journal 19,4 Layout 1

THE NORTH CAROLINA STATE BAR

JOURNAL

IN THIS ISSUE

Contracting for Indigent Defense page 8Pro Bono Status page 14

Our New President—Ronald L. Gibson page 22

WINTER

2014

FREE l SAFE l CONFIDENTIAL

Western RegionCathy Killian 704.910.2310

Piedmont RegionTowanda Garner 919.719.9290

Eastern RegionNicole Ellington 919.719.9267

You are not alone. Free, confidentialassistance is available.

The Lawyer Assistance Program (“LAP”) wascreated by lawyers for lawyers. The LAP hasbeen a trusted resource for thousands of lawyers,judges, and law studentssince 1979. We arecommitted to helping youget the help you need.Every call or email we takeis confidential and isreceived by a professionalstaff person.

Contact us today. [email protected]

www.NCLAP.org

Hanging on bya thread?

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 to [email protected]. In deciding what address to list with the State Bar, be advised that thisaddress will be used for all official correspondence from the State Bar and that mem-bership information is a public record pursuant to the NC Public Records Act.

THENORTH CAROLINA

STATE BAR

JOURNALWinter 2014

Volume 19, Number 4

EditorJennifer R. Duncan

Publications CommitteeG. Gray Wilson, Chair

Dorothy Bernholz, Vice-ChairJohn A. BowmanW. Edward Bunch

Harry B. CrowMargaret H. Dickson

Rebecca Eggers-GryderForrest A. Ferrell

John GehringDouglas R. GillJames W. HallAnna Hamrick

Darrin D. JordanSonya C. McGraw

Robert MontgomeryNancy Black NorelliHarold (Butch) PopeAlan D. Woodlief Jr.

© Copyright 2014 by the North Carolina State Bar. Allrights reserved. Periodicals postage paid at Raleigh, NC,and additional offices. Opinions expressed by contributorsare not necessarily those of the North Carolina State Bar.POSTMASTER: Send address changes to the NorthCarolina State Bar, PO Box 25908, Raleigh, NC 27611.The North Carolina Bar Journal invites the submission ofunsolicited, original articles, essays, and book reviews.Submissions may be made by mail or e-mail ([email protected]) to the editor. Publishing and editorial decisionsare based on the Publications Committee’s and the editor’sjudgment of the quality of the writing, the timeliness ofthe article, and the potential interest to the readers of theJournal. The Journal reserves the right to edit all manu-scripts. The North Carolina State Bar Journal (ISSN10928626) is published four times per year in March,June, September, and December under the direction andsupervision of the council of the North Carolina State Bar,PO Box 25908, Raleigh, NC 27611. Member rate of$6.00 per year is included in dues. Nonmember rates$10.78 per year. Single copies $3.21. The Lawyer’sHandbook $10.78. Advertising rates available uponrequest. Direct inquiries to Director of Communications,the North Carolina State Bar, PO Box 25908, Raleigh,North Carolina 27611, tel. (919) 828-4620.

www.ncbar.gov

F E A T U R E S

8 Contracting for Indigent Defense: The Plan and the RealityBy Thomas K. Maher and Tucker Charns

12 As North Carolina’s Needs Evolve, So Does its School of GovernmentBy Gini Hamilton

14 Pro Bono Status: Staying Active in the Profession in RetirementBy Mary Irvine

18 Legal Ethics Lessons from the Penn State ScandalBy Chris McLaughlin

22 An Interview with New President Ronald L. Gibson

23 Remarks from the President

26 A Carolina Blue Bikini and a Court-MartialBy Christopher Geis

3THE NORTH CAROLINA STATE BAR JOURNAL

D E P A R T M E N T S

5 State Bar Outlook

32 IOLTA Update

34 Trust Accounting

36 Lawyer Assistance Program

38 Legal Ethics

40 Profile in Specialization

41 The Disciplinary Department

42 Rule Amendments

45 Proposed Ethics Opinions

B A R U P D A T E S

39 In Memoriam

54 Client Security Fund

55 State Bar Swears in New Officers

56 Resolution of Appreciation

57 Fifty-Year Lawyers Honored

58 Law School Briefs

60 Annual Reports of State Bar Boards

63 2015 Appointments

64 February Bar Exam Applicants

OfficersRonald L. Gibson, Charlotte - President 2014-2015Margaret M. Hunt, Brevard - President-Elect 2014-2015Mark W. Merritt, Charlotte - Vice-President 2014-2015L. Thomas Lunsford II, Raleigh - Secretary-TreasurerRonald G. Baker Sr., Kitty Hawk - Past-President 2014-2015

CouncilorsBy Judicial District1: C. Everett Thompson, Elizabeth City2: G. Thomas Davis Jr., Swan Quarter3A: Charles R. Hardee, Greenville3B: Debra L. Massie, Beaufort4: Robert W. Detwiler, Jacksonville5: Harold L. Pollock, Burgaw6A: Melissa Pelfrey, Littleton6B: Lloyd C. Smith Jr., Windsor7: Randall B. Pridgen, Rocky Mount8: Shelby D. Benton, Goldsboro9: Paul J. Stainback, Henderson9A: Alan S. Hicks, Roxboro10: Heidi C. Bloom, Raleigh

Nicholas J. Dombalis II, RaleighTheodore C. Edwards II, RaleighJohn N. (Nick) Fountain, RaleighDonna R. Rascoe, RaleighJohn M. Silverstein, RaleighC. Colon Willoughby Jr., 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

William S. Mills, Durham15A: Charles E. Davis, Mebane15B: Dorothy Bernholz, Chapel Hill16A: William R. Purcell II, Laurinburg16B: David F. Branch Jr., Lumberton17A: Matthew W. Smith, Eden17B: Thomas W. Anderson, Pilot Mountain18: Barbara R. Christy, Greensboro

Robert C. Cone, Greensboro18H: Richard S. Towers, High Point19A: 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: John S. Willardson, Wilkesboro

24: Rebecca Eggers-Gryder, Boone25: Forrest A. Ferrell, Hickory26: Robert J. Bernhardt, Charlotte

A. Todd Brown, CharlotteMark Henriques, CharlotteF. Fincher Jarrell, CharlotteDewitt McCarley, CharlotteNancy Black Norelli, Charlotte

27A: Sonya Campbell McGraw, Gastonia27B: Ralph W. Meekins, Lincolnton28: Howard L. Gum, Asheville29A: Marvin R. Sparrow, Rutherfordton29B: Christopher S. Stepp, Hendersonville30: Gerald R. Collins Jr., Murphy

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

StaffCarmen H. Bannon, Deputy CounselBetsy C. Barham, ReceptionistTim Batchelor, InvestigatorKelly Beck, Compliance Coordinator, Membership/CLEJoy C. Belk, Asst. Dir. Paralegal CertificationKrista Bennett, Fee Dispute Facilitator, ACAPMichael D. Blan, Systems Analyst/ProgrammerPeter Bolac, District Bar Liaison/Trust Account ComplianceCounselElizabeth E. Bolton, ReceptionistLori Brooks, Admin. Asst., Office of CounselDelia M. Brown, Administrative Asst., LAPKrista E. Carlson, InvestigatorBecky B. Carroll, ParalegalJoseph D. Cerone, Office ManagerAlyssa M. Chen, Deputy CounselMargaret Cloutier, Senior Deputy CounselJoseph J. Commisso, Director of InvestigationsSusannah B. Cox, Deputy CounselLuella C. Crane, Director of ACAPJennifer R. Duncan, Director of CommunicationsA. Root Edmonson, Deputy CounselJulie A. Ferrer, CLE ClerkMartha Fletcher, Payroll and Benefits AdministratorTowanda Garner, Piedmont LAP CoordinatorLanice Heidbrink, Exec. Asst., AdministrationJeffery Hill, Computer Systems AdministratorLeanor Hodge, Deputy CounselDebra P. Holland, Asst. Director, CLEMary L. Irvine, Access to Justice CoordinatorTammy Jackson, Membership DirectorKatherine Jean, Counsel and Assistant Executive Dir.

David R. Johnson, Deputy CounselSharon Kelly, Events ManagerBarbara Kerr, ArchivistCathy D. Killian, Clinical Director, LAPMelanie Kincaid, ParalegalSuzanne Lever, Asst. Ethics CounselL. Thomas Lunsford II, Executive DirectorAdam Maner, Professional Organization CoordinatorBeth McIntire, IT ManagerBeth McLamb, Payment Coordinator, MembershipNichole P. McLaughlin, Asst. Ethics CounselBarry S. McNeill, Deputy CounselDiane Melching, Admin. Asst., ACAPDottie K. Miani, Deputy Clerk of DHC/Asst. Facilities ManagerClaire 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 ManagerAnne M. Parkin, Field AuditorHeather Pattle, Administrator, Office of CounselC. Fred Patton Jr., InvestigatorWondella Payne, ParalegalAaliyah Pierce, Acct. Data Asst., IOLTAAngel Pitts, Mail/Copy/Accounting ClerkJennifer Porter, Deputy Counsel Evelyn Pursley, Executive Dir., IOLTASonja B. Puryear, Admin. Asst., InvestigationsJoan Renken, Admin. Asst., Office of CounselRandall C. Ross, InvestigatorWhit Ruark, InvestigatorSandra L. Saxton, Public Liaison, ACAPFern Gunn Simeon, Deputy CounselJaya Singh, Accounting Asst.Jennifer Slattery, ParalegalSusie Taylor, Admin. Asst./Special Projects Manager, LAPJudith Treadwell, Public Liaison, ACAPKristina M. Troskey, ParalegalWayne C. Truax, InvestigatorJoshua T. Walthall, Deputy CounselA. Dawn Whaley, Admin. Asst., InvestigationsEdward R. White, InvestigatorBrittany A. Wilson, ParalegalMary D. Winstead, Deputy CounselChristiane Woods, Admin Asst., Investigations

WINTER 20144

In the summer of 1977, after my sec-ond year of law school at Carolina, Igot a job as a law clerk with the NorthCarolina State Bar. There was really

nothing to recommend me for the positionbut, in the finest tradition of legal employ-ment, I did have a friend whose father had apassing acquaintance with the man in charge,and that got me in the door. The job forwhich I applied didn’t actuallyexist when I arrived for myinterview. I just happened toshow up at a propitiousmoment. Earlier that year, theState Bar had received a smallfederal grant for some pur-pose that was never explainedto me, and it happened that asmall residual sum was liableto be returned if unused.Rather than send the moneyback to Washington, whichwould have violated the Codeof Financial Responsibility, a decision wasmade to hire me to do whatever it was thatreal law firms had law clerks do or, failing that,to go get coffee.

As it turned out, it was a great break forme. The United States Supreme Court decid-ed the case of Bates v. Arizona State Bar thatsummer, extending the protection of the FirstAmendment to lawyer advertising and foreverchanging the world of professional regulation.Because the licensed attorneys on the staffwere busy with disciplinary cases, it fell to meto analyze the Bates decision and to explain itsimplications for the agency going forward.Happily enough, the one skill I had acquiredin two years of law school—briefing reportedappellate cases—was sufficient, barely, for thetask. Not long after the decision came down,the State Bar Council met, and I found myselfreciting on the subject for the EthicsCommittee, telling preeminent lawyers likeFrank Spruill and Clifton Everett what itmeant, and being taken seriously. That experi-ence and an additional measure of good for-

tune ultimately led to an offer of permanentemployment as a lawyer with the Bar, and I’vebeen fooling them ever since. Ironically, whatmany lawyers would describe as the worstthing to ever happen to the profession—theBates case—was the best thing that ever hap-pened to me, professionally speaking.

While the details of my story are unique,the broad outline of the narrative would not

be unfamiliar to most of mycontemporaries. That’s prettymuch how lots of aspiringlawyers came to be employedin those days. They went tolaw school immediately aftercollege. They scrounged somemeans of paying the modestcosts of tuition and subsis-tence. They learned how tothink, but not to do, aslawyers. They found legalwork as summer clerks. Theygraduated and picked up

enough North Carolina law from RobinHinson to pass the bar exam. And then theylucked into readily available legal jobs thatpromised to complete their educations.

The world of work, legally speaking, haschanged quite a lot since then, particularly fornewly-minted attorneys. These days novicesemerge from law school with much more debtand much less opportunity than we had fourdecades ago. The cost of legal education hasskyrocketed, far outstripping the rate of infla-tion, and has been financed increasingly bydebt that is easy to obtain but soul-crushinglydifficult to discharge. The high-paying jobsthat are necessary to service that kind of debtare increasingly rare. Indeed, since the reces-sion began in 2007, legal employment of anysort has become much less available. In thecurrent economic environment, which mayrepresent the “new normal,” it appears thatonly about half of the freshest lawyers canexpect to be offered salaried employment thatrequires a law license in the year followingadmission to the Bar. The rest, including some

of the best and the brightest, must either go italone or try another line of work. It’s that lastalternative that troubles me.

Although most of the “seasoned” lawyers Iknow are in sympathy with the strugglingpeople being churned out by the law schools,they are also convinced that we already havemore than enough lawyers to go around. Thisopinion is shared with me quite frequently asI travel around the state, typically in the con-text of semi-rhetorical statement/questionslike, “We’ve got too many lawyers. When areyou people in Raleigh going to do somethingabout it?” At this point in such conversations,I generally mumble something about theSherman Act, the Dental Board case and tre-ble damages, and blame the Board of LawExaminers, but in reality market forces are thereal determinants of how many lawyers wehave. I do understand the frustration of thosewho believe we are overlawyered. As more andmore suppliers of legal services compete to sat-isfy the existing demand, it gets harder andharder to make a decent living. Even worse,from the standpoint of those who regard thepractice of law as more than a business, theunbridled competition engendered by multi-plying lawyers (and the Bates case), seems tocompromise professionalism. Many newlawyers without mentors or salaries are profes-sionally isolated and can’t be effectively accul-turated. Many older lawyers, who might haveonce been mentors, know only each other,and wonder whether they might be the last oftheir kind.

I understand the concerns of those whoworry about there being too many lawyers,but tend to subscribe to the view that thegrowth of the profession is, on balance, a goodthing. To the extent that there is an oversupplyof attorneys, the market ought ultimately torespond and naturally restore some sort ofequilibrium. This may take a while since formany the decision to become a lawyer isalways going to be somewhat irrational. Iassume that for many people, law school is stillthe attractive path of least resistance—a nice

THE NORTH CAROLINA STATE BAR JOURNAL 5

We’ve Got the Magazines to Swing ItB Y L . T H O M A S L U N S F O R D I I

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

warm place between college and the real worldthat seems to guarantee something like aninteresting and comfortable future. That fan-ciful notion was what animated me back in1975 when I applied. Others, no doubt, con-tinue to buy into the appealing fantasies thatenliven courtroom dramas on television. Onewonders how law school applications mighthave been affected over the years if PerryMason, instead of flirting with Della Streetand embarrassing Lt. Tragg on cross-examina-tion, had spent more time on camera respond-ing to electronic discovery, filling out timesheets, or attending CLE courses, like reallawyers do.

In any event, it seems to me that morelawyers are going to be needed during the nextquarter century, not fewer. In order to provideaccess to justice for a citizenry that is chroni-cally underserved, more lawyers, or lawyerequivalents, are going to be necessary. In orderto fulfill the promise of the civil rights move-ment, we still need to expand minority partic-ipation in the profession significantly. And, inorder to regulate commerce and relationsamong people and countries in our increas-ingly populous, interconnected and fractiousworld, we’re going to have to have more andmore attorneys like us—well-trained NorthCarolinians with good sense and good will.

My role and experience as the State Bar’sexecutive director for the past 23 years has alsoinclined me to suppose that the population oflicensed attorneys is likely to increase, and thatthat will be good for the profession—and self-regulation. After all, throughout my tenure,membership in the State Bar has grown inex-orably and predictably. Over the past tenyears, for instance, we have experienced anaverage annual net increase in the number ofactive, dues-paying members of around 2.8%.This is of great importance since more than85% of the State Bar’s operational revenuecomes from dues. The profession’s steadygrowth in recent years has enabled us to serv-ice the membership, protect the public,expand programmatically, and otherwise doour duty without excessive deficit spending,without exhausting our cash reserves, andwithout having to petition the GeneralAssembly for authority to raise dues beyondthe current statutory maximum of $300—theamount at which dues have been set since2010. It has also allowed and encouraged thecouncil and its leadership to undertake theconstruction of our handsome new build-ing—a structure intended to accommodate

the regulation of an expanding profession formany decades to come. Faith in this version ofthe future is what justified our borrowing$12,000,000 to finance most of the cost and,presumably, what convinced the bank tomake the loan.

As things stand now, our operationalbudget is essentially balanced. That’s the out-look for 2015 as well. Looking forward, ourprojections tell us that even with the burden ofdramatically increased debt service, the StateBar ought to be able to operate effectively inthe current mode for at least the rest of thedecade without a dues increase. As you canimagine, these projections are founded upon avariety of questionable assumptions. Even so,they have in the past proven to be fairly reli-able, possibly because, unlike most people, Ihave special insights that allow me to forecastinterest rates and a variety of other macroeco-nomic phenomena. Unfortunately, however,there are limits even to my clairvoyance. Thesedays that is particularly evident in regard tosuch things as health insurance costs and theexpenses associated with extraordinary litiga-tion. Be that as it may, the cornerstone of myfinancial worldview here atop the northeastcorner of the intersection of Edenton andBlount Streets is the notion that I will be send-ing dues notices to more lawyers this year thanlast—at least 2.5% more—and that I will bedoing about that for many years to come.

There are many reasons why that particu-lar figure—2.5%—appeals to me. Perhapsmost significant is the fact that increases in thecost of living in this part of the country have,on average, been in that range for the past tenyears. Since the lion’s share of our budget—about 60%—is devoted to personnel cost,and since we strive to enable our employees toat least keep up with inflation, it’s nice to havea cash cow that gives at least that much moremilk each year. Because most of our othercosts are increasing at or below the rate ofinflation, the additional nourishment provid-ed by about 684 new lawyers (2.5% of27,375) in 2015 ought to be just enough forus to break even in the coming year. Ofcourse, our economic equation is in reality abit more complicated than that. As the popu-lation of lawyers grows, it costs more to keepup with them. For instance, the number ofgrievances rises as a function of the increasingnumber of lawyers, and so does the cost ofrunning the disciplinary program. We alsopay for more—and pay more for—paperclips,postage, and magazines like the one you are

currently devouring. Indeed, our experienceover the past 23 years is that despite incremen-tal increases in membership and membershipfees, our revenues over time are gradually out-stripped by our expenses. In the years imme-diately following a dues increase, we typicallyaccumulate surpluses that we consume in lateryears. This inevitably leads to the next duesincrease. The success of our financial manage-ment has been and probably will continue tobe measured by how long we can extend thesecycles.

Anyway, the law schools in North Carolinaare still full and the pipeline of applicants tothe North Carolina State Bar is still gushing.Moreover, I am advised that the number offolks who hold licenses in other states and seekto gain admission to our Bar by comity andexamination is increasing every year. Despitethis rosy picture, from my point of view, it isworth noting that the number of applicants tolaw schools here and elsewhere is trendingdown. Should this phenomenon persist, mycash projections may have to be revised. Inthat regard, one must also be cognizant of thelegal profession’s “senior tsunami.” One of ourbiggest demographic cohorts looks frighten-ingly like me. Sixtyish, balding, and morethan a little squidgy around the edges.Although many of us will no doubt continueto pay dues into our dotage, if only to keepreceiving the Bar Journal, our ranks are alreadythinning. That kind of attrition really can’t begood for my successor’s budget.

There is one other interesting developmentthat could affect the situation. At its meetingin October, the council approved for publica-tion a new rule that would enable more peo-ple to qualify educationally to be admitted tothe State Bar. For the past 20 years or so, ourrule has provided that only those who havegraduated from law schools approved by theAmerican Bar Association can be admitted.That rule was predicated on the notion thatonly schools meeting the ABA’s elaborateaccreditation standards could be countedupon to assure the level of competence neces-sary to protect our state’s consumers of legalservices. In recent years, as new teachingmodalities and technologies have evolved, thisidea has come into question, and our leader-ship has come to admit the possibility thatunconventional legal education may be suffi-cient legal education. The proposed rule,which is set forth elsewhere in the magazine,essentially approves the legal educations ofgraduates who have been licensed in other

6 WINTER 2014


states for at least ten years and have remainedin good standing. Persons meeting those crite-ria and demonstrating the requisite characterand fitness to be a North Carolina lawyerwould be allowed to sit for our bar examina-tion, despite the ABA’s refusal or inability toapprove their law schools. Interestingly, sincethe ABA doesn’t review foreign law schools atall, the proposed rule would for the first timealso provide a means by which qualifiedlawyers from outside the United States, whohave been admitted in other states, might gainadmission in our state.

By extending “full faith and credit” to theaccreditation decisions of other states, wewould simply be substituting their judgmentsfor those of the ABA. There may be some riskin doing that, but it’s hard to say how much.We have a pretty good sense of the quality ofthe ABA’s decisions, and are not nearly asfamiliar with the judgments of our counter-parts in Kansas and Montana. Be that as itmay, however, we ought to be able to assumetheir bona fides and, in any event, we can restassured that our Board of Law Examiners willquite literally put all such applicants to the

test. Only those whose legal educations aredemonstrably sufficient to pass our bar exam-ination will be admitted. That filter, alongwith the satisfaction of all the other admis-sions requirements of two jurisdictions (oursand theirs), ought to ensure the minimumcompetence necessary to protect our citizens.And if the new rule helps sustain 2.5%growth, so much the better.

I realize that the 2.5% figure may not havethe talismanic significance that I seem to beattributing to it. It’s just that in my exception-ally complicated world, it’s comforting to havea touchstone of some sort—a single unifyingidea that explains, rationalizes, and justifieswhat we’re doing, or want to do. In that con-nection, I’m reminded of one of my fictionalheroes, Floyd Lawson, the proprietor ofFloyd’s Barbershop on the old Andy GriffithShow. Floyd’s dream was to expand his busi-ness empire by a factor of two, doubling hisproductivity by taking on an associate andbecoming a “two-chair shop.” In contempla-tion of that momentous decision, he refusedto be distracted or confused by niggling detailsand gave no thought whatsoever to the possi-

bility that his new hire might be more inclinedto illegal bookmaking than to leveling side-burns. Rather than get lost in the weeds, hechanneled his inner bar executive. He focusedon the one thing that would make or breakhim in a two-chair environment. He looked atthe table over in the corner, and declared withsupreme confidence, “We’ve got the maga-zines to swing it.” n

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

Please note: in the Fall 2014 edition of theJournal, reprinting of the article, “LifeAfter Meth—A Journey of Addiction andRecovery, by Wilson “Wil” Miller, wasauthorized by the Washington State BarAssociation and originally appeared in theJune 2014 issue of NYLawyer. Also, in theParalegal Certification column, PatriciaClapper is an adjunct professor at CentralCarolina Community College.

Contracting for Indigent Defense:The Plan and the Reality

B Y T H O M A S K . M A H E R A N D T U C K E R C H A R N S

WINTER 20148

The General Assembly, faced with the fall-out from the financial meltdown, was deter-mined to reduce the amount spent on provid-ing counsel for those who are too poor to hiretheir own lawyer, and who are constitutional-ly or statutorily entitled to court-appointedcounsel. First, IDS was required to reduce the

hourly rate paid to private counsel, puttingsignificant stress on the private-assignedcounsel system. Second, legislators grappledwith large scale, systemic changes to howindigent representation was delivered.Neither the House nor the Senate supportedthe existing local roster system. The budget

passed by the House would have created astatewide system of public defenders, with thepublic defender districts consolidated so thatoffices would cover a larger number of coun-ties. The Senate, however, favored contractswith private lawyers. Ultimately, the Senateview carried the day, and the final 2011 budg-

By 2011, North Carolina

had created an indigent

defense system that

consistently provided

quality representation at a surprisingly modest cost. Even with coun-

sel receiving $75 per hour for noncapital cases, the average cost for an

adult misdemeanor case was approximately $240, the average cost for

an adult low-level felony case was approximately $435, and the aver-

age cost for an adult high-level felony case was approximately $1,180.

The success of indigent defense in North Carolina was due to the willingness of a large number of skilled lawyers to take appointed cases as part

of their private practices, or to work full time in public defender offices.

©iStockphoto.com


et required IDS to issue Requests forProposals (RFPs) for contracts to cover allcase types throughout the state.

Creating a statewide system under whichIDS would issue RFPs for representation inall case types—and saving money in theprocess—presented significant challenges.Although IDS has used contracts with indi-vidual lawyers and a few nonprofits to pro-vide representation in some areas and casetypes, those contracts were individually nego-tiated, covered a very small percentage of thecases, and were designed to be cost-neutralrather than to decrease spending. Contractsfor indigent defense in other jurisdictionshave often led to low-bid contracts with nosupport for quality representation, whichIDS wanted to avoid. The truth is that allindigent defense systems rely on some formof contract with the lawyer; public defenderswork pursuant to an employment contractunder which they are paid an annual salaryand agree to take all of the cases assigned tothem by their office, private-assigned counselimplicitly contract to provide representationon individual cases and accept payment forthe hours allowed by the judge at the end ofthe case, and other contracts pay counsel a setamount per case or to take a designated case-load. All of these systems present a potentialconflict between the desire to control costsand the constitutional imperative to providequality representation. Providing quality rep-resentation takes time, and reducing the costinvolves paying defense counsel less moneyfor the hours they work, forcing counsel tospend less time on each case, or identifyingefficiencies in a nonefficient court system. Increating a contract system, IDS was painfullyaware of the difficulty in balancing the pres-sure to reduce spending with the need to pro-vide constitutionally effective representation.The difficulty of creating a viable system andgenerating savings was compounded by therecently reduced rates for private counsel.Those rates significantly cut into the actualearnings for lawyers who provide direct repre-sentation to clients, and are not sustainablefor the long term. Any contract system thatsignificantly reduced compensation beyondthese rates would ultimately lead to long-termproblems.

The first steps in creating a contract sys-tem were to survey the systems that were inplace in other jurisdictions, and to determinethe characteristics of systems that fosteredquality representation and those that sacri-

ficed the quality of representation for costsavings. Not surprisingly, there are a variety ofcontract models used in various jurisdictions.Some models, such as Oregon’s contractswith large nonprofit public defenders, stressthe quality of representation, while RFPsissued by counties or municipalities seeking alaw firm that is willing to take all of the avail-able cases for the lowest cost do little to ensurethat clients receive adequate representation,and actually drive up long-term costs. Forexample, one report described a flat-rate con-tract with a firm that provided no incentive tolitigate cases, resulting in .5% of the casesgoing to trial. When an associate of the firmmoved to continue a case because necessaryinvestigation had not been done, she wasfired and another lawyer pled the client guiltyto all of the charges. Reviewing existing sys-tems and a number of national reports onindigent defense system contracts revealedthat well-designed contract systems share cer-tain characteristics: the contracting lawyershave the experience and skills needed to han-dle the cases; and the system provides over-sight of the quality of the work being done,limits caseloads to a manageable number,includes a case management or tracking com-ponent, and provides a mechanism for addi-tional compensation for truly extraordinarycases.

When IDS began the process of creating acontract system, there were several basic goalsthat flowed from the General Assembly’sdirectives and the characteristics describedabove. The system needed to work in NorthCarolina, where most private lawyers whoaccept appointed cases work either as solopractitioners or in small firms, and tend tofocus their appointed work on cases in thecounty in which they have an office. The sys-tem needed to provide cost savings and allowIDS to accurately predict costs for futureyears. The system needed to allow IDS to setreasonable qualifications for the lawyers whowould enter into contracts, and enable IDS toidentify qualified lawyers when awardingcontracts. The system needed to minimizethe pressure to cut corners in providing repre-sentation, and to encourage counsel to spendthe time needed on truly difficult cases. IDSneeded to be able to track whether thelawyers were being appointed to the expectednumber of cases, and how and when thosecases were being resolved. IDS also needed toprovide support and oversight in the field, sothat contract attorneys have the tools needed

to do the work, and so that IDS can identifyand address situations in which adequate rep-resentation is not being provided.

IDS quickly recognized that a statewidecontract system would need to be phased in,both in terms of geography and case type.Adult noncapital criminal cases at the triallevel represent the vast majority of IDS’ case-load and pose fewer challenges in convertingto a contract system, primarily because IDShas good data on the hours needed to handlethose cases, and the volume of cases in mostcounties is sufficiently high to support a con-tract system. In addition, rolling out the con-tracts in a few districts at a time would allowIDS to ensure that the contract system wasworking before it was implemented on alarge-scale basis.

IDS resolved two major issues relating tocompensation at an early stage of developingthe new system. First, the system could notrely on hourly billing, because this would notwork in a centralized system with more than200,000 cases annually, and would in essencereplicate the roster system that the GeneralAssembly clearly wanted replaced. Second,price competition in the form of requiringlawyers to compete on how cheaply theywould do the work would be limited to rep-resentation provided by the court session,such as drug treatment court, in which coun-sel could reasonably estimate the timerequired to do the work, and low bidderscould not easily cut corners on representa-tion. IDS spent a great deal of time analyzingdata from fee applications to determine theamount of time spent on cases under the ros-ter system, and decided to use a contract sys-tem under which lawyers would be paid a setamount to cover a caseload that included arange of dispositions. IDS set different case-loads for misdemeanors, low-level felonies,and high-level felonies, the latter of which areClass D felonies or higher. The dispositionranges are referred to as “caseload units.”

IDS believed that having a guaranteedstream of cases, rather than being paid a flatfee per case with no guarantee of the volumeof cases, would reduce the pressure to cut cor-ners on the difficult cases that are mixed inwith the more straightforward cases in eachcaseload unit. IDS set compensation levels ata rate that would require counsel to be some-what more efficient than the average hoursspent under the roster system, in large meas-ure because IDS’ research shows that attor-neys with larger caseloads are more efficient

“I have been pleased with the availability of training and support for contractors from the regional defenders atIDS and the UNC School of Government. I was pleasantly surprised with a user-friendly online case reportingsystem that actually helps me stay on track with my record-keeping, and any help in that area of my practice is

much appreciated.” — Valerie E. Pearce, regional defender, Divisions II and IV, NC Indigent Defense Services

than those with smaller caseloads.“Efficiency,” of course, can sometimes just bea euphemism for “cutting corners due to lowpay.” In order to reduce the pressure to cutcorners, IDS also created an extraordinarycase policy under which contractors canrequest additional compensation or a reduc-tion in their caseload when they have a casethat is significantly more complex and timeconsuming than the “average” case.

In order to provide the necessary over-sight, both in terms of the business aspect ofthe contracts and the quality of representa-tion, IDS began creating a modest infrastruc-ture to support the system. Although the sys-tem will ultimately involve hundreds or thou-sands of lawyers and potentially several hun-dred thousand clients, IDS began by convert-ing an existing half-time contracts adminis-trator position to a full-time position that isresponsible for ensuring that the business endof the contracts runs smoothly, and for mon-itoring the data reported by the contractors.IDS also created, and continues to improve,an online reporting system that allows con-tractors to report basic information aboutcases at the time of appointment and then atthe time the case is disposed, and to print outrecoupment forms for cases in which thecourt may order the client to repay attorneyfees. This database also assists IDS in ensuringquality representation by allowing IDS tospot potential problems, such as situations inwhich the contract system may be leadinglawyers not to try cases or not to advocateeffectively for reasonable pleas. The mostimportant quality assurance, however, comesfrom the regional defender positions. Theregional defenders are experienced lawyerswho are out in the field meeting with lawyers,judges, clients, and others to provide over-sight, support, and resources. Ultimately,each regional defender will be expected tocover two judicial divisions, meaning that onelawyer will be responsible for about a quarterof the state. To date, IDS has hired two of thefour regional defenders as contracts have beenrolled out in their regions.

IDS has been fortunate that the few posi-tions that are responsible for making the con-tract system work are filled with experienced,dedicated people. IDS hired Emily Portner,who previously worked administering indi-gent defense contracts in New York, as thecontracts administrator. Tucker Charns andValerie Pearce, both experienced attorneyswho have been in court representing clientsand responsible for providing oversight toother lawyers, have taken on the challenge ofserving as the first two regional defenders.

Perhaps the most challenging aspect of acontract system is getting good lawyers toparticipate. IDS developed a fillable offerform that allows potential contractors todescribe their experience and their ability toserve the clients in the county in which theyare seeking a contract. IDS also seeks inputfrom local judges and from references identi-fied by potential contractors. The offers arereviewed by two or three attorneys, and deci-sions are then made about awarding con-tracts. IDS recognized early in the process theimportance of including as many qualifiedattorneys who were already providing indi-gent representation in the county as was man-ageable, in part to ensure that there were asufficient number of attorneys to handle con-flicts and cover court schedules, but also tosupport a vibrant indigent defense bar thatwould provide representation in the future.IDS also quickly learned the importance offace-to-face meetings with local bar membersto describe the system, answer questions, andurge qualified local lawyers to consider apply-ing for contracts.

The RealityThe contract system divides the adult

criminal cases into three categories: misde-meanors (although it includes habitual assaultand DWI, as well as non child support con-tempt in district court), low-level felonies(Class I through E, as well as probation viola-tions and non child support contempt casesin superior court), and high-level felonies(Class D through A, not including potentially

capital cases). Based on data from three fiscalyears, the local caseloads are divided intounits, which represent a range of cases thatone attorney is expected to handle during theterm of the contract. The contracting attor-neys are required to report their data by theseventh day of the month and then certifythat their monthly reporting obligations arecomplete, which triggers their monthly pay-ment by the 15th day of the month. In addi-tion to the monthly payments, attorneys areable to request extraordinary pay to seek addi-tional compensation for particularly complexcases.

Although contracts for these types of casesare a new system, there is more in commonwith the prior system than there is different.The IDS Rules, IDS PerformanceGuidelines, and the procedures for securingexperts and investigators have remained thesame. The local appointment plans have beenadapted for the contracts. In recognition ofthe changes to the appointment plans, theregional defenders routinely meet with localactors (district and superior court judges,clerks, and assistant clerks) before and afterthe contracts are underway in their districts.The changes are chiefly due to the rotation ofattorneys, the handling of cases in whichclients have been charged prior to and afterthe start of the contracts, and with cases inmore than one contract category. After thestart of the contracts, the regional defenderscontinue to field questions and concerns, andto update the appointment plans as necessary.

If one could look at a noncontractorcourtroom and a contractor courtroom in thesame district, it would be difficult to see thedifference. Due mostly to the new positionsof regional defenders, however, there are atleast three parties who are greatly affected bythe contract system: the attorneys, the courts,and the indigent clients.

Regarding the attorneys, the regionaldefenders are able to listen to and help thecontract attorneys in meaningful ways evenbefore the contracts become effective. Forexample, in one district it was the culture that

10 WINTER 2014

“The implementation of the contracts system has been a challenging adjustment. Many lawyers who had

practices that included indigent defense no longer have the opportunity to do so. We have a brand new large

courthouse and almost every floor has three or four courtrooms with judges and clients who are anxiously

awaiting the arrival of a limited number of lawyers. It can be a challenging and sometimes frustrating experi-

ence for all concerned. However, the reasons that initially compelled me to gravitate toward indigent defense

have not changed, the need has not changed, and the constitutional rights of the accused have not changed

either. There have been difficult days and challenging times, and I am certain there will be more in the

future.”— Lisa Williams, Durham County Contractor who has low- and high-level felony contracts.

attorneys on the indigent roster would taketurns meeting with all the defendants seekingcourt-appointed counsel each day in courtand helping them complete affidavits of indi-gency. This required hours of attorney timefor which they could not be compensated. Italso raised issues of confidentiality and con-flicts of interest. The attorneys did not likethis practice, but it was difficult to find a wayto change it. The regional defender was ableto speak to the judges, explain the concerns,and assure the clerks that the duty would notfall to them as clients in nearly every othercounty fill out their own affidavits. As aresult, the lawyers in at least some of thecounties in the district were relieved of thisburden without having to confront the judgesor clerks.

Now that the contracts have started, theregional defenders attend and observe manycourts and are almost always in a courtroomsomewhere to assist lawyers. They are also “oncall” for any issues that may arise. The con-tracting attorneys generally receive as muchor as little help as they request. Regionaldefenders have done practice cross-examina-tions of witnesses and clients, directed theattorneys to appropriate experts, assisted inmotions drafting, conducted case consultswith attorneys, and helped clients understandplea offers. There is also a contractors’ listservthat the attorneys use to pose questions andask for assistance from other attorneys, andthat the regional defenders and other IDSstaff use to post announcements and offersupport.

With assistance from the School ofGovernment, there have been three local half-day trainings with CLE credit in the contract

districts, as well as a full-day contractor train-ing in Chapel Hill. These were CLEsdesigned specifically for contractors. Theemphasis was on real-life issues involving dis-trict court motions practice, client-centeredadvocacy, and DWI and superior court skills.Costs were kept to a minimum, and the pro-grams were scheduled at times that recog-nized the needs of private attorneys.

Additionally, regional defenders have metwith judges about issues on behalf of theattorneys, and to hear concerns about con-tract attorneys. In these meetings, the region-al defenders have advocated for the attorneys.They have also been able to listen to thecourt’s concerns about a lawyer, and commu-nicate with the attorney about the problem orperceived problem. The regional defendersare also able to remind judges that contractattorneys must be in different courts at thesame times, that they have to balance aretained caseload, and that they do their bestto remain good advocates and efficient busi-ness people. Regional defenders also meetwith the public defenders, the district attor-neys, and the clerks to discuss the system andwork on ways to make court run better forthe contract attorneys.

For clients and clients’ families, the con-tract system has also brought benefits. Theynow have someone other than the judge tospeak to about their counsel. Every attorneyhas seen that client, the one in the jail jump-suit, trying to ask the judge why his attorneyhas not met with him, while at the same timetrying not to offend those who have so muchpower over him. Under the contract system,the clients and their families can speak withthe applicable regional defender. During that

conversation, the client and family can freelyask questions about procedures and air anygrievances. The regional defender canrespond to the concerns and prevent anyunnecessary time being spent in court onissues that are best addressed between theclient and his counsel.

As the system has been implemented inthe first few districts, IDS has learned thataspects of it need to be strengthened. Theextraordinary pay provision was not suffi-ciently clear or concrete to provide assuranceto lawyers working on high-level felonies thattheir work on a truly extraordinary casewould be adequately compensated. As aresult, IDS created a new system that pro-vides additional hourly pay for contractorswhen they work more than 50 hours on onehigh-level felony case after consultation withand approval by the applicable regionaldefender. The contract system also potentiallyexcludes newer lawyers, who are competingwith more experienced lawyers for contracts.To address that concern, IDS created a men-tor agreement that allows a less experiencedlawyer to include with his or her offer anagreement with a more experienced lawyer toserve as a mentor.

Any new system can stand improvements,and IDS is open to input from those in thecriminal justice system on how to strengthenthe contract system. The best system is onethat is staffed by committed, properly com-pensated attorneys who have the support andresources they need. n

Thomas K. Maher is the executive directorof IDS, and Tucker Charns is an IDS regionaldefender for Divisions I and III.


In the late 1920s, UNC Law ProfessorAlbert Coates saw a gap between the law as itwas taught in his classroom and as it waspracticed in city halls and county courthous-es. He left campus and traveled the state. He“crawled through the bloodstream” of thestate’s judicial system—riding along in policecars, visiting jails, and accompanying officersinto criminal court—all in an effort to firstobserve how the law was actually beingapplied “on the street,” and then to createtraining that would get everyone on the samepage and in line with the law. He organized“schools” for groups of local officials—pri-marily police officers and sheriffs—to helpfill the gap he perceived. Over the next tenyears he added training for a wide range of

government officials. Thus, the Institute ofGovernment was born. The Institute becamethe School of Government in 2001.

Coates’ original idea has expanded from

one determined man with a vision, to aninstitution of 55 faculty and 75 staff mem-bers that is the largest university-based localgovernment training, advisory, and research

As North Carolina’s NeedsEvolve, So Does its School of Government

B Y G I N I H A M I L T O N

WINTER 201412

When you look at the Knapp-Sanders Building, where the School of Government is housed on the

edge of the UNC-Chapel Hill campus, you see a stately red brick building with a row of soaring

white columns at its entrance. The building doubled in size when it was renovated in 2004, but if

you know what to look for, you will see that the original building, constructed in 1957, still pro-

vides the essential “bones” for the newer

one. The same is true of the work the

School does today.


organization in the United States, offering upto 200 courses and webinars to more than12,000 public officials each year.

In the early days, the then-Institute ofGovernment offered courses on the laws thatdictated the functions of local government;those courses, or modern versions of them,still provide the foundation of the school’swork. Local government purchasing officersneed to follow proper procedures to be suretheir contracts are valid; county clerks mustfollow parliamentary procedure for publicmeetings; and registers of deeds must proper-ly record real estate transactions and birthcertificates.

A Broadened Focus on theAdministration of Local Government

Over time, the school’s focus has expand-ed. For instance, the intensive seven-weekMunicipal and County Administrationcourse includes sessions on local governmentlaw, the legal aspects of public finance,employment law, animal control law, andgovernmental accounting, among others.These topics have evolved to include casestudies that explore the practical challengesto application of the law that participants canexpect to face in their jurisdictions. And nowthe course also includes sessions on strategicleadership, decision-making, communityengagement, and public communication,including social media.

Each year roughly 100 city and countyemployees from every area of local govern-ment attend this course. Since 1954, nearly6,000 public officials have studied how theirspecific jobs relate to the work and needs ofother departments, including the intersec-tion of various legal and practical constraints.

On any given day, the School ofGovernment’s parking lot is filled with carsand trucks boasting colorful license platesand decals of towns and counties from allover North Carolina. Classrooms are filledwith local government finance officers, pur-chasers, magistrates, mayors, economicdevelopment directors, county clerks, districtcourt judges, and municipal attorneys.

Nonpartisan, Policy-Neutral, andResponsive

School of Government faculty membershave made notable contributions to NorthCarolina government, including serving onthe North Carolina ConstitutionalCommission, the Local Government Study

Commission, the NC Sentencing and PolicyAdvisory Commission, and the Governor’sCrime Commission on Juvenile Crime andJustice. True to its core values of being non-partisan and policy-neutral, the school hasbuilt a legacy of trust with North Carolina’spublic officials, regardless of political affilia-tion. Whether responding to a researchrequest from a county finance officer or amember of the General Assembly, facultymembers see their role as helping NorthCarolina public servants figure out how toaccomplish what they want to do for theircommunity.

Training for Judicial OfficialsIn the 1960s the Institute of Government

began offering courses for district and supe-rior court judges, magistrates, and prosecu-tors. In 2006 the North Carolina JudicialCollege was established at the school underthe leadership of James C. Drennan, whoserved as its director until his retirement in2013. The college was established to helpgroups within the courts work effectively asteams, understand each other’s roles, developinterpersonal skills, and help court officialsdeal effectively with the changing world inwhich they work. It provides seminars andspecialized education programs for judges,clerks of court, magistrates, and courtadministrators in the state.

In addition, the school collaborates withthe Office of Indigent Defense Services tocreate training programs, manuals, andonline resources. The school also produces arobust curriculum of live and on-demandwebinars available for CLE credit on topicsranging from criminal and juvenile delin-quency and substance abuse to ethics andelectronic evidence.

Technology Allows for ExpandedResources

The work of the school has evolved, ashas the way that work is offered. Today, fac-ulty members answer phone calls and emailsevery day from local government, courts, andlaw enforcement officials who have questionsabout specific local issues. They post infor-mation, including legislative updates, onblogs that focus on criminal and local gov-ernment law, community and economicdevelopment, environmental finance, andhuman resources. They create online toolssuch as one that assists utility managers withanalyzing residential utility rates in an effort

to improve efficiency. They develop mobileapps such as the ASSET: Arrest, Search, andSeizure Electronic Tool that law enforcementofficials use in the field to access vital infor-mation about the legal issues officers con-front every day, from search warrants toTerry stops to GPS tracking.

Graduate EducationThe school is also home to the UNC

Master of Public Administration (MPA)program, offered in two formats. The full-time, two-year residential format serves upto 60 students annually. In 2013 the schoollaunched MPA@UNC, an online formatdesigned for working professionals and oth-ers seeking flexibility while advancing theircareers in public service. The school’s MPAprogram consistently ranks among the bestpublic administration graduate programs inthe country, particularly in city manage-ment. With courses ranging from publicpolicy analysis to ethics and management,the program educates leaders for local, state,and federal governments and nonprofitorganizations.

School of Government Dean MikeSmith is a lawyer, as have been the precedingthree directors of the institute—AlbertCoates, Henry Lewis, and John Sanders.Smith joined the faculty in 1978 and taughtin two areas: civil liability of public officialsand legal aspects of corrections. He wasnamed director of the Institute ofGovernment in 1992 (renamed dean whenthe institute became the School in 2001)and has led much of the expansion of theschool’s services.

“Our history is great, but I’m even moreexcited and optimistic about the school’sfuture,” Smith said. “As the work of localgovernments and public servants hasbecome more complex and demanding, wehave expanded our capacity to assist withemerging issues without reducing our tradi-tional strength in public law. It is supposedto be that way. Mr. Coates was the ultimatechange agent, and he would embrace theschool’s evolution. He would recognize thededication of our current faculty and staff,who are just as committed as the pioneerswho worked with him during the earlydays.” n

Gini Hamilton is senior marketing andcommunications specialist for the School ofGovernment at UNC-Chapel Hill.

“I’ve been very fortunate in life, much ofwhich has been due to being a lawyer. Othershave not been as lucky. Through no fault oftheir own, many people find themselves fac-ing homelessness, being disabled withoutincome, growing up as a child in unsafe sur-roundings, or living in a situation wheredomestic violence is a reality. Volunteeringwith Pisgah Legal gives me the opportunity

to use the lawyering that has been so good tome to help people receive their rightful accessto the law’s protections.”

Licensed in Massachusetts, Texas, and theDistrict of Colombia, Tom is not a member ofthe North Carolina State Bar. In the past, thiswould have prevented Tom and other attor-neys who are retired in-state or licensed out-of-state from volunteering. However, Tom is

able to volunteer his time to assist low-incomepeople in the mountains of North Carolinathrough the State Bar’s pro bono status.

The Roots of Pro Bono StatusIn 1981, Florida was the first state to

establish rules allowing inactive attorneys tocontinue a limited practice for the purpose ofproviding pro bono services. According to the

Pro Bono Status: Staying Activein the Profession in Retirement

B Y M A R Y I R V I N E

Attorney Thomas Siekman’s career

has taken him many places: he

practiced intellectual property law,

served as general counsel of

Compaq, and headed the board of Martha Stewart Living Omnimedia, Inc. An advo-

cate for legal services, Tom was consistently involved in efforts to bridge the access to

justice gap throughout his career by raising money with the Boston Bar Foundation and

volunteering his legal services to nonprofits. After Tom decided to settle in Asheville in

retirement, he inquired with a neighbor and fellow attorney about opportunities to vol-

unteer. Tom’s neighbor sent him to Pisgah Legal Services where he has been volunteering since 2011 and currently serves as board president.

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Rob Colvin/Illustration Source

American Bar Association, 36 jurisdictionshave adopted some form of pro bono rule—also called emeritus rules—reflecting a morerecent push nationwide to explore new vol-unteer pools and methods of increasingaccess to legal aid for low-income individualsdespite budget cuts.

Designed for retired legal professionals aswell as out-of-state attorneys, pro bono rulesseek to encourage volunteerism by lesseningthe licensing burdens. Rules typically exemptpersons with the status from certain licensingrequirements including payment of mem-bership dues and compliance with continu-ing education requirements.

The value of rules granting retired andout-of-state attorneys pro bono status is mul-tidimensional. At the heart of such rules isthe desire to bridge the justice gap and buildadditional capacity within legal aid organiza-tions to meet the legal needs of poor, elderly,and underserved populations. Legal needsstudies consistently indicate that our currentsystem only meets a fraction of the legalneeds of poor people. According to a 2009study of the American Bar Association, onlyone in five legal problems faced by low-income individuals are addressed by an attor-ney. The ABA also found that for every clientserved, another is turned away.

The need for legal services is great, andpro bono rules recognize the unique positionof seasoned attorneys in retirement to helpmeet the need. As a group, retired attorneysmay have more free time to devote to volun-teering. Such attorneys also have consider-able expertise as legal professionals that ben-efits legal services organizations and needyclients.

Judge Craig Brown retired from thebench in 2008. “Frankly, I was bored todeath in retirement,” he says, having retiredyoung due to health issues. Well-versed inthe circumstances of indigent parties afterhearing domestic, landlord tenant, criminal,and other cases in Durham County DistrictCourt for 12 years, he appreciates the needfor representation and decided he wanted tohelp in retirement. “For me, pro bono isimportant. I don’t have to work but I wantto help.”

Judge Brown had no idea that pro bonostatus was available in North Carolina untilhe sought it in October of last year. Sincehis petition was approved, he has been vol-unteering with Legal Aid of North Carolinathree days per week. Judge Brown feels he

can help most by training the next genera-tion of lawyers, given his experience tryingcapital cases, his time on the bench, and hisvast knowledge of the local community.

Gina Reyman, managing attorney ofLegal Aid of North Carolina’s Durham office,echoes the value of retired and out-of-statepro bono attorneys. Gina can turn to JudgeBrown as an experienced attorney and judgewith court issues and criminal law questions,as Legal Aid’s practice is limited to civil cases.Gina also says, “Judge Brown is able to triagepeople that walk in,” providing brief advice tothose who otherwise might be turned away.“When other attorneys are busy, he is able toreally take time with people.”

North Carolina’s Pro Bono Status RuleIn March 2008 the North Carolina

Supreme Court approved a proposed ruleamendment of the State Bar allowing inac-tive North Carolina attorneys and out-of-state attorneys to seek “emeritus pro bono sta-tus.” The amendment created a new mem-bership class allowing both inactive in-stateattorneys and out-of-state attorneys to pro-vide pro bono legal aid through an establishedlegal services program under the supervisionof a practicing attorney.

Jeremy Browner was the first attorney toobtain pro bono status in North Carolina.Jeremy moved to the Tar Heel state fromNew York around the time the rule wasapproved. While waiting to obtain licensureby comity, Jeremy was reading through therules pertaining to the State Bar and foundout about the opportunity to volunteer as anattorney licensed out of state. “Helping thosewho cannot afford legal assistance is a profes-sional duty that all attorneys should under-take. The fact that I was waiting for myapplication to the State Bar to process didnot mean that those who needed pro bonolegal assistance should wait.” With pro bonostatus, he volunteered with Legal Aid ofNorth Carolina, assisting in foreclosure,bankruptcy, and estate cases.

For Jeremy, volunteering allowed him tohelp people while learning about his newcommunity. While volunteering, Jeremy gotto know the North Carolina court systemafter practicing in Ohio and New York, not-ing differences in the judicial management ofcases and the role of clerks.

Now Jeremy is a solo practitioner inChapel Hill with a general practice that alsofocuses on bankruptcy, aviation, crowdfund-

ing, and other issues. Gina Reyman, whoalso supervised Jeremy Browner, reiteratesthat “even if emeritus and out-of-state attor-neys only do temporary work before obtain-ing full licensure, their experience con-tributes to their long-term knowledge ofwhat legal aid does,” and that is critical given

Benefits of Pro Bono Status:

1. No annual membership dues2. No mandatory continuing legal

education3. No minimum number of volunteer

hours required4. Malpractice insurance coverage

usually provided by legal service organi-zations to volunteer attorneys

Steps to Petition for Emeritus ProBono Status:

1. Read the rules pertaining to probono status. The emeritus rules for inac-tive North Carolina attorneys can befound at 27 NCAC 1A, Rule .0201(c),Classes of Membership, and 27 NCAC1D, Rule 0901(b), Conditions uponTransfer (to inactive status). The pro bonostatus rule for out-of-state attorneys canbe found at 27 NCAC 1D, Rule .0905,Pro Bono Practice by Out-of-StateLawyers.

2. Complete the petition for pro bonostatus. Note that the requirements andpetitions for out-of-state lawyers andNorth Carolina inactive attorneys are dif-ferent.

3. Identify a practicing attorney ingood standing at a supporting nonprofitlegal services corporation to serve as asupervisor and obtain a StatementRegarding Supervision.

4. Submit all forms and supportingdocuments to the North Carolina StateBar, Membership Department, PO Box26088, Raleigh, NC 27611. Materialsshould be submitted at least 30 daysprior to the council meeting when youwant your petition to be considered.Council meetings are held annually inJanuary, April, July, and October.

Instructions, petitions, and templatesupervisory statement can be found at nce-qualaccesstojustice.com/pro-bono-status.


WINTER 201416

the great need for pro bono attorneys.In Jeremy’s case, he continues to support

legal services by participating in NC LEAPand Lawyer on the Line programs of theNorth Carolina Bar Association and LegalAid of North Carolina. He also startedMonday Night Law, a program of theOrange County Bar Association that offersfree 30-minute consultations to individualsin the community one evening per month.

Benefits of Pro Bono Status forAttorneys

In North Carolina, emeritus and out-of-state pro bono attorneys are not required topay membership dues or maintain continu-ing legal education hours, though attorneysmay choose to attend CLE courses if they areinterested in learning about a topic or needtraining in a particular area in order to be aproductive volunteer.

Many legal aid organizations offer period-ic free or low-cost trainings for volunteers onparticular substantive areas of law. Trainingsorient attorneys who have spent their careerspracticing in an unrelated setting to issues ofpoverty law that low-income clients fre-

quently experience. Though he doesn’t needthe credits, Tom Siekman has taken multipleCLEs, including those offered by PisgahLegal Services, to get further training onissues like benefits, domestic violence, andhousing law. Judge Brown has also takenadvantage of CLE opportunities. He recentlyattended a CLE offered by the NorthCarolina Bar Association and Legal Aid ofNorth Carolina on removing barriers toemployment through expungements andcertificates of relief.

While the pro bono status rule does notrequire malpractice insurance be secured inorder to volunteer, most legal services organ-izations carry policies that cover volunteerattorneys. Volunteers who want to ensure anorganization carries malpractice that willcover their work should ask the supervisingattorney for more information.

For out-of-state attorneys in good stand-ing in licensed jurisdictions, the pro bono sta-tus rules remove the barrier of having to sitfor the North Carolina bar exam or pursuecomity if desiring to provide volunteer legalservices. For volunteers like Jeremy who arenew to the state and awaiting licensure, pro

bono status allows attorneys to stay engaged inpractice and meet the local legal community.

Leaving the practice of law after years canprove challenging for attorneys who havebeen consumed by full caseloads and count-less professional responsibilities. Pro bonooffers an outlet for retired and out-of-stateattorneys to continue to use their uniqueskills, mentor less experienced attorneys, andhelp others in need of counsel. “Retiredlawyers still want to dabble,” says JudgeBrown, which is why some opt to keep theirlicense active even after they have practicallyretired. “When you do something for a longtime, it’s hard to park it.” Pro bono statusbenefits attorneys who wish to continue theirprofession on a pro bono basis while further-ing the goal of making our system of justiceavailable to all. n

Mary Irvine is IOLTA’s access to justicecoordinator.

For more information about the process ofpetitioning for emeritus pro bono status or probono opportunities in your area, contact MaryIrvine at [email protected] or 919-706-4435.

But the repercussions went far beyondthe football program. Graham Spanier,PSU’s former president, Gary Shultz, a for-mer vice president, and Tim Curley, formerathletic director, are currently facing a vari-ety of criminal charges including perjury,obstruction of justice, and failure to reportchild abuse.3

The university’s general counsel at thetime, Cynthia Baldwin, has also garneredunwanted attention due to her role in thescandal. Former PSU colleagues, outsideinvestigators, and a state court judge havesuggested that Baldwin confused her repre-sentational roles and her professional loyal-ties.

Few attorneys will face situations asdreadful as that faced by Cynthia Baldwin.But confusion about the role of an organiza-

tion’s attorney can arise in more commonscenarios. Any time an organization’s attor-ney investigates alleged misconduct by thatorganization’s employees, potential conflictsmay arise between the organization and itsemployees. Those conflicts present an evengreater risk if the organization’s attorney hasclose professional and personal relationshipswith those employees, as is often the casewith attorneys who have represented organi-zations for long periods of time.

In recognition of this risk, state bars andcourts require proactive measures by organi-

zational attorneys to protect their clients’interests and to insulate themselves from alle-gations of unethical conduct. The saga atPSU demonstrates how important these legalsafeguards can be. While the specifics ofCynthia Baldwin’s predicament may beunique, the ethical issues involved offer les-sons for any attorney who represents anytype of organization.4

Baldwin’s Role in the Penn StateScandal

Baldwin had worked closely with PSU’s

Legal Ethics Lessons from thePenn State Scandal

B Y C H R I S M C L A U G H L I N

Most headlines about the Pennsylvania State University (PSU) child abuse scandal focused on the connections

between convicted child molester Jerry Sandusky and the PSU football program.1 The scandal cost legendary

coach Joe

Paterno his

job and tarnished his otherwise sterling rep-

utation as a coach who was unwilling to sac-

rifice his values for victories.2

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senior executives for years, first while serv-ing as president of the university’s alumniassociation and later as chair of PSU’sBoard of Trustees. She was appointedPSU’s general counsel in January 2010 justas the Sandusky criminal investigation washeating up.

A report on the scandal commissioned byPSU and conducted by Louis Freeh, formerdirector of the Federal Bureau ofInvestigation, concluded that PSU’s boardwas not kept adequately informed of thegrowing scandal and its implications for theuniversity.5 According to the report, Spanierrepeatedly downplayed the importance ofthe Sandusky investigation throughout2010 and 2011.

This obfuscation apparently occurredwith Baldwin’s assistance or acquiescenceeven after she learned that criminal chargeswere likely to be leveled against high rankingPSU officials. Freeh’s report suggests thatBaldwin consistently allowed Spanier tomake the final decisions as to when and howthe trustees would be updated about the cri-sis.

Potentially even more problematic wasBaldwin’s conduct while accompanyingSchultz, Curley, and Spanier when they tes-tified before the Sandusky grand jury inearly 2011.

When asked if he was represented bycounsel, Schultz, Curley, and Spanier eachindicated that Baldwin was his attorney.Baldwin was present for these questions andnever took advantage of the opportunity toclarify her legal role. When asked directly bythe supervising judge if she was representingthe witnesses, Baldwin made no distinctionbetween her role as PSU’s general counseland her possible role as counsel to the indi-viduals.6

The following year Baldwin herself testi-fied before the grand jury against Schultz,Curley, and Spanier. Her testimony laid thefoundation for the state’s decision inNovember 2012 to indict Spanier and tolevy additional charges against Schultz andCurley.7

Baldwin says that when the grand jurysubpoenas first arrived she told each witness,“You know, I represent the university. Youcan get your own lawyer.” The three witness-es strenuously deny this assertion. But evenif Baldwin did offer this half-hearted warn-ing to the witnesses, it apparently was notsufficient to eliminate confusion over her

representational role. The only time Baldwin clarified her role

as PSU attorney was when she spoke withthe grand jury judge privately in his cham-bers. None of the PSU witnesses was presentfor this conversation, meaning they did nothear and could not benefit from Baldwin’sexplanation to the judge that she was repre-senting PSU and only PSU in the Sanduskymatter.

Schultz, Curley, and Spanier say thatBaldwin’s actions during the Sanduskyinvestigation led them to assume that shewas representing them individually in addi-tion to representing PSU. “I think this was acrashing failure of due process,” Spanier’scurrent attorney Elizabeth Ainslie told thePhiladelphia Inquirer. “No one explained toGraham Spanier that the person he thoughtwas his lawyer was not his lawyer.”

The three ex-PSU officials argue thatthey, not PSU, controlled the attorney-clientprivilege that applied to their confidentialconversations with Baldwin. If that is true,then Baldwin breached her duty of confi-dentiality to Schultz, Curley, and Spanierwhen she testified before the grand juryabout her private conversations with thosemen.

All three witnesses-turned-defendantshave asked the Pennsylvania courts to dis-miss the charges based on Baldwin’s (alleged)misconduct and the prosecutor’s knowledgeof that misconduct. Spanier also filed a sim-ilar motion in federal court, seeking the rareremedy of federal intervention in a statecriminal prosecution.

In April 2014 a Pennsylvania state courtjudge rejected the motion to dismiss onjurisdictional grounds. But in doing so thejudge raised substantial questions aboutBaldwin’s actions and inactions during thegrand jury proceedings.8 According to thejudge, Baldwin arguably demonstrated“poor judgment and/or improper ethicalconduct in her handling of the investiga-tion.”

Quoting a law review article written byDuke Law School’s Deborah DeMott on theroles of general counsel, the judge com-mented, “A contemporary general counseloften occupies other roles as well [besidesadvising the board and senior management],each complex and additionally interlinkedin many ways...[A] general counsel’s posi-tion has often been characterized as ambigu-ous.... [N]ot all occupants of the position

succeed in balancing its multiple roles ineither a professional or socially satisfactorymanner.”9

Baldwin resigned as PSU’s counsel in2012, but the ethical controversy surround-ing her conduct in that position has not dis-sipated.

The Legal Ethics Rules forOrganizational Attorneys

Before examining the legal ethics rulesmost relevant to organizational attorneyslike Baldwin, a caveat is needed: neither thisauthor nor any other commentator knowsfor certain whether Cynthia Baldwin actedinappropriately while serving as PSU’s gen-eral counsel. No state bar ethics charges havebeen filed against her. The Freeh report—one source of troubling allegations aboutBaldwin—has come under heavy criticismfor alleged errors and omissions.10 Thatsaid, if the allegations made by Spanier andhis co-defendants are true, then Baldwinclearly failed to satisfy her ethical obligationsseveral times over.

Pennsylvania’s rules of professional con-duct are similar to those that apply to attor-neys practicing in North Carolina. Rule1.13 governs the obligations of organiza-tional attorneys and demands ultimate loy-alty to the organization’s governing board. Ifthe attorney knows of misconduct byemployees that could be imputed to theorganization and could cause substantialinjury to the organization, the attorney isobligated to report the issue to the govern-ing board unless the issue is resolved satisfac-torily by other organizational officials. Andwhen dealing with the organization’semployees, the attorney must explain thetrue identify of her client when the attorneyhas reason to believe that the interests of theorganization may be adverse to the interestsof individual employees.

Baldwin’s alleged failure to keep the PSUtrustees appropriately informed about theSandusky investigation would have violatedRule 1.13 as well as Rule 1.4, which sets thestandards for adequate attorney-client com-munication. Baldwin would have violatedanother section of Rule 1.13 if she did nottake appropriate steps to make clear toSchultz, Curley, and Spanier that she did notrepresent them as individuals. That failuremight also have violated Rule 4.3, whichprohibits giving legal advice to unrepresent-ed parties that are likely to be in conflict


with the attorney’s client—in this case, PSU.Finally, Baldwin’s failure to clarify her repre-sentational role to the grand jury judge mayhave violated Rule 3.3, which requires can-dor to the court.

Again, it is not clear that Baldwin violat-ed any ethical rules. But even if her versionof events is taken as fact, it is apparent thatBaldwin did not do as much as she couldhave to protect her client, position individ-ual employees to protect their interests, anddefuse allegations of misconduct.

Upjohn WarningsOne crucial ethical safeguard available

to organizational attorneys is known as theUpjohn warning. Upjohn is the 1981 USSupreme Court case that is most famous

for its (somewhat convoluted) test fordetermining the scope of the attorney-client privilege for organizational clients infederal court.11 More relevant to Baldwin’spredicament is Upjohn’s discussion of situa-tions that might require an organization’sattorney to warn employees about theattorney’s role, and the fact that the organ-ization rather than the employee controlsany privilege that may attach to their con-versations.

These warnings are sometimes known as“corporate Miranda” warnings after the linesuttered by every television and movie copmaking an arrest since 1966.12 While orga-nizational attorneys are not expected to tellemployees that “anything you say can andwill be used against you by your employer,”the required warning is intended to send avery similar message.13

Failure to provide an Upjohn warningcan have a very detrimental result for theorganization: the employee and not theorganization may control disclosure ofstatements made by the employee to theorganizational attorney.14 As mentionedabove, the failure to offer an adequate warn-ing to employees also can violate the orga-nizational attorney’s ethical obligationsunder Rule 1.13.

Baldwin claims that she employed anUpjohn warning when she told Schultz,Curley, and Spanier, “I represent the univer-sity. You can get your own lawyer.” But thatbrief statement may not have been sufficientto put the three PSU officials on notice thatconversations between them and Baldwincould be disclosed by Baldwin at the direc-tion of PSU. And the potential effectivenessof her lukewarm warning was undercut byBaldwin’s subsequent failure to clarify herrole when those witnesses indicated that shewas representing them individually.

In the words of the Fourth Circuit Courtof Appeals, watered-down Upjohn warningssuch as the ones Baldwin claims to haveoffered are “potential legal and ethical mine-field[s].”15 In addition to risking control ofthe attorney-client privilege, an organiza-tional attorney such as Baldwin who failedto clarify her role would almost certainly bedisqualified from representing the organiza-tion in any subsequent dispute between itand the employee who was misled.16

Lessons for All Organizational AttorneysThe PSU legal saga is an extreme example

of what can go wrong in organizational rep-resentations. Cynthia Baldwin’s predicamentnevertheless offers helpful lessons to organi-zational attorneys who face more mundaneconcerns.

First, an organizational attorney cannotabdicate the roles as legal advisor to the orga-nization’s governing board no matter howmuch the attorney trusts the organization’ssenior management. The attorney must con-trol the flow of information to the boardabout legal risks. This responsibility cannot bedelegated to the president, the CEO, the exec-utive director, or (for local governments) themanager or mayor.

Second, attorneys representing organiza-tions must constantly be wary of situations inwhich the interests of individual employees—even very senior employees—might conflictwith the interests of their organizations. Whensuch a situation arises, the attorney must pro-vide adequate warnings to the employeesabout the attorney’s role and the attorney’s loy-alty to the organization over the individual. Tooffer maximum protection for both theorganization and the attorney, the Upjohnwarnings should be documented in writing.

These ethical lessons are challenging toimplement, especially when the organization’sattorney has close relationships with seniormanagement. But as an attorney in CynthiaBaldwin’s shoes would likely admit, that chal-lenge is minor compared to those that canarise when the lessons are ignored and theattorney’s roles are muddled. n

Chris McLaughlin is an associate professor ofpublic law and government at the University ofNorth Carolina-Chapel Hill’s School ofGovernment.

Endnotes1. Sandusky was convicted in 2012 of 45 counts of sexual

crimes against children and sentenced to a minimum of30 years in prison.

2. Paterno coached at PSU for 45 years. The universityfired him in the middle of the 2011 football season asthe scandal broke. Paterno died from lung cancer onlya few months later.

3. The New York Times Magazine recently published alengthy cover story on Spanier’s career, involvementwith the Sandusky case, and the criminal chargeslodged against him. nytimes.com/2014/07/20/maga-zine/the-trials-of-graham-spanier-penn-states-ousted-president.html.

4. For a more detailed look at some of the legal ethicsissues raised in the Penn State scandal, see this 2013

C O N T I N U E D O N P A G E 2 5

WINTER 201420

Q: What can you tell us about yourupbringing?

I grew up in Columbia, South Carolina.My family is from rural Fairfield County. Mymother had the foresight to move from thecountry to the city before my second birth-day. I am the youngest of eight children—four boys and four girls. We were raised byour single mother. Her system was to assignan older child to be responsible for a youngerchild. My oldest brother is more like a fatherto me than a brother. He looked after me asa kid, taught me to drive and how to takecare of a car. My saddest memory as a childwas seeing my oldest brother leave for mili-tary service when I was ten.

I did not like being the “little brother” ofmy older siblings. When it was time to go tohigh school, I saw the opportunity to be inthe group of kids who integrated what wasregarded as the best high school in the state. Ithink that decision, made for the wrong rea-son, resulted in many opportunities for me.

My mother taught us many things,including self-reliance. All of the childrenworked and were required to make goodgrades. We were responsible for buying ourown school clothes and earning our ownspending money. My mother bought me alawn mower and I cut grass throughout theneighborhood. In high school, I worked 30-35 hours per week in a Winn Dixie grocerystore. After work, I would go the USClibrary to study. I was surprised that studentswent to the library to hang out. Q: Tell us a little about your family.

I have three adult children. Theyoungest is a recent UNC-Chapel Hillgraduate. She is spending a year working inSpain before graduate school. My middlechild is an honors grad from UNC-Greensboro. She is in graduate school inoccupational therapy in Connecticut. Myson is the oldest and works in Charlotte. He

is a Davidson College graduate. Q: When and how did you decide tobecome a lawyer?

I made the early decision to become alawyer when I was in high school, but con-sidered a career in banking after working inNew York for two summers while in college.During my senior year of high school, I reg-ularly “played hooky” from school to attendthe “coffee house” trial at the county court-house. During the Viet Nam War, anti-warprotesters established coffee houses across thecountry as meeting places. Local govern-ments, including the Columbia CityCouncil, declared their local coffee house apublic nuisance and sought to close it. I wentto the trial instead of going to school. I didn’tunderstand much of what I saw, but somememories stayed with me. The “hippies”

were represented by Thomas Broadwater, ayoung African-American lawyer. Mr.Broadwater was cool and calm. He respond-ed to the judge respectfully, but forcefully,and made quite an impression on me.

In college I had the opportunity to meetsome real lawyers and judges, includingJulius Chambers and Judge James B.McMillan. I decided on law instead of bank-ing.Q: What’s your practice like now, and howdid it evolve?

Most of my law practice today is for twoclients, Mecklenburg County andLivingstone College. I am involved in a vari-ety of litigation matters for the county andprovide the full range of legal services for thecollege. I have had the opportunity to domany different things as a lawyer. I started

Ronald L. Gibson is sworn in as president by Supreme Court Justice Mark Martin, with FeliciaWashington holding the bible.

An Interview with New PresidentRonald L. Gibson

WINTER 201422

Following are the remarks made by newState Bar President Ron Gibson on the night ofhis inauguration.

Good evening. To the justices of our Supreme Court, to

other judges and special guests, to the past-presidents of the State Bar, family, andfriends, thank you for being here tonight.

To the councilors, thank you for thehonor of serving as the 81st president of theNorth Carolina State Bar.

Ron Baker recognized the 20 or so past-presidents with us tonight. It’s a diversegroup in many respects, but all are superblawyers and leaders in their communities.Ron Baker joins the fraternity of past-presi-dents with all the necessary credentials,including more litigation “battle scars” thanany of us would like to have. For a while wedidn’t see his trademark smile and goodhumor very often. The good news is that thesmile is back.

Ron, thank you, not only for your serviceas a councilor and officer, but also for yourfriendship over the years.

Tom and Susan Ross, thank you for beinghere and for your remarks tonight. Tom Rossis responsible in part for my attendingDavidson College. Tom was among the stu-dents at Davidson who were dissatisfied withthe lack of progress by the college integratingthe student body. The students organized arecruitment weekend that more than dou-bled the number of black students atDavidson. I have not figured out how Tomcould have known in 1970 that he waspreparing to deal with both impatient,know-it-all college students, and intransigentcollege administrators.

I want to talk tonight about pride in ourprofession. But first, a few importantdetours. I have attended at least 15 AnnualDinners. I have always found two thingsinteresting in the remarks by the newly-elect-ed presidents: their backgrounds and fami-

lies, and how they were drawn to the practiceof law.

I hope that you too will find these thingsinteresting because, guess what I plan to talkabout, and I have a very big family to intro-duce.

I am the youngest of eight children—fourboys and four girls. We were raised by oursingle mother. She died four years ago thismonth at the age of 93. Alzheimer’s robbedus of her company during the last 12 or soyears of her life.

She was a single mother in the 1950s and60s, first in rural Fairfield County, SouthCarolina, then in Columbia. She raised eightchildren while working in the kitchen of thestate mental hospital. Her efforts as a parentresulted in: no unwed mothers, no sons injail, most of us went to college—all of us hadthe opportunity.

Today, all of her children have families tobe very proud of.

She was in Charlotte for my swearing-in

out doing employment and civil rights lawwith the Chambers firm, then moved toDuke Power where I worked on licensing anuclear power plant, utility rate cases, andlobbying, and finally moved to managementand became an officer of the company. I alsospent some time as a management consult-ant to utilities and as a business owner. Igained some valuable experience doing theseother things, but I missed practicing law.Q: How and why did you become involvedin State Bar work?

In 1985 the State Bar Council was all-male and all-white. The leadership, includ-ing Jim Preston from Charlotte, decided toencourage black and women lawyers to runin local elections. I was elected fromMecklenburg County for two terms andserved for six years. Serving as a Bar coun-cilor was such a rewarding experience that Iserved three more terms. Q: What has your experience on the StateBar Council been like and how has it dif-fered from what you anticipated?

I don’t recall my expectations before join-ing the council. I distinctly remember whatI was told by Bob Baynes and other coun-

cilors; that I would work hard, meet somereally nice people who are terrific lawyers,and that it would be a very rewarding expe-rience. They were right on all counts.Serving on the various committees of theState Bar with dedicated lawyers fromaround the state continues to be a veryrewarding experience. Q: You’re one of the few people who hasserved more than three terms on the coun-cil, having served a couple of three-yearterms back in the 80s and then three moresince the turn of the century. Was the coun-cil different when you returned?

When I first joined the State Bar Councilin 1986, there was clear tension between thesmall town, small firm lawyers and the bigfirm lawyers from the urban areas. Therewas much less tension when I returned tothe council. Q: You were on the State Bar’s GrievanceCommittee for many years. What was thatlike?

I believe that the work of the GrievanceCommittee is at the heart of our duty toprotect the public. While the vast majorityof lawyers act honestly and ethically for the

benefit of their clients, some lawyers dothings that harm clients and violate the stan-dards in the Rules of Professional Conduct.When that happens, the State Bar, throughthe Grievance Committee, has a duty toinvestigate the facts and make decisions toprotect the public. The dedication of theGrievance Committee members is inspiring.Q: Is there anything that you think we

ought to be doing differently or better inregard to the investigation or prosecutionof disciplinary cases?

Several years ago we conducted a com-prehensive review of the grievance process.While I am not aware of any significant cur-rent problems, I think it would be a goodidea to examine the process again to seewhere we might make improvements. Theofficers periodically receive feedback fromDisciplinary Hearing Commission memberson the performance of counsel staff. Weshould consider developing a more system-atic approach to gathering feedback fromeveryone involved in the grievance process.We should continuously work on balancingthe need to be fast, but to conduct thoroughinvestigations. n

Remarks from the President


WINTER 201424

as an attorney. As the ceremony ended, Ibrought my law license over to her. I recallsaying something smug like, “Are youhappy?” She smiled, I think laughed; clearlyshe was proud and happy, but she quicklysaid, “I will be happy when you shave thatbeard and start going to church more often.”

In college I wondered what I missed bynot having a father. I finally realized that Ihad strong father-figures in my life—myuncle Bud and my three older brothers. Mybrothers made it very clear to me that certainbehavior would get my butt kicked, but theyused much more graphic language.

They also led by example; they went toschool and did well, and they have alwaysbeen strong men, dedicated to their families.I have always wanted be a good father likeeach of them.

Harrison, John, and Thomas are herewith their wives, Shirley, Marian, andJennifer. Thank you for leading by positiveexample, and for promising to kick my butt.

I have four sisters—actually, I had fivemothers. I still have four mothers today. Forsome reason, when I was growing up my sis-ters thought that I needed constant supervi-sion and direction. They still try to activelysupervise me.

As a child, I was always annoyed withthem. As a man, I realize that it’s just theway they show they care about me. I am stilltheir baby brother, and I am better for it.Louise, Edna, Thelma, and Mary are here.Thank you for being here tonight and foryour constant supervision and direction.

Several of their children—my nieces andnephews—are here, including two membersof the South Carolina Bar, Kyndal Price andCharles Brooks.

Those of you who know me know that Iam very proud of my three children.

Kelli, the youngest, is a recent UNCgrad. Kelli is in Spain working for a yearbefore graduate school. Her first act was tosteal my 40th birthday, Thanksgiving night,1991. I have only seen Kelli at a loss forwords once, but only for a moment. Uponhearing about lawyers giving advice as partof what we do, she was speechless for amoment then said she said to me, “Peoplepay YOU for what YOU think?”

Allysen, my middle child, is heretonight. She is an honors graduate fromUNC-Greensboro. She is in graduateschool in occupational therapy in a foreigncountry, a place called Connecticut. She

just spent her fall break in Guatemala, vol-unteering with other students in her pro-gram working with disabled kids to fitthem for wheelchairs and train the kids touse them.

Ward, my son, is the oldest and is alsohere. He works in Charlotte for an HR con-sulting firm. Ward is the strong, silent type.He ignores my not-so-subtle commentsabout wanting to be a grandfather. Wardwent to Davidson, and played football there.I have had many proud moments at athleticevents since he was a little kid. I was espe-cially proud during the football dinner forseniors at Davidson when the coach told theaudience how captains were elected by secretballot of the players. The coach said thatthere was one name on every ballot, WardGibson.

Ward, Allysen, and Kelli make me a veryproud father.

Many of you know another very specialperson in my life, Felicia Washington. She isan accomplished lawyer, a former partner atK&L Gates in Charlotte, and now is a vice-chancellor at UNC. I am very fortunate tohave Felicia’s companionship, her advice,and counsel.

But I do contribute something to therelationship. She has this … issue… that Iam helping her with. She often says to me,out of the blue sometimes, “Now that’s anunfiltered comment,” or she will sometimesask a question like, “Did you consider tryingto be diplomatic?”

I don’t understand what’s causing these...random...comments.

I will work with her to help figure it out.Each new State Bar president has recog-

nized and thanked their law firms. I did notuntil recently appreciate the importance ofhaving the support of the firm. I practice lawwith four other lawyers; four of us areDavidson grads; one is from the Citadel.The members of the firm are here. To mylaw partners, I am very fortunate to practicelaw with you. Thank you for being here.

The lawyers of North Carolina are veryfortunate to have the North Carolina BarAssociation and Allan Head. Allan Headneeds no introduction to most of you. Allanhas a serious health challenge now. Let’skeep Allan and Patty in our prayers.

Let us also keep in mind the contribu-tions to our profession by the BarAssociation. The list of their programs andinitiatives over the years would fill many

pages. The constant presence over the yearshas been Allan Head.

To Allan, thank you for what you meanto the legal profession in North Carolina.

In the late 1970s there was a looming cri-sis in North Carolina—the loss of profes-sional liability insurance. The leadership ofthe Bar Association set out to organize amutual liability insurance company, the firstsuch company for lawyers in the country.Lawyers Mutual was chartered in 1977.Lawyers were asked to invest in the compa-ny to ensure that they would have liabilityinsurance. Lawyers Mutual now providescoverage to more than 7,500 lawyersthroughout the state.

What began as a vision has now enduredfor over 35 years—a liability insurance com-pany owned and controlled by the lawyers ofNorth Carolina, whose mission is to provideservice to the legal community. That serviceextends beyond providing insurance.Lawyers Mutual offers a broad program ofclaims prevention education at no cost to itsmembers, and at nominal cost to nonmem-bers. Their website has numerous practiceguides on a wide range of topics, includinglaw office management. This resource isavailable to all attorneys in North Carolina.

I have the honor of serving on the Boardof LML. Board Chair Ken McAllister ofHigh Point and president & CEO DanZureich are here, along with many otherboard members, the company’s officers, andattorneys. Thank you for what you do forour profession.

Tom Lunsford is the secretary and execu-tive director of the State Bar. Having heardhis name, he is now the most uncomfortableperson in the room. Tom never seeks creditor attention. He avoids the limelight, exceptduring the annual roast of the outgoingpresident.

In 1981, Tom was hired as the State Bar’s13th employee. Today there are 85 on thestaff, including 23 lawyers. The number oflicensed attorneys has grown from about7,000 to more than 27,000 today, with acorresponding increase in regulatory activityat the State Bar.

Tom has assembled a superb staff dedi-cated to serving the people of NorthCarolina. Although Tom will quickly tellyou that he had a lot of help with construc-tion of the new State Bar building, he was aconstant presence making sure it all gotdone. Tom, we are fortunate to have you at

the State Bar. Thank you for your service toour profession.

In Spring 1970 I was bored with highschool and I had too much free time. I cannow freely confess that I regularly “playedhooky” from school to attend the “coffeehouse” trial at the county courthouse.

For those of you too young to remember,during the Viet Nam War, anti-war protest-ers established coffee houses across the coun-try as meeting places. Local governments,including the Columbia City Council,declared their local coffee house a publicnuisance and sought to close it.

I went to the trial instead of going toschool. The “hippies” were represented byThomas Broadwater, a young African-American lawyer. The judge was mean andbelittling toward Mr. Broadwater. In fairnessto the judge, I later inquired about his repu-tation and was told that he was always meanand belittling to all lawyers.

I remember that the city’s attorney wasarrogant and condescending, always inter-rupting with an objection or comment. Mr.Broadwater was cool and calm and nevertook the bait. He seemed to respond to thejudge respectfully, but forcefully.

One exchange was quite memorable; thecity’s attorney interrupted Mr. Broadwater’sexamination of a witness to “correct” hispronunciation of a word. The judge agreedwith the “correction.” Mr. Broadwaterpaused for a moment, then said respectfully,“Your honor, that’s how I was taught to pro-nounce the word throughout my education.I guess it’s just one more vestige of our sepa-rate, but equal schools.” Mr. Broadwaterresumed examination of the witness before

anyone responded. Looking back on it, Mr. Broadwater’s

courtroom demeanor was the epitome of aprofessional lawyer—the kind of lawyer MelWright urges us all to be. I have had theprivilege of working with and being men-tored by some of North Carolina’s mostrespected attorneys, including JudgeMcMillan, Robin Hinson, Julius Chambers,and Ham Wade. While they have all rein-forced professionalism, none of them havesupplanted the impression made by Mr.Broadwater on the truant high school seniorsitting in the back of the courtroom.

I said at the beginning that I would talkabout pride in our profession. I am finallygetting there. Thank you for indulging me.

As Ron Baker reminded us last year, theState Bar is a regulatory body, charged bystatute to regulate the practice of law to pro-tect the public interest. As the president ofthe State Bar, I pledge to continue vigorousenforcement of the statutory mandate givento us by the legislature.

As your president, I will also at everyopportunity remind lawyers and the publicthat lawyers do good things that touch peo-ple’s lives. We are engaged meaningfully inpractically every aspect of our society, inbusiness, in government, and in all facets ofthe administration of justice.

The vast majority of lawyers—99% ofus—act honestly and ethically each day forthe benefit of our clients. Yet, we let ournoble profession be denigrated by carica-tures of ourselves as sharks, bulldogs, andbears, and by often repeated misquotes ofShakespeare.

Shakespeare’s oft repeated line, “The first

thing we do, let’s kill all the lawyers,” wasstated by Dick the Butcher in Henry the VI.Dick the Butcher was a follower of the rebelJack Cade, who thought that if he disturbedlaw and order, he could become king.Scholars have written that Shakespearemeant the line as a compliment to lawyersand judges who instill justice in society.

Even Justice Stevens wrote in a footnoteto a dissenting opinion in a 1985 case:

As a careful reading of that text willreveal, Shakespeare insightfully realizedthat disposing of lawyers is a step in thedirection of a totalitarian form of govern-ment. I ask you, have we forgotten that the role

of lawyers in our civilization is embodied inthe Bill of Rights? Who is at the forefrontprotecting our Constitutional rights? Whoprotects freedom of religion, freedom ofspeech and a free press? Who protects theright to bear arms and the right to be securefrom unreasonable searches and seizures?Who protects the right to due process andagainst self-incrimination, and the right totrial by jury and the right to counsel? It’s us,lawyers and judges!

It’s time for us to fight back to reverse theimage of our profession that we helped cre-ate. We should take pride in who we are andwhat we do. As I travel the state, I will talkto every lawyer who will listen to me aboutthe need for lawyers take pride in anddefend our profession.

As your president, I will tell anyone whowill listen why I am damn proud to be alawyer; and I urge you to do the same.

Thank you again for the honor of servingas your 81st president. n

Penn State Scandal (cont.)

American Health Lawyer Association seminar paper:William W. Horton and Jeff Sconyers, Legal Ethics:What Penn State and Lehman Brothers Can TeachLawyers About Conflicts of Interest, Westlaw citation20130214 AHLA-SEM 12.

5. The Freeh report is available at progress.psu.edu/the-freeh-report.

6. A good summary of Baldwin’s interaction with thethree witnesses and the grand jury is found in this arti-cle from the (Harrisburg, PA) Patriot-News:pennlive.com/midstate/index.ssf/2012/02/penn_state_legal_counsel_cynth.html.

7. This Philadelphia Inquirer article describes howBaldwin went from “adviser to witness against Spanier.”articles.philly.com/2013-12-21/news/45419893_1_

spanier-graham-b-elizabeth-ainslie.

8. The opinion is available online at dauphincounty.org/government/Court-Departments/Curley-Schultz-Spanier/Documents/April%209,%202013%20Opinion%20of%20Grand%20Jury%20Judge%20-%20Judge%20Feudale.pdf.

9. Deborah A. DeMott, The Discrete Roles of GeneralCounsel, 74 Fordham Law Review, 955-981 (2005).Available at: scholarship.law.duke.edu/faculty_scholar-ship/1239.

10. Criticizing Freeh’s investigation and report hasbecome a cottage industry in Pennsylvania. See, forexample, this website: ps4rs.org/freeh.html.

11. Upjohn v. US, 449 US 383,101 S. Ct. 677 (1981).

12. Miranda v. Arizona, 384 US 436 (1966).

13. In 2009 the American Bar Association issued an excel-lent summary of the history, purpose, and best practicesconcerning Upjohn warnings in this white paper: meet-

ings.abanet.org/webupload/commupload/CR301000/newsletterpubs/ABAUpjohnTaskForceReport.pdf.

14. See Wylie v. Marley Co., 891 F.2d 1463 (10th Cir.1989)(conversation between corporation’s generalcounsel and corporation’s former vice-president werecovered by that former employee’s attorney-client priv-ilege).

15. See In re: Grand Jury Subpoena: Under Seal, 415 F.3d333 (4th Cir. 2005)(describing potential conflictswhen corporation’s attorneys investigate alleged wrong-doing by corporation’s employees without providingthose employees appropriate Upjohn warnings).

16. See Home Care Indus., Inc. v. Murray, 154 F.Supp. 861(D.N.J. 2001)(corporation’s law firm disqualified fromrepresenting it in dispute over severance agreementwith corporation’s former CEO due to failure to clarifyits loyalty to the corporation rather than the individualemployee).


IT WAS CAROLINA BLUE. A deep, richCarolina blue—darker than the color of thecloudless sky draped over the horizon, butlighter than the color of the ocean below it.

He noticed the color as soon as she poppedabove the waves.

He watched her stand and slowly walk outof the chest-deep water. She walked up thebeach dripping wet, but was drying quicklyfrom the warmth of the late afternoon sun.Her blonde, shoulder-length hair was pulledback from her face. Her body was toned andathletic, and her skin was golden and glistenedin the sunshine.

But it was the Carolina blue bikini thathad his attention. It was a new one in the rota-tion. It was, of course, masterfully filled in, avessel holding a piece of art. But it was thecolor that caught his eye.

Soon it would be off, thrown in a cornerof the lifeguard stand. But even when he wasagainst her, he peeked over at it. Carolinablue was the color of his happiness, and sheknew it.

“Nice color,” he said a few minutes later. “I guess you liked it,” she said, cracking a

hint of a smile. “I thought it might remindyou of good times.”

He had played four successful football sea-sons at the University of North Carolina,slinging passes around Kenan Stadium likenobody’s business on sunny Saturday after-noons in the fall, wearing a jersey that sameshade of blue.

“Yes,” he said. “And later today it will pro-vide a fine memory, I’m sure.”

She threw the Carolina blue bikini backon, kissed him, climbed down from the tower,and walked down to the water for anotherswim.

He told her he would be down in a few

minutes. He reached into the cooler, poppedthe top on a chilled beer, and watched herjump back into the waves. He fished aroundin the canvas bag she had brought him, foundsome swim trunks, and put them on.

He carefully picked up his khaki marineuniform shirt and olive-green trousers, andplaced them on a hanger in a corner. The uni-form was crisply pressed and creased, and theribbons over the left chest pocket of the shirtwere a colorful fruit salad. There were tworows, and the one that stood out was theCombat Action Ribbon—blue on one side,gold in the middle, scarlet on the other side,with thin scarlet, white, and blue stripes downthe middle. The ribbon was instantly recog-nizable to any member of the naval service. Itverified that he had been in combat—that hehad received and returned fire—and hadserved satisfactorily while doing so. A gold starsignified a second award for another period ofcombat service.

He had a few other colorful gimme rib-bons that filled two full rows, but the combat-action ribbon was the cornerstone, cherishedby marines and sailors as a badge of legitimacy.

Aside from that ribbon, he had no person-al combat decorations. He should have, butthat was another story.

He had a shiny gold naval parachutistdevice—or jump wings—above his ribbons. Itwas a nice decoration, but he had neverjumped except in training. It was really just forshow.

* * *

A HALF-HOUR LATER she was at theedge of the water and waving her arms at him.“Come on down!” she yelled.

But he waved her off. He watched thewater lap up around her calves and grabbedanother beer. He knew the water wouldmake his body feel good, but the beer made

A Carolina Blue Bikini and aCourt-Martial

B Y C H R I S T O P H E R G E I S

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 - S E C O N D P R I Z E

Image courtesy of Sarah W

illiams

WINTER 201426

him feel better. He was damaged now, and while he could

still see and hear and walk, still had all hislimbs, and still could function enough toremain a marine officer, he would never throwa football 70 yards again. The wear and tearon his body from two combat deploymentshad taken care of that. A pro career was out ofthe question.

Now his pleasures were Carolina blue biki-nis, cold beers, and warm, sunny beach after-noons with his wife.

Once the court-martial was over, he mightspend a lot of time at the beach with her. Butnot the officers’ beach. That would probablybe off-limits once it was all over.

* * *

MOST PEOPLE HATED THE sum-mers at Camp LeJeune. The base sat in aswamp bordered by the Atlantic Ocean andthe New River, and summers were steamy andtropical. But, after two deployments to Iraq,he loved them.

Iraq was brutally hot—130 degrees onsome days, and a lot like living in a pizza oven.A 95-degree day at Camp LeJeune withhumidity out of the swamps could be bad, butthere was always Onslow Beach and thecoastal breezes. And Camp LeJeune was green.It had grass and trees, mostly skinny pines, butsome with leaves too, and plenty of palmettos.All that lush greenery deflected and diffusedthe sunlight.

The desert was not like that. It was bleakand open and white, an endless moonscapebroken only by the occasional palm grove by acanal or river or some place in the middle of acity where palm trees had been planted. Therewas no relief from the heat or the sunlight,unless there was a dust storm, and that was awhole other matter. The sky would turnbrown or black and you could not see five feetin front of you, but you could taste the sandand grit that hammered your skin like pelletsand lodged in your eyes, ears, and everywhereelse. He would take a tropical summer rainsquall at LeJeune any day over a dust storm inIraq.

Each afternoon during the trial, he wouldleave the courtroom and tell his lawyers hewould see them after dinner because first hewould need to go to the beach and find hiswife. The officers’ beach was their escape,from the trial and from the heat of the swamp.They lived in a nice home on base and in 15

minutes they could be at a beautiful, undevel-oped beach, with no one around them. Mostof the officers were deployed, training while inbetween deployments, or spending precioustime at home with family they rarely saw.People would come out on weekends, but theweekdays and nights were solitary and theyliked that. They took advantage as much asthey could, especially during the trial. Mostdays it was sunny, but even when the occa-sional afternoon thunderstorm rolled in, theycould huddle in the large enclosed lifeguardtower and sip cold drinks.

The beach was their love. The salt air, theopen sky, the clouds, and the blue water madethem feel alive each day.

They had tried other beaches. Early onthey would zip out the back gate of CampLeJeune and over the bridge of the New Riveruntil they got down to Topsail Beach orWrightsville Beach to the south. Both becametoo crowded, though. So they went even fur-ther south, through downtown Wilmingtonand past the World War II battleship USSNorth Carolina anchored on the Cape FearRiver, and over the bridge to BrunswickCounty.

They went 30 or so miles before theyfound Holden Beach, and they liked that fora while on the weekends. But once the pressattention started, Holden became too diffi-cult, because he would be recognized fre-quently and he did not want to talk to anyoneabout it. At the convenience store just over thebridge at Holden, there were racks of dailynewspapers from Charlotte, Raleigh,Fayetteville, Wilmington, and Myrtle Beach,not to mention the New York Times and USAToday, all catering to the summer vacationerswho had time to pay attention to the news. Itwas not uncommon for a story or photo ofhim to be in five or more papers on the sameday, sometimes on the front page staring backat him as he walked out of the store with a six-pack or a cup of live bait. He had been, ofcourse, the quarterback at Carolina, not just awar hero.

So they had returned to Onslow Beach.There were no civilians, and at least the mili-tary folks let them be.

Some afternoons she just could not watchthe trial and would leave the courtroom andhead out there early, swimming in the oceanwhile she waited for him. She would have colddrinks stashed in the lifeguard stand ready togo. He would drive his Jeep Wrangler outthere wearing his short-sleeved khaki dress

shirt, olive-green dress trousers, and olive-green garrison cap. He was 6’ 2” and muscu-lar, and, with tanned arms and black sunglass-es, looked like a marine officer.

He would carefully survey the scenearound him and look at the beach, then walkdown to that lifeguard tower that was neverused. It was a spacious wooden hut built onstilts above the sand, and he could change init and do other things with privacy.

* * *

THE WHOLE thing had started with thebest of intentions.

In the summer of 2001, as he entered hissenior season, he was one of the top quarter-backs in college football. His team was com-ing off an ACC championship, and he wastouted as an All-America candidate. Heglowed in the adulation and gushing praise oftanned, blonde cheerleaders, bloated fans, andout-of-shape sportswriters and broadcasters.

Then September 11 came, and everythingchanged.

The week after the towers fell, his brothercalled him to tell him that he would miss hisnext game in Chapel Hill because his unitwould be training. His brother was aninfantry officer and stationed just down theroad at Camp LeJeune. He said he probablywould deploy earlier than expected, andinstead of six months of hitting cool libertyspots around the world they would be goinginto Afghanistan or somewhere else the terror-ists could be found.

He wanted to be with his brother. Morethan that, he wanted a part of it all. Footballgames and cheerleaders did not seem thatimportant anymore.

His father had served in the navy inVietnam, and his grandfather in the army inWorld War II. Now the country had beenattacked and his brother would be going off

The Results Are In!

This year the PublicationsCommittee of the State Bar sponsoredits 11th Annual Fiction WritingCompetition. Fifteen submissions werereceived and judged by the committeemembers. The submission that earnedsecond prize is published in this editionof the Journal.


to battle. Responsibility, honor, courage,integrity, commitment—his father haddrilled those things into him since he wasyoung, but they didn’t really resonate withhim until now. They were fine concepts for asports field, but they meant something whenyour country was at war. He had no choicebut to join the fight.

The season ended without another ACCtitle, but was still a success. The team finishedthe season in a bowl game in Charlotte a fewdays after Christmas. More than 60,000 peo-ple pulled themselves from the shoppingmalls to attend the affair, which was spon-sored by and named after a tire company.

The same week, while Americans celebrat-ed the holy season of shopping and holidayfootball, American warplanes were droppingbombs over Afghanistan, and ground troopswere slugging it out in the snowy mountainstrying to find Osama and Omar and routingthe remnants of al-Qaeda. Just before thegame, navy fighter jets flew over the stadiumand a marine honor guard presented the col-ors. The fans in the stands and tailgaters out-side roared their approval, and then wentback to gorging themselves.

He had other matters on his mind besidesfootball, but he threw a pair of touchdownpasses and led Carolina to victory in his lastgame anyway.

When it was over and he had hadanswered every question from the reporters,he went out a side door of the locker room,snuck out of the stadium, and started the six-hour trip to Norfolk, Virginia, where hisbrother was sitting on a warship tied up at thepier and waiting to deploy. The next morninghe stood on the pier and watched his brotherman the rails of the giant warship as sailorsand marines went off to war with their dressblue uniforms blowing in the chilly harborbreeze.

The pier was filled with family membersof the departing warriors. Tears flooded theirfaces, but not his. The scene gave him a knot

in his stomach, but he was focused on whathe had to do and was not going to let emo-tion distract him.

Soon the ship was out of the harbor andout of sight, and he was off to Chapel Hill topack his things. The football season was over,and he had graduated a few weeks earlier.When he got back he took his diploma andwent to see the recruiter to sign the finalpaperwork. He knew what he had to do. Hisdreams of playing professional football wouldbe on hold while he served in the MarineCorps. He would trade a Carolina blue foot-ball jersey for marine dress blues and somesand-colored desert fatigues.

The recruiter loved him. He was an all-conference quarterback who played footballon national TV. They would find a nice deskjob for him somewhere and trot him out inhis dress blues for the cameras every once in awhile. The Marine Corps’ reputation wouldbe enhanced.

But he had other ideas. When he wasasked to fill out his dream sheet, listing histhree top desired jobs, he listed infantry,infantry, and infantry. After much wranglingand numerous phone calls and emails to andfrom the Pentagon, he was granted his wish.The Marine Corps got a nice little PR bumpout of it, but he declined all interviews.

Off he went that January for ten weeks ofofficer candidate school in Quantico,Virginia. There was much yelling, running,pullups, pushups, and situps, and a blur ofshaved heads in tight-fitting green shorts andt-shirts. Then it was six months, again inQuantico, of The Basic School, or TBS,learning how to be a marine officer. Days andsometimes weeks in the field. Harsh, howlingwinds off the Potomac when it was cold, andhumid, jungle-like days when summer came.There was a lot of mud, and he was usuallydamp and bone tired. Then, finally, came theinfantry officer’s course, another grueling ten-week marathon of yet more training, obsta-cles courses, weapons, maps, and such.

Finally, early in the new year he was sentto the fleet, the most well-known second lieu-tenant in the Marine Corps. He arrived atCamp LeJeune just in time to pack his seabag, get on a plane, and stand by for the inva-sion of Iraq.

He would never see Afghanistan—thatalways bothered him, as if his purpose hadbeen thwarted or misdirected by a cruel fate.But he would make the best of it.

He spent St. Patrick’s Day night shivering

in a tent in the desert in Kuwait, not far fromsand berms that marked the border with Iraq.Camp Virginia, it was called, but it lookedlike the moon might. While his friends backhome drank Guinness and watched thedeveloping drama on TV, he ate MREs andshared a tent with a horde of smelly marinesamped for war. Then, the night of the inva-sion, all hell broke loose and they raced acrossthe border and off to Baghdad.

The invasion was relatively easy and casu-alty-free for his unit. But the destruction,death, and other unpleasantries of war weremore than made up for on the other side.Crying women and children, smoke, fire,destroyed bridges and buildings, the smell ofspent rounds, and burned corpses were hislandscape. The chemical weapons suitsproved hot, uncomfortable, and unnecessary.

After Saddam’s statue was pulled down,the Marines stayed a few more weeks andwatched as chaos slowly ensued in the cities.Then they quickly headed back south andflew home, mission accomplished.

* * *

THE SECOND deployment had been toIraq again. On the third day of the SecondBattle of Fallujah, he killed two insurgentsand carried a wounded comrade to safetyamid the nearby explosions from badlyaimed rocket-propelled grenades, or RPGs.His unit wrote him up for the Silver Star.The citation sailed through the chop chain,with an endorsement from the forwarddeployed commanding general of all marineforces in Iraq.

When spring came, as Fallujah was emp-tied out and gutted, his unit was redirectedto Ramadi. That’s where the trouble began.

Entering Fallujah had been like tearingopen the gates of hell all at once. Ramadi, onits worst days, was no better, but it was a slowburn. Local armed gangs ran the city, and afew foreign fighters joined in occasionally.But unlike Fallujah, the fight there was moreuneven, less predictable. Booby traps, impro-vised explosive devices on the road and incars, snipers, and the occasional straight-upambush were all part of the mix. They wouldhole up in an abandoned house or school, orthe local police station, and try to pacify theneighborhood, but the price was high incasualties and morale.

One night he was leading a clearing oper-ation through a bad side of town when a

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WINTER 201428


squad of his marines walked through abooby-trapped door near his position. Theexplosion shook the block. Two were killed,three badly wounded. Body parts flew in alldirections.

He directed another squad to the scene,and they began asking questions and round-ing up anyone they could find. Before dawn,two women, an old man, and a teenage boywere dead from rounds fired at close rangefrom M-4 rifles.

When he came upon the scene, he ques-tioned the marines and the navy corpsman inthe squad. He accepted their explanations forwhat had happened, took some photos,wrote a short report, and sent everything upthe chain a few days later. He grieved for hislost men and wrote letters to their families.Then he went back to the fight.

A few weeks after the shooting of thecivilians, he was questioned by some staffofficers from the forward headquarters, thenby agents from the Naval CriminalInvestigative Service. He was read his Article31(b) rights, and he did not have to talk, buthe answered their questions anyway.

Months later, two of his marines and thecorpsman were charged with killing the civil-ians and then trying to cover it up. The news-papers and television broadcasts were report-ing the deaths as war crimes and raised thespecter of Vietnam atrocities all over again.

The writing was on the wall. Not longafter he returned from deployment, he wasserved with a charge sheet. Not for thekilling, of course, which he knew nothingabout, but for not promptly reporting it andnot investigating it thoroughly. He had beenderelict in his duties and not followed ordersto properly report and investigate thekillings, or so the Marine Corps said.

A family was dead, the Iraqis were livid,and news stories about the horrors of warand civilian deaths were splashed across tele-vision broadcasts and the covers of newsmagazines. Reporters risked their lives andwent into Ramadi to interview relatives ofthe victims. Women and children cried onTV, and angry men, though translators,asked why the Americans who had come tohelp them were killing their people. Nomention was made of the marines killed andmaimed by the booby trap.

Once the media storm began, peoplewould have to be held accountable, and hewas placed in the accountability line alongwith many others. A skipper is ultimately

responsible for everything that occurs onboard his ship, and these killings occurredunder his watch.

In Washington, a hold was put on theSilver Star citation. There would be anArticle 32 investigation and then a generalcourt-martial. But there would be no SilverStar Medal ceremony, that was certain.

* * *

THE MILITARY judge walked in a sidedoor of the courtroom and everyone rose,with those in uniform coming to parade-deck attention. Marines and their familymembers, along with the victims’ relativesand news reporters, were packed in tightlyside-by-side. Outside the red-brick, one-story building, several television news truckswere parked next to a set of pull-up bars.

“This general court-martial is convened bythe commanding general, II MarineExpeditionary Force, Camp LeJeune, NorthCarolina, by general court-martial conveningorder 1-07 dated 22 May 2007,” the trialcounsel, or prosecutor, read aloud for therecord. He continued on with a few otherjurisdictional details, then said: “The generalnature of the charges in this case are violationof the Uniform Code of Military Justice,Article 92, two specifications: dereliction ofduty and failure to follow a lawful generalorder.”

The trial counsel then noted, again forthe record, that the accused and his counselhad been furnished a copy of the charge sheetand were present in the courtroom, and thatthe five-day waiting period between serviceof charges and start of the trial had expired.

The lieutenant was asked how he pleadedto the charges, and the answer was not guilty.

The court-martial was set to begin.Twelve officers, the members, would beempaneled over the next two days and sit asa jury to judge one of their own and, if nec-essary, prescribe an appropriate sentence.

They were clean-shaven, hard-lookingmen, with short haircuts, strong jaws, andweathered faces chiseled by years of service tothe corps. Anyone would want them in hisfoxhole. And anyone who was not guiltywould want them on his jury. They had satthrough many incoming rounds and sufferedthe hardships and calamities of not just war,but training for war, and they had gifts forcutting through the chaff and getting to thewheat with efficiency. They were senior to

him, but they had served where he hadserved, and they would judge him as heshould be judged. No truer panel of peersexisted in the criminal justice system.

He was not sure how he had ended uphere, and over and over again he searched hismind and heart to figure out why. Thisdespite the protestations of his wife and hislawyers, who told him he had done nothingwrong and should have been handed theSilver Star instead of a charge sheet.

He had three good lawyers, one from theMarine Corps, one from the navy, and acivilian who had fought years ago in anotherwar. The civilian lawyer had longer hair anda more brusque manner. He wore Italiansuits and cowboy boots. He was expensive,but some boosters from college had roundedup the cash to retain him just before the trial.His military counsel were just as smart, andthey had served in Iraq, but the civilianlawyer had more freedom to get in the newsmedia and push back against the establish-ment. The civilian could say things his mili-tary lawyers could not.

The trial would turn out to be fairlyshort, but with the pre-trial motions andselection of the members, the whole affairdragged out for weeks.

Once the members were selected, thegovernment started presenting its evidence.But after only a few days, its case was short-circuited as public opinion turned stronglyin his favor. Night after night of televisionnews reports, followed by day after day ofstories in morning newspapers, and of coursea constant stream of 24-hour shouting onthe internet, all helped turn the corner.

Early each morning the media would takepictures of them walking hand-in-handdown the sunny sidewalk and into the court-room. The attorneys made sure to stand afew feet behind the quarterback-turned-war-rior and his beautiful blonde wife.

The realization slowly sunk in with thepublic that he was being tried for crimes thathe did not commit, in a war that should nothave been fought, but in which he hadserved bravely. Calls were made and letterssent to members of Congress. The politicianscalled the Pentagon and the White House.Word was soon handed down that he was thewrong one to punish.

The secretary of the navy quietly directedthe two-star general who was the conveningauthority at Camp LeJeune to dismiss allcharges and let him be honorably discharged

upon the expiration of his service obligation.There would be no Silver Star, but therewould be no dismissal from the naval serviceand no public humiliation, either. And hewould qualify for VA benefits if he neededthem, and he probably would.

* * *

“LIEUTENANT,” THE military judgesaid, and he and his counsel rose and stood atattention. He should have been a captain bynow, but the automatic promotion had beenput on hold because of the charges and so hewas still a first lieutenant.

“The convening authority has indicated adesire to dismiss the charges against you withprejudice. That means the charges can neverbe brought back again for any reason. I amdismissing the members, and there will be notrial in this matter. I am sorry that you havebeen put through this. Do you have any ques-tions?”

He looked at the judge, but he could notmuster anything to say. Behind the judgewere two large flags, one American and theother the scarlet-and-gold Marine Corps flag.The courtroom was packed, but it was as if hewas in a dream and everything around himwas in a slow-motion, silent movie. He hadexperienced this kind of clarity only a fewtimes before, in combat and on the footballfield. His attention was strong and focused.

“No, sir,” he said, and then his attorneys,on each side of him, put his arms around himand hugged him slightly. He turned aroundand looked over the railing at her and smiled.Her eyes were moist and her hands trembled.He was happy that she had not left for thebeach yet.

* * *

IT WAS COLD this morning, and heknew he would need a sweater under his suitjacket. He was getting older, and his bonesached on mornings like this, so he needed alittle extra warmth. He grabbed his favoritenavy blue pullover out of the closet andwalked to the mirror in the bathroom.

He stood in front of the mirror andtightened his tie. Then he took both handsand pulled the sweater over his head, rolledit over his torso, and stuck his armsthrough the sleeves. He flattened it outacross his chest and fixed the cuffs, thenlooked up at himself, satisfied. A colorfulhint of silk tie poked out of the top at theneckline. It fit and he was now presentableto the public.

He had done this before under differentcircumstances, and his mind instantlyflashed back over two decades to similarscenes. In his mind’s eye he rolled over them:

On deployment, when he put on a greenfire-retardant long-sleeved shirt under hisbody armor and camouflage blouse justbefore going outside the wire on a chilly win-ter day in the desert. He could hear explo-sions in the distance, and who knows, thismight not be his lucky day and he mightneed it. He would look in the mirror beforehe left to make sure everything fit properlyand he looked like a marine was supposed to.

In the locker room before football games,when he rolled his beautiful blue football jer-sey over his shoulder pads just before headingout on to the field, and checked himself outin the mirror to make sure he was presentablefor the cheerleaders and the crowd.

As a boy, on Sunday mornings beforegoing to church, when his mother wouldmake him wear a sweater because he refusedto wear a jacket with his shirt and tie. Shewould stand over him and help him get

squared away in front of the mirror while hefussed and fidgeted like he was sucking onlemons.

The same repetitive, reflexive, almostinvoluntary motion, done hundreds oftimes, played over and over in his headthrough 20 years. Lift the arms, roll it overthe torso, straighten, and flatten. Then lookin the mirror and pass judgment on the pic-ture in front of him until he was satisfied thathe was presentable and appropriate.

There was a common thread. This was hisarmor, his protection against the outsideworld, both physical and psychological. Afire-retardant shirt might keep him frombeing horribly burned and disfigured in anexplosion. A wool sweater would make himpresentable as a ten-year-old in church orward off the chill on a cold morning beforehe went to court. And, by God, a footballjersey, in his team colors and on display forall of his small world to see, just made himlook good, and would remind him that hewas a member of a team and a tradition.

His court-martial process was long over.He was out of the Marine Corps now.

But there was still the matter of the menhe had led being tried for their allegedcrimes. Two marines and one sailor, thecorpsman who had belatedly tried to save thevictims and then tried to hide the fact thatany of it had ever happened. They were ontrial in a general court-martial at CampLeJeune, and he would be testifying. Hewould help them if he could, but he reallyknew little about what had happened thatnight. After he finished testifying, he wouldstay if he could because he wanted them toknow he was there.

She was with him, and she would againwatch from the gallery. It would not be pleas-ant, but they knew it would be over quickly,at least for them.

There would be the beach when he wasdone. Winter was coming, and it would belonely, windy, and cold out there. But theywould go, and see what was in store forthem. n

Chris Geis is an attorney for WombleCarlyle Sandridge & Rice in Winston-Salem,and holds the rank of commander in the USNavy Reserve, Judge Advocate General’s (JAG)Corps. His story “Race in Carolina” was pub-lished in the Fall 2010 Journal. This story isdedicated to his late father, John Francis Geis,who taught him how to write.

Below are the 2015 dates of the quarterly State Bar Council meetings.

January 20-23 NC State Bar Headquarters, Raleigh

April 14-17 NC State Bar Headquarters, Raleigh

July - 14-17 Hilton Center City Hotel, Charlotte

October 20-23 NC State Bar Headquarters, Raleigh

(Election of officers on October 22, 2015, at 11:45 am)

2015 Meeting Schedule

WINTER 201430

The Publications Committee of the Journal is pleased toannounce that it will sponsor the 12th Annual Fiction WritingCompetition in accordance with the rules set forth below. The pur-poses of the competition are to enhance interest in the Journal, toencourage writing excellence by members of the bar, and to providean innovative vehicle for the illustration of the life and work oflawyers. If you have any questions about the contest, please contactJennifer Duncan, Director of Communications, North CarolinaState Bar, [email protected], 910-397-0353.

Rules for Annual Fiction Writing CompetitionThe following rules will govern the writing competition spon-

sored by the Publications Committee of the Journal:

1. The competition is open to any member in good standing ofthe North Carolina State Bar, except current members of thePublications Committee, as well as North Carolina State BarCertified Paralegals. Authors may collaborate, but only one submis-sion from each member will be considered.

2. Subject to the following criteria, the story may be on any fictionaltopic and may be in any form—the subject matter need not be law relat-ed). Among the criteria the committee will consider in judging the arti-cles submitted are: quality of writing; creativity; extent to which the arti-cle comports with the established reputation of the Journal; and adher-ence to specified limitations on length and other competition require-ments. The committee will not consider any article that, in the sole judg-ment of the committee, contains matter that is libelous or violatesaccepted community standards of good taste and decency.

3. All articles submitted to the competition become property of theNorth Carolina State Bar and, by submitting the article, the authorwarrants that all persons and events contained in the article are ficti-tious, that any similarity to actual persons or events is purely coinciden-tal, and that the article has not been previously published.

4. Articles should not be more than 4,000 words in length andshould be submitted in an electronic format as either a text documentor a Microsoft Word document.

5. Articles will be judged without knowledge of the identity of theauthor’s name. Each submission should include the author’s State Baror certified paralegal ID number, placed only on a separate coversheet along with the name of the story.

6. All submissions must be received in proper form prior to theclose of business on May 29, 2015. Submissions received after thattime will not be considered. Please direct all questions and submissionsto: Jennifer Duncan, [email protected], 910-397-0353.

7. Depending on the number of submissions, the PublicationsCommittee may elect to solicit outside assistance in reviewing thearticles. The final decision, however, will be made by majority vote ofthe committee. Contestants will be advised of the results of the com-petition. Honorable mentions may be announced.

8. The winning article, if any, will be published. The committeereserves the right to edit articles and to select no winner and to pub-lish no article from among those submitted if the submissions aredeemed by the committee not to be of notable quality.

Deadline is May 29, 2015

We want your fiction!Historical Fiction Romance

International Espionage PoetryHumor Science Fiction

12th Annual Fiction Writing Competition

I O L T A U P D A T E

IOLTA Income Declines; Grantee Recognized

IncomeUnfortunately, we must report that the

income from IOLTA accounts continues todecrease as many banks are recertifying theircomparability rates at lower levels. We donot expect this situation to change untilinterest rates increase. In 2013, income fromIOLTA accounts declined by 9% and wasunder $2 million for the second year in arow. However, our total income, whichreceived a boost from two cy pres awardsduring 2013 totaling over $650,000, was$2.4 million. Income from participantaccounts through the second quarter of2014 decreased by another 9%. Thoughindications from Federal Reserve officials arethat interest rates could begin to rise in2015, we do not know how long it will takefor rates on accounts to be affected.

Future National Settlement Income—Funding for IOLTA programs nationwidewas included in the settlement with Bank ofAmerica announced by the Department ofJustice in August. Of the $7 billion allocatedto consumer relief, IOLTA programs willreceive some funding for the provision offoreclosure prevention and communityredevelopment legal services. Though Bankof America benefits if it distributes the fundswithin a year of the settlement (by July 31,2015), it is not yet known when the fundswill be distributed or what amount eachprogram will receive.

In addition, when the settlement is com-plete (December 31, 2018), there are twopotential sources of residual funds for thesame purposes from the consumer relieffunds and from a fund set aside for tax relieffor those borrowers who have added tax lia-bility due to their mortgage debt being elim-inated (75% of these funds to go to IOLTAprograms).

GrantsBeginning with 2010 grants, we have

limited our grant-making to a core group of(mainly) legal aid providers. Even with thatrestriction and using over $2.5 million inreserve funds, grants have dramatically

decreased (by over 40%). For 2012, 2013,and 2014 we were able to keep grants steadyat $2.3 million because we received addi-tional funds from cy pres awards. We antic-ipate having to decrease grants again in2015.

State FundsIn addition to its own funds, NC IOLTA

administers the state funding for legal aid onbehalf of the NC State Bar. Total state fund-ing distributed for the 2013 calendar yearwas $3.5 million. The state budget adjust-ments for 2014-15 eliminated the appropri-ation for legal aid work (currently$671,250). Though the proposed Senatebudget had also eliminated the Access toCivil Justice funding from court fees (~$1.8million), that funding was continued in thefinal budget, with significant additionalreporting requirements for Legal Aid of NC.The Equal Access to Justice Commissionand the NCBA continue to work to sustainand improve the funding for legal aid.

Grantee Spotlight: Legal Services ofSouthern Piedmont ReceivesNonprofit Award

Legal Services of Southern Piedmont(LSSP), based in Charlotte, received thestate’s highest honor for nonprofits from theNC Center for Nonprofits. The NonprofitSector Stewardship Awards recognize organ-izations that use exemplary nonprofit prac-tices to be good stewards of the community’strust and funds. The center presented thisaward to LSSP at its statewide conference inSeptember, attended by 800 nonprofit, busi-ness, and government leaders. The centergives each recipient $500 for professionaldevelopment of its board and staff, and acommemorative work by Durham artistGalia Goodman.

NC IOLTA has made grants to LSSPsince our first grant cycle in 1985. “We wereso pleased—but not surprised—to learn thatthey had received this honor,” said NCIOLTA Executive Director Evelyn Pursley.“We are proud to see our grantees recog-

nized as exemplary by the Center forNonprofits—those most knowledgeableabout best practices for nonprofits and mostfamiliar with nonprofit organizationsthroughout North Carolina.” Other long-time IOLTA grantees who have received thisaward are: Pisgah Legal Services in Asheville,Mediation Network, and Disability RightsNC.

For 46 years, LSSP has provided adviceand legal representation for eligible individ-uals and groups in the Charlotte area andwest-central North Carolina. Its programsrange from assistance with taxes and unem-ployment insurance to consumer protectionfor clients facing foreclosure, bankruptcy, orunfair trade practices. It also educates thecommunity about legal barriers that low-income residents face, and it helps its clientsto use self-help solutions and find economicopportunities whenever possible.

“Our mission is to provide a ‘full meas-

WINTER 201432

ure of justice for those in need,’ not a frac-tion of justice, not part or half,” says KenSchorr, LSSP executive director. “We useour skills as lawyers, through the legal sys-tem, to protect basic human rights and meetbasic human needs such as safety, shelter,and access to health care.”

“We selected LSSP for being a masterful‘first responder’ when low-income NorthCarolinians face new problems in the legalsystem, and for working creatively withother nonprofits to find solutions,” said JaneKendall, president of the NC Center forNonprofits. “LSSP sees the problem andthen springs into action to work with non-profits, government agencies, and for-profitbusinesses to address it.”

Innovation and CollaborationTrue to its mission, LSSP pays constant

attention to the ever-changing needs of theirclient community to ensure their servicesaddress current challenges. One example ofsuch responsiveness can be found in LSSP’sVeterans Services Project. While LSSP hasprovided legal aid to veterans throughouttheir history, in 2012 LSSP noted a pressinglegal need facing veterans seeking benefits,exacerbated by administrative backlogs atthe Department of Veterans Affairs, andthey responded. Research that year throughCharlotte Bridge Home identified the manychallenges facing veterans, noting thatapproximately 20% of veterans inMecklenburg County were homeless.Launched in July 2012, the VeteransServices Project provides dedicated attentionand resources to assist veterans in accessingdisability benefits and other benefits relatedto their military service.

The project continues to gain momen-tum, serving 151 veterans in fiscal year2013, obtaining $169,753 in benefits.LSSP’s outreach to the veteran communityhas included partnership with W.G. HefnerVA Medical Center in Salisbury to offerlegal clinics, Community Link to providewrap-around services to homeless veterans,and the NC Veterans Pro Bono Network. InFebruary 2013, LSSP hosted Introductionsto Representing Veterans, a continuing legaleducation (CLE) event. The event trainedmore than 70 attorneys to represent veteranson a pro bono basis.

Leveraging Resources“Each year, LSSP serves 2,400 families

facing a crisis of safety, shelter, health, orincome,” says Schorr. “However, we arenowhere near having the resources to meetthe needs of the more than 300,000 peopleeligible and in need of legal assistance, butunable to afford private lawyers.” LSSP sup-plements its staff of 13 attorneys and sevenparalegals with a pro bono program that tapsthe expertise of 100 attorneys that con-tributed 1,514 hours last year alone.

“Figuring out how to get the mostimpact for the community from limited dol-lars is the hallmark of an effective nonprof-it,” says Emily Zimmern, chair of the NCCenter for Nonprofits’ Board of Directorsand the president and CEO of the LevineMuseum of the New South in Charlotte.“LSSP is extremely adept at getting attor-neys to provide top-quality legal assistancefor its clients at no charge. These are attor-neys in law firms and corporations that areusually paid hundreds of dollars per hour.”

Community SupportLSSP has built a broad and strong foun-

dation of community members who arededicated cheerleaders for the organization.This year, LSSP hosted their 8th annualJustice for All luncheon on March 25. Therecord-breaking event, attended by 640guests, raised nearly $90,000 for the Accessto Justice campaign, a fundraising initiativeundertaken by LSSP and Legal Aid of NorthCarolina. The luncheon celebrated the con-tributions of the community and highlight-ed the importance of legal aid.

“Nonprofit leaders have to continue toearn the community’s trust every day. Sound

practices in their governance and manage-ment help them maintain this public trust,”said Zimmern.

LSSP’s board takes an active role in thisevent and other efforts of LSSP includingresource and pro bono development. Boardcommittees play a key role in operation ofthe organization. LSSP’s board membersregularly assess their collective performance,as well as the performance of individualboard members and the executive director.

Attorney Bill Farthing is president ofLSSP’s Board of Directors and a partner atParker Poe Adams & Bernstein LLP inCharlotte. He says, “The keys to LSSP’s suc-cess are an absolute focus on the mission,mutual trust and respect among the boardand the executive staff, and a board thatholds itself accountable for fulfilling itsresponsibilities.”

“These are the kinds of sound practicesthat effective nonprofits use,” says CPAWalter Davenport of Raleigh, who serves astreasurer of the NC Center.

Civil legal aid helps ensure fairness forall in America’s justice system, regardless ofhow much money one has. As noted in theaward nomination by the Equal Access toJustice Commission, “With unique atten-tion to program collaboration, communityresponsiveness, and the development ofstrong community support, Legal Servicesof Southern Piedmont is a model providerof civil legal aid across the state, anddeserving of recognition for their long-standing excellence with a 2014 SectorStewardship Award from the NC Centerfor Nonprofits.” n

Don’t Miss ImportantState Bar Communications

Log on to ncbar.gov to make surewe have your email address.


The State Bar is seeing analarming increase in the num-ber of reported cases ofemployee embezzlement from

law firms. Just this month, I received threecalls from lawyers who had trust accountfunds embezzled by employees. According tothe State Bar investigators, there were tenreported thefts through October of this year(an average of one a month). This is both hor-rifying and unacceptable. I fear that the self-reported cases are merely the tip of the icebergin comparison to the number of thefts thathave gone either unnoticed or unreported.The amounts reported stolen from trustaccounts range from petty cash to hundredsof thousands of dollars, all of which thelawyer is professionally responsible for replac-ing in order to protect clients from harm.Perhaps the most disconcerting fact is that thethefts are perpetrated by both new and long-term employees with about the same frequen-cy. The culprit is often the last person youwould suspect, and the problem will oftenpresent itself when you least expect it. Beforeyou dismiss these thefts as something thatonly happens to bad lawyers or overstretchedsolo practitioners, note that many finelawyers and large reputable firms have fallenprey to these crimes.

Types of employee theft range in sophis-tication from the obvious to the complex.On one end, there are employees who simplywrite themselves checks from the trustaccount, and on the other end, there areemployees who develop shell companies andmanipulate bank documents to cover up sys-tematic fraud. The State Bar sees more of theformer than the latter. This is concerningbecause simple good management of thetrust account would deter and prevent thistype of blatant, unsophisticated theft. Themore difficult-to-catch thefts include:employees stealing cash brought into the

office by clients before the cash is recordedon a ledger or deposited into an account;employees making payments to shell compa-nies or bank accounts in real estate closingsor settlements; and employees scanning bankstatements into Photoshop and doctoringnumbers to hide illicit activities.

Something Doesn’t Feel RightIf you suspect that an employee is embez-

zling from your trust account,1 the first thingyou should do is obtain physical control ofthe trust account records. Too often we hearthat an employee, upon getting word thatthe lawyer may be on to him, made up anexcuse to take the trust account recordshome with him where they were ultimately“lost” or destroyed.

After securing your records, contact anindependent CPA or forensic accountant toaudit your trust account and look for dis-crepancies. Have the CPA perform a properthree-way reconciliation of the account,examine check images, and look at check-book receipts and deposit slips.

Once you have retained an outside con-sultant to examine your records and con-firmed a discrepancy, confront the employee.Often, the employee is weighed down by hiscrime and is ready to confess. While con-frontation may be uncomfortable and theemployee may become combative, defiant,or insulted by your accusations, it is yourresponsibility to ensure that client funds areproperly safeguarded by asking difficultquestions. If you cannot be sure that anemployee has stolen funds, but remain suspi-cious, you may elect to suspend the employ-ee with pay and have him temporarilyremoved from the office.

Worst Fears RealizedWhen embezzlement is discovered, the

lawyer must immediately do the following:

- Replenish any known deficit in thetrust account by depositing firm funds orpersonal funds into the trust account anddocumenting the deposit on the appropriateclient ledgers. If the lawyer suspects thatmore funds may have been embezzled, thelawyer may deposit funds into the account tocover estimated deficiencies. The lawyershould create a ledger for this additionaldeposit and title it “firm funds to cover esti-mated deficiencies.”

- Report the embezzlement to the NorthCarolina State Bar. While a report in writingwill at some point be required, calling ouroffice right away will allow us to help youwith any questions and concerns you mayhave—(919) 828-4620.

The lawyer is strongly encouraged to alsoimmediately take the following actions:

- Terminate the employee. Do not allowthe employee to take any documents from aworkstation, or to access email or other com-puter files.

- Call the police. Pressing charges on along-trusted employee may be difficult, butit is important to show that you are takingyour responsibilities seriously. It is alsoimportant that the employee ends up with arecord that is informative to other lawyers ifthe employee attempts to gain employmentin the legal field again.

- Question other employees as to theirknowledge of and/or complicity in thescheme. It may be that there was more thanone employee involved in the embezzlement,or that an employee violated your trust bynot revealing potentially incriminating infor-mation when it became known.

- Consider opening a new trust account.If you are not 100% certain of the amountthat has been stolen from your trust account,consider opening a new account for allentrusted funds going forward. This way,you can operate your practice through the

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

Top Tips on Trust Accounting: Safeguarding Funds from EmbezzlementB Y P E T E R B O L A C

WINTER 201434

new trust account with fresh records andprocesses while simultaneously investigatingthe old account for deficiencies.

How Did I Get Here? What Should IHave Done Differently?

The NC State Bar Lawyer’s Trust AccountHandbook, available on the State Bar website(ncbar.gov/menu/publications. asp), has achapter dedicated to safeguarding fundsfrom embezzlement (Section IX). Some ofthe tips listed in that section include:

- Do not act in haste when signing checks(make sure you know what you’re signing).

- Examine trust account check images forforged signatures.

- Reconcile your trust account promptlyafter receiving a bank statement. A lawyershould be reviewing and signing off on allreconciliations monthly and quarterly.

- Review all trust account activity regular-ly. Random spot checks on all trust accountrecords and correspondence helps deter theft.

- Legal fees paid in cash are difficult tocontrol. Office policy should require that areceipt must be given to any client who paysin cash, and the lawyer should regularly askclients who pay in cash if they received areceipt. The numbers for receipts in thereceipt book should also be examined peri-

odically to determine if any receipts wereremoved or voided.

- Check with the post office to determineif anyone other than designated personnelhas attempted to pick up your mail. A goodthief may intercept mail that would revealincriminating information.

- Consider having your bank statementssent to your home address.

- Question lifestyle changes (new cars,jewelry, travel, etc.) of individuals with accessto your account. Also, personal and familyproblems, health issues, or depression may bea cause of embezzlement.

- Beware of an employee who is overlypossessive of the trust account. Implementinternal controls to divide certain trustaccount responsibilities between multipleemployees.

ConclusionOften, trust account embezzlement is a

crime of opportunity. If an employee knowsthat nobody is looking at the records, review-ing reconciliations, or performing randomspot checks, then the employee will be muchmore likely to attempt to steal. A firm thathas strong trust accounting practices willrarely have to deal with simple and obvioustheft. Even with adequate supervision, how-

ever, there is often little a lawyer can do tostop an extremely motivated and diabolicalemployee. While acknowledging thisdepressing truth, a lawyer should be able todiscover the theft quickly and mitigatepotential harm to his or her clients with suf-ficient safeguards, internal controls, and per-sonal oversight of the trust account.

If you have any questions about employeeembezzlement or any other trust accountingissue, please contact Peter Bolac at (919)828-4620 or [email protected]. FollowPeter on Twitter @TrustAccountNC foralerts on trust account scams.

Endnote1. It would be useful to follow this procedure for any

account, but the State Bar is mostly concerned withtheft of entrusted funds.

Random AuditsLawyers randomly selected for audit are

drawn from a list generated from the StateBar’s database based upon judicial districtmembership designations in the database.The randomly selected judicial districts usedto generate the list for the 4th quarter of2014 were District 19C (Rowan County)and District 25 (Burke, Caldwell, andCatawba Counties). n


Positive psychology matters a lot in thefield of law because, while many lawyers areactually happy, there are perhaps just asmany who are not happy. It is well docu-mented that lawyers are more likely to sufferfrom depression than any other occupationalgroup. In a Johns Hopkins University studyof more than 100 occupations, researchersfound that lawyers led the country with thehighest incidence of depression.1

What makes so many lawyers unhappy?It appears the world view that makes

lawyers effective in their profession can pol-lute other parts of their life. In other words,many of the qualities that help lawyers suc-ceed in practice such as prudence, aggression,and critical and judgmental thinking aretraits that can have disastrous consequenceswhen applied in one’s personal life.

Take “prudence,” for example. MartinSeligman, Ph.D., former president of theAmerican Psychological Association, and the“father” of positive psychology notes in his

book, Learned Optimism: How to ChangeYour Mind and Your Life,2 that a prudentlawyer strives to uncover every conceivabletrap or disaster that might occur in a legal sit-uation. This skill of anticipating a range ofproblems is highly adaptive for lawyers whothen foresee even implausible outcomes anddefend against them.

Seligman stresses that the trait of prudencemakes a good lawyer, but does not make ahappy person. This is because lawyers cannotreadily turn it off. What operates in the legalworld as “prudence” often determines yourthinking in the nonlegal world because thebrain is wired to think that way. In the non-legal world, prudence is called “pessimism.”

Pessimistic thinking is a way of interpret-ing the world in which the worst is routinelyexpected. It affects how we interpret failureand events that don’t go well. For example, apessimist experiencing failure often inter-prets the event globally: “I’m no good; I’llalways fail.” Sadness is interpreted as everlast-

ing, with one believing that everything isgoing to be ruined. The pessimist experi-ences negative events as pervasive, perma-nent, and uncontrollable, which can createan all-encompassing unhappiness.

In contrast, an optimistic interpretationstyle, which can be learned, views negativeevents as specific, temporary and change-able. For example, when an optimist fails, heor she experiences the hurt as specific to theevent, and asks, “What can I learn from thefailure and how can I do better the nexttime?” The optimist is not immune to sad-ness, but thinks and experiences it as specificto the event and knows it will pass.

Pessimism in one’s personal life creates ahigh risk for depression. The challenge thenis to remain prudent in the practice of lawand contain this tendency outside of one’spractice. This is where positive psychologycomes in. There are exercises that can helplawyers who see the worst-case scenario inevery setting become more discriminating intheir personal life. Seligman has termed thisadaptation as “flexible optimism.”

Another common thinking style lawyershave is “perfectionism,” which similarly canbe corrosive in one’s personal life. Accordingto Dave Shearon, who has a master’s degree

Positive Psychology for Lawyers—The Benefits ofPositive EmotionsB Y H A L L I E N . L O V E

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

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The emerging scientific field known as positive

psychology helps us understand how the

brain can change, and that we can purpose-

fully change it to create more positive emo-

tions. Positive emotions, in turn, broaden our cognitive capacity, allowing flexible, open-minded

thinking for creative problem solving and building of personal resources such as skills, knowl-

edge, and relationships.

in positive psychology and is former directorof Continuing Legal Education in Tennes-see, “lawyers tend to be highly ambitious andoverachieving, with a tendency toward per-fectionism not just in their legal pursuits, butalso in nearly every aspect of their life.”

When rigidly applied, the propensity to bea perfectionist can impede happiness. TalBen-Shahar, Ph.D., provides another modelthat offers a more balanced perspective as analternative to perfectionism. He calls it “opti-malism” and describes it in detail in his bookBeing Happy - You Don’t Have to Be Perfect toLead a Richer, Happier Life.3

The “optimalist” believes that, whenappropriate, “good enough” is the bestoption, given the demands and constraints oflife, Ben-Shahar writes. The optimalist alsoappreciates life as a whole and regards success-es and even failures as opportunities to learnand grow.

In addition to the influence of thinkingstyles and traits, the heavily charged negativeemotions inherent in the legal environmentalso play a part in lawyer unhappiness.

Take litigation, for example. Litigatorsare paid to resolve conflict, often betweentwo hostile and irrational sides. In most con-flicts that necessitate obtaining a lawyer, thelawyer usually is brought in after things havealready gone horribly wrong. In the court-room, tensions mount and anger, self-right-eousness, and combative behavior maydominate.

Another source of pessimistic emotions—handling clients’ negative situations andhearing their depressing stories on a regularbasis—can cause secondary trauma.Counselors and therapists are trained how tohandle this to keep it from tearing themdown. In the legal world there is little prece-dent for recognizing the trauma, much lessaddressing it.

Negative emotions also occur with thehigh pressures, expectations and stress of theprofession. These are exacerbated by manylawyers’ tendencies to focus on the implica-tions of past decisions or events, and anx-iousness about possible future events.

Fortunately, positive psychology providesrealistic solutions to the predicament of nega-tivity in legal practice by offering interven-tions and exercises that generate positive emo-tions. One such exercise has us consistentlynoticing and genuinely appreciating simplepleasures. The word “appreciate” means “to bethankful or grateful,” which is the opposite of

taking something for granted. Research ongratitude has repeatedly proven that when weappreciate the good in our lives, we enjoyhigher levels of well-being and positive emo-tions, feel happier and more determined, andare more energetic and optimistic.

An exercise in appreciation: On a regularbasis, choose three everyday things you’veencountered in the past few days or that arearound you right now (e.g., warm sunshineon your face, the smell of fresh coffee, treesor flowers, your laptop or mobile device, aperson dear to you) and write a few words orsentences addressing what you genuinelyappreciate, enjoy, or find amazing about eachone. To “genuinely appreciate,” it’s impor-tant to allow enough time for the enjoymentand amazement to sink in and the good feel-ings to linger. Research has proven that regu-larly experiencing moments of genuineappreciation changes our brains and helps usovercome our negativity bias.

The therapeutic yoga exercises and othertechniques, including yoga nidra, describedin my book Yoga for Lawyers - Mind-BodyTechniques to Feel Better All the Time,4 alsohelp to destress and positively boost overalllevels of well-being.

Positive psychology introduces ways tochange the brain. We can rewire our brainsto affect:

• the way we interpret and experience theworld, helping us feel more upbeat and opti-mistic more of the time;

• the way we bounce back from hardshipsand setbacks, helping us become moreresilient; and

• the way we behave, helping us feel morebalanced and levelheaded more of the time.

Further, positive people experienceenhanced work productivity and are moresuccessful. They typically enjoy a betterwork-life balance, and greater overall well-being and happiness.

We already changed in law school.Neuroscience proves and the experts agreethat if we want to, we can change again.Positive psychology offers the empiricalresearch, proven interventions, and exercisesto create and deepen the neural pathwaysthat lead to reduced stress. Incorporatingthese practices can boost your positivity andprovide you with many professional and per-sonal benefits including the broadening andbuilding effects of positive emotions. n

Attorney Hallie N. Love, fitmindbodybrain.

com, cum laude law school graduate, is nation-ally certified in positive psychology with TalBen-Shahar, Ph.D. Love uses positive psycholo-gy exercises as well as therapeutic yoga exercisesand other techniques from her book, Yoga forLawyers - Mind-Body Techniques to FeelBetter All the Time, to help lawyers de-stress,develop greater positivity, and elevate their over-all wellbeing.

The North Carolina Lawyer AssistanceProgram is a confidential program of assis-tance for all North Carolina lawyers, judges,and law students, which helps address prob-lems of stress, depression, alcoholism, addic-tion, or other problems that may lead toimpairing a lawyer’s ability to practice. If youwould like more information, go to nclap.orgor call: Cathy Killian (for Charlotte andareas west) at 704-910-2310, TowandaGarner (in the Piedmont area) at 919-719-9290, or Nicole Ellington (for Raleigh anddown east) at 919-719-9267.

This article is courtesy of the State Bar ofNew Mexico Bar Bulletin.

Endnotes1 Eaton, W.W. (1990), “Occupations and the Prevalence

of Major Depressive Disorder,” Journal of OccupationalMedicine, 32 (11), 1079-1087.

2 Martin Seligman, Learned Optimism: How to ChangeYour Mind and Your Life, Australia: WilliamHeinemann, 2011.

3 Tal Ben-Shahar, Being Happy – You Don’t Have to BePerfect to Lead a Richer, Happier Life, New York:McGraw Hill, 2011.

4 Hallie N. Love and Nathalie D Martin, Yoga for Lawyers– Mind-Body Techniques to Feel Better All the Time,Chicago: ABA Publishing, 2014.


Professionalism Sayings

NEVER FILE A MOTION FORSANCTIONS OR RULE 11

VIOLATIONS AGAINST ANOTHERLAWYER UNTIL YOU HAVE

TAKEN THE LAWYER TO LUNCHTO DISCUSS THE MATTER!

Under the guise of being a zealous advo-cate, some lawyers will overstep thebounds of civility and engage in conductthat is offensive and unprofessional. Trythe above suggestion before youapproach the court.

—Ed Gaskins

May a single lawyer repre-sent both the borrowerand the lender for theclosing of a commercial

loan secured by real property? That is thequestion currently being considered by theEthics Committee.

What Do the Ethics Rules Say?Rule 1.7 prohibits the representation of a

client if the representation involves a concur-rent conflict of interest unless certain condi-tions are met. A concurrent conflict of interestexists if the representation of one client will bedirectly adverse to another client or the repre-sentation of one client may be materially lim-ited by the lawyer’s responsibilities to anotherclient. Comment [8] to Rule 1.7 provides:

[A] conflict of interest exists if a lawyer’sability to consider, recommend, or carryout an appropriate course of action for theclient may be materially limited as a resultof the lawyer’s other responsibilities orinterests. For example, a lawyer asked torepresent a seller of commercial real estate,a real estate developer, and a commerciallender is likely to be materially limited inthe lawyer’s ability to recommend or advo-cate all possible positions that each mighttake because of the lawyer’s duty of loyaltyto the others.Rule 1.7(b) allows a lawyer to proceed with

a representation burdened with a concurrentconflict of interest but only if the lawyer deter-mines that the representation of all of theaffected clients will be competent and diligentand each affected client gives informed con-sent. In other words, the lawyer must decidewhether the conflict is “consentable.” Rule1.7, cmt. [2]. If the lawyer’s exercise of inde-pendent professional judgment on behalf ofany client will be compromised, the conflict isnot consentable. As noted in the comments toRule 1.7:

[S]ome conflicts are nonconsentable,meaning that the lawyer involved cannotproperly ask for such agreement or providerepresentation on the basis of the client’s

consent...Consentability is typically deter-mined by considering whether the interestsof the clients will be adequately protected ifthe clients are permitted to give theirinformed consent to representation bur-dened by a conflict of interest...[R]epresen-tation is prohibited if in the circumstancesthe lawyer cannot reasonably conclude thatthe lawyer will be able to provide compe-tent and diligent representation.

Rule 1.7, cmts. [14] and [15].Is common representation of the borrower

and the lender for the closing of a commercialloan secured by real property a “consentableconflict”?

What Do the Ethics Opinions Say?In RPC 210, the Ethics Committee held

that a lawyer may represent the seller, borrow-er/buyer, and lender in a residential real estateclosing with the informed consent of all of theparties. Even so, the opinion includes the fol-lowing cautionary language:

A lawyer may reasonably believe that thecommon representation of multiple partiesto a residential real estate closing will not beadverse to the interests of any one client ifthe parties have already agreed to the basicterms of the transaction and the lawyer’srole is limited to rendering an opinion ontitle, memorializing the transaction, anddisbursing the proceeds. Before reachingthis conclusion, however, the lawyer mustdetermine whether there is any obstacle tothe loyal representation of both parties. Thelawyer should proceed with the commonrepresentation only if the lawyer is able toreach the following conclusions: he or shewill be able to act impartially; there is littlelikelihood that an actual conflict will ariseout of the common representation; and,should a conflict arise, the potential preju-dice to the parties will be minimal.As to commercial real estate closings, the

Restatement of the Law Governing Lawyers takesthe position that, notwithstanding theinformed consent of each client, a lawyerwould be unable to provide adequate represen-

tation to both a buyer and a seller where theparties are in sharp disagreement on severalimportant terms of the transaction or wherethe parties should receive extensive counselingconcerning their rights in the transaction andpossible optional arrangements. Restatement ofthe Law Governing Lawyers §122 cmt. g(iv)(2000) (Illustrations 10, 11). The Restatementcites Baldasarre v. Butler, 625 A. 2d 458 (N.J.1993), in which the court held that a lawyermay not represent both the buyer and seller ina complex commercial real estate transactioneven if both clients give their informed con-sent. The Supreme Court of New Jerseyobserved:

This case graphically demonstrates theconflicts that arise when an attorney, evenwith both clients’ consent, undertakes therepresentation of the buyer and the seller ina complex commercial real estate transac-tion. The disastrous consequences of [thelawyer’s] dual representation convinces usthat a new bright-line rule prohibiting dualrepresentation is necessary in commercialreal estate transactions where large sums ofmoney are at stake, where contracts containcomplex contingencies, or where optionsare numerous. The potential for conflict inthat type of complex real estate transactionis too great to permit even consensual dualrepresentation of buyer and seller.

635 A. 2d at 467. Other cases allow dual rep-resentation in commercial closings if therequirements of Rule 1.7 are satisfied.

What Does the Ethics Committee Say?On one hand:Approximately 50% of the committee

members believe that common representationin a commercial real estate loan closing is anonconsentable conflict under all circum-stances. This group argues that the closing of acommercial loan secured by real estate is an“arm’s length” business transaction that mayinvolve large sums of money, complex docu-mentation, and numerous opportunities tonegotiate on behalf of each party.

As expressed by some of these committee

Either a Lawyer for a Borrower or a Lender Be?B Y S U Z A N N E L E V E R

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members:n Even when consent to dual representa-

tion is given, the borrower rightly expects rep-resentation from the attorney. While theattorney may believe that her role is merely toexecute the tasks necessary to close the trans-action, the client expects the attorney toinform her if there are ways that the docu-ments could be made more favorable to theclient. This disconnect may lead to grievancesand dissatisfaction with North Carolinaattorneys.n There is an inherent imbalance of

power in these cases where the borrowerreceives form documents that were preparedfor the lender by attorneys for the lender. Theborrower may not understand that there isroom for negotiation in the form documents,so there may not truly be an informed consenton the part of the borrower.n The eight-step process proposed by

those wishing to allow dual representation (seebelow) is complicated and prone to abuse. Forexample, the first condition requires the termsto have been “finally negotiated” prior to com-mencement of the representation. If the attor-ney reviews the terms and knows from herexperience that better terms have beenobtained in other similar transactions, doesthe attorney have a duty to inquire about thenegotiations that took place previously, or canthe attorney remain silent and move forwardwith closing the loan?n If dual representation is disallowed,

either the lender or the borrower still has theoption of remaining unrepresented if it is moreefficient and economical to only have oneattorney involved.

In light of these concerns, a proposed opin-ion has been drafted that states that commonrepresentation in a real estate commercial loanclosing is a nonconsentable conflict meaningthat a lawyer may not ask the borrower and thelender to consent to common representation.See Ethics Opinions, page 45.

On the other hand:The remaining 50% of the committee con-

tend that there are scenarios where it is moreefficient and economical to allow one lawyer torepresent both the borrower and the lender.

As expressed by some of these committeemembers:n One lawyer should be permitted to close

noncomplex transactions.n One lawyer should be permitted to close

standardized transactions that are not nego-tiable.n The cost of multiple lawyers may be

prohibitive to clients in some cases.n If the lawyer concludes that she can ful-

fill her duties to both clients and the clientsconsent, the clients should be entitled to thecounsel of their choice.

In light of these concerns, a second pro-posed opinion under consideration providesthat dual representation of the borrower andthe lender for the closing of a commercial realestate loan is a nonconsentable conflict ofinterest unless the following conditions can besatisfied: (1) the contractual terms have beenfinally negotiated prior to the commencementof the representation; (2) the loan is securedonly by the real property and any collateralidentified in the contract; (3) the lenderreserves no remedies other than the right offoreclosure under the deed of trust or reposses-sion under the UCC; (4) there are no materialcontingencies to be resolved; (5) the lawyerreasonably concludes that he will be able to actimpartially in the representation of both par-ties; (6) the lawyer explains to both parties thathis role is limited to executing the tasks neces-sary to close the loan and that this limitationprohibits him from advocating for the specificinterests of either party; (7) the lawyer disclosesthat he must withdraw from the representation

of both parties if a conflict arises; and (8) bothparties give informed consent confirmed inwriting. However, this alternative proposedopinion provides that consent may never besought to represent the lender, the borrower,and the seller of real property if the seller willprovide secondary financing for the transac-tion and accept a secondary deed of trust,because the risks to the interests of the seller aretoo great to permit common representation.See Ethics Opinions, page 48.

What Do You Say?Should there be a bright-line prohibition

on common representation in closing com-mercial real estate loans? Should commercialand residential real estate transactions be treat-ed the same for conflict purposes? Shouldcommon representation in commercial realestate transactions be permissible in certaindelineated scenarios?

We want to hear from you. Really. Thecomments we receive will be considered at theJanuary 2015 ethics meeting. Comments maybe emailed to [email protected]. n

Suzanne Lever is assistant ethics counsel forthe North Carolina State Bar.


In Memoriam

R. Lewis AlexanderElkin, NC

Harry Randall BivensCharlotte, NC

James H. Burwell Jr.Rutherfordton, NC

Harding Kent CroweConover, NC

David Sidney CrumpRaleigh, NC

Robert Donald Davidson Jr.High Point, NC

Paul Anthony deMontesquiouMarvin, NC

James Carlton FlemingCharlotte, NC

Martha Erwin FoxClaremont, NC

Anthony Wayne Harrison Sr. Greensboro, NC

Ann L. Majestic Raleigh, NC

James Donald Myers Beaufort, SC

Charles Alvin Oswald Hickory, NC

John Arthur Richardson III Winston-Salem, NC

Stanley Leigh Rodenbough III Highlands, NC

Franklin Delano Smith Elkin, NC

Robert H. Stevens Jr. Greensboro, NC

J. Hunter Stovall Southern Pines, NC

John Richard Surratt Winston-Salem, NC

Stanley M. Todd Lumberton, NC

Irecently had an opportunity totalk with Buxton (Buck) S.Copeland, a board certified spe-cialist in workers’ compensationlaw, practicing in Raleigh. Buckattended the University of North

Carolina at Chapel Hill, earning an under-graduate degree in 1981, and subsequentlyreceived his law degree cum laude from theCampbell University’s Norman A.Wiggins School of Law. Followinggraduation he served as a law clerkto a United States magistrate judgefor two years before joiningCranfill Sumner & Hartzog in1987. Buck worked in both gener-al liability litigation and workers’compensation before limiting hispractice to the representation ofemployers, third-party administrators, andcarriers in workers’ compensation hearingsbefore the Industrial Commission and inappeals to the full commission, the court ofappeals, and the Supreme Court. He becamea board certified specialist in workers’ com-pensation law in 2000, the first year the cer-tification was available. His comments aboutthe specialization program and its impact onhis career follow.Q: Why did you pursue certification?

As a defense attorney, I recognized thatbecoming a board certified specialist was like-ly more important for plaintiffs’ attorneys, asI work with more sophisticated clients whotypically know what they’re looking for in alawyer. I pursued certification because it pro-vided a way to distinguish myself from otherlawyers who were not board certified. I alsowanted to validate, for myself, my knowledgeand experience in workers’ compensation law.I thought I was knowledgeable enough topass the exam but wanted to be certain. I sawthe benefits in maximizing a lawyer’s poten-tial in their practice area.Q: How did you prepare for the examina-tion?

There were several lawyers in my firm who

applied at the same time, so we studiedtogether on weekends for a couple of months.We got together on Saturday mornings orSunday afternoons, and we each prepared asummary of part of the Workers’Compensation Act. We researched and pre-sented the information to the others in thegroup and then led a discussion. I also readthrough the entire act, which was not some-

thing I had done previously. Ifound it to be tremendouslyhelpful in preparing, and con-tributed to my overall knowledgeof workers’ compensation law. Q: Has certification been help-ful to your practice?

Yes, I became much moreknowledgeable after studying forthe exam. There were several

times while studying that I found out I hadassumed something incorrectly. It was reallygood for me to find those inaccuracies andcorrect my assumptions.Q: Has certification been helpful to yourpractice?

Yes, though I feel like I have seen an evengreater benefit to myself personally. Theprocess of preparing for, taking, and passingthe exam was really beneficial. Prior toobtaining the certification, I would take someworkers’ compensation courses for my con-tinuing legal education (CLE) requirements,but I would often take courses in other topicsas well. Now I take all of my CLE in workers’compensation, and I appreciate the contenton a deeper level. I do see myself as a specialistnow. I often get calls from other attorneysthroughout the state asking my opinion, so Iknow that colleagues view me as a specialist aswell. Q: Who are your best referral sources?

I tend to get most of my new client refer-rals from individual adjustors who work withmy existing clients. They are from large insur-ance companies or are third-party administra-tors for self-insured clients who feel that Ihave handled similar matters well.

Q: How does certification benefit the pro-fession?

Board certification gives lawyers credibil-ity and that benefits the profession. It’simportant in any of the practice areas thatoffer a specialty certification. Q: How does certification benefit the pub-lic?

For claimants’ attorneys, I think certifica-tion is a very important tool that helpsmembers of the public to select an attorneywho can provide competent legal services.The certification shows them that an inde-pendent third party has looked at this attor-ney and approved the quality of their work.Similar to the certification that distinguishesa board certified orthopedic surgeon from anon-board certified orthopedic surgeon, itprovides clients with the comfort that theyare in the good hands of a lawyer who canhandle their issues.Q: What opportunities have you had toprovide leadership to the program?

I served on the workers’ compensationspecialty committee from April 2006 toApril 2014, serving as chair for the last twoyears of my term. I enjoyed the opportunityto work with the other committee membersvery much. The committee is typically splitwith half defense counsel and half plaintiffs’counsel. The lawyers involved on the com-mittee are truly dedicated to the practicearea, intelligent, and willing to share knowl-edge. The experience of being a committeemember was an honor and a real opportuni-ty to learn as well as to lead.Q: How do you see the future of specializa-tion?

I think that the program will continue togrow and provide a service to the public. Icould see additional practice areas beingadded. Employment law or civil litigationmight be a good fit for the program. n

For more information on the State Bar’sspecialization programs, visit us online atnclawspecialists.gov.

Profiles in Specialization—Buxton S. CopelandB 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

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

Copeland

WINTER 201440

DisbarmentsThe DHC disbarred Sybil Barrett of

Charlotte. The DHC concluded that Barrettmisappropriated funds she held in trust forpayment of taxes in two real estate closings.

L. Pendleton Hayes of Pinehurst tenderedher affidavit of surrender and was disbarred bythe State Bar Council at its October 2014meeting. Hayes acknowledged that she misap-propriated over $400,000 in entrusted fundsand engaged in fraudulent bank transactions.

Freddie Lane Jr. of Fayetteville tendered hisaffidavit of surrender and was disbarred by theState Bar Council at its October 2014 meet-ing. Lane acknowledged that he misappropri-ated at least $500,000 in entrusted funds andfailed to file and pay federal and state incomeand withholding taxes.

Christopher Vaughn of Raeford misappro-priated entrusted funds, neglected numerousclients’ cases, did not respond to the State Bar,and knowingly made false representations tothe State Bar. He surrendered his law licenseand was disbarred by the DHC.

Scott Spransy of Charlotte misappropriat-ed entrusted client funds for his personal use,neglected his clients’ case, did not communi-cate with his clients, and did not maintain ade-quate trust account records. He was disbarredby the DHC.

Suspensions & Stayed SuspensionsJerry Braswell of Goldsboro deposited

into his trust account a fraudulent check thathe received as part of an apparent scam.Braswell instructed the bank to wire funds tothe source of the fraudulent check, thereby dis-bursing funds out of his trust account againstprovisionally credited funds from an instru-ment that he could not have reasonablybelieved was certain to be honored and thatwas in an amount in excess of what his assetsor credit could fund if it was dishonored.Braswell also did not file a bank directive, didnot promptly disburse his earned fees from thetrust account, did not maintain an accurateledger, and did not reconcile his trust account.The DHC suspended Braswell for two years.The suspension is stayed for two years upon his

compliance with numerous conditions.Lori M. Glenn of Raleigh did not commu-

nicate with a client, was not diligent, did notreconcile her trust account, and did not prop-erly maintain and disburse client funds. TheDHC suspended her law license for threeyears. After serving one year active, she maypetition for a stay of the balance upon showingcompliance with numerous conditions.

Robert E. Griffin of Fuquay-Varina didnot communicate with a client, was not dili-gent, engaged in conduct prejudicial to theadministration of justice, did not refundunearned fees, did not reconcile his trustaccount, did not deposit entrusted funds intohis trust account, commingled his funds withentrusted funds, did not properly maintainand disburse client funds, and did not super-vise a nonattorney assistant. The DHC sus-pended him for three years. After serving sixmonths active suspension, Griffin may peti-tion for a stay of the balance upon showingcompliance with numerous conditions.

Lynne Hicks of Mocksville mishandledentrusted funds, did not provide writtenaccountings of entrusted funds, and did notmaintain proper trust account records. TheDHC suspended her for two years. The sus-pension is stayed for three years upon compli-ance with numerous conditions.

Christopher Rahilly of Elizabeth City sentobscene photographs via text message to threedomestic clients, had sexual relations with oneclient, and wrote off one client’s bills withoutauthorization from his law firm employer. Healso made multiple false statements to the StateBar. The DHC suspended him for five years.

Conan Lee Schwilm of Charlotte had sexwith a client and continued to be involved inthe representation of the client. The DHC sus-pended him for two years. The suspension isstayed for two years upon compliance withnumerous conditions.

CensuresPeter R. Shedor of Cary was censured by

the Grievance Committee for disbursing fundsimproperly in real estate transactions. Shedorissued commission checks to real estate agentsin violation of the Good Funds Settlement Act

(N.C. Gen. Stat. § 45A-4 and Rule 1.15-2(a)and (m) of the Rules of Professional Conduct).He also disbursed funds for closings before allfunds required for those closings were deposit-ed into his trust account.

Russell Warnock of Winchester, Kentucky,was censured by the Grievance Committee.Warnock neglected his client’s patent applica-tion, did not communicate with his client, andmisrepresented the status of the patent applica-tion to his client. Warnock also did not coop-erate with the Grievance Committee.

ReprimandsVictoria Block of New Bern was repri-

manded by the Grievance Committee. Blockdid not act diligently in handling administra-tion and tax issues for the estate of her client’sbrother. She also lacked competence to handlethe tax issues and did not communicate withher client.

William P. Bray of Charlotte was repri-manded by the Grievance Committee. Braydid not keep his client informed about the sta-tus of the client’s case. He also conditioned set-tlement of a lawsuit he brought against theclient to collect attorney fees upon the client’swithdrawing grievances he had filed with theState Bar.

Hilda Burnett-Baker of Raleigh was repri-manded by the Grievance Committee. In abankruptcy proceeding, Burnett-Baker made afalse statement of material fact to a tribunaland/or failed to correct a false statement ofmaterial fact she had previously made to thetribunal.

Kenneth A. Free Jr. of Greensboro was rep-rimand by the United States District Court forthe Middle District of North Carolina. Thecourt found Free failed to file a notice of appealon his client’s behalf knowing that his clientwanted to exercise his right to appeal. Thecourt previously found that Free provided inef-fective assistance of counsel to his client.

Isham Faison Hicks of Raleigh was repri-manded by the Wake County Superior Court.On two occasions Hicks intentionally signedverifications of attendance at separate CLE


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


At its meetings on July 25, 2014, andOctober 24, 2014, State Bar Council voted toadopt the following rule amendments fortransmission to the North Carolina SupremeCourt for approval (for the complete text seethe Spring and Fall 2014 editions of theJournal or visit the State Bar website):

Proposed Amendments to theDiscipline and Disability Rules

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

The proposed amendments change thename of the Trust Accounting SupervisoryProgram to the Trust Account Compliance

Program. There are no changes to the sub-stance of the rule other than the namechange.

Proposed Amendments to the RulesGoverning the Administration of theCLE Program

27 N.C.A.C. 1D, Section .1500, RulesGoverning the Administration of theContinuing Legal Education Program

The proposed amendments change thename of the mandatory CLE program fornew lawyers from “Professionalism for NewAdmittees” to “Professionalism for NewAttorneys” (PNA program), and permit the

Board of Continuing Education to approvealternative timeframes for the PNA program,thereby giving CLE providers more flexibili-ty to be creative in their presentations of theprogram.

Proposed Amendments to CertificationStandards for the JuvenileDelinquency Subspecialty

27 N.C.A.C. 1D, Section .2500,Certification Standards for the Criminal LawSpecialty

The proposed amendments reduce thenumber of practice hours required to meetthe substantial involvement standard for the

At a conference on October 2, 2014, theNorth Carolina Supreme Court approvedthe following amendments to the rules of theNorth Carolina State Bar:

Amendments to the Procedures forReinstatement from Inactive Statusand Administrative Suspension

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

The amendments eliminate the three dif-ferent CLE requirements for reinstatementfrom inactive status and administrative sus-pension in favor of one standard that appliesto all petitioners for reinstatement withoutregard to when the petitioner was trans-ferred to inactive or suspended status; makeMarch 10, 2011, the effective date for therequirement of passage of the bar exam if apetitioner was administratively suspendedfor seven years or more; and permit a mem-ber to take up to 6.0 CLE credits per yearonline to satisfy the requirements for rein-statement from inactive status and adminis-trative suspension.

Amendment to the Rules Governingthe Administration of the CLE Program

27 N.C.A.C. 1D, Section .1500, Rules

Governing the Administration of theContinuing Legal Education Program

The amendment requires a lawyer to be anonresident for at least six consecutivemonths in a given year to qualify for the non-resident exemption from mandatory CLE.

Amendments to the Standards forCertification as a Specialist

27 N.C.A.C. 1D, Section .2500,Certification Standards for the Criminal LawSpecialty, and Section .2600, CertificationStandards for the Immigration Law Specialty

The amendments to the standards for thecriminal law specialty reduce the number ofopposing counsel and judges that must be list-ed as peer references on an application for cer-tification in criminal law. The amendments tothe standards for the immigration law special-ty clarify that CLE courses on topics related toimmigration law may be used to satisfy theCLE requirements for certification and recer-tification, and require four peer referencesfrom lawyers or judges who have substantialexperience in immigration law.

Amendments to the Rules ofProfessional Conduct

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

ConductThe amendments to 13 North Carolina

Rules of Professional Conduct address issuesrelative to outsourcing, lawyer mobility, andadvances in technology. An executive sum-mary of the rule amendments can be viewedin the Spring 2014 edition of the Journal andon the State Bar website (ncbar.gov/PDFs/Ethics_20-20.pdf ). The followingrules were amended:

Rule 1.0, TerminologyRule 1.1, CompetenceRule 1.4, CommunicationRule 1.6, Confidentiality of InformationRule 1.17, Sale of a Law PracticeRule 1.18, Duties to Prospective ClientRule 4.4, Respect for Rights of Third PersonsRule 5.3, Responsibilities RegardingNonlawyer AssistanceRule 5.5, Unauthorized Practice of Law;Multijurisdictional Practice of LawRule 7.1, Communications Concerning aLawyer’s ServicesRule 7.2, AdvertisingRule 7.3, Solicitation of ClientsRule 8.3, Disciplinary Authority; Choice ofLaw

Amendments Approved by the Supreme Court

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

Amendments Pending Approval by the Supreme Court

WINTER 201442

At its meeting on October 24, 2014, thecouncil voted to publish the following pro-posed rule amendments for comment fromthe members of the bar:

Proposed Amendments to the RulesGoverning the Board of Law Examiners

27 N.C.A.C. 1C, Section .0100, Board ofLaw Examiners

The proposed amendments will allowgraduates of law schools that are not accredit-ed by the American Bar Association to qualifyfor admission to the North Carolina State Barunder certain circumstances.

.0105 Approval of Law SchoolsEvery applicant for admission to the N.C.

State Bar must meet the requirements set outin at least one of the numbered paragraphsbelow:

….(4) The applicant holds an LL.B. or J.D.

degree from a law school that was approvedfor licensure purposes in another state of theUnited States or the District of Columbia,was licensed in such state or district, and, atthe time of the application for admission tothe North Carolina State Bar, has been anactive member in good standing of the bar inthat state or district in each of the ten yearsimmediately preceding application.

Proposed Amendments to The Plan ofLegal Specialization

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

The proposed amendments will eliminatethe possibility of one person serving as boardchair for an excessive period of time and willenable a logical succession of the chairman-ship among the members of the board.

.1709 SuccessionEach member of the board shall be entitled

to serve for one full three-year term and tosucceed himself or herself for one additionalthree-year term. Thereafter, no person may bereappointed without having been off of theboard for at least three years: provided, how-ever, that any member who is designatedchairperson at the time that the member’ssecond three-year term expires may serve oneadditional year on the board three-year termin that the capacity of chair.

Proposed Amendments to the Workers’Compensation Law SpecialtyCertification Standards

27 N.C.A.C. 1D, Section .2700,Certification Standards for Workers’Compensation Law Specialty

The proposed amendments will add insur-ance as a related field in which a lawyer mayearn CLE credits for certification and recerti-fication.

.2705 Standards for Certification as aSpecialist in Workers’ Compensation Law

Each applicant for certification as a special-ist in workers’ compensation law shall meetthe minimum standards set forth in Rule.1720 of this subchapter. In addition, eachapplicant shall meet the following standardsfor certification in workers’ compensation law:

(a) Licensure and Practice - ...(b) Substantial Involvement - ...(c) Continuing Legal Education - An

applicant must earn no less than 36 hours ofaccredited continuing legal education (CLE)credits in workers’ compensation law andrelated fields during the three years precedingapplication, with not less than six creditsearned in courses on workers’ compensation

law in any one year. The remaining 18 hoursmay be earned in courses on workers’ com-pensation law or any of the following relatedfields: civil trial practice and procedure; evi-dence; insurance; ...

(d) Peer Review - ...

.2706 Standards for ContinuedCertification as a Specialist

The period of certification is five years...[E]ach applicant for continued certification asa specialist shall comply with the specificrequirements set forth below in addition to anygeneral standards required by the board of allapplicants for continued certification.

(a) Substantial Involvement - ...(b) Continuing Legal Education - The spe-

cialist must earn no less than 60 hours ofaccredited continuing legal education (CLE)credits in workers’ compensation law and relat-ed fields during the five years preceding appli-cation. Not less than six credits may be earnedin any one year. Of the 60 hours of CLE, at

Proposed Amendments

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. Unlessotherwise noted, proposed additions torules are printed in bold and under-lined; deletions are interlined.

juvenile delinquency subspecialty and allowfor additional forms of practice equivalents.

Proposed Amendments to theStandards for Certification ofParalegals

27 N.C.A.C. 1G, Section .0100, ThePlan for Certification of Paralegals

The proposed amendments permit adegree from a foreign educational institution

to satisfy part of the educational require-ments for certification if the foreign degree isevaluated by a qualified credential evaluationservice and found to be equivalent to an asso-ciate’s or bachelor’s degree from an accreditedUS institution.

Proposed Amendments to the Rules ofthe Board of Law Examiners

Rules Governing Admission to the

Practice of Law in the State of NorthCarolina, Section .0100, Organization

The proposed amendments to RulesGoverning Admission to the Practice of Lawchange the street and mailing address listedfor the offices of the Board of Law Examinersto reflect the board’s recent move to a newlocation.


least 30 hours shall be in workers’ compensa-tion law, and the balance may be in the follow-ing related fields: civil trial practice and proce-dure; evidence; insurance; ...

(c) Peer Review - ...

Proposed Amendments to the Rules ofProfessional Conduct To AddressBullying and Intimidation

27 N.C.A.C. 2, The Rules of ProfessionalConduct

The proposed amendments clarify thatthe term “tribunal” encompasses any pro-ceeding of a court, including depositions,and add comments to Rule 3.5, Rule 4.4,and Rule 8.4 to specify that conduct thatconstitutes bullying and attempts to intimi-date are prohibited by existing provisions ofthe Rules of Professional Conduct.

Rule 1.0: Terminology(a) ...(n) “Tribunal” denotes a court, an arbi-

trator in a binding arbitration proceeding,or a legislative body, administrative agency,or other body acting in an adjudicativecapacity. The term encompasses any pro-ceeding conducted in the course of a trialor litigation, or conducted pursuant to thetribunal’s rules of civil or criminal proce-dure or other relevant rules of the tribunal,such as a deposition, arbitration, or medi-ation. A legislative body, administrativeagency or other body acts in an adjudicativecapacity when a neutral official, after thepresentation of evidence or legal argumentby a party or parties, may render a bindinglegal judgment directly affecting a party’s

interests in a particular matter.

Rule 3.5 Impartiality and Decorum ofthe Tribunal

(a) A lawyer shall not:(1) ...(4) engage in conduct intended to disrupta tribunal, including:

(A) failing to comply with known localcustoms of courtesy or practice of thebar or a particular tribunal without giv-ing opposing counsel timely notice ofthe intent not to comply;(B) engaging in undignified or discour-teous conduct that is degrading to a tri-bunal; or(C) intentionally or habitually violatingany established rule of procedure or evi-dence; or

(5) ...(b) ...

Comment[1] ...[10] As professionals, lawyers are expect-

ed to avoid disruptive, undignified, discour-teous, and abusive behavior. Therefore, theprohibition against conduct intended to dis-rupt a tribunal applies to conduct that doesnot serve a legitimate goal of advocacy or arequirement of a procedural rule andincludes angry outbursts, insults, slurs, per-sonal attacks, and unfounded personal accu-sations as well as to threats, bullying, andother attempts to intimidate or humiliatejudges, opposing counsel, litigants, witness-es, or court personnel. Zealous advocacydoes not rely upon such tactics and is nevera justification for such conduct. This con-duct is prohibited both in open court and inancillary proceedings conducted pursuant tothe authority of the tribunal (e.g., deposi-tions). See comment [11], Rule 1.0(n).Similarly, insults, slurs, threats, personalattacks, and groundless personal accusationsmade in documents filed with the tribunalare also prohibited by this Rule. “Conductof this type breeds disrespect for the courtsand for the legal profession. Dignity, deco-rum, and respect are essential ingredients inthe proper conduct of a courtroom, andtherefore in the proper administration ofjustice.” Atty. Grievance Comm’n v. Alison,565 A.2d 60, 666 (Md. 1989). See also Rule4.4(a)(prohibiting conduct that serves nosubstantial purpose other than to embarrass,delay, or burden a third person) and Rule

8.4(d)(prohibiting conduct prejudicial tothe administration of justice).

[10] [11] The duty to refrain from dis-ruptive conduct applies to any proceeding ofa tribunal, including a deposition or media-tion. See Rule 1.0(m)(n).

Rule 4.4 Respect for Rights of ThirdPersons

(a) In representing a client, a lawyer shallnot use means that have no substantial pur-pose other than to embarrass, delay, or bur-den a third person, or use methods of obtain-ing evidence that violate the legal rights ofsuch a person.

(b) ...

Comment[1] Responsibility to a client requires a

lawyer to subordinate the interests of othersto those of the client, but that responsibilitydoes not imply that a lawyer may disregardthe rights of third persons. It is impractical tocatalogue all such rights, but they includelegal restrictions on methods of obtainingevidence from third persons and unwarrant-ed intrusions into privileged relationships,such as the client-lawyer relationship.

[2] Threats, bullying, harassment,insults, slurs, personal attacks, unfoundedpersonal accusations generally serve no sub-stantial purpose other than to embarrass,delay, or burden others and violate this rule.Conduct that serves no substantial purposeother than to intimidate, humiliate, orembarrass lawyers, litigants, witnesses, orother persons with whom a lawyer interactswhile representing a client also violates thisrule. See also Rule 3.5(a) (prohibiting con-duct intended to disrupt a tribunal) andRule 8.4(d)(prohibiting conduct prejudicialto the administration of justice).

[2] [3] ...[3] [4] ...

Rule 8.4 MisconductIt is professional misconduct for a lawyer

to:(a) ...(d) engage in conduct that is prejudicial

to the administration of justice;(e) ...

Comment[1] ...


Preorder

the 2015

Lawyer’s

Handbook

You can order a hard copy bysubmitting an order form (found atncbar.gov) by March 20, 2015. The

digital version will still be available fordownload and is free of charge.

WINTER 201444

Council ActionsAt its meeting on October 24, 2014, the

State Bar Council withdrew 2013 FormalEthics Opinion 2, Providing Defendant withDiscovery During Representation (Adopted1/24/14), and adopted the ethics opinionpublished as a proposed substitute for 2013FEO 2 in the Fall 2014 edition of theJournal. The adopted ethics opinion is sum-marized below:

2013 Formal Ethics Opinion 2 Providing Incarcerated Defendant with

Opportunity to Review Discovery MaterialsOpinion rules that if, after providing an

incarcerated criminal client with a summa-ry/explanation of the discovery materials inthe client’s file, the client requests access toany of the discovery materials, the lawyermust afford the client the opportunity tomeaningfully review relevant discovery mate-rials unless certain conditions exist.

The council also adopted the ethics opin-ion summarized below:

2014 Formal Ethics Opinion 7Use of North Carolina Subpoena to

Obtain Documents from Foreign Entity orIndividual

Opinion rules that a lawyer may providea foreign entity or individual with a NorthCarolina subpoena accompanied by a state-ment/letter explaining that the subpoena isnot enforceable in the foreign jurisdiction,the recipient is not required to comply withthe subpoena, and the subpoena is beingprovided solely for the recipient’s records.

Ethics Committee ActionsAt its meeting on October 23, 2014, the

Ethics Committee voted to send the follow-ing proposed opinion to a subcommittee forfurther study: Proposed 2014 FEO 1,Protecting Confidential Client InformationWhen Mentoring. Upon the recommenda-tion of the Executive Committee of the

council, Proposed 2014 FEO 9, PrivateLawyer Supervision of Investigation InvolvingMisrepresentation, was also sent to a subcom-mittee for study. The Ethics Committeevoted to publish a revised version of one pro-posed opinion and two new proposed opin-ions. The comments of readers on the pro-posed opinions are welcomed.

In light of a division between the mem-bers of the committee on the question ofwhether a lawyer may represent multiple par-ties to a commercial real estate loan closing,the committee voted to publish two pro-posed opinions that reach different conclu-sions. Readers are urged to comment on theproposed opinions in order that the commit-tee might benefit from the perspective of thebar at large. On page 39, the Legal Ethicscolumn considers the competing concernsaddressed in the two alternative opinions.The alternative proposed opinions appearimmediately below.

Proposed 2013 Formal Ethics Opinion 14Representation of Parties to aCommercial Real Estate Loan ClosingOctober 23, 2014

Proposed opinion rules that common repre-sentation in a real estate commercial loan closingis, in most instances, a “nonconsentable” conflict,meaning that a lawyer may not ask the borrowerand the lender to consent to common representa-tion.

Background:In the standard closing of a commercial

loan secured by real property (a “commercialloan closing”), the borrower and the lenderhave separate legal counsel. The borrower’slawyer traditionally handles most aspects ofthe closing, including the preparation of thesettlement statement as well as the collectionof funds, the payoffs, and the disbursements.

The borrower understands that its lawyer rep-resents its interests alone. Unlike a residentialreal estate closing in which the lender’s docu-ments can rarely be modified once enteredinto by the borrower/buyer, it is common in acommercial loan closing for the borrower’slawyer to be actively involved in negotiatingprovisions of the commitment letter thatestablishes the basic terms of the mortgage,and to also negotiate specific revisions to theloan documents to address material matterssuch as default, disbursement of insuranceproceeds, permitted transfers, and indemnifi-cation.

A large regional bank recently changed itscommercial loan closing policies to require alllawyers who close commercial loans with thebank to be employed by law firms that are“authorized” by the bank to close its loans.These lawyers are designated as “Bank’sCounsel.” Bank’s Counsel is asked by thebank to handle the entire closing includingthe title search, title certification, and theholding and disbursing of the closing funds.

Lawyers who traditionally represent theborrower in a commercial loan closing areconcerned about this policy for a number ofreasons including the following:

• Having closing funds delivered to thelender’s lawyer instead of the borrower’slawyer subjects the borrower to responsibilityfor the funds without the benefit of its ownlegal counsel’s guidance, protection, and assis-tance;

• Once the loan funds are committed tothe borrower by the lender, they become theresponsibility of the borrower. When there isseparate, independent representation of theborrower, the protections of malpracticeinsurance and the closing protection letter areavailable to the borrower.

• The borrower’s recourses may be limitedif closing funds are mishandled and the bor-rower suffers a loss in connection with Bank’s

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

Committee Seeks Comment on AlternativeProposed Opinions on Multiple Representation inCommercial Real Estate Loans


Counsel’s preparation of the closing state-ment and disbursement of the loan proceeds.However, when the borrower’s lawyer per-forms the escrow and closing functions, thelender gets an insured closing letter and alegal opinion relative to authority andenforceability from the borrower’s lawyerand has protection.

• Having the lender’s lawyer perform theproperty and business due diligence functionsmay result in the disclosure of confidentialinformation relative to the borrower’s proper-ty or its business interests that would not bedisclosed if the borrower’s lawyer performedthese functions.

• Unless the borrower is sophisticated andinstructs its lawyer to be actively involved, theborrower’s lawyer may be placed in the role of“outsider” or passive observer, which maylimit the quality and scope of the representa-tion that the borrower receives. It will alsoinvite, notwithstanding disclosure, the per-ception that the lender’s lawyer is looking outfor the interests of all of the parties.

Inquiry #1:May a lawyer represent both the borrower

and the lender for the closing of a commercialloan secured by real property? If so, isinformed consent of both the borrower andthe lender required, and what informationmust be disclosed to obtain informed con-sent?

Opinion #1:In most instances, a lawyer may not repre-

sent both the borrower and the lender for theclosing of a commercial loan even with con-sent.

Rule 1.7 prohibits the representation of aclient if the representation involves a concur-rent conflict of interest unless certain condi-tions are met. A concurrent conflict of interestexists if the representation of one client will bedirectly adverse to another client or the repre-sentation of one client may be materially lim-ited by the lawyer’s responsibilities to anotherclient. Rule 1.7(a). The closing of a commer-cial loan secured by real estate is an “arm’slength” business transaction in which largesums of money are at stake, the documenta-tion is complex, and the opportunities tonegotiate on behalf of each party are numer-ous. As observed in the comment to Rule 1.7:

Even where there is no direct adverseness,a conflict of interest exists if a lawyer’s abil-ity to consider, recommend, or carry out

an appropriate course of action for theclient may be materially limited as a resultof the lawyer’s other responsibilities orinterests. For example, a lawyer asked torepresent a seller of commercial real estate,a real estate developer, and a commerciallender is likely to be materially limited inthe lawyer’s ability to recommend or advo-cate all possible positions that each mighttake because of the lawyer’s duty of loyaltyto the others. The conflict in effect fore-closes alternatives that would otherwise beavailable to the client. The mere possibilityof subsequent harm does not itself pre-clude the representation or require disclo-sure and consent. The critical questions arethe likelihood that a difference in interestswill eventuate and, if it does, whether itwill materially interfere with the lawyer’sindependent professional judgment inconsidering alternatives or foreclose cours-es of action that reasonably should be pur-sued on behalf of the client.

Rule 1.7, cmt. [8]. Rule 1.7(b) allows a lawyer to proceed

with a representation burdened with a con-current conflict of interest, but only if thelawyer determines that the representation ofall of the affected clients will be competentand diligent and each affected client givesinformed consent. In other words, the lawyermust decide whether the conflict is “con-sentable.” Rule 1.7, cmt. [2]. If the lawyer’sexercise of independent professional judg-ment on behalf of any client will be compro-mised, the conflict is not consentable. Asnoted in the comment to Rule 1.7:

[S]ome conflicts are nonconsentable,meaning that the lawyer involved cannotproperly ask for such agreement or providerepresentation on the basis of the client’sconsent...Consentability is typically deter-mined by considering whether the inter-ests of the clients will be adequately pro-tected if the clients are permitted to givetheir informed consent to representationburdened by a conflict ofinterest...[R]epresentation is prohibited ifin the circumstances the lawyer cannotreasonably conclude that the lawyer will beable to provide competent and diligentrepresentation.

Rule 1.7, cmt.[14]-[15]. Although deletedfrom the comment to Rule 1.7 when theRules of Professional Conduct were compre-hensively revised in 2003, the following is anexcellent test for determining whether a con-

flict is “consentable”: “when a disinterestedlawyer would conclude that the client shouldnot agree to the representation under the cir-cumstances, the lawyer involved cannot prop-erly ask for such agreement or provide repre-sentation on the basis of the client’s consent.”Rule 1.7, cmt. [5] (2002).

In RPC 210, the Ethics Committee heldthat a lawyer may represent the seller, borrow-er/buyer, and lender in a residential real estateclosing with the informed consent of all of theparties. Even so, the opinion includes the fol-lowing cautionary language:

A lawyer may reasonably believe that thecommon representation of multiple par-ties to a residential real estate closing willnot be adverse to the interests of any oneclient if the parties have already agreed tothe basic terms of the transaction and the

Public Information The Ethics Committee’s meetings are

public, and materials submitted for con-sideration 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: NC Rules ofProf ’l Conduct Rule 1.1 (2003)

· To cite a North Carolina formalethics opinion: NC 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.

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lawyer’s role is limited to rendering anopinion on title, memorializing the trans-action, and disbursing the proceeds.Before reaching this conclusion, however,the lawyer must determine whether thereis any obstacle to the loyal representationof both parties. The lawyer should proceedwith the common representation only ifthe lawyer is able to reach the followingconclusions: he or she will be able to actimpartially; there is little likelihood that anactual conflict will arise out of the com-mon representation; and, should a conflictarise, the potential prejudice to the partieswill be minimal.A commercial loan closing is substantially

different from a residential closing in whichthere is little opportunity to negotiate on

behalf of the borrower/buyer once the pur-chase contract and loan commitment letterare signed. In a commercial loan closing, thereare numerous opportunities for a lawyer tonegotiate on behalf of the parties, so impar-tiality is rarely possible. There are also numer-ous opportunities for an actual conflict toarise between the borrower and the lenderand, if a conflict does arise, the prejudice tothe parties would be substantial. Therefore,common representation in a commercial loanclosing is, in most instances, a “noncon-sentable” conflict, meaning that a lawyer maynot ask the borrower and the lender to con-sent to common representation. Restatement(Third) of The Law Governing Lawyers, §122,Comment g(iv), cites decisions in which thecourt denied the possibility of client consentas a matter of law in certain categories of cases.These decisions include Baldasarre v. Butler,625 A. 2d 458 (N.J. 1993), in which theSupreme Court of New Jersey observed:

This case graphically demonstrates theconflicts that arise when an attorney, evenwith both clients’ consent, undertakes therepresentation of the buyer and the sellerin a complex commercial real estate trans-action. The disastrous consequences of[the lawyer’s] dual representation con-vinces us that a new bright-line rule pro-hibiting dual representation is necessary incommercial real estate transactions wherelarge sums of money are at stake, wherecontracts contain complex contingencies,or where options are numerous. Thepotential for conflict in that type of com-plex real estate transaction is too great topermit even consensual dual representa-tion of buyer and seller. Therefore, wehold that an attorney may not representboth the buyer and seller in a complexcommercial real estate transaction even ifboth give their informed consent.

635 A. 2d at 467. See also Fla. Bar. Prof’lEthics Comm., Op. 97-2 (1997)(lawyer maynot represent both buyer and seller in closingof sale of business where material terms ofcontract have not been agreed to or discussedby parties).

In summary, dual representation of theborrower and the lender for the closing of acommercial real estate loan is a noncon-sentable conflict of interest unless the follow-ing conditions can be satisfied: (1) the con-tractual terms have been finally negotiatedprior to the commencement of the represen-tation; (2) there are no material contingencies

to be resolved; (3) the lawyer reasonablybelieves that the lawyer will be able to providecompetent and diligent representation to eachaffected client; (4) it is unlikely that a differ-ence in interests will eventuate and, if it does,it will not materially interfere with thelawyer’s independent professional judgmentin considering alternatives or foreclose coursesof action that should be pursued on behalf ofa client; (5) the lawyer reasonably concludesthat he will be able to act impartially in therepresentation of both parties; (6) the lawyerexplains to both parties that his role is limitedto executing the tasks necessary to close theloan and that this limitation prohibits himfrom advocating for the specific interests ofeither party; (7) the lawyer discloses that hemust withdraw from the representation ofboth parties if a conflict arises; and (8) afterthe foregoing full disclosure, both parties giveinformed consent confirmed in writing.

Regardless of the above conditions allow-ing common representation of the borrowerand lender, consent may never be sought torepresent the lender, the borrower, and theseller of real property if the seller will providesecondary financing for the transaction andaccept a secondary deed of trust. In this situ-ation, the risks to the interests of the seller aretoo great to permit a lawyer to seek consent tocommon representation.

Inquiry #2:The bank intends for Bank’s Counsel to

represent only the bank (lender) but to handleall aspects of the closing.

May a lawyer represent only the lender buthandle all aspects of a commercial loan clos-ing including the title search, title certifica-tion, marshalling the necessary documents,and holding and disbursing of the closingfunds? If so, what information must be dis-closed by Bank’s Counsel to the borrower rel-ative to the role of Bank’s Counsel?

Opinion #2:Yes, a lawyer may be the lead lawyer for

the closing (“the closing lawyer”) providedthe lawyer represents only one party—eitherthe lender or the borrower. Because the titlework and other due diligence are for the ben-efit of the lender, there is no prohibition onthe lender’s lawyer performing these tasks.See 2004 FEO 10 (because buyer is theintended beneficiary of the deed althoughnot a signatory, buyer’s lawyer may preparedeed without creating a lawyer-client rela-

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, byDecember 30, 2014.

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.


tionship with seller). However, if the closinglawyer represents the lender, certain condi-tions must be satisfied.

In 2006 FEO 3, the Ethics Committeeconsidered whether a lawyer may represent alender on the closing of the sale to a thirdparty of property acquired by the lender asresult of foreclosure by execution of the powerof sale in the deed of trust on the property.The opinion holds (among other things) thata lawyer may serve as the closing lawyer andlimit his representation to the lender/seller ifthere is disclosure to the buyer:

Attorney A must fully disclose to Buyerthat [the lender/seller] is his sole client, hedoes not represent the interests of Buyer,the closing documents will be preparedconsistent with the specifications in thecontract to purchase, and, in the absenceof such specifications, he will prepare thedocuments in a manner that will protectthe interests of his client, [the lender/sell-er], and, therefore, Buyer may wish toobtain his own lawyer. See, e.g., RPC 40(disclosure must be far enough in advanceof the closing that the buyer can procurehis own counsel), RPC 210, 04 FEO 10,and Rule 4.3(a). Because of the strongpotential for Buyer to be misled, the dis-closure must be thorough and robust.Consistent with the holding in 2006 FEO

3, in a commercial loan closing, the lender’slawyer may serve as the closing lawyer provid-ed the borrower is informed that the closinglawyer will not represent its interests and willinterpret loan documents in the light that ismost favorable to the lender; the borrower isgiven a reasonable opportunity to retain itsown counsel and is not misled as to its rightto do so; the lawyers for both parties advisetheir clients about the risks and benefits of ahaving the lender’s lawyer serve as the closinglawyer; and the borrower’s lawyer is allowed toobserve and participate in the transaction tothe extent necessary to protect the borrower’sinterests.

This opinion cannot address all of the con-cerns expressed in the Background sectionabove relative to the additional risks to theborrower if the lawyer for the closing is thelender’s lawyer. However, if the closing fundsare deposited to and disbursed from the trustaccount of the lender’s lawyer in accordancewith the requirements of the trust accountingrule, Rule 1.15, the funds should not be atrisk. To the extent that there are other risks tothe interests of the borrower, the borrower’s

lawyer must analyze those risks and advise theborrower about steps that may be taken tominimize the risks including negotiating withthe lender’s lawyer for aspects of the closing tobe handled by the borrower’s lawyer.

ALTERNATIVE Proposed 2013 FormalEthics Opinion 14Representation of Parties to aCommercial Real Estate Loan ClosingOctober 23, 2014

Note: Differences between this alterna-tive proposed opinion and the proposedopinion above are shown with overstrikes.

Proposed opinion rules that common repre-sentation in a real estate commercial loan closingis, in most instances, a “nonconsentable” conflict,meaning that a lawyer may not ask the borrowerand the lender to consent to common representa-tion.

Background: [There are no changes to this section.]

Inquiry #1:May a lawyer represent both the borrower

and the lender for the closing of a commercialloan secured by real property? If so, isinformed consent of both the borrower andthe lender required, and what informationmust be disclosed to obtain informed con-sent?

Opinion #1:In most instances No, a lawyer may not

represent both the borrower and the lenderfor the closing of a commercial loan even withconsent.

Rule 1.7 prohibits the representation of aclient if the representation involves a concur-rent conflict of interest unless certain condi-tions are met. A concurrent conflict of inter-est exists if the representation of one clientwill be directly adverse to another client orthe representation of one client may be mate-rially limited by the lawyer’s responsibilitiesto another client. Rule 1.7(a). The closing ofa commercial loan secured by real estate is an“arm’s length” business transaction in whichlarge sums of money are at stake, the docu-mentation is complex, and the opportunitiesto negotiate on behalf of each party arenumerous. As observed in the comment toRule 1.7:

Even where there is no direct adverseness,a conflict of interest exists if a lawyer’s abil-ity to consider, recommend, or carry out

an appropriate course of action for theclient may be materially limited as a resultof the lawyer’s other responsibilities orinterests. For example, a lawyer asked torepresent a seller of commercial real estate,a real estate developer, and a commerciallender is likely to be materially limited inthe lawyer’s ability to recommend or advo-cate all possible positions that each mighttake because of the lawyer’s duty of loyaltyto the others. The conflict in effect fore-closes alternatives that would otherwise beavailable to the client. The mere possibilityof subsequent harm does not itself pre-clude the representation or require disclo-sure and consent. The critical questions arethe likelihood that a difference in interestswill eventuate and, if it does, whether itwill materially interfere with the lawyer’sindependent professional judgment inconsidering alternatives or foreclose cours-es of action that reasonably should be pur-sued on behalf of the client.

Rule 1.7, cmt. [8]. Rule 1.7(b) allows a lawyer to proceed

with a representation burdened with a con-current conflict of interest, but only if thelawyer determines that the representation ofall of the affected clients will be competentand diligent and each affected client givesinformed consent. In other words, the lawyermust decide whether the conflict is “con-sentable.” Rule 1.7, cmt. [2]. If the lawyer’sexercise of independent professional judg-ment on behalf of any client will be compro-mised, the conflict is not consentable. Asnoted in the comment to Rule 1.7:

[S]ome conflicts are nonconsentable,meaning that the lawyer involved cannotproperly ask for such agreement or pro-vide representation on the basis of theclient’s consent...Consentability is typi-cally determined by considering whetherthe interests of the clients will be ade-quately protected if the clients are permit-ted to give their informed consent to rep-resentation burdened by a conflict ofinterest...[R]epresentation is prohibited ifin the circumstances the lawyer cannotreasonably conclude that the lawyer willbe able to provide competent and diligentrepresentation.Rule 1.7, cmt.[14]-[15]. Although delet-

ed from the comment to Rule 1.7 when theRules of Professional Conduct were compre-hensively revised in 2003, the following is anexcellent test for determining whether a con-

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flict is “consentable”: “when a disinterestedlawyer would conclude that the client shouldnot agree to the representation under the cir-cumstances, the lawyer involved cannotproperly ask for such agreement or providerepresentation on the basis of the client’sconsent.” Rule 1.7, cmt. [5] (2002).

In RPC 210, the Ethics Committee heldthat a lawyer may represent the seller, bor-rower/buyer, and lender in a residential realestate closing with the informed consent ofall of the parties. Even so, the opinionincludes the following cautionary language:

A lawyer may reasonably believe that thecommon representation of multiple par-ties to a residential real estate closing willnot be adverse to the interests of any oneclient if the parties have already agreed tothe basic terms of the transaction and thelawyer’s role is limited to rendering anopinion on title, memorializing the trans-action, and disbursing the proceeds.Before reaching this conclusion, however,the lawyer must determine whether thereis any obstacle to the loyal representationof both parties. The lawyer should pro-ceed with the common representationonly if the lawyer is able to reach the fol-lowing conclusions: he or she will be ableto act impartially; there is little likelihoodthat an actual conflict will arise out of thecommon representation; and, should aconflict arise, the potential prejudice tothe parties will be minimal.A commercial loan closing is substantially

different from a residential closing in whichthere is little opportunity to negotiate onbehalf of the borrower/buyer once the pur-chase contract and loan commitment letterare signed. In a commercial loan closing,there are numerous opportunities for alawyer to negotiate on behalf of the parties,so impartiality is rarely possible. There arealso numerous opportunities for an actualconflict to arise between the borrower andthe lender and, if a conflict does arise, theprejudice to the parties would be substantial.Therefore, common representation in acommercial loan closing is, in mostinstances, a “nonconsentable” conflict,meaning that a lawyer may not ask the bor-rower and the lender to consent to commonrepresentation. Restatement (Third) of TheLaw Governing Lawyers, §122, Commentg(iv), cites decisions in which the courtdenied the possibility of client consent as amatter of law in certain categories of cases.

These decisions include Baldasarre v. Butler,625 A. 2d 458 (N.J. 1993), in which theSupreme Court of New Jersey observed:

This case graphically demonstrates theconflicts that arise when an attorney, evenwith both clients’ consent, undertakes therepresentation of the buyer and the sellerin a complex commercial real estate trans-action. The disastrous consequences of[the lawyer’s] dual representation con-vinces us that a new bright-line rule pro-hibiting dual representation is necessaryin commercial real estate transactionswhere large sums of money are at stake,where contracts contain complex contin-gencies, or where options are numerous.The potential for conflict in that type ofcomplex real estate transaction is too greatto permit even consensual dual represen-tation of buyer and seller. Therefore, wehold that an attorney may not representboth the buyer and seller in a complexcommercial real estate transaction even ifboth give their informed consent.

635 A. 2d at 467. See also Fla. Bar. Prof ’lEthics Comm., Op. 97-2 (1997)(lawyer maynot represent both buyer and seller in closingof sale of business where material terms ofcontract have not been agreed to or discussedby parties).

In summary, dual representation of theborrower and the lender for the closing of acommercial real estate loan is a noncon-sentable conflict of interest unless the follow-ing conditions can be satisfied: (1) the con-tractual terms have been finally negotiatedprior to the commencement of the represen-tation; (2) there are no material contingen-cies to be resolved; (3) the lawyer reasonablybelieves that the lawyer will be able to pro-vide competent and diligent representationto each affected client; (4) it is unlikely thata difference in interests will eventuate and, ifit does, it will not materially interfere withthe lawyer’s independent professional judg-ment in considering alternatives or foreclosecourses of action that should be pursued onbehalf of a client; (5) the lawyer reasonablyconcludes that he will be able to act impar-tially in the representation of both parties;(6) the lawyer explains to both parties thathis role is limited to executing the tasks nec-essary to close the loan and that this limita-tion prohibits him from advocating for thespecific interests of either party; (7) thelawyer discloses that he must withdraw fromthe representation of both parties if a conflict

arises; and (8) after the foregoing full disclo-sure, both parties give informed consent con-firmed in writing.

Regardless of the above conditions allow-ing common representation of the borrowerand lender, consent may never be sought torepresent the lender, the borrower, and theseller of real property if the seller will providesecondary financing for the transaction andaccept a secondary deed of trust. In this situ-ation, the risks to the interests of the seller aretoo great to permit a lawyer to seek consentto common representation.

Inquiry #2:[There are no changes to this section.]

Proposed 2014 Formal Ethics Opinion 8Accepting an Invitation from a Judgeto Connect on LinkedInOctober 23, 2014

Proposed opinion rules that a lawyer mayaccept an invitation from a judge to be a “con-nection” on a professional networking website,and may endorse a judge. However, a lawyermay not accept a legal skill or expertise endorse-ment or a recommendation from a judge.

Facts:Lawyer has a profile listing on LinkedIn,

a social networking website for people inprofessional occupations. The website allowsregistered users (“members”) to maintain alist of contact details on their LinkedIn pagesfor people with whom they have some levelof relationship via the website. These con-tacts are called “connections.” Members caninvite anyone (whether a site user or not) tobecome a connection.

LinkedIn can be used to list jobs andsearch for job candidates, to find employ-ment, and to seek out business opportuni-ties. Members can view the connections ofother members, post their photographs, andview the photos of other members. Memberscan post comments on another member’sprofile page. Members can also endorse orwrite recommendations for other members.Such endorsements or recommendations, ifaccepted by the recipient, are posted on therecipient’s profile listing.

Inquiry #1:May a lawyer with a professional profile

on LinkedIn accept an invitation to connectfrom a judge?


Opinion #1:Yes. Interactions with judges using social

media are evaluated in the same manner aspersonal interactions with a judge, such as aninvitation to dinner. In certain scenarios, alawyer may accept a judge’s dinner invita-tion. Similarly, in certain scenarios, a lawyermay accept a LinkedIn invitation to connectfrom a judge. However, if a lawyer representsclients in proceedings before a judge, thelawyer is subject to the following duties: toavoid conduct prejudicial to the administra-tion of justice; to not state or imply an abilityto influence improperly a governmentagency or official; and to avoid ex parte com-munications with a judge regarding a legalmatter or issue the judge is considering. SeeRule 3.5 and Rule 8.4. These duties mayrequire the lawyer to decline a judge’s invita-tion to connect on LinkedIn.

Rule 8.4(d) provides that it is professionalmisconduct for a lawyer to “engage in con-duct that is prejudicial to the administrationof justice.” Rule 8.4(e) provides that it is pro-fessional misconduct for a lawyer to “state orimply an ability to influence improperly agovernment agency or official.” Lawyers havean obligation to protect the integrity of thejudicial system and to avoid creating anappearance of judicial partiality. See 2005FEO 1.

If a lawyer receives an invitation to con-nect from a judge during the pendency of amatter before the judge, and the lawyer con-cludes that accepting the invitation willimpair the lawyer’s compliance with theseduties, the lawyer should not accept thejudge’s invitation to connect until the matteris concluded. The lawyer may communicateto the judge the reason the lawyer did notaccept the judge’s invitation. Such a commu-nication with the judge is not a prohibited exparte communication provided the commu-nication does not include a discussion of theunderlying legal matter.

Rule 3.5 prohibits lawyers from engagingin ex parte communications with a judge.Because connected members can post com-ments on each other’s profile pages, the con-nection between a judge and a lawyerappearing in a matter before the judge couldlead to improper ex parte communications.Therefore, while the lawyer has a matterpending before a judge, the lawyer may notuse LinkedIn or any other form of socialmedia to communicate with the judge aboutthe pending matter.

Rule 8.4(f) provides that it is professionalmisconduct for a lawyer to “knowingly assista judge or judicial officer in conduct that is aviolation of applicable rules of judicial con-duct or other law.” To the extent that a judgeis prohibited by the North Carolina Code ofJudicial Conduct from participating inLinkedIn, or from sending invitations toconnect to lawyers, a lawyer may not assistthe judge in violating such prohibitions.

Inquiry #2:May the lawyer send an invitation to con-

nect to a judge?

Opinion #2:Yes, subject to the limitations described in

Opinion #1.

Inquiry #3:A LinkedIn member has the option of

displaying a “skills & expertise” section with-in his profile. A member can add items to the“skills & expertise” section of his profilepage. In addition, some connections can adda new item to another member’s “skills &expertise” section, can “endorse” a skill orexpertise already listed for the member, orwrite a recommendation for the member. Amember who is being endorsed by anothermember will receive a notification contain-ing the identity of the endorser and the spe-cific skill or expertise that is being endorsed.The member may decline the endorsemententirely or choose the specific endorsementsto be displayed. The endorsed member mayalso subsequently edit the “skills & expertise”section to “hide” selected endorsements. If amember endorses another member, and theendorsement is not declined by the recipient,the endorser’s name and profile picture willappear next to the skill on the endorsedmember’s profile.

A recommendation is a comment writtenby a LinkedIn member to recognize or com-mend another member. When someone rec-ommends a member, the recommendedmember will receive a message in the recom-mended member’s LinkedIn inbox and anotification on the member’s “ManageRecommendations” page. Recommendationsare only visible to connections. A membercan choose to hide a recommendation fromthe member’s profile but cannot delete it.Recommendations written for others can bewithdrawn or revised.

May a lawyer endorse a judge’s legal skills

or expertise or write a recommendation onthe judge’s profile page?

Opinion #3:Yes, subject to the limitations explained in

Opinion #1.

Inquiry #4:May a lawyer accept an endorsement or

recommendation from a judge and displaythe endorsement or recommendation on hisprofile page?

Opinion #4:No. Displaying an endorsement or rec-

ommendation from a judge on a lawyer’sprofile page would create the appearance ofjudicial partiality and the lawyer mustdecline. See Rule 8.4(e).

Inquiry #5:May a lawyer accept and post endorse-

ments and recommendations on hisLinkedIn profile page from persons otherthan judges?

Opinion #5:Lawyers are professionally obligated to

ensure that communications about thelawyer or the lawyer’s services are not false ormisleading. See Rule 7.1(a). Provided thatthe content of the endorsement or recom-mendation is truthful and not misleading incompliance with the requirements of Rule7.1, the lawyer may post endorsements andrecommendations from persons other thanjudges on the lawyer’s LinkedIn profile page.See 2012 FEO 8.

Inquiry #6:Lawyer A previously accepted and dis-

played on his LinkedIn profile page anendorsement or recommendation fromLawyer B, who subsequently became a judge.Is Lawyer A required to remove Lawyer B’sendorsement or recommendation?

Opinion #6:Yes, if Lawyer A knows, or reasonably

should know, that Lawyer B has become ajudge. See Opinion #4.

Inquiry #7:Do the holdings in this opinion apply to

other social media applications such asFacebook, Twitter, Google+, Instagram, andMyspace?

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Opinion #7:The holdings apply to any social media

application that allows public display of con-nections, endorsements, or recommendationsbetween lawyers and judges.

Proposed 2014 Formal Ethics Opinion 10Lawyer Owned Adoption AgencyOctober 23, 2014

Proposed opinion rules that a lawyer whohandles adoptions as part of her or his lawpractice and also owns a financial interest in afor-profit adoption agency may represent anadopting couple utilizing the services of theadoption agency, but may not represent the bio-logical parents.

Facts:Attorneys A and B, who handle independ-

ent adoptions as part of their law practice,also manage a for-profit adoption agencycalled “Adopt a Child.” Adopt a Child is alimited liability company. Attorneys A and Breceive compensation from Adopt a Child.The agency’s office is located in separate officespace within Attorneys A and B’s firm. It hasa separate telephone number, signage, faxmachine, and copy machine. Adopt a Childis staffed by one employee. Adopt a Childcontracts with independent social workers toscreen and counsel birthmothers. Withoutassistance or influence from Attorneys A andB, a social worker conducts a home study onthe adopting couple. The social worker thenprepares a report which is reviewed by asupervisor and a review committee. A direc-tor of Adopt a Child may or may not be amember of the review committee. If thereview committee approves the home study,the adoption proceeds. The adopting couplethen engages a lawyer to represent their inter-ests. If the home study report is unfavorable,the report is sent to the Department of SocialServices. The adopting couple thereafter can-not become a client of Adopt a Child.

Typically, adopting couples learn aboutAdopt a Child through the agency’s websiteand advertisements. An initial consultationwith Attorney A or Attorney B is arranged.Attorney A or Attorney B meets with theadopting couple to discuss the adoptionprocess. If the adopting couple has identifieda child to adopt, then Attorneys A and B pro-ceed with the legal work necessary to com-plete an independent adoption. If the adopt-ing couple is interested in adoption, but

needs assistance in finding a child, a list oflicensed adoption agencies is provided to theadopting couple. The adopting couple isinformed that Attorneys A and B manage andown Adopt a Child. The adopting couple isencouraged to investigate other availableagencies. If the adopting couple decides touse Adopt a Child, the adopting couple isgiven an application form and asked to pay a$200 application fee. Once approved, theadopting couple becomes a client of Adopt aChild.

Adopting couples pay a $4,500 fee toAdopt a Child, which gives adopting couplesthe following services: a completed homestudy, a family profile by a local artist, a two-page website, and access to birthmothers.Once there is a match between a birthmotherand an adopting couple, the adopting couplesigns a fee contract with the law firm and paysa legal fee to the law firm for legal services.Additional fees may occur in the form ofpass-through costs for the birthmother’s liv-ing and medical expenses, and legal fees asnecessary for termination of parental rights,interstate legal representation, etc. The adopt-ing couple is informed that if there is a con-flict of interest, such as a dispute between thebirthmother and the adopting couple orbetween the adopting couple and Adopt aChild, the adopting couple must hire anotherlawyer to represent them.

Inquiry #1: May Attorneys A and B co-manage and

accept compensation as managers of Adopt aChild and provide legal services to the adopt-ing couple and Adopt a Child?

Opinion #1:Yes. The primary concern in this inquiry is

the ability of Attorneys A and B to identifyand manage conflicts of interest. Actual orpotential conflicts of interest exist based on(1) the lawyers’ ownership of Adopt a Child,and (2) the referral of an adopting couple rep-resented by Attorney A or Attorney B toAdopt a Child, or the referral of a client ofAdopt a Child to Attorney A or Attorney Bfor legal representation in the adoption.

Rule 1.7 prohibits concurrent conflicts ofinterest. One type of concurrent conflict ofinterest exists if the representation of one ormore clients may be materially limited by apersonal interest of the lawyer. Comment[10] to Rule 1.7 provides, “[t]he lawyer’s owninterests should not be permitted to have an

adverse effect on representation of a client. Inaddition, a lawyer may not allow related busi-ness interests to affect representation, forexample, by referring clients to an enterprisein which the lawyer has an undisclosed finan-cial interest.”

Before Adopt a Child may refer an adopt-ing couple to Attorneys A and Attorney B forlegal services, the agency, acting through thetwo lawyers, must reasonably conclude thatthe lawyers can adequately protect the inter-ests of the adopting couple and that their pro-fessional judgment on behalf of the adoptingcouple will not be adversely affected by theirfinancial interest in Adopt a Child. Theadopting couple must give informed consentto the representation, confirmed in writing.As part of the disclosure necessary forinformed consent, the adopting couple mustbe informed that in the event of a conflictbetween the adopting couple and Adopt aChild, Attorneys A and B must withdrawfrom the representation and the adoptingcouple will need to obtain new counsel. SeeRule 1.7(b).

If a couple that wants to adopt is already aclient of either Attorney A or Attorney B, thelawyers may refer the couple to Adopt a Childfor adoption services only in compliance withthe Rules of Professional Conduct.

The referral of the adopting parents toAdopt a Child implicates Rule 5.7 as well asRule 1.8. Adopt a Child provides “law-relatedservices.” Rule 5.7 sets out the ethical respon-sibilities for a lawyer who provides such serv-ices. Comment [6] to Rule 5.7 provides thatwhen a client-lawyer relationship exists with aperson who is referred by a lawyer to an ancil-lary business controlled by the lawyer, thelawyer must comply with Rule 1.8(a) pertain-ing to business transactions with clients. Seealso Rule 1.8, cmt. [1]. Pursuant to Rule1.8(a) a lawyer may only enter into a businesstransaction with a client if: (1) the transactionand terms are fair and reasonable to the clientand are fully disclosed and transmitted inwriting in a manner that can be reasonablyunderstood by the client; (2) the client isadvised in writing of the desirability of seek-ing, and is given a reasonable opportunity toseek, the advice of independent legal counselon the transaction; and (3) the client givesinformed consent, in writing signed by theclient, to the essential terms of the transactionand the lawyer’s role in the transaction.Accordingly, a lawyer must make these disclo-sures and secure the requisite consent before


providing law related services to a client.In 2000 FEO 9 the Ethics Committee

held that a lawyer who was also a certifiedpublic accountant could provide legal servicesand accounting services from the same office.The opinion cites Rule 1.7 and provides thatthe lawyer may offer accounting services tohis legal clients, provided the lawyer fully dis-closes his self-interest in making a referral tohimself, and the lawyer determines that thereferral is in the best interest of the client.

Before referring legal clients to Adopt aChild, Attorneys A and B must make anindependent professional determination thatthe services offered by Adopt a Child willbest serve the interests of the adopting cou-ple. In addition, the adopting couple mustbe informed that, if they become clients ofAdopt a Child, they are not obligated toemploy Attorneys A and B to handle thelegal work related to an adoption, and thatthey have the right to legal counsel of theirchoice. Likewise, if a couple comes for a legalconsultation concerning adoption withAttorneys A and B, Attorneys A and B mustexplain the relationship between Adopt aChild and their firm and their financialinterest in the agency before referring theadopting couple to their agency. The adopt-ing couple must be given access to otheragencies and the freedom to choose anotheradoption agency even if they decide to retainAttorneys A and B to perform their legalwork.

If Attorneys A and B comply with therequirements set out in Rule 1.7(b), Rule1.8(a), and Rule 5.7, they may refer their legalclients to Adopt a Child. Similarly, ifAttorneys A and B comply with the require-ments of Rule 1.7(b) and Rule 1.8(a), theymay accept referrals from Adopt a Child.

Inquiry #2:May Attorneys A and B simultaneously

represent the adopting couple, Adopt aChild, and the birth parent(s)?

Opinion #2:No. Rule 1.7(a) provides that a lawyer

shall not represent a client if the representa-tion involves a concurrent conflict of interest.A concurrent conflict of interest exists if (1)the representation of one client will be direct-ly adverse to another client; or (2) the repre-sentation of one or more clients may be mate-rially limited by the lawyer’s responsibilities toanother client.

In an informal opinion, the ABA opinedas follows:

An adoption is a highly emotional under-taking for both the adoptive and the bio-logical parent. In such situations, thelawyer must take particular care that theclient fully understands the significance ofthe legal actions being taken. The lawyerhas the obligation not only to advise theclient of the legal rights and responsibili-ties, but also to counsel regarding theadvisability of the action contemplated.See Rule 1.4. The biological parent is enti-tled to a full disclosure of all rights andobligations involved in the consent to theadoption, revocation of consent, post-adoptive rights, and post-adoptive restric-tions, as well as the rights and obligationsassumed by the adoptive parent. Whererepresented by counsel, the biological par-ent has the right to expect the lawyer toanticipate the consequences of the surren-der and advise accordingly.The rights surrendered by the biologicalparent and those assumed by the adoptiveparent are in potential conflict. The bio-logical parent’s right to revoke the consentis in direct conflict with the interests of theadoptive parent. The biological parent hasthe right to independent advice regardingthe revocation of the consent.The lawyer representing the adoptive par-ent owes the duty to counsel the adoptiveparent and to assist the adoptive parent insecuring the consent and avoiding revoca-tion. The rights of the adoptive parentafter the adoption decree is final may beantagonistic to perceived rights of the bio-logical parent.The inherent conflicts cannot be recon-ciled. Thus, the lawyer seeking to repre-sent both the adoptive and biologicalparents in a private adoption proceedingcannot have a reasonable belief that therepresentation of one client would notadversely affect the relationship with orrepresentation of the other client. SeeRule 1.7

ABA Comm. on Ethics and Prof ’lResponsibility, Informal Op. 87-1523(1987).

We agree with the reasoning of the ABAopinion and conclude that it is a noncon-sentable conflict for Attorneys A and B torepresent the birth parents and simultaneous-ly represent the adopting couple and/orAdopt a Child.

Inquiry #3:What, if any, communication may

Attorneys A and B have with a birth parent?

Opinion #3:Rule 4.3 provides: [i]n dealing on behalf of a client with aperson who is not represented by counsel,a lawyer shall not: (a) give legal advice tothe person, other than the advice to securecounsel, if the lawyer knows or reasonablyshould know that the interests of such per-son are or have a reasonable possibility ofbeing in conflict with the interests of theclient; and (b) state or imply that thelawyer is disinterested. When the lawyerknows or reasonably should know that theunrepresented person misunderstands thelawyer’s role in the matter, the lawyer shallmake reasonable efforts to correct the mis-understanding.Any communication between a birth par-

ent and the law firm must be limited to pro-viding or collecting information to be used tocomplete the forms required by Adopt aChild.

Attorneys A and B must ensure that thebirth parent(s) are provided with a writtendisclosure statement that explains that Adopta Child is not a law firm; Attorneys A and Bdo not represent the birth parent(s) and can-not provide the birth parent(s) with legaladvice; any communication with the law firmdoes not create a client-lawyer relationship;and the birth parent(s) are entitled to retainseparate legal representation; and that theadopting couple will pay the legal fees.

Proposed 2014 Formal Ethics Opinion 11Notice to Parents Prior to SeekingNonsecure Custody OrderOctober 23, 2014

Proposed opinion rules that a DSS lawyermust follow legal guidelines as to the notice toparents required prior to filing a petition alleg-ing abuse, neglect, or dependency, and mustcomply with Rule 3.5 as to an ex parte motionfor nonsecure custody.

Facts:N.C. Gen. Stat. § 7B-500(a)(2001) per-

mits a law enforcement officer or a depart-ment of social services worker to take tempo-rary physical custody of a child without acourt order if there are reasonable grounds tobelieve that the juvenile is abused, neglected,

WINTER 201452

or dependent and that he would be injured orcould not be taken into custody if it were firstnecessary to obtain a court order. In othercases when immediate removal is deemednecessary, the Division of Social Services(DSS) must file a petition alleging abuse, neg-lect, or dependency, and obtain a nonsecurecustody order.

The petition alleging abuse, neglect, ordependency must be filed prior to the requestfor a nonsecure custody order. The parties tothe action are DSS as petitioner, the respon-dent parents, the child (who is appointed aguardian ad litem), and, depending upon thefacts, a legal guardian, legal custodian, oradult caretaker of the child. N.C. Gen. Stat.§ 7B-401.1 (2013). Upon the filing of thepetition, respondent parents are eachappointed provisional counsel by the clerk.The provisional counsel remain appointed toeach parent unless the parent does not appearat the hearing; the court finds that the parentis not indigent; the parent retains his/her owncounsel, or the parent waives his/her right tocounsel. N.C. Gen. Stat. § 7B-602 (2013).Very specific criteria for nonsecure custodyare set out in N.C. Gen. Stat. § 7B-503(2011). Pursuant to N.C. Gen. Stat. § 7B-506 (2013), if nonsecure custody is neededfor more than seven calendar days, there mustbe a hearing on the merits within that time.

The instant inquiry involves a familywhere there is a pending DSS action and eachparent has been appointed counsel. The chil-dren have been adjudicated abused, neglect-ed, and/or dependent, and the case is in thepermanency planning and review stage.

The respondent mother is pregnant (it isunknown whether the father is the samefather as in the underlying abuse, neglect, ordependency action). Upon the birth of theinfant, DSS intends to file a petition allegingabuse, neglect, or dependency and to file anex parte motion for nonsecure custody as tothe newborn child.

Inquiry #1:Is the lawyer for DSS required to notify

the respondent parents’ lawyers prior to or atthe time of filing the new petition allegingabuse, neglect, or dependency as to the new-born child?

Opinion #1:The issue of notice is a legal question not

governed by the Rules of ProfessionalConduct. The DSS lawyer must follow the

legal guidelines established as to the notice orservice required prior to or at the time of fil-ing the petition alleging abuse, neglect, ordependency.

If the law does not require such notice, itwould not be a violation of the Rules ofProfessional Conduct for the DSS lawyer toprovide the parents’ lawyers with notice priorto or at the time of the filing, particularlywhen the parents’ lawyers have requestedsuch notice as to the unborn child. Rule1.2(a)(2) provides:

A lawyer does not violate this rule byacceding to reasonable requests of oppos-ing counsel that do not prejudice therights of a client, by being punctual in ful-filling all professional commitments, byavoiding offensive tactics, or by treatingwith courtesy and consideration all per-sons involved in the legal process.

Inquiry #2:Is the lawyer for DSS required to notify

the respondent parents’ lawyers prior to or atthe time of filing the ex parte motion for non-secure custody as to the newborn child?

Opinion #2:Rule 3.5 governs a lawyer’s communica-

tion with a judge about a pending matter.Rule 3.5(a)(3) provides that a lawyer shall notcommunicate ex parte with a judge or otherofficial except in the course of official pro-ceedings; in writing, if a copy is furnishedsimultaneously to the opposing party; orally,upon adequate notice to the opposing party;or “as otherwise permitted by law.”

The lawyer for DSS must comply withRule 3.5(a)(3) as to any ex parte communica-tions with a judge following the filing of thepetition relative to the newborn child.Whether an ex parte motion for nonsecurecustody is specifically authorized by law is alegal question beyond the purview of theEthics Committee. For this exception toapply, however, there must be “a statute or caselaw specifically and clearly authorizing suchcommunication. Such authorization may notbe inferred by the absence in the statute orcase law of a specific statement requiringnotice to the adverse party or counsel prior tothe ex parte communication.” 2001 FEO 15.

As noted above, N.C. Gen. Stat. § 7B-500(a) permits a law enforcement officer or adepartment of social services worker to taketemporary physical custody of a child with-out a court order if there are reasonable

grounds to believe that the juvenile is abused,neglected, or dependent and that the childwould be injured or could not be taken intocustody if it were first necessary to obtain acourt order. This opinion has no effect on theprocedure set out in § 7B-500. n

Proposed RuleAmendments (cont.)

justice after forging another individual’sname to a guarantee agreement, inducing hiswife to notarize the forged agreement, andusing the agreement to obtain funds.

[5] Threats, bullying, harassment, andother conduct serving no substantial pur-pose other than to intimidate, humiliate, orembarrass anyone associated with the judi-cial process including judges, opposingcounsel, litigants, witnesses, or court per-sonnel, violate the prohibition on conductprejudicial to the administration of justice.When directed to opposing counsel, suchconduct tends to impede opposing counsel’sability to represent his or her client effec-tively. Comments “by one lawyer tendingto disparage the personality or performanceof another...tend to reduce public trust andconfidence in our courts and, in moreextreme cases, directly interfere with thetruth-finding function by distracting judgesand juries from the serious business athand.” State v. Rivera, 350 N.C. 285, 291,514 S.E.2d 720, 723 (1999). See Rule 3.5,cmt. [10] and Rule 4.4, cmt. [2].

[5][6]...[re-numbering remaining paragraphs] n

Thank You to OurMeeting Sponsors

The Title Company of North Carolinafor sponsoring the Councilors Reception

Lawyers Mutual Liability InsuranceCompany for sponsoring the Annual Reception and Dinner


At its October 23, 2014, meeting, theNorth Carolina State Bar Client SecurityFund Board of Trustees approved payments of$70,538.21 to 14 applicants who sufferedfinancial losses due to the misconduct ofNorth Carolina lawyers.

The payments authorized were:1. An award of $1,000 to a former client of

Thomas Clements of Fayetteville. The boarddetermined that Clements was retained tohandle a client’s domestic matters. Clementsfailed to provide any valuable legal services forthe fee paid prior to being administrativelysuspended. Clements failed to keep the client’sretainer in a trust account. Clements wastransferred to disability inactive status by ordereffective January 15, 2014. The board previ-ously reimbursed one other Clements client atotal of $1,000.

2. An award of $2,000 to a former client ofDaniel Fulkerson of Hickory. The board deter-mined that Fulkerson was retained to representa client on criminal charges. Fulkerson failed toprovide any valuable legal services for the feepaid prior to abandoning his practice andentering into drug rehabilitation.

3. An award of $2,450 to a former client ofDaniel Fulkerson. The board determined thatFulkerson was retained to represent a client oncriminal charges. Fulkerson failed to provideany valuable legal services for the fee paid priorto abandoning his practice and entering intodrug rehabilitation.

4. An award of $1,525 to a former client ofL. Pendleton Hayes of Pinehurst. The boarddetermined that Hayes was retained to handlea client’s real estate closing. Hayes failed tomake all the proper disbursements from theclosing proceeds prior to her trust accountbeing frozen by the State Bar due to misappro-priation. Hayes’ trust account balance wasinsufficient to satisfy all of her clients’ obliga-tions.

5. An award of $1,375.63 to former clientsof L. Pendleton Hayes. The board determinedthat Hayes was retained to handle the clients’real estate closing. Hayes failed to make all theproper disbursements from the closing pro-

ceeds. Due to misappropriation, Hayes’ trustaccount balance was insufficient to pay all ofher clients’ obligations.

6. An award of $6,744.84 to a formerclient of Sue E. Mako of Wilmington, NorthCarolina. The board determined that Makowas retained to handle personal injury claimsfor a client and the client’s minor daughter.Mako settled the matters and deposited thesettlement proceeds and med pay checks intoher trust account. Mako failed to make someof the disbursements on the client’s behalf.Due to a shortage in her trust account causedby a check scam, Mako’s disbursement againstuncollected funds, and her dishonest act offailing to return missing funds to the trustaccount from money she subsequently earned,Mako’s trust account balance was insufficientto cover all of her clients’ obligations. Makowas disbarred on August 20, 2014. The boardpreviously reimbursed one other Mako clienta total of $72,576.08.

7. An award of $650 to a former client ofJohn Mauney formerly of Nags Head. Theboard determined that Mauney was retainedto handle a client’s real estate closing. Fromthe closing proceeds, Mauney failed to pay thetitle insurance premium on his client’s behalf.Due to misappropriation from Mauney’s trustaccount by his employee, the trust accountbalance was insufficient to pay all of hisclients’ obligations. Mauney was disbarred onOctober 31, 2013. The board previouslyreimbursed four other Mauney clients a totalof $13,170.

8. An award of $529 to a former client ofWilliam W. Noel III of Henderson. The boarddetermined that Noel was retained to handle aclient’s speeding ticket. Noel failed to provideany valuable legal services for the fee paid.Noel’s license was suspended on November 4,2011. The board previously reimbursed fiveother Noel clients a total of $2,515.

9. An award of $12,000 to former clientsof Kevin Strickland of Burgaw. The boarddetermined that Strickland was retained tohandle the clients’ real estate closing. Aftermaking the necessary disbursements from the

sale proceeds, there should have been a bal-ance of funds remaining that should havebeen paid to the clients. Due to misappropri-ation, Strickland’s trust account balance wasinsufficient to pay all of his clients’ obligations.Strickland was disbarred on December 31,2008. The board previously reimbursed oneother Strickland client a total of $100,000.

10. An award of $1,500 to a former clientof Daniel L. Taylor of Troutman. The boarddetermined that Taylor was retained to handlethe estates of a client’s parents. For almostthree years, Taylor failed to open either estateor provide any valuable legal services for thefee paid. Taylor had a stroke in October 2013,and died on December 25, 2013. The boardpreviously reimbursed five other Taylor clientsa total of $46,138.30.

11. An award of $9,721.10 to a formerclient of Daniel L. Taylor. The board deter-mined that Taylor was retained to prepareestate planning and asset protection docu-ments for the client’s parents and to get theclient’s father qualified for Medicaid to coverhis nursing home costs. The client’s fatherdied prior to Taylor preparing any documentsfor the client. Taylor never prepared any estateplanning documents for the client’s mother.

12. An award of $2,125 to a former clientof Daniel L. Taylor. The board determinedthat Taylor was retained to prepare estate plan-ning documents for the client and his wife.The client’s wife died eight days after Taylorwas paid. Although Taylor completed theestate planning documents for the client,Taylor failed to provide any valuable legal serv-ices for the portion of the fee paid for theclient’s wife’s estate planning.

13. An award of $8,166.68 to an applicantwho suffered a loss caused by W. DarrellWhitley of Lexington. The board determinedthat Whitley was retained to handle a personalinjury matter for the applicant’s husband.Whitley settled the matter and retained fundsto pay medical providers. Whitley’s client laterdied. Whitley misappropriated the balance of


B A R U P D A T E S

Client Security Fund Reimburses Victims

WINTER 201454

Gibson Installed asPresident

Charlotte attorney Ronald L. Gibson wassworn in as president of the North CarolinaState Bar. He was sworn in by Chief JusticeMark Martin at the State Bar’s AnnualDinner on Thursday, October 23, 2014.

Gibson is a graduate of DavidsonCollege. He earned his law degree in 1978from the University of North CarolinaSchool 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 withScott, Madden & Associates, a managementconsulting firm. In addition, he has ownedan insurance and financial services agency.Gibson currently is a partner with the lawfirm of 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 Committee.He has also served on the AuthorizedPractice Committee, Executive Committee,Disciplinary Advisory Committee,Appointments Advisory Committee, EthicsCommittee, Facilities Committee, ProgramEvaluation Committee, and IssuesCommittee.

During remarks following the swearing-in, Gibson had this to say about his upcom-

ing year of service:“As your president, Iwill remind lawyersand the public thatlawyers do goodthings that touchpeoples’ lives. Weare engaged mean-ingfully in practical-ly every aspect of oursociety, in business,

in government, and in all facets of theadministration of justice. Lawyers act hon-estly and ethically for the benefit of ourclients. Yet, we let our noble profession bedenigrated by caricatures of ourselves. Therole of lawyers in our civilization is embod-ied in the Bill of Rights, and lawyers andjudges are at the forefront of protecting ourConstitutional rights. We should take pridein who we are and what we do. As I travelthe state, I will talk to every lawyer who willlisten to me about the need for lawyers totake pride in and defend our profession.”

Hunt Elected President-ElectBrevard attorney Margaret McDermott

Hunt was sworn in as president-elect of theNorth Carolina State Bar. She was sworn inby Chief Justice Mark Martin at the StateBar’s Annual Dinner on Thursday, October23, 2014.

Hunt is a graduate of the University ofMaryland. She earned her law degree in1975 from Wake Forest Law School. Sincebeing admitted to the Bar that same year shehas practiced law continuously in Brevard.

Her professional activities include serviceas president of the Transylvania County Bar,member of the State Bar’s Continuing LegalEducation Board, and member of the ChiefJustice’s Commission on Professionalism.While a councilor she has served as a mem-ber of the Grievance, Issues, Facilities,Legislative, Administrative and ExecutiveCommittees. She chaired the AdministrativeCommittee, co-chaired the ProgramEvaluation Committee, served as vice-chair

of the Grievance Committee for two years,and chaired the Grievance Committee in2012-2013.

She was a founding member and servedas secretary for the TransylvaniaEndowment, served as chair of theTransylvania County Chamber ofCommerce, and was a member of the boardof directors of Heart of Brevard and theTransylvania County Boys and Girls Club.

Merritt Elected Vice-PresidentCharlotte attorney Mark W. Merritt was

sworn in as vice-president of the NorthCarolina State Bar. He was sworn in byChief Justice Mark Martin at the State Bar’sAnnual Dinner on Thursday, October 23,2014.

Merritt is a graduate of the University ofNorth Carolina where he was a MoreheadScholar and a member of Phi Beta Kappa.He earned his law degree in 1982 from theUniversity of Virginia and served as editor-in-chief of the Virginia Law Review. Afterlaw school he clerked on the Fifth CircuitCourt of Appeals for Judge John M.Wisdom. He returned to Charlotte and haspracticed law at Robinson Bradshaw &Hinson since 1983.

His professional activities include servingas treasurer and president of theMecklenburg County Bar, serving on theBoard of Directors and as president of LegalServices of Southern Piedmont, and servingas chair of the North Carolina BarAssociation Antitrust Section Council.While a State Bar councilor he has served aschair of the Ethics Committee and of theLawyers Assistance Program. He has servedas a member of the Facilities, Grievance,Issues, and Authorized PracticeCommittees. He also served as chair of theSpecial Committee on Ethics 2020.

Merritt is a member of the AmericanCollege of Trial Lawyers and theInternational Society of Barristers.

He is married to Lindsay Merritt and hasthree children; Alex, Elizabeth, and Jay. n

B A R U P D A T E S

State Bar Swears in New Officers

Gibson Hunt Merritt


Resolution of Appreciation for

Ronald G. Baker Sr.WHEREAS, Ronald G. Baker Sr. was elected by his fellow lawyers from Judicial District 6B in January 2003 to serve astheir representative in this body. Thereafter, he was elected for three successive three-year terms as councilor; and

WHEREAS, in October 2011 Mr. Baker was elected vice-president, and in October 2012 he was elected president-elect.On October 24, 2013, he was sworn in as president of the North Carolina State Bar; and

WHEREAS, during his service to the North Carolina State Bar, Mr. Baker has served on the following committees:Grievance, Client Assistance, Administrative, Legislative, Disciplinary Advisory, Executive, Program Evaluation, ProgramEvaluation, LAP/Grievance Subcommittee, Appointments, Special Committee to Study Disciplinary Guidelines, Issues, IssuesSpecial Committee to Review AP Advisory Opinion 2002-1, and Finance and Audit.

WHEREAS, during his term as president of the North Carolina State Bar, Ronald G. Baker Sr. has, it would appear, loggedmore miles and spent more time meeting with his constituents than any other president in the history of the North CarolinaState Bar. From his far-flung outpost on the Outer Banks, Ron Baker has, at considerable personal cost and inconvenience,managed to be a ubiquitous presence at bar meetings throughout the state, personifying the State Bar impressively and cred-itably on dozens of occasions; and

WHEREAS, Ron Baker, having pledged during his installation as president to use all the means at his disposal to broadenparticipation in the governance of the State Bar, has intentionally and systematically used his influence and his appointiveauthority to ensure that those responsible for self-regulation of the legal profession are truly representative of an increasinglydiverse profession; and

WHEREAS, among his many superlatives, Ron Baker may very well be the most prolific and best defendant in State Barhistory, having been made a party to numerous lawsuits and having been the Office of Counsel’s most sophisticated client ever.Whether as a named party or as the State Bar’s alter ego, Ron Baker has guided the State Bar through a daunting litigationallabyrinth with the skill of a consummate trial lawyer, which he most surely is, and

WHEREAS, Ron Baker has proven equally adept at influencing the formation of public policy in the legislature with respectto the regulation of the profession. Under his leadership, the State Bar has thus far managed to thwart an ill-advised attemptto redefine the practice of law that would have placed the public at risk from legal services dispensed by business corporationsacting through algorithms on the internet.

NOW, THEREFORE, BE IT RESOLVED that the council of the North Carolina State Bar does hereby publicly andwith deep appreciation acknowledge the strong, effective, and unselfish leadership of Ronald Baker, and expresses to him itsdebt for his personal service and dedication to the principles of integrity, trust, honesty, and fidelity.

BE IT FURTHER RESOLVED that a copy of this resolution be made a part of the minutes of the Annual Meeting ofthe North Carolina State Bar and that a copy be delivered to Ronald Baker.

Client Security Fund (cont.)

the client’s funds prior to determiningwhether there were valid liens to be paid.Whitley’s trust account was insufficient to payall of his clients’ obligations. Whitley died onDecember 6, 2011. The board previously

reimbursed several other Whitley clients andapplicants a total of $764,096.74.

14. An award of $20,750.96 to a formerclient of W. Darrell Whitley. The board deter-mined that Whitley was retained to handle aclient’s personal injury matter. Whitley settledthe matter and deposited the settlement pro-

ceeds into his trust account. Whitley madedisbursements to himself and the client, andaccounted for advances made against thefunds, but failed to pay any of the client’smedical providers. Due to misappropriation,Whitley’s trust account was insufficient to payall of his clients’ obligations. n

WINTER 201456

As is traditional, members of the North Carolina State Bar who are celebrating the 50th anniversary of their admission to practice were hon-ored during the State Bar’s Annual Meeting at the 50-Year Lawyers Luncheon. One of the honorees, Robert G. Baynes, addressed the attendees,and each honoree was presented a certificate by the president of the State Bar, Ronald G. Baker Sr., in recognition of his service. After the cer-emonies were concluded, the honorees in attendance sat for the photograph below. n

B A R U P D A T E S

Fifty-Year Lawyers Honored

First row (left to right): P. Eugene Price Jr., Raymond Thomas, Stephen G. Calaway, Darl L. Fowler, Douglas P. Connor, Joseph B. Roberts III,Charles Katzenstein Jr., Judge Sidney S. Eagles Jr., William O. King, Edwin N. Kearns, Edward L. Murrelle, Robert B. Smith Jr., Bobby W. Bowers,James E. Martin Jr., William R. White Jr. Second row (left to right) Richard A. Bigger Jr., John S. Fletcher II, R. Cameron Cooke, Donald M Jacobs,Larry E. Harrington, J. Robert Gordon, Leon Henderson Jr., John C. Brooks, Douglas F. Debank, H. Vernon Norwood Jr., Paul Glen Stoner Jr.,Robert Vance Suggs, David I. Smith, Phil S. Edwards Third row (left to right) Edward H. McCormick, Larry B. Sitton, Cowles Liipfert, Arnold T.Wood, Anthony E. Rand, James M. Talley Jr., Charles E. Clement, Henry V. Barnette Jr., Robert G. Baynes, W. Erwin Fuller Jr., Charles M.Whedbee, Frederick P. Parker III, William E. Underwood Jr.

Disciplinary Actions (cont.)

programs claiming full credit for attendancewhen he had not attended all of the coursehours and was therefore not entitled to the fullcredit hours he claimed.

Scott Ingersoll of Creston was reprimand-ed by the Grievance Committee. Ingersoll filedan affidavit containing an assertion that wasrefuted by documents in his possession and inthe court file. In the same case, after beingwarned by the court about being accurate incourt filings, Ingersoll submitted an affidavit oftime containing numerous inaccuracies.

Eric Levine of Charlotte was reprimandedby the Grievance Committee. Levine did notfile a required prehearing statement in hisclient’s contested case.

William Noel III of Henderson was repri-manded by the Grievance Committee. Noel

neglected his client’s traffic case, did not com-municate with his client, did not supervise hisnonlawyer assistant, did not refund anunearned fee, and did not participate in theState Bar’s mandatory fee dispute resolutionprogram.

Transfers to Disability Inactive StatusKevin L. Byrd of Cary was transferred to

disability inactive status by the chair of theGrievance Committee.

ReinstatementsIn November 2007, Ralph Bryant of

Newport surrendered his license and was dis-barred by the DHC for misappropriatingentrusted funds totaling $64,847. In August2014 the DHC recommended that his peti-tion for reinstatement be denied. The DHCfound that reinstatement would be detrimen-

tal to the integrity and standing of the Bar, theadministration of justice, or to the public’sinterest. The council will consider Bryant’sappeal after he submits the record on appeal.

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

rence with or opposition to this petitionshould file written notice with the secretary ofthe State Bar, PO Box 25908, Raleigh, NC27611, before February 1, 2015.

In the Matter of Hilton S. MitchellNotice is hereby given that Hilton S.

Mitchell intends to file a petition for reinstate-ment. Mitchell surrender his law license andwas disbarred on December 18, 2009, fordepositing legal fees into his account ratherthan forwarding them to the law firm of Brock& Scott in which he was employed. n


All of the law schools located in NorthCarolina are invited to provide material for thiscolumn. Below are the submissions we receivedthis quarter.

Campbell University School of LawCampbell Law Extends Historical Streak

on July NC Bar Exam—Over the course ofthe past 25 years, 90.89% of Campbell Lawgraduates have passed the July NorthCarolina bar exam on their first try. Thatremarkable statistic—tops among the sevenNC law schools—comes on the heels of asecond-place showing by the institution’sgraduates on the July 2014 examination,which 85.61% (119 of 139) of CampbellLaw’s first-time test-takers passed.

Campbell Law Facility Honored as Oneof the Nation’s Best by PreLaw Magazine—Campbell Law’s downtown Raleigh campushas been tabbed as one of the 55 best lawschool facilities in the nation by PreLawMagazine. In selecting institutions forinclusion, the magazine assessed aesthetics,square footage per student on campus,library hours, number of library seats perstudent on campus, and amenities—includ-ing dining options, parking, and lockers.

Dean Leonard Named Lawyer of theYear by NC Lawyers Weekly—CampbellLaw Dean J. Rich Leonard was named2014 Lawyer of the Year by North CarolinaLawyers Weekly at the Leaders in the Lawawards banquet on September 19 at theRaleigh Marriott City Center. Previouslyannounced as a Leaders in the Law awardrecipient, Leonard was selected as the 2014Lawyer of the Year by a vote of an inde-pendent panel of judges.

Brown Receives NC State Bar’s AnnualStudent Pro Bono Service Award—AnitraBrown, a 2014 Campbell Law graduate,has been selected as a recipient of theNorth Carolina State Bar’s annual StudentPro Bono Service Award. Brown was hon-ored for her pro bono work as a third-yearstudent at the North Carolina State Bar’s50-Year Lawyers’ Luncheon on Thursday,October 23.

Duke Law SchoolLevi Tapped to Lead New ABA

Committee—The American BarAssociation has named Dean David F. Levichair of its Standing Committee on theAmerican Judicial System.

The appointment was made by ABAPresident William C. Hubbard in August,following the creation of the committee bythe ABA House of Delegates. The commit-tee focuses on protecting fair and impartialcourts, improving the administration ofjustice, ensuring adequate court funding,and defending against unfair attacks on thejudiciary. It supports efforts to increasepublic understanding about the role of thejudiciary and the importance of fair courts.Hubbard called Levi, the former chiefUnited States District judge for the easterndistrict of California, “uniquely qualified”to lead the committee.

National Academies’ STEP Leader JoinsCenter for Innovation Policy as ExecutiveDirector—Stephen Merrill, the longtimehead of the National Academies Board onScience, Technology, and Economic Policy(STEP), has joined Duke’s Center forInnovation Policy as its first executivedirector. His extensive work on innovationpolicy during his 23-year tenure as STEPexecutive director included a 2004 reporton patent system reform that served as ablueprint for the America Invents Act of2011.

The center addresses issues of innova-tion law and policy in several sectors,including the life sciences, and informationand communications technology. Thefuture of Internet regulation was the focusof its second conference, held in Octoberin Washington, DC.

Wrongful Convictions Clinic ClientFreed—Michael Alan Parker, a client ofDuke’s Wrongful Convictions Clinic, wasreleased from prison on August 26 after 22years of incarceration for crimes he did notcommit, including allegations of child sex-ual abuse. Since 2011, clinic students, fac-

ulty, and alumni have worked withAsheville attorney Sean Devereux on themotion for Parker’s release. Parker is thefifth clinic client to gain release since 2010.

Elon University School of LawNew and Groundbreaking Model for

Legal Education—Elon University Schoolof Law will launch a fully redesigned cur-riculum in fall 2015, better positioningstudents to excel in the rapidly evolvinglegal profession. In keeping with theschool’s original vision to be a pioneering“law school with a difference,” the newcurriculum will be highly experiential, per-sonalized, and professionally connected—hallmarks of Elon University’s nationallyrecognized programs of engaged learning.With this new program, Elon Law will pro-vide leadership for the major changes tak-ing place in legal education.

Among the highlights of Elon Law’snew program are the following:

• The first and only law school to ensurethat all students benefit from full-time, fac-ulty-directed residencies in the practice oflaw

• Experiential learning integratedthroughout the curriculum, representingmore than 20% of the program, and farexceeding the new ABA experiential learn-ing requirements

• Students will begin their studies withan introductory program focused on legalanalysis, writing and communication, lead-ership, and professionalism

• Each student will be assigned a four-person professional advising team: a facultyadviser, a working attorney mentor (pre-ceptor), an executive coach, and a careerconsultant

• In a new seven-trimester schedule, stu-dents will complete their studies inDecember, allowing them to take theFebruary bar exam and begin law practicein the spring

• Total tuition for the entering class of2015 will be lowered nearly $14,000 fromthe current level, with a guaranteed fixed

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cost for the entire program of study for theclass.

“The Elon Law faculty has designed anintensive, deeply experiential, highly per-sonalized approach that we believe isunmatched,” said Elon Law Dean LukeBierman. “This bold new model willensure that Elon graduates have the knowl-edge, skills, professionalism, and experi-ence to become lawyer-leaders in this newera of law.”

More information is available atlaw.elon.edu.

North Carolina Central UniversitySchool of Law

National Jurist Rankings RevealNCCU’s Brand—The National JuristMagazine’s respected rankings of US lawschools reveal the brand of NCCU Law asone that is fundamentally grounded in therealities of the American economy anddemographic change. The publication hasconsistently ranked North CarolinaCentral University in the top five for theprovision of clinical experiences to stu-dents. The school offers no less than 15clinics in areas such as alternative disputeresolution, civil litigation, criminal defense,domestic violence, family, juvenile and vet-erans law, low income taxation, small busi-ness, financial transactions, and patentsand trademarks.

With the recertification by the USPatent and Trademark Office, NCCU isone of only 11 law schools in the countrythat can offer representation in these fields,and there are plans in the near future toestablish an Intellectual Property Center.The school has also expanded theConsumer Financial Transaction Clinic toinclude bankruptcy and consumer fraudprotection.

This real world, experiential learningmay have contributed to NCCU’s 76% barexam passage rate last July. But hands-onlearning is not the only way that NCCUprovides its students with an edge. NCCULaw is also highly diverse, and received an“A” rating in this category from NationalJurist. Among faculty and student popula-tions, 39% are white and the remaining61% are black, Hispanic, Asian, or ofmixed race.

“This variety of perspectives and lifeexperiences enriches our classroom discus-sions and our legal advice so that it is more

relevant and realistic,” said Dean PhylissCraig-Taylor.

With NCCU’s strong, reality-basedbrand and an “A” rating by National Juristfor affordability, the school has returned tofull enrollment of 600 seats from the reces-sion low of 535 in Fall 2011. This contrastswith recent reports of many other top-notch schools that have become resigned tothe decline in enrollment.

University of North Carolina School of Law

Courtroom Renovation—During sum-mer break, UNC’s Graham Kenan court-room was gutted and rebuilt to modernstandards. Practicing judges and a national-ly renowned courtroom design specialistwere consulted. The courtroom opened itsdoors for trial advocacy courses in lateAugust to praise from students and facultyfor its design and technology. Its featuresinclude flat-screen monitors throughoutthe jury box, and at the attorneys’ tables,witness stand and judge’s bench; touchpanels for the presenting attorney to exhib-it electronic evidence; onscreen annotationat the podium, witness stand or judge’sbench; and a pivoting lectern to transitionfrom courtroom to classroom mode.

Pro Bono Online Database forAlumni—The new Pro Bono AlumniOpportunities Portal offers attorneys andlegal service providers an online system topost available pro bono opportunities need-ing attorney volunteers. Licensed attorneyscan then view these available opportunities,searchable by geographic locations and areasof law, and sign up to volunteer(law.unc.edu/probono/alumni/opportuni-ties/).

UNC Grads Earn Best Bar ExamPassage Rate in NC—UNC School of Lawgraduates achieved the highest bar exampassage rate in the state, at 86.79%,according to the official July exam resultsreleased by the Board of Law Examiners inAugust. The percentage of UNC School ofLaw students who took the exam for thefirst time and passed was up from 81.29%last year.

New Trademark Law School PilotProgram—UNC School of Law studentshave a new hands-on learning opportunity:providing trademark counsel to entrepre-neurs in conjunction with a program of theUS Patent and Trademark Office

(USPTO). UNC was among 19 schoolsnationwide selected to participate in theLaw School Clinic Certification PilotProgram. This program is being run out ofthe school’s Community DevelopmentLaw Clinic.

Wake Forest University School of Law Wake Forest Law has introduced a new

Criminal Justice Program, which isdesigned to facilitate critical thinking andscholarly engagement surrounding criminaljustice systems in the United States. Theprogram offers students interested in crimi-nal justice an opportunity to engage in the-oretical and practical dialogue about theseissues to enhance their doctrinal classroomexperiences. “The program will publicizethe scholarship, advocacy efforts, and policywork of people within and outside the legalacademy on a variety of criminal justicetopics,” says Executive Associate Dean forAcademic Affairs Ron Wright. “We believethis will enrich the student experience atWake Forest Law.” Professor KamiSimmons, who currently teaches coursesrelated to criminal law and criminal proce-dure, has been named director of the pro-gram. After earning her JD from HarvardLaw School, Professor Simmons worked asan associate at private law firms inWashington, DC, where she practiced inthe areas of civil litigation, white-collarcriminal defense, and internal investiga-tions. Professor Simmons frequently makespresentations on law enforcement issues,and is a national expert in the field of policeaccountability. According to ProfessorSimmons, “The Criminal Justice Programwill sponsor scholarly discussions open tothe entire campus and broader communityon topics such as wrongful convictions,police accountability, mass incarceration,sentencing, and search and seizure issues.We also plan to tap into the valuableresources of our local alumni to serve asmentors for students interested in criminaljustice careers.” Professor Simmons contin-ued, “In addition to the black-letter law stu-dents learn in their doctrinal courses, wewant students to develop an appreciationfor the realities of the criminal justice sys-tem. The program will provide opportuni-ties for all interested students to see criminaljustice in action through prison tours, ride-alongs with police officers, and other organ-ized activities.” n


Board of Legal SpecializationSubmitted by James B. Angell, Chair

With the addition of 73 new specialists lastNovember, the State Bar’s specialization pro-gram now includes 910 lawyers who are boardcertified in the 11 specialties of appellate prac-tice, bankruptcy law, criminal law and thesubspecialty juvenile delinquency law, elderlaw, estate planning and probate law, familylaw, immigration law, real property law, socialsecurity disability law, trademark law, andworkers’ compensation law. In the spring wereceived 105 applications from lawyers seek-ing certification this year. This is the secondyear in a row in which over 100 applicationswere received. Of the 2014 applicants, 94applicants met the substantial involvement,CLE, and peer review standards for certifica-tion, and were approved to sit for the specialtyexams, which are being administered in theState Bar building this fall. Fourteen differentexaminations (including subspecialties) will beadministered in our State Bar building duringOctober and November 2014. We are gratefulfor the new building which is an efficient,comfortable, and cost-free place in which toadminister the exams.

A program of this magnitude requiresenormous amounts of volunteer time. Thespecialization program is the largest single vol-unteer effort of the North Carolina State Bar.The Board of Legal Specialization, itself madeup of nine volunteers including three publicmembers, often refers to the members of the11 specialty committees as the “life blood” ofthe specialization program. The 84 lawyerswho sit on the specialty committees devoteuntold hours to reviewing applications, draft-ing exam questions, and grading specialtyexams. They do this because they are proud tobe specialists, and they want the State Bar’sspecialization program to be one of the best inthe nation.

Eight more volunteer lawyers—both spe-cialists and nonspecialists—were asked earlythis year to serve on the board’s Long RangePlanning Committee. The Long RangePlanning Committee was initiated under the

chairmanship of Jeri L. Whitfield, who hasretired from the board but continues to serveas chair of this committee. The committeewas created to take stock of the accomplish-ments of the specialization program, to evalu-ate the North Carolina program relative toother state programs, to determine whereimprovements might be made, and to lay aplan for meeting the challenges of the future.Specific tasks of the committee include a com-plete review of the rules in State Bar’s Plan forLegal Specialization to determine whetherthere is need for substantive change; develop-ing a three-to-five year plan for the adminis-tration of the certification process and theimplementation of new specialties; and meet-ing the goal of 1,000 North Carolina legalspecialists within that planning period. Wewill keep the council advised of the work ofthis important committee.

Our annual luncheon to honor 25-yearand newly certified specialists was held inMarch at the Raleigh Renaissance Hotel. Atthe lunch, the new specialists who were certi-fied in November 2013 were recognized andpresented with specialization lapel pins. Theboard also recognized 31 specialists who wereoriginally certified in 1989 and who havemaintained their certifications for 25 years. Ialso had the honor of presenting the board’sthree special recognition awards named inhonor of past chairs of the board. TheHoward L. Gum Excellence in CommitteeService Award was given to MatthewLadenheim, a board certified specialist intrademark law, for his exemplary service in2013 leading the specialty committee thatdeveloped the standards and wrote the special-ty exam for the new trademark law specialty.The James E. Cross Leadership Award waspresented to Margaret Burnham, a board cer-tified specialist in real property law, who vol-unteers numerous hours of her time present-ing CLE programs and mentoring otherlawyers in her specialty of real property law.The Sara H. Davis Excellence Award was pre-sented to Hank Patterson, a certified workers’compensation law specialist, for his dedication

to improving the laws governing the compen-sation of injured workers.

This year the board established a scholar-ship fund to provide scholarships that will paythe application fees for prosecutors, publicdefenders, and nonprofit public interestlawyers who wish to become certified special-ists. Application fees can be a barrier to apply-ing for certification for lawyers who work inthe public sector. The fund is administered bythe North Carolina Legal EducationAssistance Foundation (NC LEAF). This col-laboration with NC LEAF furthers the mis-sion of both NC LEAF and the specializationprogram. Assisting public interest lawyers toseek board certification recognizes commit-ment to service, and will encourage theselawyers to continue to serve underrepresentedcitizens and the public and to improve theirknowledge and skills in their practice areas.Three such lawyers received scholarships thatpaid their 2014 application fees. In recogni-tion of her long service to the specializationprogram, the fund is named the Jeri L.Whitfield Legal Specialty CertificationScholarship Fund. Your tax-deductible contri-butions can be made through NC LEAF.

Also in this year’s news, Alice Mine, thedirector of our specialization program, wasreappointed chair of the ABA StandingCommittee on Specialization, the leadingnational proponent of lawyer specialty certifi-cation.

The State Bar Journal featured interviewswith board certified specialists Robert Kemp,criminal specialist and the public defender forPitt County, and Pamela Silverman, an estateplanning law specialist in Charlotte; and ajoint interview with new trademark law spe-cialists Matthew Ladenheim of Charlotte andWilliam Bryner of Winston-Salem.

Finally, the board initiated a procedure foradvanced review of requests for waivers ofstrict compliance with the CLE and substan-tial involvement standards. This procedurehelped to streamline the application processand eliminated the need for many time-con-suming appeals.

Annual Reports of State Bar Boards

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As I mentioned, the term of board mem-ber and chair Jeri Whitfield ended this year.Jeri brought the perspective of a workers’ com-pensation law specialist, a former specialtycommittee chair, a defense lawyer, and a “bigfirm” lawyer to the deliberations of the boardduring her service from 2006 to 2014. She ledthe board with consummate professionalism,diplomacy, and good will. Jeri’s contributionsto the specialization program were unique andshe will be missed.

On behalf of the board, I want to expres-sion my sincere appreciation to the membersof the council for your continuing support ofthe specialty certification program.

Board of Continuing Legal EducationSubmitted by Amy P. Hunt, Chair

Lawyers continue to meet and exceed theirmandatory CLE requirements. By mid-March 2014, the CLE department processedand filed over 24,500 annual report forms forthe 2013 compliance year. I am pleased toreport that 99% of active members of theNorth Carolina State Bar complied with themandatory CLE requirements for 2013. Thereport forms show that North Carolinalawyers took a total of 352,683 hours of CLEin 2013, or 15 CLE hours on average peractive member of the State Bar. This is threehours above the mandated 12 CLE hours peryear.

The CLE program continues to operate ona sound financial footing, supporting theadministration of the CLE program with therevenue from the attendee and noncompli-ance fees that it collects, while generatingadditional funds to support three programsthat are fundamental to the administration ofjustice and the promotion of the professionalconduct of lawyers in North Carolina. Theprogram’s total 2013 contribution to the oper-ation of the Lawyer Assistance Program (LAP)was $214,190 with $127,125 paid in 2013and $87,065 paid in early 2014. To date in2014, the board has collected and distributed$142,680 to support the work of the EqualAccess to Justice Commission and $261,726to support the work of the Chief Justice’sCommission on Professionalism. The boardalso contributed $69,085 to the State Bar tocover the cost of administering the CLE fundsfor these other programs.

Each spring the board receives hundreds ofrequests for exemptions from the CLErequirements. The requests range from pleas tobe relieved of the penalty fee for late filing of

the annual report form to requests for exemp-tions from the annual mandatory minimumCLE hours. The chair of the board appointsan Exemptions Committee, comprised of oneboard member, to hear the requests because acommittee of one has the flexibility to resolvethe requests in a timely and efficient manner.To understand the volume of the committee’swork, consider that in 2013, the ExemptionsCommittee heard and decided 474 requestsfor exemptions. Serving on the committee isliterally a thankless task because the board triesto keep the identity of the board member asprivate as possible (while complying with thepublic records law) so that the board memberis not inundated with importunings fromlawyers. Although I will respect that anonymi-ty in this report, I will express the great appre-ciation of the other members of the board forthe work of the committee.

This year the CLE Board put into placethe software programming and accreditationprocedures necessary to permit lawyers to ful-fill up to 6 hours of CLE by “attending” CLEprograms online. This was possible because anamendment to the CLE rules last year increas-ing permissible online CLE from four hoursto six hours. This year the board has proposedseveral amendments to the rules governing theprogram, including amendments to Rule.1517(d), which requires a lawyer to be a non-resident for at least six consecutive months ina given year to qualify for the nonresidentexemption from mandatory CLE. Additionalamendments to Rule .1518 were proposed to1) change the name of the Professionalism forNew Admittees program to Professionalismfor New Attorneys (PNA) and 2) to permitthe Board of Continuing Legal Education toapprove alternative timeframes for the PNAprogram in order to give CLE providers moreflexibility to be creative in their presentationsof the program.

Regrettably, the board terms of SusanHargrove, an attorney with Smith Andersonin Raleigh, and councilor Marci Armstrongfrom Smithfield have come to an end. Susanand Marci have been insightful and dedicatedmembers of the board. They will be missed.

The board strives to improve the programof mandatory continuing legal education forNorth Carolina lawyers. We welcome any rec-ommendations or suggestions that councilorsmay have in this regard. On behalf of theother members of the board, I would like tothank you for the opportunity to contributeto the protection of the public by advancing

the competency of North Carolina lawyers.

Board of Paralegal CertificationSubmitted by G. Gray Wilson, Chair

The Board of Paralegal Certificationaccepted the first application for certificationon July 1, 2005. Since that date, over 6,819applications have been received by the board,and I am proud to report that there are cur-rently 4,169 North Carolina State Bar certi-fied paralegals. In 2014 the board granted 102new paralegal certifications and recertified4,169 certified paralegals. The statistics andthe anecdotal evidence all indicate that obtain-ing North Carolina certification has becomethe “gold standard” for paralegals and anexpected precursor to obtaining employmentas a paralegal in North Carolina.

Since July 2008, certification as a paralegalhas required passage of a rigorous three-hour,150-question multiple-choice examination.The exam tests an applicant’s knowledge ofthe following subjects: civil litigation, com-mercial law, criminal law, ethics, family law,legal research, real property, and wills, trusts,and estate administration; and the followingpractice domains: communication, organiza-tion, documentation, analysis, and research.The exam requires an applicant to demon-strate that he or she possesses the skills andknowledge necessary to provide competentassistance to lawyers. During the past 12months, the board administered the exam to318 applicants for certification.

The Certification Committee that writesthe exam is composed of seven exceptionallydedicated paralegals and paralegal educators.Teresa Irvin, a six-year veteran of the commit-tee, continues to serve as chair. We are gratefulto Karen Ferguson England for replacingPatricia F. Clapper on the committee. Ms.Clapper was appointed to the Board ofParalegal Certification last year.

To maintain certification, a certified para-legal must earn six hours of continuing para-legal education (CPE) credits, including onehour of ethics, every 12 months. I am pleasedto report that certified paralegals continued toimprove their competency by taking over24,000 hours of CPE in the last 12 months.

The term of Grace Ward ends with thismeeting of the council. Grace was one of thefirst paralegals to be certified. She is currentlyemployed by the Winston-Salem firm ofAllman, Spry, Davis, Leggett & Crumpler,PA. During her service on the board, Gracewas a champion of paralegals and a dedicated

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supporter of our certification credential.Grace’s attention to detail, thorough prepara-tion, and refusal to accept propositions at facevalue made her an invaluable member of theboard and also demonstrated the very bestthat a certified paralegal has to offer to alawyer. Although Grace will be missed, theboard is grateful to the council for re-appoint-ing board members Teri Bowling and HowardGum to second terms on the board.

On May 2, 2014, the Board of ParalegalCertification hosted a reception to honor cer-tified paralegals and to express the apprecia-tion of the board and the council for the$500,000 contribution made by the paralegalcertification program to the North CarolinaState Bar Foundation to provide additionalfunding for the construction of the new StateBar building. Over 200 certified paralegalsand guests attended. In addition to the cateredreception, the program included three hoursof free CPE credit for those in attendance.John McMillan, chair of the State BarFoundation, made opening remarks andoffered a champagne toast to the success of theparalegal certification program and to theaccomplishments of all paralegals who havebecome certified.

The Board of Paralegal Certification looksforward to continued success as an integralpart of the North Carolina State Bar.

Lawyer Assistance ProgramSubmitted by Robynn Moraites, Director

The Lawyer Assistance Program (“LAP”)continues to grow and, out of sheer necessity,continues to streamline its processes andupgrade its infrastructure. For a detailedannual report, please visit nclap.org/annual-report.

In November 2013, the LAP launched theinaugural edition of Sidebar, a quarterly e-newsletter. Sidebar is a place where we sharearticles and information—from lawyers’ per-sonal stories and perspectives on the practiceof law, to national, mainstream news articlesabout the effects of stress and strategies forwork-life balance. All subscriptions are confi-dential and anonymous, and anyone is invit-ed to subscribe directly to receive Sidebar.Sidebar currently has just over 1,000 sub-scribers.

In 2014 the LAP also launched a brandnew website. It contains a great deal moreinformation about the types of services theLAP provides and the most common issueswe see. The content is all new and is geared to

answer some of the most common questionswe field. The website also has some new sec-tions including a one for our CLE topics andtalks, one with guidance for law firms, a onefor family members, as well as a password-protected section with resources specificallyfor LAP volunteers.

The ratio of addiction to mental healthcases remains fairly consistent. We continueto see more complex mental health cases withmultiple issues occurring in the same individ-ual. Due to the current trend in the profes-sion to attempt to medicate stress in lieu ofmaking lifestyle changes, we continue to seeimpairments due to the over prescription,overuse, and combined use of prescribedmedications. Alcoholism and addictionremain critical, ongoing problems, and wesaw a small uptick this year in the number oflawyers who self-referred and were seekinginpatient treatment.

The LAP became involved in two majornew initiatives this past year. First, we haveundertaken a law school initiative aimed atreaching every law student in the state. Withseven law schools in NC, this is a majorundertaking, with the bulk of implementa-tion scheduled to begin in early 2015. Webegan the early phase of implementation in2014 by becoming the official provider of thework-life balance CLE credit hour as part ofthe mandatory, statewide Professionalism forNew Admittees (“PNA”) program. EighteenLAP volunteers attended specialized speakertraining and then volunteered to speak at thePNA events across the state, many of whichoccurred on the same day. With this training,our LAP presentation and information wasconsistent across presentations, and wereached every newly admitted lawyer in NCin 2014.

The second major initiative we undertookwas to begin working collaboratively with theNC Bar Association’s Transitioning LawyerCommission (“TLC”) (for older lawyersneeding to transition out of practice). TheTLC and LAP have begun cross-referring andworking together as needed. The relationshipis mutually beneficial, and we look forward toyears of cooperative collaboration with theTLC. The Year in Review

Now in its 35th year of operation, NCLAP is busier than ever. NC LAP typicallyfields anywhere from five to ten “new inquiryor concern” calls a week in each of itsCharlotte and Raleigh offices, totaling

approximately 600-800 telephone calls, fromimpaired attorneys, judges, or law students,or concerned family members, managingpartners, or colleagues. Of these calls thisyear, 95 resulted in newly opened files, with17 additional files reopened, bringing thetotal number of opened cases to 112. Weclosed 414 files resulting in a combined totalof 427 open cases at year’s end.

The rate of self-referral to LAP remainssteady at 48%. Approximately 32% of LAPreferrals came from colleagues, law firms,friends, family and judges who expressed con-cern about a lawyer or judge. The remaining20% of referrals came from law schools, theBoard of Law Examiners, other LAPs, thera-pists, physicians, or from the grievanceprocess.

Please see the graph on the next pagedetailing the issues we are seeing. Manyclients exhibit problems in more than onecategory, so there is overlap in documentingthe issues. We continue to see psychologicalproblems more often than other issues, andthese frequently coexist with substance abuseissues.

The LAP presented at least 67 CLE pro-grams this year. One of the most importantdevelopments was LAP’s approval as the uni-versal “work-life balance” presenter at theProfessionalism for New Admittees program.As the approved provider, the LAP was ableto reach every newly admitted lawyer thisyear.

The Minority Outreach Conference con-tinues with great success. This year it was heldin Chapel Hill on February 28, 2014. In itsfourth year, the conference’s goal is to reachout to minority members of the bar.Historically, the LAP has been underutilizedby African American attorneys. We reachedregistration capacity of 400 African Americanattorneys with 326 in attendance.

Judge Joe Webster did a wonderful job askeynote speaker for the conference.Following Judge Webster’s keynote was aroundtable discussion with Judge Webster,Judge Keith Gregory, Vice ChancellorWinston Crisp, and attorneys Glenn Adams,Donna Rascoe, Brandon Shelton, andHarriett Twiggs-Smalls. The afternoon ses-sion featured a presentation by Dr. MichaelHall about how to thrive in practice. TerrySherrill and Towanda Garner gave a LAPoverview. The final session of the day was anoutstanding presentation from FloridaRepresentative Darryl Rouson, who shared

his personal story of renewal and recovery. We currently have 200 LAP volunteers.

The LAP network of volunteers and lawyersupport groups provide a major part of theassistance given by the LAP to lawyers aroundthe state. Without the extended volunteer net-work, it would be impossible for the LAP tobe as effective as it has been during the pastyear. Eighteen volunteers attended specializedspeaker training for high-demand CLE topics.

The LAP continues the development oflocal volunteer meetings to provide greatercontinuity and support in meeting the needsof lawyers new in recovery, and allowing vol-unteers the chance to grow in their ownrecoveries.

Nicole Ellington, LPC, LCAS, recentlyjoined the LAP as the eastern clinical coordi-nator, and Delia Brown replaced JoanRenken as the Raleigh office administrator.There were no other changes in the LAPStaff: Robynn Moraites, executive director;Towanda Garner, Piedmont clinical coordi-

nator; Cathy Killian, clinical director andwestern clinical coordinator.

The LAP Board members are David W.Long, chair; Darrin Jordan, vice-chair;

Christopher Budnick; Jerry Jernigan; LanéeBorsman; Dr. Joseph Jordan; John Bowman;Dr. Nena Lekwauwua; and Robert “Bert”Nunley. n

January Council MeetingLawyer Assistance Program Board (3-year

terms) – There are three appointments to bemade. Dr. Nena Lekwauwa and LanéeBorsman are eligible for reappointment.David W. Long is not eligible.

April Council MeetingAmerican Bar Association Delegates (2-

year terms) – There are three appointments tobe made. M. Keith Kapp is eligible for reap-pointment. John B. McMillan and Andrew J.Epstein (young lawyer delegate) are not eligi-ble.

Disciplinary Hearing Commission (3-yearterms) – There are nine appointments to bemade. Irvin W. Hankins III, Barbara B.Weyher, Renny W. Deese, Randy Moreau,(public member), Percy L. Taylor (publicmember), and Bradley Lail (public member)are eligible for reappointment. Steven D.Michael, Ronald R. Davis, and Karen B. Ray(public member) are not eligible for reap-pointment.

Grievance Resolution Board (4-year terms)– The council must make one recommenda-tion to the governor for appointment to this

board. Darrin D. Jordan is eligible for reap-pointment.

Legal Aid of North Carolina (3-year terms)– There is one appointment to be make. JudgeJane P. Gray is eligible for reappointment.

July Council MeetingBoard of Legal Specialization (3-year

terms) – There are three appointments to bemade. Larry Rocamora, Lana S. Warlick, andDelores S. Todd (public member) are eligiblefor reappointment.

IOLTA Board of Trustees (3-year terms) –There are three appointments to be made. E.Fitzgerald Parnell III is eligible for reappoint-ment. Michael A. Colombo and F. EdwardBroadwell Jr. are not eligible for reappoint-ment.

Commission on Indigent Defense Services(4-year terms) – There is one appointment tobe made. David R. Teddy is eligible for reap-pointment.

October Council MeetingClient Security Fund Board of Trustees (5-

year terms) – There is one appointment to bemade. LeAnn N. Brown is not eligible for

reappointment.Board of Law Examiners (3-year terms) –

There are three appointments to be made.Judge A. Leon Stanback and Samuel S.Woodley Jr. are eligible for reappointment.William K. Davis is not eligible for reappoint-ment.

Board of Continuing Legal Education (3-year terms) – There are three appointments tobe made. Arnita M. Dula and Christina G.Hinkle are eligible for reappointment. Judge J.H. Corpening II is not eligible for reappoint-ment.

NC LEAF (1-year terms) – There is oneappointment to be made. William R. Purcellis eligible for reappointment.

Board of Paralegal Certification (3-yearterms) – There are three appointments to bemade. Shelby D. Benton, Robert C. Bowers,and Patty Clapper (paralegal) are eligible forreappointment.

Presidential AppointmentsEqual Access to Justice Commission (3-year

terms) – There is one appointment to bemade. E. Fitzgerald Parnell III is eligible forreappointment. n

2015 Appointments to Boards and Commissions


Michelle Abbott Charlotte, NC

David Allen Pearl River, NY

Matthew Andrews Galac, VA

Patrick Apple Pleasant Garden, NC

Generra Arnette Charlotte, NC

Nicole Arrington Charlotte, NC

Kristina Ash Raleigh, NC

Leah Ash Charlotte, NC

Christopher Ashiotes Atco, NJ

Erica Augello Tampa, FL

Helen Baddour Raleigh, NC

Wilmoth Baker Tallahassee, FL

Jennifer Baril Saint Johns, FL

James Bartorelli High Point, NC

Julia Bartz Durham, NC

Laura Beacham Cary, NC

Crystal Beard Wilson, NC

Alyn Beauregard San Diego, CA

Olivia Becilla Raleigh, NC

Dana Bell Cary, NC

Angela Berland Charlotte, NC

Margaret Bettenhausen East Lansing, MI

Brittany Birch Durham, NC

Tamara Bland Morrisville, NC

Jhanalyn Blount Greensboro, NC

Adrian Boddie Charlotte, NC

Megan Boger Kannapolis, NC

Jennifer Bogue Raleigh, NC

Marvilyn Bohannan Mebane, NC

Callen Bolick Apex, NC

Laura Boneau Wilmington, NC

Cortney Bonvillain Cary, NC

Vincent Borden Weaverville, NC

Cecelia Borkowski Charlotte, NC

Glenna Boston Durham, NC

Michael Bowlin Charlotte, NC

Angel Bowser High Point, NC

John Bradley Birmingham, AL

Kindra Bradley Mebane, NC

Brittany Brady Charlotte, NC

Joshua Brasch Charlotte, NC

Jennine Brazell Greensboro, NC

Danielle Brent Greensboro, NC

Joseph Brewer North Wilkesboro, NC

Matthew Brickey Advance, NC

Virginia Broome Mint Hill, NC

Karin Brown Wilmington, NC

Ryan Brown Greensboro, NC

Kimberly Brown Arden, NC

Nicholas Brunner Finksburg, MD

Loryn Buckner Winston-Salem, NC

Marcos Bullock Charlotte, NC

Emily Bullock Charlotte, NC

Shante Burke-Hayer Charlotte, NC

Dorinda Burton Virginia Beach, VA

Danny Byers Charlotte, NC

Alaina Byrd Charlotte, NC

Micah Byrd Winston-Salem, NC

Anil Caleb Fayetteville, NC

Richard Campbell Suffolk, VA

John Cargill Raleigh, NC

Kriss Anne Carlstrom Charlotte, NC

Ashley Carter Mebane, NC

Leslie Casse Asheville, NC

John Caudill North Wilkesboro, NC

David Chambers Winston-Salem, NC

Cheyenne Chambers Indian Trail, NC

J. Chancey Asheville, NC

Nalina Chinnasami High Point, NC

JeongYeong Cho Raleigh, NC

Hannah Choe Raleigh, NC

Shinjin Choi Mint Hill, NC

Dana Christian Charlotte, NC

Lindsay Christian Charlotte, NC

Jennifer Claud-White Charlotte, NC

Valerie Clay Charlotte, NC

James Coates Weaverville, NC

Pamela Collins Durham, NC

Adthea Collins Rockingham, NC

Laura Cook Charlotte, NC

Teresa Cook Charlotte, NC

Aneshia Cooper Durham, NC

Chelsea Corey Brooklyn, NY

Heather Cox Durham, NC

Jason Craig Charlotte, NC

Kelly Crecco Durham, NC

Shawntae Crews Charlotte, NC

Brentley Cronquist Baltimore, MD

Gregory Crowder Durham, NC

Brooke Crump Mount Gilead, NC

Phyllis Culbertson Winston-Salem, NC

Stephen Dalton Brevard, NC

Todd Davis Greensboro, NC

Kendra Davis Winston-Salem, NC

Terence Davis Charlotte, NC

Candace Davis Asheville, NC

Jill Dawkins Charlotte, NC

Aundrea Dean Charlotte, NC

Shannon DeJesus Fairview, NC

Lana Denning Fayetteville, NC

Timothy Denninger Charlotte, NC

Karen Dietz Barkhamsted, CT

Elizabeth Dils Raleigh, NC

Austen Ditzhazy Grosse Pointe Woods, MI

Greg Dixon Elizabeth City, NC

Bertha Dixon Browns Summit, NC

Ronard Dixon Jr.Charlotte, NC

Matthew Dolan Charlotte, NC

Samantha Dorsey Charlotte, NC

Brandy Drake Albemarle, NC

Briana Dudas Charlotte, NC

Lyndsey Duell Charlotte, NC

William Duncan Columbia, SC

Luka Duric Salisbury, NC

William Dyer V Charlotte, NC

Daniel Dziuban Greensboro, NC

Gregory Easley Kernersville, NC

Rebeca Echevarria Charlotte, NC

Andrew Eckstine Charlotte, NC

Erin Edgar Raleigh, NC

Krystle Edwards Raleigh, NC

Phillip Elkins Southern Pines, NC

Annie Ellis Johnson City, TN

Pamela Entzel Durham, NC

Erica Erickson Duluth, MN

Harold Eustache Winston-Salem, NC

Connie Evans Henderson, NC

Connie Evans Henderson, NC

Elizabeth Evans Beulaville, NC

Emily Everest Wellington, FL

Damon Fargis Huntersville, NC

Daniel Fassio Charleston, WV

Sarah Fearon-Maradey Durham, NC

John Fede Greensboro, NC

Ryan Feinberg Charlotte, NC

Amber Ferrell Charlotte, NC

Semaj Fields Charlotte, NC

Alexia Figueiredo Charlotte, NC

Ryan Fisher Chapel Hill, NC

Kara Fletcher Statesville, NC

February 2015 Bar Exam ApplicantsThe February 2015 bar examination will be held in Raleigh on February 24 and 25, 2015. Published below are the names of the applicants

whose applications were received on or before October 31, 2014. Members are requested to examine it and notify the board in a signed letterof any information which might influence the board in considering the general fitness of any applicant for admission. Correspondence shouldbe directed to Lee A. Vlahos, Executive Director, Board of Law Examiners, 5510 Six Forks Rd., Suite 300, Raleigh, NC 27609.

B O A R D O F L A W E X A M I N E R S

WINTER 201464

Scottie Forbes Raleigh, NC

Jamaal Forney Fayetteville, NC

Faith Fox Charlotte, NC

Joshua Franks Lexington, NC

Michael Frantz Concord, NC

Natalie Freeman Charlotte, NC

Jessica French Hickory, NC

Matthew Froelich Elgin, SC

Rachel Fulk Raleigh, NC

Gillian Gaeta Durham, NC

James Gambrell Charlotte, NC

Michael Gandee Wilmington, NC

Latoya Gardner Charlotte, NC

David Garvin Durham, NC

Kenan Gay Charlotte, NC

Paul Gennings Belmont, NC

June Gerken Leland, NC

Jason Gillis Elizabeth City, NC

David Ginzer Tequesta, FL

Gloria Gloria Charlotte, NC

Quinn Godwin Chapel Hill, NC

Brittany Gordon Saint Albans, WV

Kelli Gordon Raleigh, NC

Madeline Gould Charlotte, NC

Marisa Graham Mooresville, NC

Morgan Gramann Durham, NC

Isa Gratacos Rosario New Bern, NC

Cornelius Graves Winston-Salem, NC

Charnique Green Indian Trail, NC

C. Douglas Green Orlando, FL

Misty Greene Morrisville, NC

Michael Greene Columbia, SC

Sarah Grimsrud Cary, NC

Melissa Groff Newton, NC

Barton Grover Suffolk, VA

Ashley Gwyn Greensboro, NC

Gloria Gyamfi

Charlotte, NCThomas Haislip

Sanford, NCHeather Halterman

Charlotte, NCJohn Hanna

Charlotte, NCBenjamin Harris

Charlotte, NCMolly Harris

Durham, NCSteven Harris

Royal Oak, MIChristine Hart

Ladson, SCKenneth Hart

Charlotte, NCAdam Hauser

Greensboro, NCGregory Haver

Charlotte, NCSuzanne Haynes

Greensboro, NCHeather Hays

Charlotte, NCBrandon Heffinger

Winston-Salem, NCNicholas Helms

Stanfield, NCTracey Henderson

Fayetteville, NCIyanna Henry

Chapel Hill, NCEva Hernandez

Charlotte, NCMartha Hernandez

Raleigh, NCJeannette Herrara

Matthews, NCDaniel Heyman

Saint Petersburg, FLCarmen Hogan

Charlotte, NCPaul Hogle

Durham, NCMaurice Holloway

Charlotte, NCStefanie Holmes

Durham, NCJulia Horrocks

Asheville, NCAmanda Huegerich

Chapel Hill, NCTimothy Hughes

Charlotte, NCAnna Hughes

Greensboro, NCSara Hurn

Charlotte, NCJacob Husain

Charlotte, NCElijah Huston

Wilmington, NCTony Huynh

Greensboro, NCCarly Iddings

Davidson, NCErin Illman

Charlotte, NCYuliya Ilnitskaya

Charlotte, NCAdrianna Ingram

Charlotte, NC

Stuart Innes Barco, NC

Jordan Israel Canton, NC

Christopher Jackson Charlotte, NC

Donna Jackson Cary, NC

Lance Jaggers Charlotte, NC

Marisa James Charlotte, NC

Karmyn Janes Raleigh, NC

Ho Young Jang Aberdeen, NC

Suzzette Jarman Raleigh, NC

Donald Jensen Fletcher, NC

Kelly Jesson Ft. Lauderdale, FL

Edward Jesson Fort Lauderdale, FL

Daniel Jessup Pilot Mountain, NC

Linda Jochim Charlotte, NC

Archie Johnson Conway, SC

Hilary Johnson Charlotte, NC

Charles Johnson III Mount Airy, NC

Artia Jones Charlotte, NC

Casey Jones Wilson’s Mills, NC

Marianna Kacjuba Charlotte, NC

Emily Kafka Robbins, NC

Kathryn Karacia Greensboro, NC

Amanda Keller Boomer, NC

Alexander Kelly Winston-Salem, NC

Christopher Kendall Raleigh, NC

Theodore Kenyon Jacksonville, NC

Lawrence Kibler Jr.Huntersville, NC

Emily Kirby Cary, NC

Timothy Koller Hertford, NC

Miles Kosanovich Charlotte, NC

Kate Kovats Tallahassee, FL

Christopher Lachey Monroe, NC

Tiffany Lail Winston-Salem, NC

Sandy Lam Raleigh, NC

Wesley Lambert Greenville, SC

David Lampert Raleigh, NC

Catherine Laney

Harrison, NYGordon Langer

Hendersonville, NCBlake Larsen

Sanford, NCKellen Lavin

Spring Lake, NCAshley Lawrence

New Bern, NCJustin Lea

Winston-Salem, NCTyrone Leader

Concord, NCSeung-Hyun Lee

Goyang City, Kyung-KiPhoebe Lee

Durham, NCKelsey Lee

Concord, NCScott Leeds

Miami, FLGary Leto

Charlotte, NCLois Lewis

Charlotte, NCGabrielle Lewis

Chapel Hill, NCNeal Lewis

Johnson City, TNHoward Lintz

Chapel Hill, NCJoshua Lipack

Charlotte, NCMichael Litrenta

Key West, FLSergey Litvak

Winston-Salem, NCStephanie Livers

Elizabethtown, KYRebecca Lopes

Fayetteville, NCMaria Lopez

Charlotte, NCMelissa Louzri

Charlotte, NCKatelyn Love

Raleigh, NCTiffney Love

York, SCJonathan Lucas

Durham, NCLaura Luffman

Greensboro, NCLindsey Lynskey

Carolina Beach, NCErin MacDonald

Durham, NCRoland Macher

Cornelius, NCAllan MacQuarrie

Charlotte, NCElisabeth Madden

Royal Oak, MIAndrea Madle

Durham, NCPatterson Maharajh

Charlotte, NCJustin Mann

Raleigh, NCPedro Mantilla

Raleigh, NCLindsey Marable

Baltimore, MD

Brooke Marin Charlotte, NC

Kevin Mark Raleigh, NC

Thomas Markou Charlotte, NC

Joseph Martinez Valdese, NC

Kenneth Mattern Sanford, NC

James Matthis Clinton, NC

Kristina Maxwell Charlotte, NC

Jack McCaffery Charlotte, NC

Sharee McCall Fuquay-Varina, NC

Tucker McCarthy Charlotte, NC

Blaire McClanahan Greensboro, NC

Ryan McCord Tobaccoville, NC

Jenifer McCrea Greensboro, NC

Angelica McDonald Los Angeles, CA

Mark McGlone Charlotte, NC

Cory McInnis Laurinburg, NC

Amber McKay Kernersville, NC

Maria McLendon Asheville, NC

John McLeod IV Columbia, SC

Daniel Melo Charlotte, NC

Emmanuel Mensah-Acquaye Charlotte, NC

Breanne Mercer Charlotte, NC

Nicole Merritt Concord, NC

Steven Meyerhoffer Raleigh, NC

Gregory Michalek Cary, NC

Amanda Miller Charlotte, NC

Samantha Miller Gastonia, NC

Amy Minardo Greensboro, NC

Maria Minis Kitty Hawk, NC

Catherine Mitchell Durham, NC

Candace Mitchell Charlotte, NC

Gerren Mobley Raleigh, NC

Ryan Moffitt Burlington, NC

Rachel Molinoski Raleigh, NC

Sondra Monroe Huntersville, NC

Stacy Reid Monroe Charlotte, NC

Arnitra Moore


Greensboro, NCBrittany Moore

Charlotte, NCLisa Moorehead

Charlotte, NCBradley Moree

Wilmington, NCCraig Morgan

Charlotte, NCMolly Morgan

Mint Hill, NCKelly Morrow

Wilmington, NCErika Moses

Carrboro, NCBenjamin Mueller

Durham, NCJerry Murphy

Tyler, TXPatrick Murphy

Ridgewood, NJKahran Myers

Charlotte, NCTara Nauful

Charleston, SCTessa Neal

South Boston, VAKalina Neal

Charlotte, NCApril Nelson

Charlotte, NCAndrew Neville

Henrico, VAWilliam Nichols

Clayton, NCJessica Norton

Maxton, NCDavid Omer

Raleigh, NCYoko Onishi

Yokohama, JapanTrevor Ostbye

Washington, DCAjulo Othow

Everett, MAVictoria Owens

Charlotte, NCNikeeta Pal

Pineville, NCRuta Panomitros

Charlotte, NCSusan Park

Centreville, VAWilliam Parker

Statesville, NCBarbara Parker

Cherokee, NCGabrielle Paschall

Asheville, NCTimothy Pavone

Charlotte, NCCraig Payne

Raleigh, NCTyler Peacock

Libertyville, ILBrennan Pendergast

Charlotte, NCBethany Peters

High Point, NCAnne Phillips

Greensboro, NCBlanca Pilgrim

Raleigh, NC

Dawson Plimpton Mars Hill, NC

Matthew Poindexter Durham, NC

Alexander Popp Charlotte, NC

Haley Price Greensboro, NC

Jose Primo Torrance, CA

Nicole Quinn Rockaway, NJ

Jessica Ra Raleigh, NC

George Raad Jr.Charlotte, NC

Elham Rabiei Charlotte, NC

Kristin Racine Charlotte, NC

Allison Rackley Carrboro, NC

Carla Raez Charlotte, NC

James Ramsbottom Myrtle Beach, SC

Stacy Ramseyer Charlotte, NC

Caitlin Ray Huntington, WV

Kristen Redman Greensboro, NC

Joiy Reid-Davis Charlotte, NC

Brittany Reynolds Harris, NC

Lance Reynolds Lancaster, SC

Ramon Richardson Huntersville, NC

Amy Riddle High Point, NC

Kelsey Ring Mebane, NC

Daniel Rissanen Charlotte, NC

Zachary Rivenbark Burgaw, NC

Kristan Rivers Jackson, MS

Adrainne Roberts Winston-Salem, NC

Walter Rodriguez Clinton, NC

Myles Rogers Charlotte, NC

Aaron Rucker Fort Mill, SC

Ashley Russell Winston-Salem, NC

Karen Rust Jamestown, NC

Holly Safi Durham, NC

Lakeraj Sagar Charlotte, NC

Harun Saglik Cary, NC

Navdeep Sandhu Durham, NC

Regina Sarkis Charlotte, NC

Shashi Sathiraju

Matthews, NCStephanie Sautelle

Charlotte, NCMatthew Savoy

Charlotte, NCLeona Schweins

Apex, NCRobin Seila

Durham, NCLukasz Selwa

Charlotte, NCRobert Servatius

Charlotte, NCEli Sevcik-Timberg

Chapel Hill, NCDanielle Shapiro

Ormond Beach, FLKristine Shawkey

Charlotte, NCKaytlin Shelton

Kings Mountain, NCTimothy Sheriff

Charlotte, NCTeresa Shields

Zebulon, NCGeri Shomo

Greensboro, NCMegan Simmons

Goose Creek, SCBrittney Simpson

Simpsonville, SCShayla Sipp

Bowie, MDDon Slagle

Narberth, PAAshton Slate

Hickory, NCChynna Smith

Raleigh, NCRachel Smith

Charlotte, NCNola Smith

Mooresville, NCJena Smith

Charlotte, NCCandace Smith

Charlotte, NCMarcus Smith

Charlotte, NCTaylor Smith

Wake Forest, NCBradley Smith

Greenville, SCJulija Soryte

Charlotte, NCOpeyemi Sowemimo

Raleigh, NCRachel Spears

Eastover, NCScotty Speas

Rural Hall, NCRebecca Splawn

Raleigh, NCThomas Stafford

Raleigh, NCAvery Staley

Salisbury, NCAshley Stallings

Benson, NCMeghan Starnes

Charlotte, NCChristina Staudt

Lakeview, NC

Nicholas Steen Davidson, NC

Daniel Stephens Durham, NC

Paul Stevens Charlotte, NC

Tyler Stiles Mount Holly, NC

John Storrs Greensboro, NC

Kristi Strawbridge New Bern, NC

Brandie Sullivan Charlotte, NC

Liliam Sussman Indian Trail, NC

Leslie Swimmer Cherokee, NC

Jeffrey Swing High Point, NC

Justin Sykes Arlington, VA

Raeneice Taltoan Charlotte, NC

Elizabeth Tate Charlotte, NC

Shantel Tatem Charlotte, NC

Bray Taylor Knightdale, NC

Kimberly Thaxton Huntersville, NC

Douglas Thie Charlotte, NC

Constance Thompson Winston-Salem, NC

Alexis Thore Mooresville, NC

Robin Tinneny Charlotte, NC

Jade Towner Knightdale, NC

Christina Trent Cary, NC

Daphne Trevathan Rocky Mount, NC

Leigh Trigilio Greensboro, NC

Joseph Trunzo Charlotte, NC

Whitley Turner Wilmington, NC

LaQuanda Tysinger Carrboro, NC

Elizabeth Vance Winston-Salem, NC

Ana Lucia Vera Fort Mill, SC

Andrew Vetrone Cornelius, NC

Ada Vicuna Huntersville, NC

Jaclyn Vidusic Fort Bragg, NC

Tebony VincentGreensboro, NC

Andrew Vining Matthews, NC

Gabriell Vires Durham, NC

Matthew Waguespack Raleigh, NC

Wayne Wallace

Raleigh, NCTiffany Walters

Greensboro, NCCandace Walton

Charlotte, NCAshwini Kumar Wankhede

Summerfield, NCStephen Warren

Goldsboro, NCErica Weatherford

Greensboro, NCLindsey Weber

San Diego, CANoah Webster

Charlotte, NCDonald Weller

Charlotte, NCHoward Wellons

Gastonia, NCGisselle Wells

Charlotte, NCCasey Wentz

Cary, NCRobert Wessels

Hickory, NCLance White

Indian Trail, NCNathan White

Sumter, SCTiffany Wilborn

Charlotte, NCCandyce Wilkerson

Charlotte, NCElizabeth Wilkinson

Raleigh, NCCraig Williams

Charlotte, NCKaren Williams

Houston, TXNoble Williamson

Charlotte, NCAnne Wilson

Charlotte, NCAmy Wold

Charlotte, NCLatisha Wright-Sterling

Burlington, NCBryan Wymbs

Salisbury, NCJennifer Yahl

Charlotte, NCMaryana Yavdyk

Charlotte, NCEbrahim Yazdani-zonoz

Washington, DCPaula Yost

Charlotte, NCSarah Young

Advance, NCKatherine Youngblood

Boone, NCAlice Zachary

Durham, NCMarc Zelinsky

Goose Creek, SCJonathan Zucker

Durham, NCMark Zwaanstra

Harrison, NY n

WINTER 201466

THE NORTH CAROLINA STATE BAR JOURNAL

The North Carolina State BarPO Box 25908Raleigh, NC 27611

Winter 2014

Recognition of theProfessional You’ve Become.

Board Certified Specialization

North Carolina State BarBoard of Legal Specialization

You’ve worked hard tobecome an authority in your

chosen practice area. Nowlet your colleagues, peers,

and potential clients know…become a board certified

specialist. It may enhanceyour career in ways that you

never expected.

Appellate PracticeBankruptcyCriminal (including Juvenile Delinquency)ElderEstate Planning and ProbateFamilyImmigrationReal PropertySocial Security DisabilityTrademarkWorkers’ Compensation

Call for information about certification in 2015.919-719-9255

www.nclawspecialists.gov

journal 19,4 Layout 1

Documents

Transcript of journal 19,4 Layout 1