchange.

The effects of the recession on our profes-sion are real. Young lawyers are having prob-lems finding jobs, salaries are flat or decreas-ing—even for lawyers with experience, andmany mature practices or specialties are fast

becoming obsolete or drying up completely.At the same time, client expectations are highand many consumers are attempting to han-dle matters on their own or with the assis-tance of online forms. Increasingly, jobs arebeing sent off-shore in an ever-expandingglobal economy, and even long-time corpo-rate clients are increasing their demands,imposing new restrictions, and fosteringcompetition to drive down fees. The effect ofthese changes is surprisingly broad and deep,and ranges from the loss of opportunities fornew associates, to firings and cutbacks in pri-vate firms and among government agencies,and increases stress among practitioners whoare in a panic about how to keep their prac-tices afloat. While a lucky few may be moreinsulated, the impact on most is real and dif-fers only in degree. To quote the old adage,most recently made popular by RonaldReagan, it is a recession when your neighborloses his job, but it is a depression when youlose your job.

The qualitative changes in our professionare real, too. The balance of power in mosttransactional and corporate law practices isshifting from traditional law firms towardclients and tech-savvy legal service vendors.Consumers, especially corporate clients, arebecoming more sophisticated and arebecoming increasingly well-armed with moreinformation and greater market power torein in costs. Increased competition—domestically and internationally—in con-junction with powerful information tech-nologies, is reducing the number of opportu-nities for law firms to bill for services thathave historically been performed by lawyers.Advertising, internet marketing, and socialnetworking also increase competition andchange traditional marketing.

In the long term, lawyers will have to

Change in the Legal Profession:Danger or Opportunity?

B Y A N D R E W C I O F F I

When it comes to how revenue gets

generated, or our expectations

for the future, the buzzword in

the legal profession seems to be

“change.” Every week another legal publication crosses our desk with a story about how the

recession is affecting the legal profession and how we need to prepare for a different economic

reality in the future.1 Alex Long, a University of Texas law professor who has researched the

penetration of political songwriting into the legal system, combed legal databases to identify

lyrics in court filings and scholarly publications, and found that the most quoted artist was

Bob Dylan. Not surprisingly, the songs most quoted often involve change.

adapt to change just to survive. Commonthese days are war stories from lawyers abouthow good things used to be and how differ-ent they are now. We cannot simply hopethings will return to the way they were a fewyears ago, much less expect they will everreturn to the way they were back in “thegood old days.” In his seminal business bookWho Moved My Cheese, Spencer Johnsonprovides a parable about mice as a model forhow to work through, and eventuallyembrace, change. For a long time, the micecould count on there being cheese in oneparticular spot, but one day it disappears. Inresponse, one mouse stubbornly returns tothe same spot, day after day, even thoughcheese never again appears. Other mice,often unsuccessfully, sniff out new opportu-nities and scurry all over looking for cheese.The wisest mouse of all watches the othermice, and sees them sniff and scurry about,and takes advantage of their efforts. Like themice in Johnson’s book, some lawyers willnot change and may go hungry. Others willspend time and treasure chasing the nextnew thing and some of them will succeed.The wisest perhaps will be alert to new ideasand jump on the ones that hold the mostpromise. If we are to survive, we cannot hemourselves in by doing things the same oldway, but must be vigilant so we can be on thefront edge of new opportunities. As Johnsonsays in his book, when you see how changecan make things better, you get more inter-ested in making change happen.2

Some of us will be able to not just surviveby adapting to change, but actually improveour lives. For those of us who are not happywith our current jobs—and research indi-cates there a quite a few lawyers who meetthis description—a forced career change mayallow us to make lemonade out of lemons byfinding a job that better meets our needs.The sudden loss of a job or drop in earningsmay be the type of catalyst we need to devel-op a better understanding of our own intrin-sic motivations and seek out career opportu-nities that will allow us to not just survive,but actually thrive personally and profession-ally. This is not easy and requires consider-able soul searching. Nonetheless, if weunderstand that for which we are reallythirsting, we can rummage through the clut-tered pantry of change and find the thingsthat truly sweeten our life. This is great newsbecause several studies show many of us,even in good economic times, are pretty sour.

As a group, lawyers seem to be quite mis-erable and unhappy. One law review articlestates that North Carolina lawyers are happyonly 59% of the time.3 Another law reviewarticle, written by Ruth McKinney, the direc-tor of the Writing and Learning ResourcesCenter at UNC (who is educated as both acounselor and a lawyer), suggests that lawschools are a breeding ground for depression,anxiety, and stress-related illnesses.4

According to the same author, things get nobetter after graduation.5 This is consistentwith other articles on the subject. Accordingto Patrick Shiltz, who reviewed medical andpsychological literature on the subject,lawyers are depressed, more prodigiousdrinkers, and think about suicide more thanothers.6 Social scientists offer various expla-nations for this discontent. For example,some believe that pessimism is rewarded inthe legal profession, and thus tends to rewardpersons with that propensity, a propensitythat tends not to lead to happiness.7 Othersbelieve it is variously the adversarial nature ofthe profession, the fact that lawyers oftendeal with situations in which there is a zero-sum game in which one side must win andthe other must lose, the lack of autonomy,and especially the billable hour.8

Undoubtedly, there are other reasons as well. Loss of a job or career is scary, but so is

the thought of being miserable for the rest ofyour life. For those of us who are not happy,a job or career change—even if forced uponus—provides a rare opportunity to reshapeour lives. Frequently cited by motivationalspeakers and in self-help books is the old sawthat the Chinese ideogram for "crisis" ismade up of two characters signifying "oppor-tunity" and "danger." Despite some debateabout whether this is true, the idea has realappeal to Westerners in general, and especial-ly to Americans, who have an indomitablespirit and optimism and a confidence in ourability to cleverly turn any bad situation toour advantage. As a group, lawyers are adeptat seeing and arguing both sides of any situ-ation—a sort of intellectual Jiu Jitsu in whichwe are all well trained. When confrontedwith the danger of a sudden career change,we should strive to flip it into an opportuni-ty.

Especially for lawyers well into theircareers, the current economic climate mightoffer an opportunity to restore some balancebetween work and home life, or pursue otherhigher-level needs. This is an opportunity

that is now open to some new lawyers aswell. In response to both the economy and todemands by associates, some big name lawfirms are now offering two tracks for associ-ates—the traditional partnership track and anew lifestyle-focused track. These “careerassociate” or “permanent associate” positionsallow lawyers to enjoy a better “lifestyle” interms of more reasonable hours and greatercontrol over their schedule, and still have thebenefits that come with working for large lawfirms, even though they are not eligible forpartnership consideration and earn consider-ably less than traditional associates (around$60,000 instead of the $160,000) and workout of offices in smaller cities (Wheeling,West Virginia and Dayton, Ohio instead ofNew York, Chicago, or LA).9

For lawyers who are bored by routinework and tired of billable hours, marketforces and technology may lead to legal jobsthat are focused more on creativity, autono-my, and purpose. Many law firms have lostwork due to the outsourcing of legal servicesor by new information technologies. This isbecause the legal services that are most oftenoutsourced or replaced by information tech-nology systems are jobs that are routine, andwell suited for strict oversight and beingbilled by the hour. The growth area for legaljobs—and the ones less able to be outsourcedor replaced by technology—are more cre-ative and can be done with flexibility of man-agement and pay.

Author Daniel Pink in his book Drivedescribes these routine tasks as being algo-rithmic—that is they could be done byapplying the same script, formula, and seriesof steps to produce the right answer. Lower-paid workers in other places can run thesame algorithm, get the same answer, anddeliver it instantly from their computerthousands of miles away. By contrast, morecreative work, which cannot be outsourcedor replaced by technology, is described asbeing heuristic. Heuristic work must be mas-tered, allows workers to be autonomous, andprovides purpose.10 These are jobs thatintrinsically motivate people. Workers wantto do the jobs because they are interestingand fulfilling, not because they are beingwatched over or monitored. These jobs canbe done in flexible work environments, bothin terms of hours and locations, and they aregrowing. In the United States only 30% of



36 FALL 2012

It had been rumored that he didnot have a thought that she hadnot supplied. But he knew thatwasn’t true. He grew up in an erawhen men respected their wives. It

was no big deal. Just the way things were.After 40 plus years of marriage some thingshad just become commonplace. He hadthoughts. He had dreams. He just keptthem to himself.

Men were expected to provide for theirfamily by any means necessary. The wiferaised the children and looked after thehome. Most of the things inside were therebecause she said they could be. HisLinwood Road residence was no exception.He allowed her to choose the curtain colors,the furniture style, the room arrangement,and even the flooring. She had sole rights tothe wall hangings and knickknacks.However, there was one exception...his prize12-point buck mounted white tail. It was abeauty. It had taken many hunting seasonsto capture this bad boy, and he liked theconstant reminder of his accomplishment.Although the furry creature failed to fit thedécor of any room, he had insisted that it behung in the den.

“How long are you going to leave thatugly thing hanging there?” she would askalmost monthly. “I don’t like the way thoseeyes keep looking at me. I believe they fol-low me around.” He snickered under hisbreath every time she made this remark.

The discussion was always the same.There were questions, followed by her call-ing him names like trifling, unreasonable,and even selfish. He stood his ground. Herefused to give in. The buck head hungproudly in the family room. He always felta twinge of confidence whenever headmired this trophy from across the room.

The only other extensive dialogue thatgave cause for alarm centered around the

outbuilding in the side yard. It had not beena matter that he entered into lightly. He hadgiven it months of thought. After carefulplanning, he figured the best place for itwould be adjacent to the well pump butslightly above the barn in a spot that was outof the way of everything. It would not inter-fere with the garden or the backyard or theclothes line or the peach tree or the musca-dine vine. That particular spot in the yardwasn’t being used for anything. Of courseshe could not fathom the need for anothershack, but it was just something that he feltthat he needed. It was hard to explain, butthe idea was almost consuming. After threeweeks of her grumbling, and three weeks ofhis inner struggle, he finally informed herthat he had listened with an open mind (likethe pastor said) but had decided to moveforward. He was going to build anothershed.

“Why in heavens name do you needanother outbuilding?” she shouted as hemade his way out the door one Saturdaymorning.

“Oh it will give me a place to piddle,” hemuffled while easing down the steps. “It willbe my piddling shed,” he whispered as hemade his way slowly across the yard.

“Oh my stars, if that don’t beat all!” sheshouted seconds before slamming the door.

Within two weeks lumber and Sheetrockappeared. The saw horses stood waiting fortheir orders. Two black trash bags restednear newly purchased items. Slowly, theframe was constructed. The floor was laidand the room began to take shape. His son,a cousin, and men from the church wouldcome over occasionally to help. There weremany weekends that no work could bedone.

Months later he found himself puttingon the final touch—a Master lock on thedoor. He stepped back and marveled at his

handiwork. It was all done. It wasn’t any-thing big—about a 12’ x 16’ building withelectricity, lights, plywood floor, and basicSheetrock walls. Inside was a long worktable, cubbyholes with a variety of tools, anold bookcase that provided more shelving,and basic stuff that he felt might come inhandy. Small windows had been installed ontwo of the four walls and the bottom paneswere lifted less than an inch. The screenskept the bugs at bay. With no dressing, thewindow provided just enough light to scareaway darkness once it arrived. His piddlingshed was complete.

A simple routine quickly developed.When he reached the shed door, he pulledthe Master lock close to his face and insertedthe shiny key that dangled from anIndustrial Federal S&L key ring. He madethe appropriate turns until the clasp clickedand the hook released. He would look to hisleft, then his right, and quietly step inside.He might close the door or leave it crackedslightly if it was a humid day and the airinside was stifling. After he made his wayinside, he would stand with hands restingon the work table. Next he would close hiseyes and listen to the nothingness. Thearoma of sawdust mixed with the odor ofpaint and a hint of shellac danced aroundhis nostrils. He would mouth a silent “thank

The Piddling Shed B Y T O N Y A L A N I E R

F I C T I O N W R I T I N G C O M P E T I T I O N - F I R S T P R I Z E

The Results Are In!

This year the PublicationsCommittee of the State Bar sponsoredits Ninth Annual Fiction WritingCompetition. Eighteen submissionswere received and judged by the com-mittee members. The submission thatearned first prize is published in thisedition of the Journal.

you.” Once his mind was cleared he wouldopen his eyes to see what project was vyingfor his attention. If nothing was left on thetable from the previous visit, he picked up apiece of wood and worked it into whateverhe felt it wanted to become.

For some reason, he felt somethingdivine in this place. It was hard to explain.He discovered a sense of serenity like neverbefore. He felt closer to his Almighty herethan if he was sitting patiently in the pewsat Wilson Grove Baptist church. He wassure that there was a spirit that visited.These four walls provided him the comfortthat he needed to get through his stressfuldays. In his piddling shed he did not have topretend to be able to read beyond the third-grade level. There was no need to play likehe could hear. He did not have to makefancy conversation or stumble over difficultwords. In the confines of these walls hecould have a heart-to-heart conversationwith his God, and every word was under-stood, broken grammar and all. His overallsand well-worn boots were welcome sincethere was no need to put on fancy Sundaystuff or even sport pieces that matched. Outin this little shed he could be himself. Whatjoy.

Over time he made stools, bookends,decorative bread boxes, potato bins, andtrash bag holders. He was surprised to dis-cover that he could do things just by think-ing it through. He mended broken tableslegs, cut tomato stakes, built rabbit traps,and constructed cabinets. New woodwork-ing techniques were attempted and eventu-ally mastered. Everyone at church marveledat his handy work. Most of the things weremade of wood that was scrapped at his dayjob. It seemed strange that somewhere outthere was a $5,000 bedroom suite thatmatched his cute little candle holders. Orthat the living room tables with a stickerprice of over $3,000 were made out of thesame oak as a set of picture frames. Thisoften brought a smile to his lips as hethought about that old adage of “one man’strash... .”

Every time he put the lock on the door,he immediately began to wonder when hewould be able to return. This was where hewanted to be. There were many days andweeks when he was not able to venture outthere because of overtime at the furniturefactory or a church revival. But if he couldcarve out 30 minutes in his day not prom-

ised to something else, he dashed out thedoor with delight. You could almost hearhim shout, “I’m going to the piddlingshed!” and out the door he went before sheyelled out something for him to do. Onceshe caught a glimpse of him making his wayacross the rear yard and she swore she saw alittle pep in his step. He seemed to be mov-ing with a swift sway, not that slow shuffle.It must have been her imagination, but heseemed to walk with a purposeful stride, likehe had somewhere to go.

To keep things peaceful she had devel-oped a means of communicating while hewas out there. If time had gotten away fromhim, he would see the porch light flickerthrough the window. This meant that sheneeded him. It might be the telephone orthat his plate had been set at the table ormaybe someone had stopped by. If this needarose during the day, she stood on the backporch and blew into a whistle that gave adeafening shrill. It was an unusual devicethat had been given to her at a self defensetraining class. Even though he was slightlydeaf he could hear that darn thing and socould the neighbors three miles away. It cer-tainly served its purpose. These tactics mayhave seemed strange, but it worked forthem. For some reason she had neverstepped foot inside his new shack. He couldnot recall her even darkening the door. Thisthought always produced a soft, silent smilefrom him.

On this particular day, the rain had notlet up. The weekend seemed ruined for out-door activities. He really needed to piddle.It had been a rough week and his fingerslonged to work at some of his special wood.Instead, he flipped the pages on his JohnDeere magazine and glanced at the picturesin the local newspaper. While lulling aroundthe house he had overheard her on thephone drumming up items for an upcom-ing auction. She had called many of her ladyfriends for baked goods, handmade crafts,and small wood pieces. He saw the brightyellow flyer with “Help Urban Ministry”written across the top. It seems they wereseeking donations to raise funds at an auc-tion.

He kept this project in the back of hismind for several days. A couple of timeswhen he entered the piddling shed heincluded the homeless shelter in his prayersand asked for help in deciding what tomake. One day it came to him to create a

keepsake trunk. It would be a small box thatheld little things of remembrance.

The day the construction began he stoodat the door and asked for guidance in mak-ing this thing special. He prayed that thepiece he donated would bring a nice penny.He also prayed that the little trunk found ahome where it would be treasured. Hewanted the love that he put into it to find away to escape into the heart of the newowner.

For the next three weeks he workedexclusively on this project. It had to be per-fect. It was a going to be a very special piece.Not only was love and compassion beingdriven inside, so was his soul. When heworked on it he handled it with care. Thedetails were etched with great precision.Several edges were done and redone. In theend, lovely gold-plated hinges were secured.A claw hook was placed on the front. Theinside was covered with deep red velvet, notonly on the bottom, but on the lid as well.The finishing touch was a sandpaper scuffthat gave it an aged look. He had seen thisdone on television and tried it out for thefirst time. He marveled at his work. It was alovely piece if he must say so himself. At thebottom left hand corner, slightly out ofview, he etched “HAW 8/7/69, with luv.”

On Friday he placed the box in the floor-board of his Chevrolet pickup. It waswrapped securely in a silken table cloth thathe bought at the Goodwill. He planned totake his donation to the Urban Ministryafter work.

The following months delivered thesame old routine. He was enjoying piddlingaround outside as much as he could.

“Everyone wanted it,” he heard her stateto someone on the other end of the tele-phone receiver. “I still cannot believe that Iwas the highest bidder. Mable and Rosewent over their limit, but I held strong.Since it was for a good cause, I decided tosplurge a little.”

She went on to talk about some beautifulpiece. He called it a day and went to bed.

The next morning he woke to hum-ming. The aroma of coffee and pork sausagefilled the air. He pulled on his favorite week-end jeans and flannel shirt. He pushed hisfeet inside Timberland boots that were wait-ing patiently by the bed. He made his waydown the hallway into the empty familyroom. The television was on low. He heardthe humming of Amazing Grace. Making


his way into the dining room, his glance wasimmediately drawn to the center of the tablewhere the keepsake box he had made anddonated to the auction rested proudly. Itglistened.

Before he could ask any questions, shesat a plate of eggs, sausage, applesauce, andtoast in front of him. A coffee mug camenext. She turned the light out in the kitchenand dashed around the corner and down thehall.

“I have errands this morning,” sheshouted midway out of the room. “Don’tforget we will be in church most of the daytomorrow.”

He realized that he had not taken his eyeoff the box. It faced him head on. He knewit was the one he created. He could tellwithout a doubt. He ate his food in whatseemed like slow motion. After finishing hisbreakfast he took his used dishes and placedthem in the sink. He glanced again at thepiece resting on his dining room table andleft the room confused.

The day had gone by so fast. By the timehe came in from a full day, he had mowedthe lawn, mended the back fence, burned apile of limbs, changed the oil in his truck,grabbed a plumbing piece from the hard-ware store, hauled away two bags of trash,and picked up a load of wood scraps fromthe plant. He was too pooped to ask herabout the keepsake box.

He heard her say into the avocado col-ored receiver, “It is so stunning. I just love it.I have never seen one like it. It reminds meof that Thomas Day work. You knowThomas Day, that famous wood workingman from way long ago. But it could not bea piece from his collection. There is no wayto afford that. No, they won’t tell me whodonated it. They promised to keep alldonors confidential. He has to be someonefamous. Girl, no way will I sell it. Howmuch?...Not only did I get the prize piece, Ialso helped a great cause. Yeah, I knoweveryone is talking about the auction. Didyou see the article in the paper? They say itwas the most they have ever raised.”

“Sure, come over when you can. I toldthe other ladies to come over before I put itaway. I think I am going to keep the grand-children’s things in there like report cards,medals, and photos. You know, things thatare precious to me. Things that I love,” sheconcluded. That was enough for him. Hedecided not to bring up the keepsake sub-

ject. It didn’t really matter anyway.“I hope you are going to do something

constructive today if you go back out thereto that shed,” she stated as he passed thedoor.

It had been six years since the piddlingshed debuted on Linwood Road, and notonce had she stepped foot inside. There hadnever been a need. She told their daughterthat she thought he was probably sleepingor dipping snuff out there. When she wasreally angry she even insinuated that he waslooking at girly magazines. It was not a bigdeal.

The keepsake treasure chest hadremained the talk of the town. A new onewould show up each year at the auction,almost as lovely as the very first, but differ-ent in its own right. The velvet insidechanged from burgundy to red to black andone year it was a deep purple. The crowdseemed to grow each year in anticipation ofthe last item. The keepsake chest donor wasstill a mystery. It had been agreed that hewould donate a handmade keepsake itemeach year as long as the Urban Ministry didnot reveal his identity. They graciouslyagreed.

As morning glided in with an uncannyfog, she arose to an empty left side. That’sodd, she thought, I don’t remember Henrygetting up. Nothing seemed out of place. Inthe kitchen she put on the coffee and beganto make a little something to take away themorning hunger. When things were ready,she flickered the light once, twice, then athird time assuming he was out in that shed.I can’t believe he is out there already, shepronounced in her head. Three hours hadpassed before she realized that he had notcome in for his breakfast. Making the bedsand dusting the living room had occupiedher mind and she had lost track of time.

She glanced out the kitchen window tosee the tail of the white Buick. She shuffledaround to the family room blinds and sawthat the truck was where he had parked itthe day before. Maybe he is fixing the fenceor mending the barn, tasks that would havetaken him out of her eye shot, she thought.It wasn’t until noon had arrived that shebegan to worry—this is not like Henry. Heusually told her when he was going out andhe always acknowledged the light flicker in20 minutes or less. It was unusual for him toleave without asking her if she needed any-thing. She took her whistle and blew hard.

I am sure he could not miss that, no mat-ter where he is, she thought. Cora and thekids probably heard that searing sound waydown the road. When there was no sightingfor over 30 minutes, she decided to go outthere. Maybe he had fallen.

She grabbed her yard shoes and out thedoor she went. Her pace was not hurried orcasual. She just wanted to lay eyes on him tomake sure he was ok. When she reached thedoor she felt a need to knock, so she did.There was no answer. The lock had beenremoved, but the door stood shut. Sheknocked again. To silence she placed herhand on the knob and twisted. Her nostrilswere immediately filled with the odor ofpaint and dust intertwined with the scent ofwood. Stepping in she noticed a clutteredneatness.

Stepping in further she glanced to herleft and saw him sitting in a rocker. Helooked as though he was sleeping. His handsset relaxed in his lap and his chin rested onhis chest. Her eyes were drawn to little boxeson a shelf behind him. Lined in a neat rowwere at least a dozen keepsake treasury boxesin various stages of completion. Her heartpounded. She reached out to grab hold ofthe edge of the work table.

She realized that he had not yet moved.She reached out and touched his shoulder.He was cold. She bent over close to his earand whispered, “Henry.” Nothing. Shemoved closer. It was then that she noticedthe most serene look on his face. There wereno tension lines or wrinkled forehead. Hiscomplexion held a shiny hue that almostmade her gasp. He looked so peaceful. Sheeven detected the making of a smile at thecorners of his lips. “My Henry,” she whis-pered to herself while flopping down to siton a stool that was beside the rocker. It wasthen that she saw the sign right in front ofher. It hung over the back of the door onlyvisible to those inside. It had been etchedwith scrawny elementary letters: Peace andpiddling found here!

She placed her hand on top of his hand.“I love you Henry Anst Wilson. I alwayshave. I always will and I thought you shouldknow.” �

Tonya Lanier enjoys digging for details. Shehas a passion for local history and genealogy,and finds the study of family and friends in itspurest sense an extremely fascinating exercise.She enjoys writing, reading, and researching.

38 FALL 2012

The successful incorporationof pro bono projects intoone’s legal practice is thecornerstone of a completeand well-balanced career.

The Model Rules of ProfessionalResponsibility require every lawyer to providelegal services for those who are “unable topay,” and both the Model Rules (Rule 6.1)and the NC State Bar Rules of ProfessionalConduct (Rule 6.1) encourage lawyers tocomplete “at least” 50 hours of pro bono legalservices yearly. While this commitment mayseem daunting, the spirit behind this rule isclear: as attorneys, we owe a responsibility tothe public, and to serve those in need of ourspecialized knowledge and skills. Lawyers arebestowed the privilege of fulfilling a uniquerole in society as guardians of justice from themoment they are sworn in, and performingpro bono services is a crucial step towardaccepting this role.

Pro bono work is typically easy to find,and is commonly advertised on the websitesof state and local bar associations, legal aid,and defenders’ organizations. Opportunitiesare also posted on the ABA website underthe “Center for Pro Bono,” and are com-monly offered on law school clinic websites.Before accepting a pro bono case, an attorneymust first evaluate the time commitment heis willing to make. Short projects, includingwill-drafting clinics (i.e. Wills for Heroes)and Ask-A-Lawyer Day telethons, usuallyonly require a few hours on a weekend, whilesome landlord-tenant and guardian ad litemmatters may require months of litigation. Ifyou are undertaking your inaugural pro bonocase, it may be prudent to start out with asmaller project to “test the waters” before

taking a case that requires deeper lawyerinvolvement.

The next factor to consider when taking apro bono case is the skill level required. It isimportant that an attorney take only the casesin which he may ethically provide competentrepresentation. To broaden the ranks of thosewho are eligible to participate, many pro bonocenters host training sessions for attorneyswho wish to volunteer in cases outside oftheir practice area. Many of the training ses-sions require a full day’s commitment, butsome offer the bonus of continuing legal edu-cation credit. Attorneys who seek to assist ina pro bono matter not within their field of lawshould consider taking on co-counsel special-izing in that practice area to ensure that thecase is handled in an idoneous manner. Thiscross-disciplinary component of pro bonowork is appealing for many attorneys, as itallows for variation in their practice. Intoday’s age of specialization, branching out ofone’s legal niche can be a welcome change ofpace. Learning a new set of skills or field oflaw can lend diversification to your practiceand enhance your legal awareness.

For new lawyers, participating in a probono project affords the rare opportunity oftaking the lead in a case—a perquisite typical-ly afforded to more experienced attorneys.Taking a file from start to finish hones crucialcase management skills that can only beacquired from practice. Through pro bonowork, new lawyers gain experiential trainingin dealing with 1) time budgeting concerns, 2)developing legal strategy, 3) ethical issues, 4)setting and meeting client expectations, and5) working with opposing counsel and judges,to name a few. Pro bono cases also offer newattorneys greater exposure in working with

clients, placing them in a favorable positionfor developing essential interviewing andcommunication skills. Pro bono projectssharpen talent and help build the confidencethat comes with experience.

The business advantages to pro bono workare just as significant as its practical benefits.An attorney who regularly incorporates probono work into his practice builds a positivereputation for himself in the community bydemonstrating a commitment to promotingthe welfare of others. An attorney also devel-ops an entirely new set of contacts through probono projects, working closely with pro bonocenter employees, clients and their families,other attorneys, and judges, to name a few. Anattorney’s pro bono network can be an excel-lent source of referrals, potential business proj-ects, and career opportunities.

It is all too often in the legal profession thatattorneys lose sight of the rewards of pro bonowork, their vision clouded by the pressing real-ity of billable hours and demanding caseloads. Yet those who shy away from pro bonoopportunities never realize the multitude ofbenefits they confer. Pro bono work can enliv-en a law practice by sprinkling variety into anattorney’s typical caseload. Workload diversifi-cation lends novelty and intrigue to lawyers’professional lives, reminding them of whatthey love about their career in the law. A com-mitment to pro bono service allows attorneysto take pleasure in their work, while providingvital assistance to their communities.Attorneys who dedicate their efforts to servingsociety by taking pro bono cases enjoy a fulfill-ing career and professional satisfaction. �

Rose Proto is a practitioner in Charlotte withthe Law Offices of Jason E. Taylor, PC.


Pro Bono—How Working Toward the Greater Good CanMake a Positive Impact on Your Practice

B Y R O S E G . P R O T O

40 FALL 2012

Irecently had an opportunity totalk with Heather Ziemba, aboard certified immigration lawspecialist practicing in Charlotte.Heather attended Duke

University, earning her undergraduatedegree in political science in 1993, and sub-sequently received her law degree fromVanderbilt University in1996. Following graduation,she worked in theDepartment of SocialServices in Gaston Countyfor a year before a missiontrip to Mexico inspired ashift in her career path. Shejoined Legal Services of theSouthern Piedmont toestablish an ImmigrantJustice Project and workedin that role for ten years.Heather then went into pri-vate practice, working with the Aziz LawFirm before joining Garfinkel ImmigrationLaw in 2009. She became a board certifiedspecialist in immigration law in 2011.Following are some of her comments aboutthe specialization program and the impactshe anticipates on her career.Q: Why did you pursue certification?

There were a number of things that ledme to pursue board certification. One of themain reasons was that I saw a surprisingamount of unauthorized practice of law. Ireally believe that it’s important for the com-munity, and particularly the immigrantcommunity, to know who to trust with theirlegal issues. Immigration law is very compli-cated and clients need to find a lawyer whohas real expertise. I was also drawn to thepersonal satisfaction aspect of the program.Q: How did you prepare for the examina-tion?

I relied heavily on my AmericanImmigration Lawyer’s Association (AILA)course materials from previous years. I paidparticular attention to those areas that I

don’t see in my daily practice, like employ-ment issues. I reviewed and studied in a sim-ilar fashion to the way I prepared for the barexam, including going over scenarios withother immigration lawyers. I studied with acouple of other lawyers who were also takingthe exam, and relied on the expertise of mycolleagues as well.

Q: Was the certificationprocess valuable to you inany way?

It was helpful and gratify-ing to see that my peers aresupportive of the certifica-tion program in general, aswell as being willing to serveas personal references. Ireached out to others whowere already certified and Ivalue that opportunity tostrengthen those relation-ships. Studying for the exam

was the most helpful part of the process. Ireally enjoyed taking a more in-depth look atareas like removal and family immigrationissues. Learning more about these types ofissues will benefit my practice and my clients. Q: How do you envision certification beinghelpful to your practice?

I think that the board certification is animportant way to attract clients and to givethem a sense of confidence to know thatthey are receiving the best representationavailable. Now that I’m in private practice,providing a quality product to my clients issomething that’s deeply important to me ina new way. I want to understand the issuesthat they face, to really know the process forhandling them, and to provide the best assis-tance possible.Q: What have your clients, staff, and col-leagues said about your certification?

I received quite a few “congratulations”from colleagues, and a number of lawyersasked me about studying for the exam and ifit was worth it! I have already had clientsseek me out because of the certification,

knowing that they wanted a specialist.Q: How do you think your certificationwill benefit your clients?

For my clients, it ensures quality repre-sentation. I’ve seen many situations whereimmigrants have been taken advantage ofand I think certification lends credibility tothe work that we do. As certified specialists,we assure our clients that we are up to dateon current topics. In immigration law,changes take place very quickly. When Itook the exam, I remember that one ques-tion presented a scenario in which the lawhad just changed the previous week! I knewthat the exams must have been printed ear-lier and thought the graders would have tochange the answer key to accommodate thechange.Q: Are there any hot topics in your special-ty area right now?

Probably the biggest topic in immigra-tion law currently is the Dream Act. Ifpassed, this would enable young people whoare in the country illegally, but graduatefrom a US high school, to receive some ben-efits, including employment and collegeopportunities. The proposed act did notpass Congress, but President Obama and theDepartment of Homeland Security haveestablished new policies that can deferaction in some of those situations. We willall be watching this issue closely.Q: How do you stay current in your field?

As a member of AILA I attend theirannual conferences and participate in theirlist-serve. I am also a member of theNational Immigration Project list-serve.Since immigration law is a federal practicearea, it is very helpful to see how laws areimplemented in different parts of the coun-try. I also read new case law and follow close-ly how the Board of Immigration Appealsinterprets issues. These are all critical forstaying up to date in our field.Q: Is certification important in your prac-tice area or region?

Board certification is very important for

L E G A L S P E C I A L I Z A T I O N

Profiles in Specialization—Heather ZiembaB Y D E N I S E M U L L E N , A S S I S T A N T D I R E C T O R O F L E G A L S P E C I A L I Z A T I O N


immigration lawyers in North Carolina.Though the State Bar has become moreaggressive about pursuing unauthorized“notarios” and putting them out of business,I still see clients who find me because theyhave received bad advice from a notario. Ialso occasionally see lawyers, who typicallyfocus on other practice areas, accept animmigration case, assuming that it will beeasy. They soon find out that without expe-rience and learning, these cases are very dif-ficult to handle. Further, because immigra-tion law is a federal practice, I sometimes seelawyers who are not licensed in NorthCarolina attempting to practice here. Irecently watched as a judge told a non-North Carolina lawyer to “get out of myjurisdiction and stop preying on the peopleof North Carolina!” I think board certifica-tion raises awareness among lawyers andclients of how challenging it is to practiceimmigration law, and also assures clients andjudges that those who are board certifiedmade the extra effort to really understand

this practice area. It shows others that we arenot dabbling.

In the Charlotte area, we have a verylarge and growing immigrant population.We have many companies that need assis-tance with immigration issues. Some are for-eign owned and bringing in employees fromother locations, and some are local compa-nies that have difficulty finding qualifiedemployees and want to bring in someonefrom another country. The smaller compa-nies tend to ask the questions early to planout their time and financial commitments.It’s gratifying to help them navigate theprocess, as it would be nearly impossible tofigure the issues out on their own. Q: How do you see the future of specializa-tion?

I think that the program will continue tohelp people. As the immigrant communitycontinues to grow, it will become even moreimportant for them to distinguish qualifiedattorneys. Q: What would you say to encourage other

lawyers to pursue certification?Becoming a board certified specialist has

helped me in many ways. Learning aboutother issues has allowed me to become a bet-ter lawyer as I integrate that knowledge intomy practice. I really like learning andenjoyed studying for the exam. The examitself wasn’t nearly as bad as the bar exam! Ithought it was a fair test.

I have also really enjoyed the opportunityto get to know the other specialists, includ-ing those in other practice areas. I use thedirectory that’s published each year to makereferrals to specialists in other practice areas.That’s a huge benefit, as I get referrals fromother specialists as well. Even if I don’t knowthe lawyer personally, I do know that theyare committed to their practice area and thatthey stay current in their field. That gives mecomfort in making a referral. �

For more information on the State Bar’sspecialization programs please visit us on theweb at nclawspecialists.gov.

Change (cont.)

job growth comes from algorithmic work,while 70% comes from heuristic work.11

Best of all for many lawyers, these jobs arenot well suited to older methods of compen-sation such as the billable hour, which notonly are inefficient for such work, but actu-ally stifle creativity.12 Indeed, studies ofartists show a diminishment in the quality oftheir commissioned work compared to theirnon-commissioned work.13 This is becausewe are most creative and productive when weare self-motivated, in a state of flow, workingon tasks that are neither too hard nor tooeasy, using skills we have mastered, and whenwe are working with purpose. Trying to com-pensate workers doing heuristic work withhourly wages, and managing them withextrinsic criteria, is outdated and ill-suitedfor the work we will be doing in the yearsahead, and only undermines motivation andcreativity. Imagine requiring Einstein orMeryl Streep to bill by the hour.

Some lawyers, forced out of bigger firms,will go off on their own. Others may need topool resources to survive. A few may need tochange specialties or focus to adapt.Regardless of such changes, many will adapt

and survive. For a few, they will not only getby, but will be able to thrive by taking advan-tage of an opportunity to mold their practiceinto one that will meet their economic, per-sonal, psychological, and emotional needs. Astough as this will be, we may be at a stage inthe history of our profession where doing thiswill never be easier or more compelling. �

Andrew Cioffi has practiced law in NorthCarolina for 27 years and is a partner at Smythand Cioffi, LLP, in Raleigh where he focuses onthe arbitration, mediation, and trial of disputesinvolving insurance and injury matters.

Endnotes1. See e.g. Surviving the Downturn: Rainmakers Weather

Dry Recessionary Skies, Lawyers Weekly, Vol. 24, No.18; Paradigm Shift by Henderson and Zahorsky, ABAJournal, July 2011.

2. Spencer Johnson, Who Moved My Cheese?, 87, NewYork: Putnam, 1998.

3. John M. Conley, How Bad is it Out There?: Teachingand Learning About the State of the Legal Profession inNorth Carolina, 82 N.C. L. Rev. 1943, 1975 (2004).

4. Ruth Ann McKinney, Depression and Anxiety in LawStudents: Are We Part of the Problem and Can We Be Partof the Solution?, 8 Legal Writing 229, 229-30(2002)(“[i]t is no secret that law school is a breedingground for depression, anxiety, and other stress-relatedillnesses.”).

5. Id.

6. Patrick J. Schiltz, On Being a Happy, Healthy, andEthical Member of an Unhappy, Unhealthy, andUnethical Profession, 52 Vand. L. Rev. 871, 874-76(1999) (portraying lawyers in private practice as over-worked, unhappy, and often unethical).

7. Martin Seligman, Authentic Happiness: Using the NewPositive Psychology to Realize Your Potential for LastingFulfillment, New York: Free Press, 2004, 178; PaulVerkuil, Martin Seligman, and Terry Kang, CounteringLawyer Unhappiness: Pessimism, Decision Latitude, andthe Zero-Sum Dilemma at Cordoza Law School, PublicResearch Paper No. 19, September 2000.

8. Daniel Pink, Drive: The Surprising Truth About WhatMotivates Us, New York: Riverhead Books, 2009, 96-98.

9. Catherine Rampell, At Well-Paying Law Firms, a Low-Paid Corner, New York Times, May 23, 2011.

10. Pink, Drive, 28.

11. Id.

12. Id., 97-98.

13. Id, 43.

Thank You to OurMeeting SponsorThank you to North Carolina LawyersWeekly and Lawyers Mutual for spon-soring the State Bar quarterly meetingin July.

42 FALL 2012

Iam a wife. I am a lawyer. I am thewife of a lawyer. My father is alawyer. My husband’s father is alawyer. My first cousin on mymother’s side is a lawyer. If you

have ever seen the movie My Cousin Vinny,you know where I am going here. Despite allof the legal subject matter expertise runningaround my family tree, I was in no way pre-pared to be the wife of an alcoholic lawyer inneed of in-patient treatment.

Yet, that is exactly where I found myselfon a Tuesday night in February last year.After putting my kids to bed, my husbandcracked open a beer (his 11th of theevening—yes, I was keeping a tally at thatpoint in time), and proceeded to tell me thathe had decided that he needed to go torehab. My first reaction was one of relief. Ihad known for a long time that my husbandwas an alcoholic and that he needed treat-ment, and I was glad that he finally agreed.I also knew that the NC Lawyer AssistanceProgram (LAP) could help us initiate treat-ment (as the LAP had assisted when my hus-band attended outpatient treatment a fewyears earlier—a treatment attempt whichobviously did not stick), and I knew that myhealth insurance included coverage for inpa-tient substance abuse treatment. That nightI slept like a baby, content with all of thethings I thought that I knew. Then cameWednesday and reality hit me squarelybetween the eyes.

Reality Check #1: My Husband. He wasin the midst of a complete mental break-down. He was drinking 18-24 beers eachand every night. His law practice was in thetoilet. He had not answered any mail, email,or voicemail since before the holidays. Hewasn’t paying his bills at work or his half ofour household bills. He was drinking in theoffice. He was drinking in the car, whiledriving our kids home from school. He wasangry, ashamed, and completely over-whelmed. Once he made the decision toenter treatment, he became completely

unable to function. He stopped going towork and alternated between being passedout and watching TV until he went intotreatment. In the 12 days between his deci-sion to get treatment and actually enteringtreatment, my husband consumed 252 beersat our house (trash day was on Tuesday, so Ihad a good baseline when I counted theempty bottles in the recycle bin).

Reality Check #2: Treatment. Basedupon my husband’s lengthy history withalcohol abuse and unsuccessful attempts atoutpatient treatment, we were advised thatmy husband’s best chance at recovery was toattend a 90 day inpatient, residential pro-gram geared towards professionals. The LAPrecommended two treatment facilities, andboth required up-front payment for at leastthe initial six weeks. Both facilities recom-mended immediate admission into medical-ly supervised detox followed by residentialtreatment. Neither program accepted insur-ance.

Reality Check #3: Money. In short, wedidn’t have enough of it. I needed to pay fortreatment in full, in less than two weeks. Ineeded to pay our household bills while myhusband was in treatment and pay the billsthat he had let lapse over the past fewmonths. There would be no income comingin from my husband for at least 90 days (hewas a solo practitioner), and he had barelyenough money in his operating account topay his receptionist and paralegal for thenext month. We had less than $5,000 in sav-ings between the two of us and really hadnothing of value (other than our children),so making a quick sale to raise funds wasout.

The sense of relief that I had felt thenight before fled quickly, and I was in anabsolute panic as to how I was going tomake this work. My husband was complete-ly checked out, so it was all up to me.During the next few days I turned off allemotions and went into hyper-focusedproblem-solving mode. I methodically

worked through all of the possibilities forpaying for treatment and somehow found away to borrow the money. I wrote out adaily schedule, including when I wouldwork remotely from my husband’s office,and when I would enlist my parents to pickthe kids up from school so I could work inhis office in the evenings. I went throughour expenses and cut all non-essentialexpenditures. I dictated a letter to my hus-band’s clients about his unexpected medicalleave and advised his staff of the same. I hada very frank discussion with my three youngchildren about “daddy going to treatment.”I finalized the details of my son’s sixth birth-day party, which was scheduled for the fol-lowing Sunday, and I also completed myremaining six hours of CLE (it was the lastweek in February, after all). When the fol-lowing weekend rolled around and we weretraveling to the treatment facility, I was onautopilot. My kids were upset, my husbandwas terrified, and I knew it was up to me tohold it together.

I spent the next week balancing my job,working through my husband’s files, andfielding calls from his irate clients. I had avague notion that the LAP could assign avolunteer lawyer to assist with my husband’scases during his absence, but I didn’t reallywant another lawyer digging into his files. Iwas concerned any competent lawyer wouldquickly uncover (as I had) numerousinstances of neglect. Worse, I feared theymight find actual malpractice or trustaccount violations. Even though I had notpracticed law in five years, I took it uponmyself to manage my husband’s practice in

L A W Y E R A S S I S T A N C E P R O G R A M

A Year in the Life of a Lawyer WifeB Y A N O N Y M O U S

his absence. I honestly believed that it wasmy responsibility to keep his practice afloatand to remedy as many problems as I could,because I believed that my husband’s lawlicense depended on it. I was already pushedto the limit with my own full-time job, par-enting my three small children, and main-taining our household/bills by myself, butsomebody had to keep the wheels on the bus.The madness went on for about a month,during which time I didn’t sleep for morethan three hours a night; I completely lostmy appetite and dropped 15 pounds in asmany days; and I began to develop an ulcer.Finally, I was overcome with sheer physicaland mental exhaustion and knew that some-thing had to give or I was going to end up inthe hospital.

Reality Check #4: Help Needed. I couldno longer do the professional and personalwork of two people. Something had to give.I needed to ask for and accept help fromother people.

First came the tactical help—such asaccepting an offer from a friend to drop offdinner, enlisting the assistance of the LAP toget a few of my husband’s litigation casescontinued, and asking my retired father topick up mail and phone messages from myhusband’s office so that I didn’t have to driveacross town. (By this time I had let my hus-band’s staff go because there wasn’t anymoney left.) These acts of generosity defi-nitely lightened the load to some degree, butI still kept most of the burden of my hus-band’s practice for myself, fearing for hislicense. I was “stressed,” but I thought I wascoping pretty well under the circumstances.

People around me suggested that I go“talk to somebody” or go to an Al-Anonmeeting. First it was my mother, then afriend who made these suggestions. I insistedthat I was “fine,” I just needed help with the“to-dos.” After all, I wasn’t the one in rehab.I was the responsible one. I was paying thebills on time. I was effective and successful atwork. The kids were getting fed and bathed.I certainly wasn’t the one with the problem.Around the same time, I attended a familyprogram at my husband’s treatment center. Anumber of participants in the program men-tioned that I seemed angry and very hurt. Ijust assumed that they were projecting theirown feelings on to me, because I wasn’t angryat all. Sure, I was tired, but I was happy thatmy husband was finally getting the treatmenthe needed. I also met with my husband’s

therapist that weekend, and her first com-ment to me was, “Wow, you seem reallypissed. Are you talking to someone aboutthat?” I was confounded. Why didn’t thesepeople understand? I was stressed about ourfinances and I was exhausted from doing thework and parenting of two people, but I was-n’t mad at my husband. I was fine.

Then, a week later, it happened—Isnapped. A bank teller wouldn’t allow me totransfer money between my husband’saccounts, despite the fact that I had a Powerof Attorney, so I shouted that she was amoron and stormed out of the bank branch.Later that afternoon I hung up the phone onone of my co-workers mid-sentence for dis-agreeing with me. I left my office, and beforeI could drive out of the parking deck, I wassobbing uncontrollably.

Reality Check # 5: I Needed Help. Me.Not my husband’s caseload. Not my budget.Not my to-do list. Me. I was emotionallyoverwhelmed and I didn’t know how tocope. I did not know that one of the effectsof the disease of alcoholism is that the non-alcoholic begins to assume all responsibility,taking on far more than is reasonable.

I found a counselor who specialized inaddiction and joined a therapy group specif-ically for family members of alcoholics. I didnot know at that time that the LAP couldhave directed me to resources like this formyself. I knew that the LAP could help myhusband, but I did not realize I mightreceive help as well for being affected (over-whelmed) by someone else’s alcoholism oraddiction. I quickly learned that years of liv-ing with an active alcoholic had impactedme. I learned that I was indeed angry, notonly that I had been left with all of theresponsibility and burden of my husband’sabrupt departure for treatment, but also thatalcohol had been the most important thingin my husband’s life for so long. I alsolearned that underneath the anger were a lotof fear and sadness. Through regular grouptherapy sessions and with the support ofother spouses of alcoholics, I learned a lotabout myself and learned how to workthrough the anger and other emotions thatare so common with those affected by thedisease of alcoholism.

This has not been an easy journey for me,and there have been some fairly large bumpsin the road, including substantial financialchallenges and my husband’s relapse (whichthankfully was not prolonged and he is back

working on his own recovery). I am still awork in progress, but for the first time in mylife I truly understand the meaning of seren-ity and the joy has returned to my life. I amnow able to take ownership of what is mineand to let go of the things that are outside ofmy control (like my husband’s recovery orthe status of his law license). I have a sense ofgratitude for the small, everyday things inlife, and I am able to live in the present.Gone are the constant “what if” worries thatso often plague those impacted by alco-holism.

In addition to the personal growth andinsights that have come from my gettinghelp, I have learned a lot about the LAP andthe resources and support that it can provide.For example, I learned that had I enlisted theassistance of volunteer lawyers through theLAP, our communication would have beenconfidential pursuant to Rule 1.6 and theLAP staff and volunteers are duty bound topreserve the confidentiality of anything Ineeded to discuss with them. I did not haveto take on the added burden of my husband’slaw practice. Most importantly, I havelearned that I am not alone. There are a lotof us out there. We are lawyers, but we arealso wives, husbands, siblings, parents, part-ners, and friends of alcoholics. Some of us arein crisis due to the consequences of activeaddiction or the sudden upheaval causedwhen a lawyer or family member seeks treat-ment. There are others who are adjusting tolife with a recovering alcoholic or addict whodon’t know where to turn to get help forthemselves or a loved one. There is help avail-able to us through the Lawyer AssistanceProgram, Al-Anon, mental health profes-sionals, and through the support and friend-ship of other lawyers with similar experi-ences. All we need to do is ask. �

The North Carolina Lawyer AssistanceProgram is a confidential program of assis-tance for all North Carolina lawyers whichhelps lawyers address problems of stress,depression, addiction, or other problems thatmay lead to impairing a lawyer’s ability topractice. If you are a North Carolina lawyer,judge, or law student and would like moreinformation, go to www.nclap.org or call tollfree: Robynn Moraites (for Charlotte andareas west) at 1-800-720-7257, TowandaGarner (in the Piedmont area) at 1-877-570-0991, or Ed Ward (for Raleigh anddown east) at 1-877-627-3743.


44 FALL 2012

BE IT RESOLVED: Henceforth, it will bethe policy of the North Carolina State BarCouncil that a lawyer may seek exemption fromthe random audit of trust accounts authorizedby 27 NCAC 1B, Rule .0128(b), by having aCPA or CPA firm perform an examination ofhis/her trust account pursuant to proceduresapproved by the council and by having the CPAor CPA firm send a report showing complianceto the North Carolina State Bar. The requiredperiod covered by the CPA examination is 12months. Exemptions are good for 15 monthsfrom the date the CPA examination was con-cluded. A lawyer is prohibited from seekingexemption from the random audit of his/hertrust accounts during the quarter in which thelawyer’s judicial district bar has been selectedfor review.

Since the creation of the State Bar’sRandom Audit Program in 1985, lawyershave, as a matter of policy, been permitted toobtain exemption from selection for randomaudit by preemptively submitting their trustaccounts for examination by certified publicaccountants. The impetus behind this policywas to allow lawyers to subject their trustaccounts to an examination similar to a ran-dom audit and thus preclude selection by theRandom Audit Program. In theory, this pol-icy would be a win-win for both the StateBar and the lawyer, as it would allow theState Bar auditor to examine other lawyersand let the lawyer have his account examinedon his own schedule and by a CPA of hischoice. This policy remains in effect; howev-er, the method for seeking and being grantedan exemption has been revised.

Previously, a certified public accountantexamined the lawyer’s trust account andcertified that the trust account was in com-pliance with Rule 1.15 of the Rules ofProfessional Conduct. The CPA was notrequired to provide any specific findings,

explain the process by which the examina-tion was conducted, or show that any reme-dial measures were taken to bring the trustaccount into compliance. When the StateBar received a completed form that showedcompliance with Rule 1.15, the lawyer orlaw firm was exempted from random auditfor 15 months. The State Bar received, onaverage, 35-40 exemption forms a year fromlaw firms of all sizes, including solo practi-tioners.

Not surprisingly, the reports the StateBar received from the accountants almostalways certified that the lawyer’s trustaccount was spotless and had no deficien-cies. From our experience with the RandomAudit Program and the high percentage ofnon-compliant trust accounts, we were sus-picious that the examinations were eithernot thorough enough or not conducted atall.

Additionally, the Board of CPAExaminers expressed reservations with theformat and language of our exemptionform, and asked us to revise the form to pro-vide more specific requirements for the CPAexamination. Given our concerns with theeffectiveness of the exemption process andthe request from the Board of CPAExaminers, we undertook to revise ourforms and procedures for seeking andobtaining an exemption from the RandomAudit Program. Descriptions of the newforms are below.� The Lawyer’s Representation Form

will require the lawyer to certify to the StateBar that he/she is in compliance with certaintrust accounting rules. The form requiresthe lawyer or law firm to list all of their trustaccounts and all of the lawyers covered bythe requested exemption. The representa-tion form must be provided to theCPA/CPA firm prior to commencement ofthe examination and must be attached to the

CPA report sent to the North Carolina StateBar. � The Agreed Upon Procedures Form

specifies what records the CPA must exam-ine for the State Bar, how they are to exam-ine the records, and what we want CPAs toreport to us. It will make the CPA trustaccount examination more equivalent to therandom audit procedure, and will give theState Bar a more detailed look into thelawyer’s compliance with trust accountingrules.� The Agreed Upon Procedures

Engagement Letter is the contract betweenthe lawyer and the CPA that clearly stateswhat the CPA will be examining and howinformation will be reported to the StateBar.

Finally, the CPA will provide the lawyerand the State Bar with a report detailing theresults of the examination pursuant to theagreed upon procedures.

These documents are available in the“Forms” section of the State Bar website,under “Trust Accounting.” They are alsoavailable in the Lawyer’s Trust AccountHandbook, available online at ncbar.gov/PDFs/TrustAccountHandbook.pdf.

Please note that a lawyer is prohibitedfrom seeking exemption from the randomaudit of his/her trust account(s) during thequarter in which the lawyer’s judicial districtbar has been selected for review.

The revisions to the procedures regardingexemption from random audit balance theneed to advance the State Bar’s mission ofprotecting the public with the desire toallow lawyers to have their accounts auditedin a more convenient and less stressful envi-ronment. If you have any questions aboutthe new procedure and forms, please contactPeter Bolac, trust account compliance coun-sel, at (919) 828-4620 or [email protected]. �

T R U S T A C C O U N T I N G

North Carolina State Bar Amends Procedures for Exemption from Random Audit of Trust Accounts


DisbarmentsAlexander L. Lapinski of Durham pled

guilty in federal court to one felony count ofunlawful procurement of citizenship or natu-ralization under 18 U.S.C. §1425 by aidingand abetting his client in seeking US citizen-ship under a false name. Lapinski surrenderedhis license and was disbarred by the WakeCounty Superior Court.

Robert L. Mebane of Rutherfordtonembezzled client funds and funds withheld,for the benefit of the IRS, from employees’paychecks. He was disbarred by the DHC.

Sean Nelson Rogers Wells of Swansborosurrendered his law license and was disbarredby the Wake County Superior Court. Wellsadmitted that he misappropriated entrustedfunds.

Suspensions & Stayed SuspensionsCameron Ferguson of Boone neglected

personal injury cases, did not supervise hisnon-lawyer assistant, did not safeguardentrusted funds, did not promptly deliverentrusted funds, allowed entrusted funds to beused for an unauthorized purpose, did notcommunicate with clients, did not appear fortrials and for a hearing on an order to showcause why he should not be held in contempt,and was found guilty of criminal contempt.He was suspended for five years and must sat-isfy numerous conditions before he can bereinstated.

Roydera Hackworth of Greensboro com-mingled, did not maintain proper trustaccount records, and did not reconcile hertrust account. She was suspended for fouryears. After one year she may apply for a stayof the balance upon compliance with numer-ous conditions, including that she identify theowners of funds in her trust account, disburseits contents to the owners, and obtain a prac-tice monitor.

Gary Lawrence of Southport made sexualcomments to and inappropriately touched twoclients. He was suspended for three years.After one year he may apply for a stay of thebalance upon compliance with numerous con-ditions, including that he must provide certifi-

cation from a psychiatrist who specializes intreating sexual offenders in the professions thathe does not suffer from any condition creatinga predisposition to engage in inappropriatesexual behavior.

Michael D. Lea of Thomasville neglectedhis client’s case, forged his client’s signature onan affidavit, notarized the forged signature,and filed the affidavit with the court. He wassuspended for six months. The DHC foundmany mitigating circumstances and indicatedthat, but for those circumstances, much moresubstantial discipline would have beenimposed.

Mark Mangiarelli of Huntersville neglect-ed real estate transactions, failed to conductquarterly trust account reconciliations, anddisbursed entrusted funds improperly. He wassuspended for three years. The suspension isstayed for three years upon compliance withnumerous conditions.

Charles M. Oldham III of Charlotteallowed a mortgage loan “modification” busi-ness to operate under the auspices of his lawfirm. He was suspended for two years. The sus-pension is stayed for two years.

Steven E. Philo of Franklin omitted rele-vant information on HUD-1 SettlementStatements, neglected his clients, and did notadequately communicate in real estate transac-tions. Because there was no evidence of intentto deceive, the DHC imposed a three-year sus-pension stayed for three years.

CensuresThe Grievance Committee censured

Elizabeth City lawyer Van H. Johnson.Johnson did not cooperate with opposingcounsel in scheduling Johnson's client's depo-sition and did not tell his client that the depo-sition had been noticed several times.Johnson's client was ordered to pay sanctions.

ReprimandsRaleigh lawyer Robert J. Lane III was rep-

rimanded by the Grievance Committee forassisting a disbarred lawyer in the unautho-rized practice of law.

James E. Hairston of Raleigh was repri-manded by the Grievance Committee for

assisting a disbarred lawyer in the unautho-rized practice of law.

Matthew R. Plyler of Fayetteville was rep-rimanded by the Grievance Committee forfailing to supervise his paralegal. Plyer allowedhis paralegal to substitute her professionaljudgment for those of associate lawyers in hisoffice and allowed her to modify those lawyers’work product.

Transfers to Disability Inactive StatusThe chair of the Grievance Committee

transferred Robert H. Gourley, Sr. ofStatesville and Andrew Jason Brauer ofRaleigh to disability inactive status.

ReinstatementsThe secretary reinstated Wilmington

lawyer Leeanne Quattrucci to active status.The remaining two and a half years of her sus-pension are stayed upon compliance with con-ditions contained in the original order of disci-pline.

Notices of Intent to Seek ReinstatementIndividuals who wish to note their concur-

rence with or opposition to these petitionsshould file written notice with the secretary ofthe State Bar, PO Box 25908, Raleigh, NC27611, before November 1, 2012 (60 daysfrom publication).

In the Matter of James T. Ferguson IIINotice is hereby given that James T.

Ferguson III intends to file a petition for rein-statement before the Disciplinary HearingCommission of the North Carolina State Bar.On July 28, 2005, Ferguson entered a plea ofguilty in US Federal Court to one count ofconspiracy to commit securities fraud, mailfraud, and wire fraud. This conviction provid-ed the substance of a grievance filed againstFerguson by the Grievance Committee of theNorth Carolina State Bar. On or about August23, 2005, Ferguson tendered an Affidavit ofSurrender of his license. On October 21,2005, the tender of the surrender was acceptedby the State Bar and Ferguson was disbarred.


T H E D I S C I P L I N A R Y D E P A R T M E N T

Lawyers Receive Professional Discipline

46 FALL 2012

IncomeIncome from IOLTA accounts remains

depressed. Total income from IOLTAaccounts for 2011 was flat at $2.2 million,though it declined by 16% during the last twoquarters as the boost from implementingcomparability ended. The first quarter of2012 showed a decline of 17%. We expect thissituation to continue as banks are now re-cer-tifying their comparability compliance at evenlower interest rates. Also, the Federal Reserveis now predicting that it will keep interest ratesat the current unprecedented low levelthrough 2014.

We were, however, pleasantly surprised toreceive a check for over $1.2 million in June.These funds are from residuals directed toIOLTA programs across the country in aWashington State class action case. Residualfunds are those funds remaining after exhaus-tive efforts are made to locate and distributefunds to class members following the collec-tion of a class action judgment. The originallawsuit was brought against a Washingtoncompany that hired a fax blaster to sendunsolicited advertisements by facsimile toindividuals and businesses advertising lifeinsurance rates. Blast faxes violateWashington State and federal statutes. A largeamount of residual funds resulted from theinability to locate class members because ofthe absence of good records, the passage oftime since the case was initiated, and therecovery ceiling of $500 for each received faxestablished by statute and court ruling.

A Washington court rule directs a mini-mum of 25% of class action residual funds totheir IOLTA program and 75% by courtorder to other appropriate organizations.

In this case, the remaining 75% of residualfunds are being distributed to IOLTA pro-grams in all states and the District ofColumbia on a pro rata basis using an estimateof the statutorily prohibited activity thatoccurred in each state. The court found thatthese entities promote access to the civil legaljustice system, something that members of the

certified class, who have claims under con-sumer protection and other laws, desire andneed.

North Carolina has a statute that sets out aprocedure for distributing class action residu-als equally to the Indigent Person's AttorneyFund and the North Carolina State Bar. TheState Bar has asked IOLTA to administer thefunds it receives ($50,000 to date), which arefor the provision of civil legal services for indi-gents. The Equal Access to JusticeCommission (EAJC) has published a manualon Cy Pres and Other Court Awards to educatejudges and attorneys as to the importance ofsuch awards to legal aid organizations. Themanual includes information on differenttypes of court awards, tips for structuringaward agreements, examples of awards, and aprimer on how to structure a cy pres settle-ment. The manual is available on the NCEqual Access to Justice website (ncequalac-cesstojustice.com) and the NC IOLTA web-site (nciolta.org).

Settlement Agent Accounts Added toNC IOLTA

An amendment to the Good FundsSettlement Act (N.C. Gen. Stat. 45A-9)requires that interest bearing trust and escrowaccounts of settlement agents handling closingand loan funds be set up as IOLTA accountsas of January 1, 2012. Though many of theseaccounts are not interest bearing and are notbeing set up as IOLTA accounts, we haveidentified 45 new accounts as settlement agentonly accounts (those not associated with anattorney licensed in North Carolina), andhave received over $11,000 from interestearned on those accounts through May of thisyear.

The State Bar Council has approved andtransmitted to the NC Supreme Court forfinal approval a rule revision to allow anexception for out-of-state banks with no NCbranches to hold NC IOLTA accounts for set-tlement agents. Several large title companieswill be affected.

GrantsBeginning with the 2010 grants, we have

limited our grant-making to a core group of(mainly) legal aid providers. Even with thatrestriction and using $1 million in reservefunds in two consecutive years, grants havedramatically decreased (by approximately20% in 2010 and 11% in 2011). Faced witha smaller reserve fund (~$800,000) and pro-jections that interest rates will remain low forsome time, the NC IOLTA trustees decided todecrease grants by 15% and use between onethird and one half of the remaining reservefund (45%) in order to make just over $2.3million in grants for 2012.

Those decisions left us with approximately$450,000 remaining in reserve for future use.

State FundsIn addition to its own funds, NC IOLTA

administers the state funding for legal aid onbehalf of the NC State Bar. For the 2011 year,we administered just over $4.4 million. Thisamount is less than the previous year’s $5.1million and has decreased from a high of $5.5million in 2009. The legal aid programs andthe Equal Access to Justice Commission areworking with the NC Bar Association in aneffort to maintain state funding for legal aidand increase it if possible.

NC IOLTA Trustees and LeadershipAppointed

At their July meeting, the NC State BarCouncil appointed IOLTA trustees to begin athree-year term on September 1, 2012, andIOLTA leadership for 2012-13. The councilre-appointed former NC Bar AssociationPresident Michael C. Colombo and formerNC Bankers Association Chair F. EdwardBroadwell Jr. to a second three-year term asIOLTA trustees, and appointed former StateBar President E. Fitzgerald (Jerry) Parnell as anew trustee. Michael C. Colombo wasappointed chair, and F. Edward Broadwell Jr.was appointed vice-chair of the NC IOLTABoard of Trustees for 2012-2013. �

I O L T A U P D A T E

Class Action Residuals Boost IOLTA Income for 2012


My philosophy on life is the same as thereason I paint: I want to soak up the atmos-phere with all my senses, and then capture theessence of what I see with my brush. LikeMonet, I want to paint the air around thesubjects before me. I want to capture thosemoments between breaths, the sound after awater drop rejoins a puddle, and the instantafter a leaf breaks free and begins its journey.

I approach each landscape with the intentto allow the viewer to take time to exhale andto rediscover those moments in time that rep-resent tranquility and harmony in their life.My intent is to find beauty in the simplicitiesof life. My paintings are passageways for one’sjourney to discovering common ground.

Timothy Postell grew up in ruralGastonia, where most of his memories areof days spent playing sports and workingon the family farm. At the age of 18 hejoined the military and soon after marriedTeresa, who remains his inspiration. Afterleaving the military, he was recalled toactive duty for the Persian Gulf Conflictwhere he served for the duration. Upon his

return, Tim attended night school at thelocal community college while working fulltime during the day. At age 28 he left hisjob and transferred to East CarolinaUniversity to pursue his dream of becom-ing an artist.

After obtaining his undergraduatedegree, Tim attended graduate school at theprestigious Hoffberger School of Painting atthe Maryland Institute College of Art(MICA) in Baltimore, Maryland. While atthe Institute, Tim grew as an artist underthe guidance of the late internationallyknown artist Grace Hartigan, the founderof the Hoffberger School; RaoulMiddleman, the artist-in-residence at theschool; and many more visiting artists.During his two years at the Institute, he alsolearned from the many international artistsenrolled in the program.

Tim lives in Raleigh, where he pursueshis lifetime ambitions as a full-time artistand teacher. On most days, he can be foundin his studio at Artspace in downtownRaleigh or on location in the countryside

painting landscapes. Tim paints in a diver-sity of styles including portraiture, abstrac-tion, narrative, and symbolism, with astrong focus on the rural landscape throughplein air and studio painting. Tim’s paint-ings are in many private and corporate col-lections in the United States and abroad. �

F E A T U R E D A R T I S T

Featured Artist—Timothy Postell

Each quarter the works of a differentcontemporary North Carolina artist aredisplayed in the storefront windows ofthe State Bar building. The State Bar isgrateful to The Mahler Fine Art, theartists' representative, for arranging thisloan program. The Mahler is a full-ser-vice fine art gallery in Raleigh represent-ing national, regional, and NorthCarolina artists, and provides residentialand commercial consulting. Readerswho want to know more about an artistmay contact owners Rory Parnell andMegg Rader at (919) 896-7503 [email protected]’t Miss Important

State BarCommunications

Log on to ncbar.gov andmake sure we have your

email address.

Through the Meadow

48 FALL 2012

Council ActionsAt its meeting on July 20, 2012, the State

Bar Council adopted the ethics opinionssummarized below:

2012 Formal Ethics Opinion 1Use of Client Testimonials in AdvertisingOpinion rules that testimonials that dis-

cuss characteristics of a lawyer’s client servicemay be used in lawyer advertising withoutthe use of a disclaimer. Testimonials that refergenerally to results may be used so long as thetestimonial is accompanied by an appropri-ate disclaimer. The reference to specific dollaramounts in client testimonials is prohibited.

2012 Formal Ethics Opinion 3Imposition of Finance Charges on

Delinquent Client Account in Absence ofAdvance Agreement

Opinion rules that a lawyer may chargeinterest on a delinquent client account, with-out an advance agreement with the client, tothe extent and in the manner permitted bylaw.

Ethics Committee ActionsAt its meeting on July 19, 2012, the

Ethics Committee voted to send the follow-ing proposed opinions to subcommittees forfurther (or continued) study: Proposed 2011FEO 11, Communication with RepresentedParty by Lawyer Who is the Opposing Party;Proposed 2012 FEO 2, Lawyer-Mediator’sPreparation of Contract for Parties toMediation; and Proposed 2012 FEO 4,Screening Lateral Hire Who FormerlyRepresented Adverse Organization. The EthicsCommittee also voted to publish the follow-ing four proposed opinions. The commentsof readers are welcomed.

Proposed 2012 Formal Ethics Opinion 5Reviewing Employee’s EmailCommunications with Counsel Using

Employer’s Business Email SystemJuly 19, 2012

Proposed opinion rules that a lawyer repre-senting an employer must evaluate whetheremail messages an employee sent to and receivedfrom the employee’s lawyer using the employer’sbusiness email system are protected by the attor-ney-client privilege and, if so, decline to reviewor use the messages unless a court determinesthat the messages are not privileged.

Inquiry #1:Attorney A represents Employer on var-

ious matters including legal disputes withits employees. Employer has a businessemail system that is available to all employ-ees and that is used for transactingEmployer’s business. Employer’s personnelpolicy states that Employer may monitoremails sent or received using Employer’semail system, specifically including emailsent or received on any employee’s businessemail account.

Employee is in a legal dispute withEmployer. Employee has used his businessemail account on Employer’s email system tosend emails to his lawyer and he has receivedemails from his lawyer on his business emailaccount on Employer’s email system.

Does a lawyer have a duty to avoid com-municating with a client over the email sys-tem of the client’s employer?

Opinion #1:A lawyer must avoid communications

with a client over an employer’s email systemif there is a risk that the employer will findand read the emails. The duty of confiden-tiality, set forth in Rule 1.6 of the Rules ofProfessional Conduct, requires a lawyer “toact competently to safeguard informationrelating to the representation of a clientagainst inadvertent or unauthorized disclo-sure by the lawyer….” Rule 1.6, cmt. [17].

Comment [18] to the rule adds that, whentransmitting confidential client information,a lawyer must take “reasonable precautions toprevent the information from coming intothe hands of unintended recipients.”

Where a lawyer knows or reasonably

P R O P O S E D O P I N I O N S

Email and the Internet Continue to Present Issuesof Professional Responsibility to the EthicsCommittee

Public Information The Ethics Committee's meetings

are public, and materials submitted forconsideration are generally NOT held inconfidence. Persons submitting requestsfor advice are cautioned that inquiriesshould not disclose client confidences orsensitive information that is not neces-sary to the resolution of the ethical ques-tions presented.

CitationTo foster consistency in citation to

the North Carolina Rules of ProfessionalConduct and the formal ethics opinionsadopted by the North Carolina State BarCouncil, the following formats are rec-ommended:

· To cite a North Carolina Rule ofProfessional Conduct: N.C. Rules ofProf ’l Conduct Rule 1.1 (2003)

· To cite a North Carolina formalethics opinion: N.C. State Bar FormalOp. 1 (2011)

Note that the current, informalmethod of citation used within the for-mal ethics opinions themselves and inthis Journal article will continue for atransitional period.


should know that a client is using an employ-er’s email system to communicate with thelawyer, the lawyer should seek to avoid theuse of the employer’s system regardless ofwhether the legal matter is unrelated to theclient’s employment and regardless ofwhether there is a legal argument that use ofthe system does not waive the attorney-client privilege. The duty of confidentialityis more expansive than the attorney-clientprivilege. It requires a lawyer to protect con-fidential information from disclosure to“any unintended recipient.” The lawyershould explore with the client alternativemethods of communicating including use ofthe employee’s personal email system, tele-phone, and texting.

Inquiry #2:May Attorney A tell Employer to review

the records for its email system to retrieveany personal email messages sent or receivedby Employee on Employee’s business emailaccount?

Opinion #2:Attorney A should research the law relat-

ing to the recovery, identification and pro-duction of employee email, including the lawon attorney-client privilege, and adviseEmployer as to its rights and responsibilitiesunder the law. See Rule 4.4(a)(“In represent-ing a client, a lawyer shall not...use methodsof obtaining evidence that violate the legalrights of…a person.”)

Inquiry #3:Employer reviews the records of its email

system and discovers email messages betweenEmployee and his lawyer. The emails fromthe lawyer contain the statement “Attorney-Client Confidential Communication.”Employer informs Attorney A that it hascopies of these messages.

May Attorney A review the email mes-sages?

Opinion #3: In the absence of a Rule of Professional

Conduct or prior ethics opinion on point,the Ethics Committee was guided by the caselaw on the application of the attorney-clientprivilege to communications between aclient and his lawyer over an employer’semail system. The attorney-client privilege isfundamental to the client-lawyer relationshipand the trust that underpins that relation-

ship. As such, the bar must protect the priv-ilege and seek to limit incursions upon theprivilege that are not warranted by law.

Case law from many jurisdictions,1

including North Carolina,2 indicates thatwhether the privilege applies to emailexchanges between an employee and hislawyer that occurred over an employer’semail system depends upon whether theemployee had a reasonable expectation ofprivacy in the email communications. Thisin turn requires an investigation into a myri-ad of factors, including whether the employ-er has a clear, unambiguous policy regardingemail usage and monitoring; whether thatpolicy is effectively communicated toemployees; whether the policy is adhered toby the employer; whether third parties haveaccess to the employee’s email account on theemployer’s system; when/where the commu-nication occurred (at home or the office;during work or leisure hours); and whetherthe employee took affirmative steps to pre-serve the privacy of the communication. See,e.g., In re Asia Global Crossing, Ltd., 322 B.R.247, 258 (S.D.N.Y. 2005)(in consideringwhether employee has objectively reasonableexpectation of privacy in emails sent to theemployee’s attorney over the employer’s com-puter systems, court should consider (1) doesthe corporation maintain a policy banningpersonal or other objectionable use, (2) doesthe company monitor the use of the employ-ee’s computer or email, (3) do third partieshave a right of access to the computer oremails, and (4) did the corporation notify theemployee, or was the employee aware, of theuse and monitoring policies).

Therefore, whether Attorney A may readthe email messages recovered by Employerwill depend upon an analysis of the case lawand the factors set forth therein to determinewhether Employee had a reasonable expecta-tion of privacy or, lacking that, waived theprivilege when communicating with hislawyer using Employer’s email system. IfAttorney A is able to conclude, confidentlyand in good faith, that the privilege waswaived, he may read the emails and use themto represent his client. However, in deferenceto the bar’s interest in protecting the attor-ney-client privilege, Attorney A should erron the side of recognizing the privilegewhenever an analysis of the facts and case lawis inconclusive. If a matter is in litigation,Attorney A may seek the court’s determina-tion of the waiver issue.

Inquiry #4:Does Attorney A have to notify Employee’s

lawyer that Employer has copies of the emailmessages?

Opinion #4: No. Rule 4.4(b) is not applicable in this sit-

uation. The rule states that “[a] lawyer whoreceives a writing relating to the representationof the lawyer’s client and knows or reasonablyshould know that the writing was inadvertent-ly sent shall promptly notify the sender.”Employee and his lawyer sent the email mes-sages knowingly using Employer’s email sys-tem. Therefore, the email was not “inadver-tently sent” and no duty to notify arises underthis rule. See ABA Formal Opinion 11-460(2011).

2009 FEO 1 (2010) can be distinguished.The opinion rules that a lawyer must notifythe sender upon finding confidential informa-tion embedded in metadata transmitted in anelectronic communication. The transmissionof metadata, which is not disclosed on the faceof an electronic document, is held to be inad-vertent on the part of the sending lawyer, thustriggering a duty to notify for the receivinglawyer under Rule 4.4(b). However, in theinstant situation, the substance of the com-munications between the employee and hislawyer are disclosed on the face of the emailsand use of the employer’s system was inten-tional. Therefore, the emails were not “inad-vertently sent.”

In the absence of a duty to notify, the factthat Employer has copies of the email mes-sages is confidential client information thatAttorney A may not disclose unless one of theexceptions to the duty of confidentialityapplies or the client gives informed consent todisclosure. Rule 1.6(a). In the current situa-tion, Rule 1.6(b)(1) only allows the lawyer todisclose confidential client information tocomply with the law, a court order, or the dis-covery requirements under the Rules of CivilProcedure.

The ABA Standing Committee on Ethicsand Professional Responsibility (the StandingCommittee) addressed a similar inquiry inABA Formal Opinion 11-460 (2011), andfound that notification is only allowed withclient consent in the absence of a law author-izing disclosure. As observed by the StandingCommittee,

[I]f no law can reasonably be read as estab-lishing a reporting obligation, then thedecision whether to give notice must be

50 FALL 2012

made by the employer-client. Even whenthere is no clear notification obligation, itoften will be in the employer-client's bestinterest to give notice and obtain a judicialruling as to the admissibility of theemployee's attorney-client communica-tions before attempting to use them and, ifpossible, before the employer's lawyerreviews them. This course minimizes therisk of disqualification or other sanction ifthe court ultimately concludes that theopposing party's communications withcounsel are privileged and inadmissible.The employer's lawyer must explain theseand other implications of disclosure, andthe available alternatives, as necessary toenable the employer to make an informeddecision.

Inquiry #5:Employee has a personal email account

with a commercial email service (such asGmail, Hotmail, or Road Runner) that is nota part of Employer’s business email system.However, the personal email account can beaccessed via Employee’s office computer. Thepersonal email account is password protected.Employer can access the email messages onthis personal email account by changing thepassword to the account.

May Attorney A advise Employer tochange the password to access Employee’semail messages on his personal email account?

Opinion #5:No. To advise a client to change the pass-

word to a personal email account violates Rule1.2(d), which prohibits a lawyer from counsel-ing a client to engage in criminal or fraudulentconduct, and Rule 8.4(c), which prohibits alawyer from engaging in conduct involvingdishonesty, fraud, deceit, or misrepresenta-tion. Again, obtaining a judicial ruling allow-ing Employer to access the email messageswould authorize the Employer to proceed andavoid any professional misconduct byAttorney A.

Inquiry #6:On its own initiative, Employer changes

the password on Employee’s personal emailaccount and gains access to emails on theaccount including email messages betweenEmployee and his lawyer.

May Attorney A review the email mes-sages? Should Attorney A notifyEmployee’s lawyer that Employer has

copies of the email messages?

Opinion #6:No. Attorney A may not review the email

messages unless allowed to do so by courtorder. To hold otherwise would be to permita lawyer to assist a client in fraudulent con-duct in violation of Rule 1.2(d) and Rule8.4(c).

Attorney A may not notify Employee’slawyer that Employer has copies of the emailmessages unless he has the informed consentof Employer or if Attorney A believes thatnotification is reasonably necessary to com-ply with law or a court order. Rule 1.6(a) and(b)(1). As noted above, it may be inEmployer’s best interest to obtain a judicialruling on the admissibility of the email mes-sages and this should be explained toEmployer to obtain consent to disclose.

Inquiry #7:Lawyers who are employed by govern-

ment agencies that are subject to publicrecords laws frequently are required to reviewemails of government employees to ascertainwhether the emails are public records andmust be produced pursuant to a publicrecords request. Because all emails are subjectto review to comply with the public recordslaw, emails between a government employeeand his lawyer would be subject to the samereview. May a government lawyer participatein such a review?

Opinion #7:Yes. The review is required by law and it

is in the best interests of the government andthe public that the review be performed bylawyers. However, if emails between a gov-ernment employee and his lawyer are evalu-ated and held not to be public records, thegovernment lawyer must further determinewhether the attorney-client privilege for thecommunications was waived by the employ-ee by the use of the government’s email sys-tem. See Opinion #2 above. If the lawyerdetermines that the privilege was not waivedor the lawyer cannot confidently and in goodfaith make that determination, the lawyershould recognize the privilege and take stepsto protect the communications from furtherdisclosure or distribution unless authorizedby court order.

Endnotes1. The Ethics Committee is grateful to the North

Carolina Bar Association Labor and Employment LawSection Council for the following list of relevant cases:Convertino v. US DOJ, 674 F. Supp. 2d 97 (D.D.C.2009); Curto v. Medical World Comms. Inc., 2006 USDist. LEXIS 29387 (EDNY 2006); Curto v. MedicalWorld Comms. Inc., 2006 US Dist. LEXIS 29387(EDNY 2006); Garrity v. John Hancock Mut. Life Ins.Co., No. 00-12143-RWZ, 2002 US Dist. LEXIS 8343(D. Mass. May 7, 2002); Haynes v. Office of the AttorneyGeneral, 298 F.Supp.2d 1154 (D. Kan. 2003); Holmesv. Petrovich Dev. Co., LLC, 191 Cal. App.4th 1047, 119Cal.Rptr.3d 878 (2011); Kaufman v. Sungard Inv. Sys.,No. 05-CV-1236, 2006 US Dist. LEXIS 28149 (DNJ2006) (unpub.); Leor Exploration & Prod’n LLC v.Aguiar, No. 09-60136-CIV, 2009 US Dist. LEXIS87323 (SD Fla. Sept. 23, 2009); Leventhal v. Knapek,266 F.3d 64 (2d Cir. 2001); Muick v. Glenayre Elecs.,280 F.3d 741 (7th Cir. 2002); Restuccia v. Burk Tech., 5Mass.L.Rep. 712, 1996 Mass. Super. LEXIS 367(Mass. Super. Ct. 1996); Scott v. Beth Israel MedicalCenter, Inc., 17 Misc.3d 934, 847 N.Y.S.2d 436 (NYSup. Ct. 2007; Sims v. Lakeside School, No. CO6-

Rules, Procedure,Comments All opinions of the Ethics

Committee are predicated upon theRules of Professional Conduct as revisedeffective March 1, 2003, and thereafteramended, and referred to herein as theRules of Professional Conduct (2003).The proposed opinions are issued pur-suant to the “Procedures for Ruling onQuestions of Legal Ethics.” 27N.C.A.C. ID, Sect .0100. Any interest-ed person or group may submit a writ-ten comment or request to be heardconcerning a proposed opinion. Anycomment or request should be directedto the Ethics Committee at PO Box25908, Raleigh, NC 27611, bySeptember 30, 2012.

Captions andHeadnotesA caption and a short description of

each of the proposed opinions precedesthe statement of the inquiry. The cap-tions and descriptions are provided asresearch aids and are not official state-ments of the Ethics Committee or thecouncil.


1412RSM, 2007 US Dist. LEXIS 69568 (Sept. 20,2007); Hygeson v. US Bancorp Equip. Fin’g, Inc., No.CV-03-467-ST, 2004 US Dist. LEXIS 18863 (D.Or.Sept. 15, 2004); United States v. Simons, 205 F.3d 392(4th Cir. 2000).

2. Mason v. ILS Techs., LLC, No. 3:04-CV-139, 2008 USDist. LEXIS 28905 (W.D.N.C. 2008) (attorney-clientprivilege was not waived where the employee testifiedthat he did not know of the employer’s policy on mon-itoring of personal emails transmitted on the employ-er’s email system and employer failed to prove other-wise).

Proposed 2012 Formal Ethics Opinion 6Use of Leased Time-Shared OfficeAddress or Post Office Address onLetterhead and AdvertisingJuly 19, 2012

Proposed opinion rules that a law firm mayuse a leased time-shared office address or a postoffice address to satisfy the address disclosurerequirement for advertising communications inRule 7.2(c) so long as certain requirements aremet.

Inquiry #1:ABC Company offers to lease office space

to law firms. The office lease is a time-sharingarrangement in which lawyers use meetingrooms by appointment. Depending uponthe lease, ABC Company may also providemail forwarding and personalized callanswering. ABC Company advertises that itprovides businesses with “prestigious address-es” that can be utilized on business cards andstationary.

May a law firm enter into a lease withABC Company and use the leased officeaddress as the law firm’s address on letterheadand advertising?

Opinion #1:Yes, subject to certain requirements.Rule 7.2(c) provides that a lawyer’s adver-

tisements must include the name and officeaddress of at least one lawyer or law firmresponsible for its content. Rule 7.1(a) pro-vides that a lawyer shall not make a false ormisleading communication about the lawyeror the lawyer's services. “It is a misleadingcommunication for a law firm to infer that ithas an office or a lawyer located in a commu-nity when, in fact, there is no law office orlawyer for the firm present in the communi-ty.” RPC 217. In RPC 217, the EthicsCommittee concluded that listing whatappears to be a local telephone number in anadvertisement in a particular community,

without including an explanation that thenumber is not a local telephone number andthat there is no law office in that community,is misleading as to the actual location of thelaw firm.

Similarly, it would be misleading for a lawfirm to use a leased time-shared officeaddress on letterhead or in advertising toinfer that the law firm has an office or alawyer located in a community when the lawfirm’s only connection with the communityis the lease arrangement that allows a lawyerto use meeting rooms in that community onan “as needed” basis.

However, the use of a leased time-sharedoffice address in communications may notbe misleading depending upon the law firm’sconnection to the community or the disclo-sures included in the communication.Whether such a communication is mislead-ing must be determined on a case-by-casebasis.

A lawyer who does not wish to meetclients at his home, or to list his homeaddress on letterhead and advertisements,does not mislead the public by using a time-shared leased office address on letterhead andadvertisements when the lawyer actually livesin the community associated with the leasedaddress and uses the leased office to meetwith clients on a regular basis.

In addition, it is not misleading for a lawfirm to list a time-shared leased office addresson letterhead or in advertising so long as thecommunication contains an explanation thataccurately reflects the law firm’s presence atthe address (i.e.,“by appointment only”).

Inquiry #2: Lawyer operates a “virtual law firm” from

an office located in her home. She communi-cates with her clients online and by the tele-phone. She does not meet with clients in per-son except on rare occasions at locations out-side of her home. Rule 7.2(c) of the Rules ofProfessional Conduct requires a lawyer toinclude “the name and office address of at leastone lawyer or law firm” on every advertise-ment. Lawyer would like to advertise her vir-tual law firm, but she does not want to includeher home address in the advertisementsbecause she is concerned about her safety andprivacy. She is considering using a leased officeaddress in her community, as described inInquiry #1, to circumvent this problem, butwould prefer not to incur this expense.

May Lawyer list her post office address,

which is the address listed for her on themembership records of the North CarolinaState Bar, on advertising to comply withRule 7.2(c)?

Opinion #2: Previously, the Ethics Committee inter-

preted the “office address” requirement inRule 7.2(c) to mean a street address.However, requiring a street address in alllegal advertising has proved problematic,particularly as the number of lawyers work-ing from home offices or operating virtuallaw practices has increased. The requirementis no longer practical or necessary to avoidmisleading the public or to insure that alawyer responsible for the advertisement canbe located by the State Bar. Moreover, themembership department of the NorthCarolina State Bar accepts post officeaddresses as a lawyer’s address.

Therefore, a post office address qualifiesas an “office address" for purposes of Rule7.2(c) provided the post office address is onfile as the lawyer’s current mailing address inthe lawyer’s membership record with theNorth Carolina State Bar.

Proposed 2012 Formal Ethics Opinion 7Copying Represented Persons onEmail CommunicationsJuly 19, 2012

Proposed opinion rules that Rule 4.2requires a lawyer to have the express consent ofa represented person’s lawyer prior to sending therepresented person a copy of an email commu-nication.

Inquiry #1: When Lawyer A sends an email commu-

nication to opposing counsel, Lawyer B, mayLawyer A “copy” Lawyer B’s client on theemail?

Opinion #1:No, unless Lawyer B has consented to

the communication. Rule 4.2(a), oftencalled the “no contact rule,” provides that,during the representation of a client, “alawyer shall not communicate about thesubject of the representation with a personthe lawyer knows to be represented byanother lawyer in the matter, unless thelawyer has the consent of the other lawyer oris authorized to do so by law or a courtorder.” Copying the opposing party on a

52 FALL 2012

communication—whether email or conven-tional mail—with opposing counsel is acommunication under Rule 4.2(a) and pro-hibited unless there is consent.

Inquiry #2:Would the answer change if Lawyer A is

replying to an email message from Lawyer Bin which Lawyer B copied her own client?Does the fact that Lawyer B copied her ownclient on the email constitute implied con-sent to a “reply to all” responsive email fromLawyer A?

Opinion #2:No. Rule 4.2 requires the express consent

of opposing counsel.This issue was recently addressed by the

Association of the Bar of the City of NewYork Committee on Professional and JudicialEthics (“New York Committee”) and theCalifornia Standing Committee onProfessional Responsibility & Conduct(“California Committee”).

Both the New York Committee and theCalifornia Committee concluded that con-sent to “reply to all” communications maysometimes be inferred from the facts and cir-cumstances presented. Ass’n of the Bar of theCity of N.Y. Comm. on Prof ’l and JudicialEthics, Formal Op. 2009-1; Ca. StandingComm. on Prof ’l Responsibility &Conduct, Formal Op. 2011-181.

Although concluding that consent underRule 4.2 may be implied, both opinions cau-tion lawyers against relying on implied con-sent. The New York Committee’s opinionstates that a lawyer who relies on impliedconsent “runs the risk that the representedperson’s lawyer has not consented to thedirect communication” and that “[t]o avoidany possibility of running afoul of the no-contact rule, the prudent course is to secureexpress consent.” The California opinionstates that the consent requirement of Rule4.2 should not be taken lightly and that it isnot appropriate for lawyers to “stretchimproperly to find implied consent.” TheCalifornia Committee further states that“even where consent may be implied, it isgood practice to expressly confirm the exis-tence of the other attorney’s consent, and todo so in writing.”

The Ethics Committee accepts the cau-tionary words offered by the New York andCalifornia Committees. Because of the risksassociated with inferring implied consent, we

conclude that 4.2 requires the express con-sent of opposing counsel.

Proposed 2012 Formal Ethics Opinion 8Lawyer’s Acceptance ofRecommendations on ProfessionalNetworking WebsiteJuly 19, 2012

Proposed opinion rules that a lawyer mayask a former client for a recommendation to beposted on the lawyer’s profile on a professionalnetworking website and may accept a recom-mendation if certain conditions are met.

Inquiry #1:Lawyer has a profile listing on a profes-

sional social networking website, such asLinkedIn. The networking website has a fea-ture that allows members to write recom-mendations for each other. A member of thenetworking website may request a recom-mendation from another member, or amember may send a recommendation toanother member without being asked. Ineither event, the member receiving the rec-ommendation has the opportunity to reviewthe recommendation and decide whether to“accept” the recommendation. For a recom-mendation to be published on the member’sonline profile, it has to “accepted.”

May a lawyer with a professional profileon the networking website accept a recom-mendation from a current or former client?

Opinion #1:Yes. When a lawyer has control over the

content of postings on his or her profile on thenetworking website, the lawyer may accept arecommendation from a current or formerclient subject to certain conditions. Thelawyer may only “accept” recommendationsthat comply with the Rules of ProfessionalConduct that pertain to advertising. Rule 7.1provides that a lawyer shall not make a false ormisleading communication about the lawyeror the lawyer's services. A communicationthat is likely to create an unjustified expecta-tion about results the lawyer can achieve ismisleading. Rule 7.1(a)(2).

A recommendation posted on the net-working website is essentially a client testi-monial. Depending upon content, a clienttestimonial has the potential to create unjus-tified expectations. The Ethics Committeerecently established guidelines under which alawyer may use certain client testimonials in

advertising. See 2012 FEO 1. A lawyer mayonly accept a recommendation from a cur-rent or former client if the recommendationcomplies with 2012 FEO 1.

Pursuant to 2012 FEO 1, a lawyer mayaccept a client recommendation that is limit-ed to a discussion of the characteristics of alawyer’s client service. If the recommenda-tion includes general references to the resultsthe lawyer obtained for the client, the lawyermay accept the recommendation if it can beaccompanied by an appropriate disclaimer.The lawyer may not accept a recommenda-tion that refers to a settlement or verdict of aspecific dollar amount. In addition, thelawyer must review the recommendation forany confidential information that the lawyerbelieves should not be published online.Therefore, it may be necessary for the lawyerto ask the client to add disclaiming languageor to delete certain content.

Inquiry #2:May a lawyer with a professional profile

on the networking website send a recommen-dation request to a current or former client?

Opinion #2:Yes, subject to certain conditions. A

lawyer may ask a current or former client fora recommendation that consists of com-ments indicating the client's level of satisfac-tion with certain aspects of the lawyer-clientrelationship. See 2007 FEO 4.

The lawyer’s duty of confidentiality to theclient requires that the lawyer advise theclient, at the time of the request, that the rec-ommendation may be published on themember’s online profile, and the lawyer mustobtain the client’s consent to publication.

The lawyer’s duties as to a recommenda-tion received pursuant to the request are setout in Opinion #1 above. �

Disciplinary Actions (cont.)

In the Matter of Edwin A. PetersNotice is hereby given that Edwin A.

Peters of Corning, New York, intends to file apetition for reinstatement before theDisciplinary Hearing Commission of theNorth Carolina State Bar. Peters surrenderedhis law license and was disbarred April 20,2007, for misappropriating client funds forhis personal benefit. �


At its meetings on April 27, 2012, and July20, 2012, the council of the North CarolinaState Bar voted to adopt the following ruleamendments for transmission to the NorthCarolina Supreme Court for approval (for thecomplete text see the Spring 2012 andSummer 2012 editions of the Journal or visitthe State Bar website):

Proposed Amendments to theProcedures for Election of State BarCouncilors

27 N.C.A.C. 1A, Section .0800, Electionand Appointment of State Bar Councilors

The proposed amendments permit judicialdistrict bars to adopt procedures for onlinevoting for State Bar councilors as long as theprocedures provide for appropriate notice,ensure secure voting, and offer access to ballotsto all active members in the judicial district.

Proposed Amendments to theDiscipline and Disability Rules

27 N.C.A.C. 1B, Section .0100,Discipline and Disability of Attorneys

The proposed amendments make theGrievance Committee’s procedure for refer-ring cases to the Trust Account SupervisoryProgram consistent with the procedures forreferrals to approved law office managementprograms and the Lawyer Assistance Program.

Proposed Amendments to theProcedures for Fee Dispute Resolution

27 N.C.A.C. 1D, Section .0700,Procedures for Fee Dispute Resolution

The proposed amendments clarify that theFee Dispute Resolution Program does nothave jurisdiction over fees or expenses estab-lished by private arbitrators.

Proposed Amendments to theAdministrative and CLE SuspensionRules

27 N.C.A.C. 1D, Section .0900,Procedures for Administrative Committee,and Section .1500, Rules Governing theAdministration of the Continuing LegalEducation Program

The proposed amendments will facilitatethe service of notices to show cause (NSC) forfailure to fulfill a membership or CLE require-ment by allowing for service of a NSC by des-ignated delivery service and for acknowledge-ment of service of a NSC by email. They alsoallow for a suspension order for the same con-duct to be served by mailing the order to thelast address on file with the State Bar if, afterdue diligence, the member cannot be servedby registered/certified mail, designated deliv-ery service, or personal service. The proposedamendments clarify that a written response toa NSC must “show cause” for not suspendingthe member, rather than merely provide anexplanation for the failure to fulfill an obliga-tion of membership.

Proposed Amendments to the IOLTARules

27 N.C.A.C. 1D, Section .1300, RulesGoverning the Administration of the Plan forInterest on Lawyers’ Trust Accounts (IOLTA)

The accounts of lay “settlement agents” arerequired by law to be IOLTA accounts. Theproposed rule amendments clarify that a set-tlement agent account may be established at abank outside of North Carolina provided theaccount is not maintained by a NorthCarolina lawyer, the bank is FDIC insured,and the bank has a certificate of authority totransact business from the North CarolinaSecretary of State.

Proposed Amendments to the CLERules

27 N.C.A.C. 1D, Section .1600,Regulations Governing the Administrationof the Continuing Legal Education Program

The proposed amendments provide CLEcredit to lawyers who teach classes at accred-ited law and paralegal schools and who teachclasses or courses on topics of substantive lawat accredited graduate schools.

Proposed Amendments to the LegalSpecialization Rules

27 N.C.A.C. 1D, Section .1700, The Planof Legal Specialization

The proposed amendments specify thatthe substantial involvement and CLE require-ments for certification apply to the calendaryears prior to application, and clarify the stan-dard for peer review.

Proposed Amendments to the Rules forParalegal Certification

27 N.C.A.C. 1G, Section .0100, The Planfor Certification of Paralegals

The proposed new rule creates an inactivestatus for certified paralegals who are sufferingfinancial hardship, illness or disability, onactive military duty, or following a militaryspouse to another state or country. To be rein-stated to active status after two years or moreof inactivity, an inactive certified paralegalmust take 12 hours of CPE. After five years ofinactive status, certification lapses and, to be

Amendments Pending Approval of the Supreme Court

R U L E A M E N D M E N T S

The ProcessProposed amendments to the Rules

of the North Carolina State Bar are pub-lished for comment in the Journal. Theyare considered for adoption by the coun-cil at the succeeding quarterly meeting.If adopted, they are submitted to theNorth Carolina Supreme Court forapproval. Amendments become effectiveupon approval by the court. Unless oth-erwise noted, proposed additions torules are printed in bold and under-lined, deletions are interlined.

CommentsThe State Bar welcomes your com-

ments regarding proposed amendmentsto the rules. Please send your writtencomments to L. Thomas Lunsford II,The North Carolina State Bar, PO Box25908, Raleigh, NC 27611.

54 FALL 2012

At its meeting on July 20, 2012, theCouncil voted to publish the following pro-posed rule amendments for comment fromthe members of the bar:

Proposed Amendments to the LawyerAssistance Program Rules

27 N.C.A.C. 1D, Section .0600, RulesGoverning the Lawyer Assistance Program

The proposed amendments eliminate con-sensual suspension by court order in favor ofconsensual transfer to inactive status by courtorder. This process provides a lawyer with amental health or substance abuse problem anopportunity to voluntarily take a respite frompractice. The lawyer may only return to activestatus pursuant to a court order.

.0617 Consensual Suspension InactiveStatus

Notwithstanding the provisions of Rule.0616 of this subchapter, the court may enteran order suspending a lawyer’s license trans-ferring the lawyer to inactive status if thelawyer consents to such suspension. The ordermay contain such other terms and provisionsas the parties agree to and which are necessaryfor the protection of the public. A lawyertransferred to inactive status pursuant to thisrule may not petition for reinstatement pur-suant to Rule .0902 of this subchapter. Thelawyer may apply to the court at any time foran order reinstating the lawyer to active sta-tus.

Proposed Amendments to theProcedures for Reinstatement fromInactive or Suspended AdministrativeStatus

27 N.C.A.C. 1D, Section .0900,Procedures for Administrative Committee

The rules on reinstatement from inactivestatus and from suspension require a lawyerwho has been inactive or suspended for sevenyears or more to pass the bar examination to

be reinstated. However, the rule allows theseven years to be offset if the lawyer waslicensed and practiced in another state duringthe period of inactivity or suspension, or ifthe lawyer was on active military duty duringthis time. Nevertheless, the lawyer must satis-fy the CLE requirements for reinstatement(12 CLE credit hours for every year of inac-tivity or suspension), which become substan-tial in the case of a lawyer who has been inac-tive or suspended for seven or more years.Capping the CLE requirement for reinstate-ment of lawyers who have been inactive orsuspended for seven or more years and whohave been practicing in another state or serv-ing in the military will preserve the purposeof the requirement (to assure minimal com-petence upon reinstatement) and moderatean unnecessarily burdensome obligation. Theproposed rule amendments also clarify thatCLE taken in another state may be used tooffset the CLE requirement for reinstatementeven if the CLE was taken more than twoyears prior to the petition.

.0902 Reinstatement from Inactive Status(a) Eligibility to Apply for Reinstatement….(c) Requirements for Reinstatement(1) Completion of Petition. ….(5) CLE Requirements If Inactive LessThan 7 Years. [Effective for all members who are trans-ferred to inactive status on or after March10, 2011.] If more than 1 but less than 7years have elapsed between the date of theentry of the order transferring the memberto inactive status and the date that the peti-tion is filed, the member must complete12 hours of approved CLE for each yearthat the member was inactive. The CLEhours must be completed within 2 yearsprior to filing the petition. For each 12-hour increment, 4 hours may be taken

online; 2 hours must be earned by attend-ing courses in the areas of professionalresponsibility and/or professionalism; and5 hours must be earned by attendingcourses determined to be practical skillscourses by the Board of Continuing LegalEducation or its designee. If during theperiod of inactivity the member compliedwith mandatory CLE requirements ofanother state where the member islicensed, those CLE credit hours may beapplied to the requirements under thisprovision without regard to whether theywere taken during the 2 years prior to fil-ing the petition. (6) Bar Exam Requirement If Inactive 7 orMore Years. [Effective for all members who are trans-ferred to inactive status on or after March10, 2011.] If 7 years or more have elapsedbetween the date of the entry of the ordertransferring the member to inactive statusand the date that the petition is filed, themember must obtain a passing grade on aregularly scheduled North Carolina barexamination.

(A) Active Licensure in Another State.Each year of active licensure in anotherstate during the period of inactive statusshall offset one year of inactive status forthe purpose of calculating the 7 yearsnecessary to actuate this provision. If themember is not required to pass the barexamination as a consequence of offset-ting, the member shall satisfy the CLErequirements set forth in paragraph(c)(5) for each year that the member wasinactive up to a maximum of 7 years.(B) Military Service. Each calendar yearin which an inactive member served onfull-time, active military duty, whetherfor the entire calendar year or some por-tion thereof, shall offset one year of inac-tive status for the purpose of calculatingthe 7 years necessary to actuate the

certified again, the paralegal must apply andpass the certification exam.

Proposed Amendments to the Rules ofProfessional Conduct

27 N.C.A.C. 2, Rules of Professional

Conduct, Rule 1.15, Safekeeping PropertyRule 1.15-2 requires a lawyer maintain-

ing a trust or fiduciary account to file awritten directive that requires the deposito-ry bank or other financial institution toreport to the State Bar when an instrument

drawn on the account is presented for pay-ment against insufficient funds. The pro-posed amendments clarify that the bankdirective requirement is limited to trustand fiduciary accounts with demanddeposit.

Proposed Amendments

requirement of this paragraph. If themember is not required to pass the barexamination as a consequence of offset-ting, the member shall satisfy the CLErequirements set forth in paragraph(c)(5) for each year that the member wasinactive up to a maximum of 7 years.

(7) Payment of Fees, Assessments, andCosts.

.0904 Reinstatement from Suspension(a) Compliance Within 30 Days of Service

of Suspension Order. ….(d) Requirements for Reinstatement(1) Completion of Petition ….(3) CLE Requirement If Suspended LessThan 7 Years If more than 1 but less than 7 years haveelapsed between the effective date of thesuspension order and the date upon whichthe reinstatement petition is filed, themember must complete 12 hours ofapproved CLE for each year that the mem-ber was suspended. The CLE must becompleted within 2 years prior to filing thepetition. For each 12-hour increment, 4hours may be taken online; 2 hours mustbe earned by attending courses in the areasof professional responsibility and/or pro-fessionalism; and 5 hours must be earnedby attending courses determined to bepractical skills courses by the Board ofContinuing Legal Education or itsdesignee. If during the period of suspen-sion the member complied with mandato-ry CLE requirements of another statewhere the member is licensed, those CLEcredit hours may be applied to the require-ments under this provision without regardto whether they were taken during the 2years prior to filing the petition.(4) Bar Exam Requirement If Suspended 7or More Years If 7 years or more have elapsed between theeffective date of the suspension order andthe date that the petition is filed, the mem-ber must obtain a passing grade on a regu-larly scheduled North Carolina bar exami-nation.

(A) Active Licensure in Another State.Each year of active licensure in anotherstate during the period of suspensionshall offset one year of suspension for thepurpose of calculating the 7 years neces-sary to actuate this provision. If the

member is not required to pass the barexamination as a consequence of offset-ting, the member shall satisfy the CLErequirements set forth in paragraph(d)(3) for each year that the member wassuspended up to a maximum of 7 years.(B) Military Service. Each calendar yearin which a suspended member served onfull-time, active military duty, whetherfor the entire calendar year or some por-tion thereof, shall offset one year of sus-pension for the purpose of calculating the7 years necessary to actuate the require-ment of this paragraph. If the member isnot required to pass the bar examinationas a consequence of offsetting, the mem-ber shall satisfy the CLE requirements setforth in paragraph (d)(3) for each yearthat the member was suspended up to amaximum of 7 years.

(5) Character and Fitness to Practice ….

Proposed Amendments to The Plan forLegal Specialization

27 N.C.A.C. 1D, Section .3100,Certification Standards for the TrademarkLaw Specialty

This proposed new section of the Plan forLegal Specialization will create a new specialtyin trademark law. Representation of clientswith respect to trademark matters requiresknowledge of the laws, procedures, andforums unique to trademark practice. Byidentifying lawyers with knowledge and expe-rience in this area of practice, clients will bebetter able to obtain qualified counsel. Theproposed standards for certification are com-parable to the standards for the other areas ofspecialty certification.

NOTE: The entire section is new.Therefore, bold, underlined print is not usedto indicate proposed additions.

.3101 Establishment of Specialty FieldThe North Carolina State Bar Board of

Legal Specialization (the board) hereby desig-nates trademark law as a specialty for whichcertification of specialists under the NorthCarolina Plan of Legal Specialization (seeSection .1700 of this subchapter) is permitted.

.3102 Definition of SpecialtyThe specialty of trademark law is the prac-

tice of law devoted to commercial symbols,and typically includes the following: advisingclients regarding creating and selecting trade-

marks; conducting and/or analyzing trade-mark searches; prosecuting trademark applica-tions; enforcing and protecting trademarkrights; and counseling clients on mattersinvolving trademarks. Practitioners regularlypractice before the United States Patent andTrademark Office (USPTO), the TrademarkTrial and Appeal Board (TTAB), theTrademark Division of the NC Secretary ofState’s Office, and the North Carolina and/orfederal courts.

.3103 Recognition as a Specialist inTrademark Law

If a lawyer qualifies as a specialist in trade-mark law by meeting the standards set for thespecialty, the lawyer shall be entitled to repre-sent that he or she is a “Board CertifiedSpecialist in Trademark Law.”

.3104 Applicability of Provisions of theNorth Carolina Plan of Legal Specialization

Certification and continued certificationof specialists in trademark law shall be gov-erned by the provisions of the North CarolinaPlan of Legal Specialization (see Section .1700of this subchapter) as supplemented by thesestandards for certification.

.3105 Standards for Certification as aSpecialist in Trademark Law

Each applicant for certification as a special-ist in trademark law shall meet the minimumstandards set forth in Rule .1720 of this sub-chapter. In addition, each applicant shall meetfollowing standards for certification in trade-mark law:

(a) Licensure and Practice - An applicantshall be licensed and in good standing to prac-tice law in North Carolina as of the date ofapplication. An applicant shall continue to belicensed and in good standing to practice lawin North Carolina during the period of certi-fication.

(b) Substantial Involvement - An applicantshall affirm to the board that the applicant hasexperience through substantial involvement intrademark law.

(1) Substantial involvement shall meanthat during the five years immediately pre-ceding the application, the applicantdevoted an average of at least 500 hours ayear to the practice of trademark law, butnot less than 400 hours in any one year. (2) Practice shall mean substantive legalwork in trademark law done primarily forthe purpose of legal advice or representa-


tion or a practice equivalent.(3) “Practice equivalent” shall mean:

(A) Service as a law professor concentrat-ing in the teaching of trademark lawwhich may be substituted for up to twoyears of experience to meet the five-yearrequirement set forth in Rule.3105(b)(1).(B) Service as a trademark examiner atthe USPTO or a functionally equivalenttrademark office for any state or foreigngovernment which may be substitutedfor up to two years of experience to meetthe five-year requirement set forth inRule .3105(b)(1).(C) Service as an administrative lawjudge for the TTAB which may be sub-stituted for up to three years of experi-ence to meet the five-year requirementset forth in Rule .3105(b)(1).

(4) The board may, in its discretion,require an applicant to provide additionalinformation as evidence of substantialinvolvement in trademark law, includinginformation regarding the applicant’s par-ticipation, during his or her legal career, inthe following: portfolio management,prosecution of trademark applications,search and clearance of trademarks, licens-ing, due diligence, domain name selectionand dispute resolution, TTAB litigation,state court trademark litigation, federalcourt trademark litigation, trademark dis-pute resolution, and international trade-mark law. (c) Continuing Legal Education - To be

certified as a specialist in trademark law, anapplicant must have earned no less than 36hours of accredited continuing legal educationcredits in trademark law during the three yearspreceding application. The 36 hours mustinclude at least 20 hours in trademark law andthe remaining 16 hours in related coursesincluding: business transactions, copyright,franchise law, internet law, sports and enter-tainment law, trade secrets, and unfair compe-tition.

(d) Peer Review - An applicant must makea satisfactory showing of qualification throughpeer review. An applicant must provide thenames of ten lawyers or judges who are famil-iar with the competence and qualification ofthe applicant in the specialty field. Writtenpeer reference forms will be sent by the boardor the specialty committee to each of the ref-erences. Completed peer reference forms mustbe received from at least five of the references.

All references must be licensed and in goodstanding to practice law and must have signif-icant legal or judicial experience in trademarklaw. An applicant consents to confidentialinquiry by the board or the specialty commit-tee to the submitted references and other per-sons concerning the applicant’s competenceand qualification.

(1) A reference may not be related byblood or marriage to the applicant normay the reference be a colleague at theapplicant’s place of employment at thetime of the application.(2) The references shall be given on stan-dardized forms mailed by the board toeach reference. These forms shall bereturned to the board and forwarded bythe board to the specialty committee.(e) Examination - An applicant must pass

a written examination designed to demon-strate sufficient knowledge, skills, and profi-ciency in the field of trademark law to justifythe representation of special competence tothe legal profession and the public.

(1) Terms - The examination shall be givenannually in written form and shall beadministered and graded uniformly by thespecialty committee. (2) Subject Matter – The examinationshall cover the applicant’s knowledge andapplication of trademark law and rules ofpractice, and may include the followingstatutes and related case law:

(A) The Lanham Act (15 USC §1501 etseq.)(B) Trademark Regulations (37 CFR Part2)(C) Trademark Manual of ExaminingProcedure (TMEP)(D) Trademark Trial and Appeal BoardManual of Procedure (TBMP)(E) The Trademark Counterfeiting Actof 1984 (18 USC §2320 et seq.)(F) North Carolina Trademark Act (N.C.Gen. Stat. Chap. 80).

.3106 Standards for ContinuedCertification as a Specialist

The period of certification is five years.Prior to the expiration of the certification peri-od, a certified specialist who desires continuedcertification must apply for continued certifi-cation within the time limit described in Rule.3106(d). No examination will be required forcontinued certification. However, each appli-cant for continued certification as a specialistshall comply with the specific requirements set

forth below in addition to any general stan-dards required by the board of all applicantsfor continued certification.

(a) Substantial Involvement - The specialistmust demonstrate that, for each of the fiveyears preceding application for continuingcertification, he or she has had substantialinvolvement in the specialty as defined in Rule.3105(b) of this subchapter.

(b) Continuing Legal Education - The spe-cialist must earn no less than 60 hours ofaccredited CLE credits in trademark law andrelated fields during the five years precedingapplication for continuing certification. Noless than six of the credits may be earned in anyone year. Of the 60 hours of CLE, at least 34hours shall be in trademark law, and the bal-ance of 26 hours may be in the related fields setforth in Rule .3105(c) of this subchapter.

(c) Peer Review - The specialist must com-ply with the requirements of Rule .3105(d) ofthis subchapter.

(d) Time for Application - Application forcontinued certification shall be made notmore than 180 days, nor less than 90 days,prior to the expiration of the prior period ofcertification.

(e) Lapse of Certification - Failure of a spe-cialist to apply for continued certification in atimely fashion will result in a lapse of certifica-tion. Following such a lapse, recertificationwill require compliance with all requirementsof Rule .3105 of this subchapter, includingthe examination.

(f ) Suspension or Revocation ofCertification - If an applicant’s certificationhas been suspended or revoked during theperiod of certification, the application shall betreated as if it were for initial certificationunder Rule .3105 of this subchapter.

.3107 Applicability of OtherRequirements

The specific standards set forth herein forcertification of specialists in trademark law aresubject to any general requirement, standard,or procedure adopted by the board applicableto all applicants for certification or continuedcertification.

Proposed Amendments to the Rules forCertifying Paralegals

27 NCAC 1G, Section .0100, The Planfor Certification of Paralegals

The proposed rule amendment will limit


56 FALL 2012


C h a r l o t t eattorney RonaldL. Gibson wasselected by theState Bar'sNo m i n a t i n gCommittee tostand for elec-tion to the officeof vice-presidentof the North

Carolina State Bar. The election will take placein October at the State Bar's annual meeting.

Gibson is a graduate of Davidson College.He earned his law degree in 1978 from theUniversity of North Carolina School of Law.

His experience includes serving as a lawclerk to US District Court Judge James B.McMillan, private law practice withChambers, Stein, Ferguson & Becton, andservice as associate general counsel and vice-president of marketing with Duke PowerCompany. He was also a principal with Scott,Madden & Associates, a management con-sulting firm. In addition, he has owned aninsurance and financial services agency.

Gibson currently is a partner with the law firmof Ruff, Bond, Cobb, Wade & Bethune, LLP.

As a State Bar Councilor, Gibson hasserved as vice chair of the Client AssistanceCommittee and Grievance Committee, andhas chaired the Administrative Committeeand the Program Evaluation AdministrativeSubcommittee. He has also served on theAuthorized Practice Committee, ExecutiveCommittee, Disciplinary AdvisoryCommittee, Appointments AdvisoryCommittee, Ethics Committee, FacilitiesCommittee, and Issues Committee. �

Rhoda B. Billings, former chief justice ofthe North Carolina Supreme Court, is arecipient of the John B. McMillanDistinguished Service Award. A native ofWilkesboro, Ms. Billings earned her under-graduate degree from Berea College, and wasthe only woman in the Class of 1966 atWake Forest Law School.

She started her legal career practicingwith her husband, Don, from 1966-68.

Billings was elected to serve as district courtjudge in 1968, and served in that capacityfor five years. She joined the faculty ofWake Forest Law School in 1973, whereshe was a professor until 2003. While onleave from the faculty, Billings chaired theNC Parole Commission, was the secondwoman to serve on the NC SupremeCourt, and also the second woman to serveas chief justice.

Throughout her legal career, Billings wasa devoted educator and tireless advocate forequal access to our justice system. She is a lifemember of the Uniform Laws Commission,and most recently served the bar as the chairof the North Carolina judicial evaluationprocess. Billings is revered by her past stu-dents, her peers in the 21st Judicial District,and by all of the members of the NorthCarolina legal community. �

The John B. McMillan DistinguishedService Award program honors current andretired members of the North Carolina StateBar throughout the state who have demon-strated exemplary service to the legal profes-sion. Such service may be evidenced by acommitment to the principles and goalsstated in the Preamble to the Rules ofProfessional Conduct, for example: further-ing the public's understanding of and confi-dence in the rule of law and the justice sys-tem; working to strengthen legal education;providing civic leadership to ensure equalaccess to our system of justice for all those

who, because of economic or social barriers,cannot afford or secure adequate legal coun-sel; seeking to improve the administration ofjustice and the quality of services renderedby the legal profession; promoting diversityand diverse participation within the legalprofession; providing professional services atno fee or a reduced fee to persons of limitedmeans or to public service or charitablegroups or organizations; encouraging andcounseling peers by providing advice andmentoring; and fostering civility amongmembers of the bar.

Awards will be presented in recipients' dis-

tricts, usually at a meeting of the district bar.The State Bar Councilor from the recipient'sdistrict will participate in introducing therecipient and presenting the certificate.Recipients of the Distinguished Service Awardwill also be recognized in the State Bar Journaland honored at the State Bar's annual meetingin Raleigh. Members of the bar are encour-aged to nominate colleagues who havedemonstrated outstanding service to the pro-fession. The nomination form is available onthe State Bar's website, www.ncbar.gov. Pleasedirect questions to Peter Bolac at the State Baroffice in Raleigh, (919) 828-4620. �

Seeking Distinguished Service Award Nominations

B A R U P D A T E S

John B. McMillan Distinguished Service Award

Gibson Nominated as Vice-President

58 FALL 2012

All of the law schools located in NorthCarolina are invited to provide material forthis column. Below are the submissions wereceived this quarter.

Campbell University School of LawJuris Doctor/Master of Science in Public

Health Dual Degree ProgramAnnounced—Campbell Law School andCampbell University’s College of Pharmacy& Health Sciences have announced theestablishment of a new dual degree pro-gram. The four-year program, which willbegin with the fall 2012 semester, allowsstudents to pursue and obtain a JurisDoctor at Campbell Law, as well as aMaster of Science in Public Health from theCollege of Pharmacy & Health Sciences.The JD/MSPH program provides studentswith a unique interdisciplinary perspectiveof law and public policy. Graduates willenter the workplace prepared to representclients and health organizations or systems,and serve in leadership roles in health policyat the national, state, county, and local lev-els. Prospective students are required to gainadmission to both programs in order topursue the dual degree. Campbell Lawoffers five dual degree programs—threewith Campbell University and two withNC State University—in an effort to pro-vide students with maximum exposure andpreparedness for a wide assortment of careeropportunities in the fields that continue toshape the economy.

Campbell Law Hosts US Patent &Trademark Office Discussion—CampbellLaw School hosted the White HouseBusiness Council, Business Forward, andCoats & Bennett, PLLC for a discussion onpatents and the economy and AmericaInvents Act (AIA) implementation withofficials from the US Patent and TrademarkOffice (USPTO) on Thursday, June 21.Area business leaders, intellectual property(IP) attorneys, and other invited distin-guished guests listened to Dr. StuartGraham, chief economist, USPTO, whooffered an in-depth discussion of the signif-

icant impact the patent system and econo-my have on one another, and highlightedthe relationship between innovationthrough new patents and improvements inthe economy. Dr. Graham was followed byJanet Gongola, AIA implementation coor-dinator, USPTO, who addressed details ofthe AIA, a major reform to the Patent Actsigned by President Obama in 2011.

Charlotte School of LawCharlotteLaw’s Moot Court has been

successful. Lauren Nenning and ChrisCampbell took top honors as well as thechampionship team title at the 36th annualNew York Law School Robert F. WagnerLabor and Employment Law Moot CourtCompetition. Chris Campbell took tophonors as the Best Final Round OralAdvocate, and the team received a 2nd BestRespondent Brief Award.

At the Elon National ConstitutionalLaw Competition CharlotteLaw studentsreceived recognition as top oralists.Students also competed in the John J.Gobbons Criminal Procedure Moot CourtCompetition, winning 2nd Best Brief. Atthe ABA National Moot CourtCompetition, Charlotte students won 2ndBest Brief and 10th place oralist, advancingto the final round of the competition.

This spring, the Pro Bono Programunveiled its newest group pro bono proj-ect—the CSL-Legal Aid ExpinctionProject. The students learn more about theexpunction legal process of removal of cer-tain criminal arrest records, charges, or con-victions. Students are trained by Legal Aidattorneys and staff on how to review crimi-nal records to determine eligibility of a can-didate to pursue an expungement petition.

Student Mallory Willink was presentedby the ABA Law Student Division Chairwith the Gold Key Award for her outstand-ing service to the national ABA organiza-tion. The Gold Key is the highest honorgiven to an individual leader. Malloy hadserved the ABA as a circuit governor repre-senting her law school peers in West

Virginia, Virginia, North Carolina, andSouth Carolina. CharlotteLaw received theBronze Key Award for overall membershipimprovement, and student Elizabeth Bakerreceived the Silver Key Award for outstand-ing service at a circuit meeting.

On May 13, 180 graduates crossed thestage when CharlotteLaw conferred JurisDoctor degrees as part of its May recogni-tion ceremony. The keynote speaker for theceremony was mayor of Charlotte, AnthonyFox.

Elon University School of LawNew Washington, DC, Externship

Program—Elon Law and The WashingtonCenter for Internships and AcademicSeminars announced a partnership inMarch 2 to provide law students with legalexternship opportunities in Washington,D.C. Elon Law students will serve in exec-utive and legislative branches of the federalgovernment through the program, and innonprofit, non-governmental sectors. ElonLaw’s in-state externship program offers lawstudents placement opportunities in dozensof state executive, legislative, and judicialbranch offices, as well as in a number ofnonprofit organizations in North Carolina.

New Elder Law Clinic—Beginning inthe fall 2012 semester, the clinic will servelow-income residents of Guilford County,ages 60 and above, through free legal coun-sel and services provided by Elon Law stu-dents under the supervision of law faculty.It will focus on the civil legal issues of olderadults, such as abuse and neglect, contractand consumer issues, guardianships, healthcare, housing, public benefits, unemploy-ment compensation, and wills. Elon alsoprovides students with practice-based expe-riences through the HumanitarianImmigration Law Clinic, serving refugeesand asylum seekers, and the In-House WillsDrafting Clinic, serving clients referred byHabitat for Humanity.

New Center for ProfessionalDevelopment—Elon Law’s ProfessionalDevelopment Center opened in August

B A R U P D A T E S

Law School Briefs


2012 in a 5,700 square foot facility at 101West Friendly Avenue in downtownGreensboro, across the street from the lawschool’s H. Michael Weaver Building. Thecenter provides a resource-rich businessenvironment for students to explore careeropportunities, to engage the office’semployer relations program, and to buildnetworking and professional developmentplans. The center will focus on strengthen-ing Elon’s employer relations program,equipping students with professional skillsnecessary for success in job search andcareer advancement processes, and connect-ing students to professional networking andplacement opportunities. Contact: ChrisSmith, Assistant Dean for Career Services,(336) 279-9238, [email protected].

University of North Carolina School of Law

Six New Faculty Members Join UNC—The school welcomes Laura Britton,Suzanne Chester, Alexa Z. Chew, AmandaS. Hitchcock, Robert J. Smith, and Erica K.Wilson to its faculty ranks.

Flatt Presents at UN Conference onSustainable Development—The Center forLaw, Environment, Adaptation, andResources (CLEAR) participated in theUnited Nations Conference on SustainableDevelopment in Rio, Brazil, this June.Thousands of participants, including worldleaders, policy makers, non-governmentalorganizations, and other stakeholders,attended. CLEAR director and Thomas F.

and Elizabeth Taft Distinguished Professorin Environmental Law Victor B. Flatt spokeat a forum for the discussion and examina-tion of critical issues surrounding the con-ference.

School Receives Transformational Giftfor Scholarships—Greg Everett, a trustee ofthe Kathrine R. Everett Charitable Trust,delivered two checks totaling $2.7 millionto the law school on June 21. The first giftof $2.4 million will create an endowment tofund at least six full-tuition EverettChancellors’ Scholarships for highly prom-ising law students from North Carolina. Asecond gift of $300,000 will establish theEverett Enrichment Fund, which will pro-vide programmatic support of all recipientsof Chancellors’ Scholarships.

Center for Civil Rights—On May 7, theFourth Circuit Court of Appeals issued anopinion in Everett et al. v. Pitt County Boardof Education, affirming the efforts of AfricanAmerican parents and community mem-bers —represented by the UNC Center forCivil Rights—to stop Pitt County Schools,NC, from implementing its 2011-2012 stu-dent reassignment plan.

CLE Programs—Upcoming CLE pro-grams include the Dan K. Moore Programin Ethics, October 26. Visitlaw.unc.edu/cle.

Wake Forest University School of LawUS Supreme Court Justice Ruth Bader

Ginsburg Returns to Law School’s StudyAbroad Programs—Justice Ginsburg visited

the law school’s Venice program the week ofJuly 9 and guest lectured in several classes.She gave a public lecture entitled, “ADecent Respect to the Opinion of[Human]kind: the Value of a ComparativePerspective in ConstitutionalAdjudication.”

Following her visit to Venice, JusticeGinsburg then headed to the law school’sVienna Study Abroad Program, where shelectured in several classes and gave anotherpublic lecture on the same topic as the oneshe gave in Venice.

The associate justice has a long historywith Wake Forest Law School.

In May, Ginsburg gave the keynoteaddress at a luncheon celebrating the kickoff of the law school’s program inWashington, DC, which was held at theoffices of Morgan, Lewis & Bockius, LLP.

In 2008, Suzanne Reynolds, executiveassociate dean for academic affairs, co-taught a comparative constitutional lawclass in Venice with Ginsburg, who servedas a guest teacher as part of the law school’sstudy abroad program. Her late husband,Georgetown University Professor of LawMartin Ginsburg, also taught in the 2008Venice Summer Abroad Program withProfessor Joel Newman.

In 2005, Ginsburg visited Wake Forestas part of the law school’s “A ConversationWith…” series, which brings speakers tocampus to tell their stories. Reynoldsinterviewed Ginsburg about her life andcareer. �

TALIAS (cont.)

physically unreachable; and the possibilitiesfor lawyers who are committed to providingaccess to justice to do so in a manner that isconvenient, reliable, and relevant to theneeds of the citizens of North Carolina.

As predicted, TALIAS is a model for thenation. �

Pamela Stanback Glean is the assistant deanfor clinical programs at NCCU School of Law.The program is committed to producing excellentattorneys who are sensitive to addressing the needsof people and communities that are traditionallyunderserved and under represented by the legalprofession. Through a diverse body of clinical

courses, it offers students an opportunity to pursuejustice in a variety of legal disciplines, and teachesstudents to respect the legal process and the dignityof all clients regardless of their station in life. Theprogram believes that sensitizing future lawyersto the importance of serving these under-repre-sented clients advances fairness and equity in thejustice system.

Endnotes1. justice.gov/atj/opa/pr/speeches/2010/atj-speech-

100916.html. Accessed June 3, 2012.

2. Jane Parker is a pseudonym used to insure the confi-dentiality of the real person who is the subject of thisnarrative.

3. quickfacts.census.gov/qfd/states/37000.html. Last vis-ited May 6, 2012.

4. Id.

5. pulse.ncpolicywatch.org/2011/09/26/poverty-extends-its-reach-across-nc/. Last visited May 6, 2012.

6. americanprogress.org/issues/2010/01/state_of_minori-ties.html. Last visited June 11, 2012.

7. Id.

8. Id. Quickfacts.census.gov.

9. UNC Center for Poverty, Work, and Opportunity,Documenting Poverty, Economic Distress, and Challengein North Carolina, A Report for the Z. Smith ReynoldsFoundation, January 15, 2010.

10. justice.gov/atj/opa/pr/speeches/2010/atj-speech-100916.html.

11. FCC Commissioner Michael Copps, April 8, 2009,fcc.gov.

12. ntia.doc.gov/about. Last visited May 6, 2012.

13. law.talias.nccu.edu; select Videos. Last accessed June3, 2012.

14. The connection between locations requires a high-speed or business class broadband connection.

60 FALL 2012

B A R U P D A T E S

At its July 19, 2012, meeting, the NorthCarolina State Bar Client Security Fund Boardof Trustees approved payments of$292,606.55 to 15 applicants who sufferedfinancial losses due to the misconduct ofNorth Carolina lawyers.

The new payments authorized were:1. An award of $574.60 to a former client

of Jennifer Green-Lee of Clayton. The boardfound that Green-Lee was retained to handle aclient’s real estate closing. From the closingproceeds, Green-Lee failed to pay the client’stitle insurance premium. Due to misappropri-ation, Green-Lee’s trust account balance isinsufficient to pay all of her clients’ obligations.Green-Lee was disbarred on August 19, 2011.The board previously reimbursed six otherGreen-Lee clients $217,648.83.

2. An award of $70,000 to a former clientof Michelle Shepherd of West Jefferson. Theboard found that Shepherd handled a realestate closing for her clients. Due to Shepherd’smisappropriation of funds from her trustaccount, the closing proceeds were not avail-

able to pay the sellers. Shepherd replaced thesellers’ proceeds with funds from her personalaccount. After Shepherd was involuntarilyplaced in bankruptcy, the trustee sued the sell-ers to recover the amount of their replacementcheck claiming that they received preferentialpayment within 90 days of the bankruptcy.The sellers countersued and included the buy-ers as third-party defendants. The trustee andthe buyers recovered a total of $55,000 fromthe sellers whose losses were caused byShepherd’s dishonest conduct. The board alsoapproved reimbursement of the sellers’ attor-ney fees in resisting the trustee’s attempt to col-lect the entire debt since resisting the trustee’sefforts benefited the Fund. Shepherd was dis-barred on July 25, 2008. The board previouslyreimbursed 108 claims against Shepherd total-ing $698,138.71.

3. An award of $10,000 to a former clientof Robert Morgan Smith of Goldsboro. Theboard found that Smith was retained to repre-sent a client on criminal charges. Smith failedto provide any valuable legal services for the fee

paid. Smith was disbarred on October 14,2011. The board previously reimbursed oneother Smith client $400.

4. An award of $3,000 to a former client ofSmith. The board found that Smith wasretained to represent the client on criminalcharges. Smith failed to provide any valuablelegal services for the fee paid.

5. An award of $20,000 to a former clientof Theophilus Stokes III of Greensboro. Theboard found that Stokes was retained to obtaina sentence reduction or other post-convictionrelief for the client. Stokes neglected the matterand failed to provide any valuable legal servicesfor the fee paid. Stokes was disbarred onJanuary 12, 2011.

6. An award of $5,500 to a former client ofNicholas Stratas Jr. of Raleigh. The boardfound that Stratas was retained to handle aclient’s personal injury matter. Stratas settledthe client’s matter and retained funds from thesettlement until resolution of a BlueCross/Blue Shield (BCBS) lien. Stratas aban-doned his practice and never paid the funds toBCBS or the client. Stratas’ trust account bal-ance was insufficient to cover all of his clients’obligations due to misappropriation. Theboard previously reimbursed two other Stratasclients $41,849.12.

7. An award of $26,682.76 to a formerclient of Nicholas Stratas Jr. The board foundthat Stratas was retained to handle a client’s per-sonal injury matter. Stratas received med payfor the client that should have been held in histrust account until resolution of the liabilityclaim. Stratas settled the client’s liability claimwithout the client’s authorization or consent,and failed to deposit the settlement funds intohis trust account. Stratas abandoned his prac-tice and failed to pay the funds to the client oranyone else on her behalf. Stratas’ trust accountbalance was insufficient to cover all of hisclients’ obligations due to misappropriation.Counsel was directed to resolve a Medicare lienand pay the remainder to the client.

8. An award of $12,295.71 to a formerclient of Nicholas Stratas Jr. The board foundthat Stratas was retained to handle a client’s per-sonal injury matter. Stratas settled the matter.

In Memoriam

Charles Crawford CaisonDurham

Arthur Elliott CockrellPlymouth

Johnnie L. Gallemore Jr.Knoxville, TN

Nancy C. GreenCharlotte

Walter Lewis HannahGreensboro

Sean Hugh O'DonnellWilmington

Mark Anthony PatakyApex

Richard Mack Pearman Jr.Greensboro

Ralph M. PotterFayetteville

Archibald Henderson Scales IIIClemmons

Ronald G. SeeberWinston-Salem

Jack Everett SenterFuquay Varina

Robin Kelly Whitlock SmithCary

Russell Charles SmithRaeford

Joseph N. Tenhet Jr.Raleigh

William Isler Wooten Jr.Greenville

Client Security Fund Reimburses Victims


From the settlement proceeds, Stratas retainedfunds to satisfy a Medicare lien. Stratas alsoretained the funds from a med pay check.Stratas appropriated the funds to his own useand abandoned his practice. Stratas’ trustaccount balance was insufficient to cover all ofhis clients’ obligations due to misappropriation.Counsel was directed to resolve the Medicarelien and pay the remainder to the client.

9. An award of $3,915.15 to a former clientof Nicholas Stratas Jr. The board found thatStratas was retained to handle a client’s person-al injury matter. Stratas settled the matter andretained funds to satisfy a BCBS lien. Stratasabandoned his practice and failed to pay themedical provider or disburse the funds to theclient. Stratas’ trust account balance was insuf-ficient to cover all of his clients’ obligations dueto misappropriation.

10. An award of $36,973.04 to a formerclient of Nicholas Stratas Jr. The board foundthat Stratas was retained to handle a client’s per-sonal injury matter. Stratas settled the matterand retained funds to pay the client’s child sup-port obligation and any remaining medicalprovider liens. Due to misappropriation,Stratas’ trust account balance is insufficient topay all of his clients’ obligations. Counsel wasdirected to resolve the client’s child support lien

and pay the remainder to the client.11. An award of $65,396.50 to a former

client of W. Darrell Whitley of Lexington. Theboard found that Whitley was retained to han-dle a client’s personal injury matter. Whitleyreceived a med pay check and settled the liabil-ity claim. Whitley retained funds from the set-tlement proceeds to satisfy a Medicare andother liens. Whitley never paid the medicalliens and misrepresented to the client the settle-ment amount. Due to misappropriation,Whitley’s trust account balance is insufficient topay all of his clients’ obligations. Whitley’sclient died and the attorney representing thepersonal representative agreed to satisfy anyliens. Whitley died on December 6, 2011.

12. An award of $6,500 to a former clientof W. Darrell Whitley. The board found thatWhitley was retained to handle a client’s per-sonal injury matter. Whitley settled the matterwithout the client’s authorization or consent.Whitley forged the client’s name on the releaseand misrepresented to the client the amount ofthe settlement. Due to misappropriation,Whitley’s trust account balance is insufficientto pay all of his clients’ obligations.

13. An award of $20,000 to a former clientof W. Darrell Whitley. The board found thatWhitley was retained to handle a client’s per-

sonal injury matter. Whitley settled the matterand retained funds to satisfy Medicare andMedicaid liens. Due to misappropriation,Whitley’s trust account balance is insufficientto pay all of Whitley’s clients’ obligations.Counsel was directed to resolve any liens priorto disbursement to the client.

14. An award of $11,500 to a former clientof W. Darrell Whitley. The board found thatWhitley was retained to handle a client’s per-sonal injury matter. Unbeknownst to theclient, Whitley settled the matter and negoti-ated down the client’s worker’s comp lien.Whitley failed to disburse the funds to theclient or pay the lien amount prior to hisdeath. Due to misappropriation, Whitley’strust account balance is insufficient to pay allof his clients’ obligations. Counsel was direct-ed to attempt to resolve the worker’s complien before paying the client the balance.

15. An award of $268.79 to a former clientof W. Darrell Whitley. The board found thatWhitley was retained to handle a client’s per-sonal injury matter. Whitley settled the mat-ter, but died prior to making some of the dis-bursements from the settlement proceeds.Due to misappropriation, Whitley’s trustaccount balance is insufficient to pay all of hisclients’ obligations. �

Proposed Amendments(cont.)

to 30 days the time for appeal to the State BarCouncil from an unfavorable decision on cer-tification or continued certification of a hear-ing panel of the Board of ParalegalCertification.

.0122 Right to Review and Appeal toCouncil

(a) An individual who is denied certifica-tion or continued certification as a paralegal orwhose certification is suspended or revokedshall have the right to a review before theboard pursuant to the procedures set forthbelow and, thereafter, the right to appeal theboard’s ruling thereon to the council undersuch rules and regulations as the council mayprescribe.

(b) Notification of the Decision of theBoard.

….(d) Review by the Board.

A three-member panel of the board shall beappointed by the chair of the board to recon-sider the board’s decision and take action by amajority of the panel….

(1) Review on the Record.….(3) Decision of the Panel.The individual shall be notified in writingof the decision of the panel and, if unfavor-able, the right to appeal the decision to thecouncil under such rules and regulations asthe council may prescribe. To exercise thisright, the individual must file an appeal tothe council in writing within 30 days ofthe mailing of the notice of the decisionof the panel.(e) Failure of Written Examination. ….

Proposed Amendments to theContinuing Paralegal Education Rules

27 NCAC 1G, Section .0200, RulesGoverning Continuing Paralegal Education

The rules do not currently allow a certifiedparalegal who is not a licensed lawyer to use

law school coursework to satisfy the annualcontinuing paralegal education (CPE)requirements. The proposed rule amendmentwill clarify that law school courses are alwaysapproved activities for the purpose of satisfy-ing the CPE requirements.

.0202 Accreditation StandardsThe Board of Paralegal Certification shall

approve continuing education activities incompliance with the following standards andprovisions.

(a) ….(i) A certified paralegal may receive credit

for completion of a course offered by an ABAaccredited law school with respect to whichacademic credit may be earned. No morethan 6 CPE hours in any year may be earnedby attending such courses. Credit shall beawarded as follows: 3.5 hours of CPE creditfor every quarter hour of credit assigned tothe course by the educational institution, or5.0 hours of CPE credit for every semesterhour of credit assigned to the course by theeducational institution. �

FALL 201262

The North Carolina State Bar2011 2010

AssetsCash and cash equivalents $7,536,631 $6,549,628 Property and equipment, net 3,101,798 2,435,514 Other assets 296,108 190,303

$10,934,537 $9,175,445Liabilities and Fund EquityCurrent liabilities $4,721,125 $4,118,464 Long-term debt 157,227 188,927

4,878,352 4,307,391 Fund equity-retained earnings 6,056,185 4,868,054

$10,934,537 $9,175,445Revenues and ExpensesDues $7,192,845 $7,019,115 Other operating revenues 797,606 715,662 Total operating revenues 7,990,451 7,734,777 Operating expenses (6,812,250)(6,269,203)Non-operating revenues 9,930 24,673Net income $1,188,131 $1,490,247

The NC State Bar Plan for Interest onLawyers' Trust Accounts (IOLTA)

2011 2010AssetsCash and cash equivalents $2,613,654 $3,196,878 Interest receivable 247,122 311,228 Other assets 232,041 323,350

$3,092,817 $3,831,456 Liabilities and Fund EquityGrants approved but unpaid $2,353,755 $2,700,300 Other liabilities 261,180 325,493

2,614,935 3,025,793 Fund equity-retained earnings 477,882 805,663

$3,092,817 $3,831,456 Revenues and ExpensesInterest from IOLTA participants, net $2,299,475 $2,203,003 Other operating revenues - - Total operating revenues 2,299,475 2,203,003

Operating expenses (2,747,177) (3,125,183)Non-operating revenues 119,921 41,213 Net loss $(327,781) $(880,967)

Board of Client Security Fund2011 2010

AssetsCash and cash equivalents $1,700,526 $1,755,261 Other assets 3,114 4,699

$1,703,640 $1,759,960 Liabilities and Fund EquityCurrent liabilities $14,151 $14,691 Fund equity-retained earnings 1,689,489 1,745,269

$1,703,640 $1,759,960 Revenues and ExpensesOperating revenues $662,609 $752,073 Operating expenses (726,742) (441,822)Non-operating revenues 8,353 18,465Net income $(55,780) $328,716

Board of Continuing Legal Education2011 2010

AssetsCash and cash equivalents $181,533 $249,915 Other assets 216,329 239,950

$397,862 $489,865 Liabilities and Fund EquityCurrent liabilities 24,617 26,635 Fund equity-retained earnings 373,245 463,230

$397,862 $489,865 Revenues and ExpensesOperating revenues $640,320 $665,757 Operating expenses (731,271) (697,353)Non-operating revenues 966 3,065 Net loss $(89,985) $(28,531)

Board of Legal Specialization2011 2010


$171,354 $147,477 Liabilities and Fund EquityCurrent liabilities 3,257 1,792

Fund equity-retained earnings 168,097 145,685

$171,354 $147,477 Revenues and ExpensesOperating revenues-specialization fees $124,752 $116,450 Operating expenses (102,925) (99,215)Non-operating revenues 585 1,200Net income $22,412 $18,435

The Chief Justice's Commission onProfessionalism

2011 2010AssetsCash and cash equivalents $259,193 $146,332 Other assets 1,627 88,174

$260,820 $234,506 Liabilities and Fund EquityCurrent liabilities 448 446 Fund equity-retained earnings 260,372 234,060

$260,820 $234,506 Revenues and ExpensesOperating revenues-fees $319,750 $332,474 Operating expenses (294,002) (284,519)Non-operating revenues 564 1,244 Net income $26,312 $49,199

Board of Paralegal Certification2011 2010


$299,509 $329,760 Liabilities and Fund EquityCurrent liabilities - accounts payable 10,200 8,850 Fund equity-retained earnings 289,309 320,910

$299,509 $329,760 Revenues and ExpensesOperatingrevenues-fees $260,760 $260,785 Operating expenses (193,632) (154,514)Non-operating revenues (98,729) 2,411Net income (loss) $(31,601) $108,682

The North Carolina State Bar and Affiliated EntitiesSelected Financial Data

The North Carolina State BarPO Box 25908Raleigh, NC 27611

Fall 2012

journal 17,3 Layout 1 · 2016. 4. 12. · 6A: Gilbert W. Chichester, Roanoke Rapids 6B: Lloyd C....

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Transcript of journal 17,3 Layout 1 · 2016. 4. 12. · 6A: Gilbert W. Chichester, Roanoke Rapids 6B: Lloyd C....