journal 17,4_Layout 1 - The North Carolina State Bar

THE NORTH CAROLINA STATE BAR

JOURNALWINTER

2012

IN THIS ISSUE

Is Justice Being Priced Out of the Common Man’s Reach? page 8Damages in Case of Negligently Killed Pet Dog page 14

An Interview with New President M. Keith Kapp page 28

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

THENORTH CAROLINA

STATE BAR

JOURNALWinter 2012

Volume 17, Number 4

EditorJennifer R. Duncan

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

Marcia ArmstrongDorothy Bernholz

Lauren CollinsHarry B. Crow

Margaret H. DicksonRebecca Eggers-Gryder

Forrest A. FerrellDouglas R. GillJames W. HallAnna Hamrick

Charles R. HardeeGeorge L. Jenkins Jr.

Darrin D. JordanRobert MontgomeryNancy Black Norelli

Carlyn G. PooleHarold G. Pope

Barbara B. WeyherG. Gray Wilson

Alan D. Woodlief Jr.

© Copyright 2012 by the North Carolina State Bar. All

rights reserved. Periodicals postage paid at Raleigh, NC,

and additional offices. Opinions expressed by contributors

are not necessarily those of the North Carolina State Bar.

POSTMASTER: Send address changes to the North

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

The North Carolina Bar Journal invites the submission of

unsolicited, original articles, essays, and book reviews.

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

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

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

judgment of the quality of the writing, the timeliness of

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

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

scripts.

www.ncbar.gov

PRINTED ON RECYCLED PAPER

F E A T U R E S

8 Is Justice Being Priced Out of the Common Man’s Reach?By Christopher R. Clifton

10 Their Other Brother—Why Have WeForgotten Samuel Phillips?By Donna LeFebvre

14 Recovery of “Intrinsic Value” Damages in Case of Negligently Killed Pet DogBy Calley Gerber and William Reppy Jr.

18 Professionalism - The Loss of Civility in the Legal CommunityBy Clifton W. Everett Jr.

24 State Taxation of the Pro Hac Vice LawyerBy Jerry Meek

26 Meet the Federal Judges—Judge Robert J. Conrad Jr.By Michelle Rippon

28 An Interview with New President M. Keith Kapp

32 The RingBy Terry Orndorff2012 Fiction Writing Competition Second Prize Winner

3THE NORTH CAROLINA STATE BAR JOURNAL

D E P A R T M E N T S

6 State Bar Outlook

36 Profile in Specialization

38 Lawyer Assistance Program

40 IOLTA Update

42 The Disciplinary Department

43 Paralegal Certification

44 Legal Ethics

45 Featured Artist

46 Proposed Ethics Opinions

59 Rule Amendments

B A R U P D A T E S

63 State Bar Swears in New Officers

64 Resolution of Appreciation

65 Fifty-Year Lawyers Honored

66 Client Security Fund

67 Law School Briefs

69 2013 Appointments to Boards

and Commissions

69 Distinguished Service Award

70 Annual Reports of State Bar Boards

74 In Memoriam

OfficersM. Keith Kapp, Raleigh - President 2012-2013Ronald G. Baker Sr., Ahoskie - President-Elect 2012-2013Ronald L. Gibson, Charlotte - Vice-President 2012-2013L. Thomas Lunsford II, Raleigh - Secretary-TreasurerJames R. Fox, Winston-Salem - Past-President 2012-2013

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

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

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

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

Robert C. Cone, 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: Vacant24: Rebecca Eggers-Gryder, Boone25: Forrest A. Ferrell, Hickory26: David N. Allen, Charlotte

Robert J. Bernhardt, CharlotteF. Fincher Jarrell, CharlotteMark W. Merritt, CharlotteNancy Black Norelli, Charlotte

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

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

StaffRoger Allen, InvestigatorCarmen H. Bannon, Deputy CounselBetsy C. Barham, Receptionist

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

WINTER 20124

The North Carolina State Bar Journal (ISSN

10928626) is published four times per year in

March, June, September, and December under

the direction and supervision of the council of

the North Carolina State Bar, 208 Fayetteville

Street, Raleigh, NC 27601. Member rate of

$6.00 per year is included in dues. Nonmember

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

Lawyer’s Handbook $10.78. Advertising rates

available upon request. Direct inquiries to

Director of Communications, the North

Carolina State Bar, PO Box 25908, Raleigh,

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

We want your fiction!Tenth Annual Fiction Writing Competition

The Publications Committee of the Journal is pleased toannounce the Tenth Annual Fiction Writing Competition.

Rules for 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 author

warrants 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 5,000 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 31, 2013. Submissions received after thatdate and time will not be considered. Please direct all questions andsubmissions to: Fiction Writing Competition, Jennifer Duncan,6568 Towles Rd., Wilmington, NC, 28409, [email protected].

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.

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

Say it Ain’t So, Bruno!B Y L . T H O M A S L U N S F O R D I I

WINTER 20126

Bruno DeMolli has given his notice. He willbe retiring at the end of the year. If you’re notpracticing in District 2 or 6B—the districtswhich have been selected for random audit thisquarter—you are likely to miss seeing himagain in his official capacity as the State Bar’sauditor. Back in 2000, when Bruno was still inhis 70s, we suspected that he might soon be call-ing it quits. I referenced that possibility in anessay about the regulation oftrust accounting I wrote for theJournal in the fall of that yearentitled, “If You Knew BrunoLike I Know Bruno.” Perhapssome of you will remember it.In any event, the report of hisimminent retirement waswildly premature. He has infact soldiered on at maximumefficiency and effectiveness formore than a decade since Iforeshadowed his separationfrom our staff. However, sincemuch of the information and virtually all of thesentiment contained in my essay have continu-ing validity and relevance, I thought it might beappropriate to dust it off and publish it again.So I have, and here it is, with just a bit of refur-bishing.

Not long after Bobby White accepted aposition on our staff as director of the ClientAssistance Program, he attended a meetingof the bar in the district where he resided.Because he had worked in academia prior tojoining the State Bar staff and had not beenengaged in the actual practice of law, he wasrelatively unknown in the local legal commu-nity. On the evening in question he wasintroduced to the group as a member of theState Bar’s legal staff and then largelyignored. But as the gathering was breakingup, one of the local lawyers noticed him at atable by himself and fired a conversationalshot in the dark. He asked the simple ques-tion, “Do you know Bruno?” Instantly theentire room fell silent as the remaining

lawyers strained to hear the answer. “Whyyes, I do,” Bobby responded. “I had lunchwith him just yesterday.” Immensely grati-fied by that answer, the lawyer roughlyembraced Bobby. “Hey everybody,” heshouted, “he knows Bruno!” and ordered around for the house.

Bruno DeMolli is a celebrity—the onlycelebrity in the history of the State Bar. Like

Sting, Madonna, and themembers of the BrazilianNational Soccer team, he isknown universally by a sin-gle, wonderfully evocativename: “Bruno.” The usagesare familiar to virtually every-one with a law license.“Bruno’s coming!” “Brunowas here.” “Bruno’s in town.”“I think we can do it, butwe’d better ask Bruno.” In hisrole as the State Bar’s auditor,Bruno DeMolli has become

a modern-day Kilroy. He is everywhere,monitoring compliance with the trustaccount rules in, it seems, a thousand placesat once, covering the state like a spectralItalian blanket. Indeed, lawyers have, onoccasion, reported seeing his towering figureand great white hair in law offices 400 milesapart on the same afternoon. But for all thisubiquity, his presence is abiding and benefi-cent wherever he happens to be. Simply byshowing up, he personifies and dignifies theState Bar, and raises the standard of fiduciarypractice. We suppose that the very idea ofBruno has dissuaded some lawyers fromstealing from their clients.

For the past 27 years Bruno has been inthe forefront of the State Bar’s effort toensure that North Carolina’s lawyers are han-dling funds entrusted to them in a profes-sionally responsible manner. He has per-formed heroically and has succeeded, wesuppose, to a very large extent. But we knowthere is still much work to be done. For thatreason, the council has chosen to continue

the random audit program post-DeMolli inmuch the same vein as heretofore. TimBatchelor, a financial investigator with theOffice of Counsel for the past ten years, hasbeen persuaded—somewhat reluctantly—tostep into Bruno’s expensive Italian loafers.We simply made him an offer that hecouldn’t refuse. He will hit the road inJanuary. Although the name “Tim” by itselfis rather ominous and has evoked mild dis-tress among some lawyers in our focusgroups, we have decided that, for the timebeing, Mr. Batchelor should continue usingboth of his names professionally.

Of course, the random audit program—though highly visible and important—isonly one component of the State Bar’s regu-latory scheme regarding the handling of trustfunds. There are several others. Most signifi-cant are the trust account rules themselves, asset forth in Rule 1.15 of the Rules ofProfessional Conduct. These provisions gov-ern how trust funds are to be held, wherethey are to be deposited, how they are to behandled, and what records are to be main-tained. The specificity of these rules, alongwith the considerable emphasis they havereceived in CLE programs over the last quar-ter century, has just about eliminated igno-rance as a credible excuse. There are also pro-visions that are designed to alert the State Barto possible irregularities. Chief among theseis Rule 1.15-2(k), which requires lawyers todirect their banks to notify the State Barwhenever an instrument is presented againstinsufficient funds. Since it is a rare case ofembezzlement that does not at some pointinvolve the issuance of a bad check, the pro-vision has quite frequently led to the discov-ery of misappropriation. There is also a veryspecific provision requiring lawyers to reportsituations in which trust funds have beenwithdrawn without authority. This provi-sion—Rule 1.15-2(o)—makes it clear that alawyer, having discovered the defalcation of apartner, associate, nonlawyer employee, orfellow member of the bar, has an absolute


duty to bring that matter to the attention ofthe State Bar, even if the information isarguably confidential. Unfortunately, there isno good way of finding out to what extentsuch discoveries are, in the context of lawfirms, being disclosed in accordance with therule. The State Bar also receives on a fairlyregular basis copies of orders requiring lawyerfiduciaries to show cause why they havefailed to file timely accountings. Such reportshave occasionally led to discoveries of defal-cation.

The State Bar’s rules also provide for theissuance of investigative subpoenas in thosecases where the chairperson of the GrievanceCommittee finds reasonable cause to believethat trust funds have been or are being mis-handled. “Cause audits” performed pursuantto such authority occupy most of the time offive of the State Bar’s 11 investigators.Although these audits are vital to the proof ordisproof of suspected irregularities, includingmisappropriation, they can occur only aftersome specific circumstance constituting “rea-sonable cause” comes to the attention of theBar. They are not available on any otherbasis. The State Bar cannot employ this pow-erful tool to verify hunches or to monitor thetrust accounting practices of lawyers who aremerely suspected of being dishonest.

By far the most visible of the State Bar’sefforts to improve trust accounting practiceand deter malfeasance is the random auditprogram. It was to implement this program,which became operational in 1985, thatBruno DeMolli was employed. During the27 years since he was hired, little about theprogram has changed. Each quarter twojudicial districts are randomly selected fromamong the total of 44. Sixty lawyers are thenselected randomly from the two districts, thenumber selected from each being roughlyproportional to the size of the lawyer popu-lations of the respective districts. Afterculling those lawyers who are not in privatepractice or who do not maintain, use, orhave access to trust accounts, appointmentsare made by telephone several days inadvance and subpoenas are issued. Since theauditor is obliged to inspect every trustaccount to which the chosen lawyer hasaccess, and most firms maintain commontrust accounts, he is often, in actuality,reviewing the trust accounting practices ofall members of the firm. This effectivelymultiplies the number of lawyers being“audited” many fold.

When the auditor arrives he reviews thetrust account records and performs what isknown as a “limited procedural audit” to ver-ify compliance with the trust account rules.He is particularly interested in determiningwhether the minimum recordkeepingrequirements set forth in Rule 1.15-3 havebeen satisfied. The entire onsite procedureusually takes less than half a day. The resultsof the audit are subsequently reported toPeter Bolac, the State Bar’s trust accountcompliance counsel (the counsel). If no defi-ciencies were noted, or if observed deficien-cies are de minimis, there is no follow-up andthe subject attorney is then exempt from ran-dom audit for the next three years. If minordeficiencies were noted, the counsel will gen-erally communicate with the subject attorneyand attempt to confirm informally that thenecessary remediation has occurred or isoccurring. If so, that will generally concludethe matter. If substantial deficiencies werenoted, the matter is referred to the GrievanceCommittee and a disciplinary file is opened.If observed deficiencies are serious but notpatently indicative of dishonesty, clientharm, chronic inattention, or reckless indif-ference, the Grievance Committee may offerthe subject attorney the opportunity to par-ticipate in the relatively new Trust AccountCompliance Program (TACP) as a possiblealternative to the imposition of professionaldiscipline. This entails a consensual contrac-tual undertaking by means of which the par-ticipating attorney, on a confidential basis,must agree for a period not to exceed twoyears to cure all deficiencies and to allow thecounsel to monitor his or her trust accountand to review all pertinent records and trans-actions involving entrusted funds. Successfulcompletion of the contract will be considereda significant mitigating factor in theGrievance Committee’s determination as towhether discipline should be imposedregarding the deficiencies that were originallyobserved. If the subject attorney chooses notto participate, or fails to fulfill the contract,the matter will be referred back to theGrievance Committee for investigation, pro-cessing, and possible imposition of disci-pline. In cases where the apparent deficien-cies are significant and diversion into theTACP is not deemed appropriate, the matterwill be referred directly to the GrievanceCommittee for investigation, processing, andpossible imposition of discipline.

It should be noted that the random audit

program was designed to serve several pur-poses. First and foremost, it is an educationalinitiative. It was intended to raise the stan-dard of trust accounting practice in NorthCarolina by inducing self-study, motivatingvoluntary compliance, and providingauthoritative feedback. I believe that the pro-gram has been quite successful in this regard.When Bruno DeMolli is known to be visit-ing a particular district, there is usually amarked increase in fiduciary consciousnessand in requests for copies of the State Bar’sLawyer’s Handbook. Accounts that have notbeen reconciled in months are brought cur-rent. Efforts are made to determine the ben-eficial owner(s) of the small “mystery” bal-ance that has been carried for several yearswithout attribution. And resolutions aremade never again to let the trust account getout of whack. This kind of activity “in con-templation of” audit is quite salutary in thatit fosters the kind of care and precision thatthe handling of other people’s moneyrequires. The resulting improvements greatlylessen the likelihood that trust funds will beinadvertently mishandled and compromised.These benefits are usually compounded forthose lawyers who actually receive a visitfrom our auditor. As those who have had theexperience almost universally attest, Bruno isa tremendous source of information andadvice, and he can generally be countedupon to assist lawyers and their bookkeepersin improving their procedures.

Unfortunately, improved procedures can’tprevent stealing. It does appear likely, howev-er, that the random audit program is fairlyeffective as a deterrent. Certainly, that wasthe hope of those who founded the programand is the reason many State Bar leaders con-tinue to support it. Of course, it is very diffi-cult to establish what may have prevented atempted lawyer from stealing. But it doesseem fair to suppose that the same “concern”that compels the honest lawyer to go to greatlengths to prepare for an audit might also fig-ure in a dishonest lawyer’s decision to resisttemptation.

Another purpose served by the randomaudit program is theft detection. Experiencehas shown that the embezzling lawyer,though often quite clever in the practice ofher profession, is generally a mediocre crook.This is perhaps because most thefts are initial-ly rationalized as “borrowings.” The typical

C O N T I N U E D O N P A G E 3 7

“Upon a plea of guilty there is a

verdict of guilty. It’s the judgment

of this court that you pay all fees,

fines, and costs of court associated

with your traffic ticket, sir.”

“How much is that, judge?”

“The clerk tells me it’s $463.”

“For a speeding ticket?”

Anyone who spendsenough time in trafficcourts in this state willtell you that this dia-logue between defen-dant and judge is

occurring all too often. For decades, citizenswere able to handle de minimus offenses suchas speeding or other traffic infractions bypleading guilty to a reduced charge andincurring slight court costs and fines.Likewise, the fees and costs of court related tocivil matters such as filing for simple divorces,small claims, or estates were often justenough to generate some revenue withoutacting as a deterrent to filing said actions.Unfortunately, in the current economic envi-ronment, the General Assembly has becomemore inventive by both fashioning new feesand fines, and by raising existing ones inorder to hedge a shortfall in the budget.These constant increases raise the question: Isthe concept of equal justice for all citizensbeing unduly tested in the age of increasedfines and court costs?

The current recession has affected most

everyone in NorthCarolina in one way oranother. Gas prices haveskyrocketed, home valueshave plummeted, theprices of common goodshas risen while employersand businesses cut back onraises or lay off employeesaltogether. However,another devastatingimpact of the recession isin the average person’saccess to the courts. Dueto the lack of revenuerequired to balance thebudget, the GeneralAssembly has increasedcosts associated with thecourt system, and in somecases has fashioned entire-ly new fees for things thathad always been free.Situations that many indi-viduals find themselves inat some point during theirlives—such as filing fordivorce, paying off aspeeding ticket, or bring-ing a small claim in civilcourt—carry the addeddifficulty of having to balance the need forthese actions with the potential cost that willbe incurred bringing them.

The rise in court costs has been felt mostkeenly by the average citizen who is citedwith a speeding ticket or other minor trafficinfraction. Consider the following scenario:The average citizen is pulled over for drivingten miles per hour over the speed limit.Though this citizen has a flawless record andhas never before been issued a ticket, the

police officer, feeling the pressure to increasethe amount of tickets written, issues the cita-tion for this relatively minor speedingoffense. In an attempt to save money, our cit-izen decides to handle the ticket himselfinstead of hiring an attorney. Our waywarddefendant fails to understand the differencebetween an infraction court where atten-dance is not mandatory and traffic courtwhere attendance is required. Our citizen issurprised when he receives a letter from the

Is Justice Being Priced Out of theCommon Man’s Reach?

B Y C H R I S T O P H E R R . C L I F T O N

WINTER 20128

Bruno Budrovic/Illustration Source


clerk of court notifying him that he missedthe court date that the officer set for him.Our hapless man runs to the court house andconvinces an assistant district attorney toreset his court date for the following day.Encouraged and renewed in his belief thateverything will work out, our citizen appearsin court before the judge and assistant districtattorney and requests a reduction in hisspeeding ticket due to his exemplary record.The ADA reduces the speeding ticket to animproper equipment infraction and explainsthat this carries no driver’s license or insur-ance points. Ecstatic to realize he’s been givena break, our citizen pleads responsible to thereduced charge only to find out that he owesapproximately $463 in court costs, fines, andfees, and must pay that balance in cash.Unable to pay the full amount that day, herequests one extra day to pay the money. Thecourt acquiesces to this request, but due tochanges in the law, this delay in paying carriesan additional $20 fee.

Though many will consider this exampleto be the exception, anyone who works in thecourt system knows that this is becoming thenorm in traffic courts around this state.While several small increases in costs of courtand fines were to be expected, the astronom-ical rise in such costs caught most by surprise.In 2010 the General Assembly increased thecost for criminal offenses in district courtfrom $120 to $126. In July 2011 theAssembly increased the cost of court againfrom $126 to $155. A month later in August2011, new fees, fines, and court costs wereimplemented that increased court costs from$155 to $188 for district court infractions.The Administrative Office of the Courtsbreaks down the $188 as follows: $129.50for general court of justice fee, $12 facilityfee, $4 telephone fee, $7.50 law enforcementretirement fee, $2 law enforcement trainingfee, $18 misdemeanant confinement fee, $5service fee, and a $10 fee for a Chapter 20offense. In addition to the over 50% increasein mandatory court costs, the GeneralAssembly also created a new improper equip-ment fee. Beginning August 2011 a reduc-tion of any speeding ticket or other infractionto improper equipment carries a mandatory$50 fine in addition to the regular speedingfine and costs of court. In addition to the costof court increases, the General Assembly alsoraised the failure to appear fine by 100%.Prior to August 2011 if a citizen failed toappear in court, a $100 fine would attach to

any other costs and fees in the case. The samefailure to appear now carries a $200 fine inaddition to any of the usual costs, fines, andfees associated with a traffic ticket or othercriminal offense.

While there are mechanisms in place thatallow for a judge to mitigate the severity ofthe costs involved with criminal offenses, theaverage citizen is usually either unaware thatthey exist or does not know how to requestthat the judge apply them to the case. For aslong as people have been charged withcrimes, there have been attorneys to aid themin the navigation of the court system. Yet,many are handling these traffic offensesthemselves due to the failure to afford bothattorney fees and court costs. However, thecitizen in traffic court isn’t the only person inthe court house feeling the effects of the costincreases.

Civil court costs, though not as excessiveas criminal, have also increased 50% or high-er over the past year. Prior to July 2011 thecost for bringing an action in civil districtcourt was approximately $100. Since passageof the new budget in 2011, the costs associ-ated with filing a civil action have increasedto $150. Since the filing for an absolutedivorce (currently at $75) necessarily includesthe cost of filing a lawsuit, a client can nowexpect to pay approximately $225 for anabsolute divorce, close to 35-40% more thanthey would have paid a couple of years ago.The General Assembly increased the fee from$15 to $30 for each item of civil processserved by the sheriff. Another new fee estab-lished by the legislature is the $150 fee to filea counterclaim. Formerly there was no costassociated with this action. North Carolinanow charges a $20 fee to file most anymotion in civil court, including motions todismiss and motions for default judgment.You even get to pay $20 to ask for an exten-sion of time to file answers, etc. All these feesand extra costs trickle down to the client orthe pro-se litigant. The relatively simpleaction of filing for divorce or a small claimincludes costs never imagined several yearsback.

While many were aware that our state’sbudgetary problems would likely result inincreases in criminal and civil court costs,few expected the changes to be as drastic asthey have been. With further budget short-falls on the horizon, it is a safe bet that theGeneral Assembly will again look to thecourt system to generate the revenue needed

to hedge the shortages. As long as the courtsystem generates a large portion of the gen-eral revenue for the state, the average citizenshould expect to bear the burden of the fiscaldeficits in Raleigh regardless of the economicimpact it has on said citizen. The sad ironyof the whole situation is that though thecourt system has brought in more moneythan ever for the state, the funding for theJudicial Department was cut by over $4 mil-lion with the latest budget bill. How’s thatfor gratitude. n

Christopher R. Clifton practices with thefirm of Grace, Tisdale & Clifton, PA. He is aBoard Certified Specialist in state and federalcriminal defense, and concentrates his practiceon serious felonies in state and federal courts.

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Sam, class of 1841, argued the mostfamous US Supreme Court civil rights casesof the 19th century as solicitor general underUlysses Grant. He represented Homer Plessyin the landmark Plessy v. Ferguson and arguedpassionately in his legal brief against the “sep-arate but equal” doctrine of racial segrega-tion.

Now you’re starting to get it. In the racial-ly charged politics of the Reconstruction Era,Sam Phillips wasn’t “one of us.”

As a lawyer and teacher of law-relatedcourses to undergrads at UNC, I’d read thePlessy case dozens of times, but not until

about 15 yearsago did I actuallylook closely atthe line thatimmediately pre-cedes any court’s opinion, the line that iden-tifies the lawyers: It reads “A.W. Tourgee andS.F. Phillips, for plaintiff in error.”

I was astonished: I realized these lawyerswere in fact North Carolinians. AlbionTourgee was the controversial “carpetbagger”lawyer, journalist, best-selling novelist, andjudge who helped re-write the NCConstitution after the Civil War. And “S.F.”

was Phillips, a member of the very promi-nent 19th-century Chapel Hill family.

My interest was piqued: How did SamPhillips end up being the lawyer for anAfrican-American man from New Orleans,arguing against segregation—insisting thatLouisiana, not Homer Plessy, was a law-breaker? And why, as a lawyer, a graduate ofthe UNC law school, and a North

Their Other Brother—WhyHave We Forgotten SamuelPhillips?

B Y D O N N A L E F E B V R E

Samuel Field Phillips might

be the most extraordinary

Chapel Hill lawyer and civil

rights champion you’ve

never heard of. His sister, the bell ringer, sure. His brother, CEO of

the university for a couple of years, yes. Maybe even his father, a

bigamist who deserted the British military, fled the country, and

reinvented himself before settling into the Carolina faculty.

Samuel Field Phillips - photo from the North Carolina CollectionPhotographic Archives.

WINTER 201210


Carolinian, did I know nothing aboutSamuel Phillips?

Cornelia Phillips Spencer’s name adornsthe first women’s dorm. Brother Charles(class of 1841) and their father James, alongwith Charles’ son William Battle Phillips(1877, 1883 PhD), are on the plaque atPhillips Hall. Sam, whose law office was inthe charming little stucco house at the cornerof Franklin and Raleigh streets, is rather con-spicuously missing from bronze or granite,though he was given an honorary degree in1879.

He was on the unpopular side of theevents of his homeland’s most turbulenttimes.

Perhaps it is time for a new appraisal ofSam’s legacy.

A Man Named PostlethwaitePhillips was a Whig legislator in the

1850s and held state political offices in theearly 1860s. In 1864, he was re-elected to theNC General Assembly, and he served asSpeaker of the House in 1866. But at the endof the Civil War, he broke from his friends,family, and longtime political cronies whenhe publicly advocated immediate reunion ofthe South with the North. It was politicaland social suicide.

Years before Phillips’ political and moralmetamorphosis, his father, James, underwentan equally remarkable transformation.

In 1818, James Postlethwaite—a 26-year-old mathematically gifted Englishman withno prospects or money, son of a poor vicar atSt. Gomonda-of-the-Rock in Roche,Cornwall—boarded a ship bound for NewYork.

A Royal Marine of low rank who had re-enlisted the year before, he lived inPlymouth, near the naval base. When he firstjoined the marines at age 16, James identi-fied his occupation as a “farm laborer.” Hehad no formal education, and his father like-ly had taught him at home. In 1814 at age 22he married Agnes Robins, who was six yearsolder; on their marriage certificate, Agnesmarked an “X” because she couldn’t write hername. By the time James left England, heand Agnes had two small children. Despitehis considerable intellectual gifts, the best lifethat James could hope for in England was theone he already had: a dead end.

He decided to abandon England—leav-ing his wife and two children destitute—andpursue his dreams in America. He took with

him the informal education his father hadgiven him. He jettisoned everything, includ-ing his name.

When James Postlethwaite walked offthat ship in New York City in 1818, he wasJames Phillips, with no accompanying fami-ly. The “new” James also had a universitydegree and was a scholar and gentleman,ready to open an academy for boys in thepromised land. On his military record backin Plymouth, next to his name was writtenthe word “run,” which means he was adeserter. Perhaps only in America could ayoung Englishman; a laborer with no moneyor formal education; a military and familydeserter, shed his class and life so thoroughly.James transformed himself into the man heobviously thought he deserved to be.

In 1821 he married Julia Vermuele,whose Dutch-American family in NewJersey was well off. James was now abigamist. He did, indeed, start a privateschool for boys in Harlem, and he beganpublishing articles on mathematics. In 1825a prominent mathematician recommendedhim for a position at a small university in theSouth: The University of North Carolina waslooking for someone to be professor andchair of its math and natural philosophydepartment. James was offered the post, andhe accepted.

Thus, through a complicated deceit, hefinally had achieved position and status. Atthe time, UNC was made up of a handful ofprofessors, a rowdy bunch of male students,four or five buildings, and a lot of mud.James transported his family to the village,where they moved into the Widow Puckett’shouse on East Franklin Street. There theyraised Sam, Cornelia, and Charles.

James was not a popular professor. HisUNC students complained about his rude-ness and knew better than to ask him a ques-tion in class. (One student wrote that Jamesacted like “a malignant scoundrel” in classand said the experience “left deep in mymind the impression of his perfect con-temptibility, and I henceforth deem no revil-ings [sic] too severe.”)

James’ students were aware of his navalknowledge and background from his lecturesbut, of course, did not know the whole truth.Over time, James became quite religious andwas ordained as a minister. His zeal forpreaching to anyone he could corral was wellknown; folks were known to dart into hidingif they saw him coming down the street.

Julia Phillips apparently was not as enthu-siastic about Chapel Hill as her husband. Shewas, after all, living in a southern backwater,a world apart from New York and NewJersey. Julia spent a lot of time during hermarriage back north and was away in March1867 when James, 75, died in Person Hall. Astudent found him there, shortly before thebeginning of geometry class. Julia was noteager to come back to Chapel Hill even forher husband’s funeral, and Cornelia had topersuade her mother to return.

James remained a well-respected memberof the UNC faculty and the Chapel Hillcommunity. No one knew the true story ofhis past until the middle of the 20th century,when some Phillips family descendantsdecided to take a trip to England to visitchurches in St. Gomonda and Nevendon,near London, where James’ father, Richard,also had been vicar.

One can only imagine their surprisedconfusion when they saw no record at thechurches for a Reverend Richard Phillips.For the years that Richard Phillips was sup-posed to be the vicar, the name of RichardPostlethwaite was inscribed on the churchwalls. (I visited these churches a few yearsago, as well as the vicarage in St. Gomonda,and verified this information.)

After that family visit to England, James’story about his past began unraveling, andthe truth about his identity, education, anddesertions of wife, children, and the militarycame out.

The Government’s LawyerBy the middle of the 19th century, Sam

Phillips was a Chapel Hill favorite son, doingeverything expected of him. And most likely,if he had kept to that script, he might havebeen written into North Carolina’s law andhistory books after all. But Phillips took anunpopular stand during Reconstruction thatmade him a traitor to his state.

Phillips grew up in Chapel Hill, marriedthe granddaughter of a former governor,shared top honors in his undergraduate classwith brother Charles, received bachelor’s andmaster’s degrees from UNC, read the lawunder UNC President David Swain (who isdescribed as having been like a second fatherto Phillips) and William H. Battle, and prac-ticed and taught law in Chapel Hill. His lawoffice doubled as a school where he taughtLatin, Greek, math, geography, history, andEnglish grammar to boys.

WINTER 201212

By most measures of success, Phillips—known around town as “Mister Sam,”—hadeverything.

His mentors were prominent Whigs, andthat affiliation served him well through thewar. But as reconstruction set in, Phillips hada change of heart and mind. As PhillipsRussell, a UNC professor of creative writing,explained in These Old Stone Walls, “To Mr.Phillips…the Republican Party was the partyof union and progress, and he told his friendshe could not stomach the ‘corruption andextravagance’ of the Democratic Party, whichwas replacing the upper-class Whigs.”

He’d not always felt strongly about blacksuffrage, and he admitted it.

But as Speaker of the House he deploredattempts to coerce blacks’ voting by threaten-ing their employment if they votedRepublican. “How can we [the South] say[to the North], leave the freedman to us,” hesaid in 1866, “we will do him justice, refus-ing in the same breath to allow him to tell histale before a jury of white men and whitejudges?”

By 1870 he was a Lincoln Republican,running for state attorney general on theRepublican ticket. His friends and colleaguesfelt betrayed. “He could not have drawnmore fury on his head had he joined the partof Satan,” Russell wrote.

At first his sister Cornelia, prolific writerand virulent Democrat that she was, took iteasy on him, writing, “I have too much faithin the heart and head of my brother to beaffected by what the newspapers say of himdisparagingly.”

Later she was embarrassed: “What a mis-take it was, dear Sam’s joining theRepublican Party. When I recall those days ofhumiliation, exasperation, and despair itdoesn’t seem so very long ago.”

He was defeated in the attorney generalrace, but not daunted. Phillips moved toRaleigh with his wife Frances (called Fanny)and their children, where he prosecuted KuKlux Klan members for the federal govern-ment.

In 1872 President Grant appointed himsolicitor general of the United States.Because of the solicitor general’s enormousinfluence on the US Supreme Court, arguingall the government’s cases, the person in thatposition often is called the “10th justice.”

Fanny understandably was delightedabout moving to Washington since she, likeher husband, was likely persona non grata

among folks in Chapel Hill and on the socialcircuit. Sam and Fanny lived in Washingtonfor the rest of their lives.

As the government’s lawyer before theSupreme Court, Phillips, a white southerner,argued against racial discrimination in thecases of United States v. Reese (1876) (con-cerning voting rights under the Civil RightsAct of 1870 and the 15th Amendment);United States v. Cruikshank (1876) (concern-ing the Colfax Massacre of African-Americans by a white Louisiana mob, theCivil Rights Act of 1870, and the applica-tion of the First Amendment to states); thefive cases known as the Civil Rights Cases(1883) (concerning sections of the CivilRights Act of 1875 and the 10thAmendment, as well as the applicability ofthe 13th and 14th amendments to racial dis-crimination in hotels and theaters and onrailroad cars); United States v. Harris (1884)(also called the Ku Klux Case, in which aTennessee sheriff led a lynch mob that beatAfrican-American prisoners, one fatally,which focused on the constitutionality of theCivil Rights Act of 1871 under the 10thAmendment); and Ex Parte Yarbrough(1884) (regarding the constitutionality ofthe 1870 act and the federal government’sright to protect African-Americans’ votingrights).

Phillips said the doctrine of separate-but-equal “amounts to a taunt by law of that pre-vious condition of their class.”

Phillips was a serious contender for nom-ination to the Supreme Court, losing in1877 to John Marshall Harlan, who laterwould write the profound prescient dissent— borrowing heavily from Phillips’ brief —in Plessy v. Ferguson in 1896.

Phillips and co-counsel Albion Tourgeehad argued that “separate but equal” is racialdiscrimination and unconstitutional underthe 13th and 14th amendments. They lost,and racial segregation—and the violence thatwent with it—became in most places thenorm. It took nearly 60 years for theSupreme Court to reverse Plessy in Brown v.Board of Education in 1954.

A Southern HeroOn November 18, 1903, Samuel Field

Phillips died in Washington. He was buriedback in the Old Chapel Hill Cemetery atUNC. He easily could have had a stellarcareer in North Carolina politics; secure inhis standing among the southern aristocracy,

courted by the press and public, and com-fortable in the safe, successful life the rest ofhis family had at UNC and in the state.

Two months before he died, he wrote to ayoung scholar who had requested informa-tion about Reconstruction, “I have no regretsfor any substantial part of the part that I tookin Reconstruction.”

Phillips followed his conscience intoChapel Hill anonymity.

His is an inspiring and powerful part ofthe story of North Carolina, the South, andcivil rights, during and after Reconstruction.No white lawyer, northern or southern,comes close to Phillips’ record in fightingrace discrimination before the SupremeCourt. He is a southern hero who took amoral, legal, highly unpopular, and verylonely stand against racial discrimination,and his contributions to American civilrights law are extraordinary.

Cornelia Phillips Spencer, because of hergender, was denied the education and careersopen to her brothers. She fashioned her ownjournalism career, writing for publications inthe state in the editorial and letters columns.After the Civil War she was bitterly, persist-ently critical of the Republican UNC presi-dent and the faculty he hired, and she was animportant anti-Republican force in closingthe university from 1871 to 1875. The “san-itized” Cornelia is known better for the tri-umphant re-opening of UNC. But an annu-al award for women given in her name wasretired in 2005 because of concerns abouther white-supremacist rhetoric and her rolein closing UNC.

Charles Phillips, a minister by training,became a UNC professor of engineering in1844 when Swain asked him to return toChapel Hill from Princeton as his father’sassistant. He was ousted from the facultyduring Reconstruction and exiled atDavidson College until it was politically safefor him to return to UNC.

Both Sam and Charles Phillips destroyedtheir personal records.

All three Phillips houses, standing shoul-der to shoulder next to Sam’s law office, stillare occupied today: the homes of Charles andJames are owned privately, and Sam’s house(with a porch added after he lived there) isnow the Delta Delta Delta sorority house.Cornelia lived across the street, beside what isnow the UNC System president’s residence,


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Recovery of “Intrinsic Value”Damages in Case of NegligentlyKilled Pet Dog

B Y C A L L E Y G E R B E R A N D W I L L I A M R E P P Y J R .

The North Carolina Court

of Appeals, in a case

where negligent killing of

a pet dog with no market

value was admitted, has denied recovery of “intrinsic”

damages (also called “actual” damages). Shera v. NC

State University Veterinary Teaching Hospital, 723 S.E.2d

352 (N.C. App. 2012). Because the holding is narrow

and the type of damages denied are not the same as emotional damages, a close look at the decision is warranted.

Seth Casteel/Tandem

Stock.com

WINTER 201214

The Veterinary Hospital AdmitsNegligence; Minimal Damages areAwarded

Laci, a Jack Russell Terrier owned by Mr.and Mrs. Shera, began to be treated for livercancer at the defendant state veterinary hospi-tal in 2003. After treatment, the cancer was inremission, but Laci had quarterly checkups atthe hospital. In 2007 Laci began experiencingproblems with poor appetite, vomiting, anddifficulty with urination, and Plaintiffs

returned the dog to the hospital for treatment.She was admitted on March 31.

Following days of tests, Defendant deter-mined that Laci should have an intranasalfeeding tube, which on April 5 was inserted bythe hospital staff. Laci was transferred to theintensive care unit. Unknown to anyone at thetime, the feeding tube was placed into Laci’slungs rather than her stomach, and she begandrowning due to the material forced into herlungs. The next day her heart stopped beating,

and she could not be resuscitated. Not know-ing the cause of their pet’s death, Plaintiffs paidthe hospital’s veterinary bill in full. Three dayslater, Defendant advised them that the mis-placed feeding tube had caused Laci’s death.

In 2009, Plaintiffs filed a veterinary mal-practice action against the hospital with theNorth Carolina Industrial Commission pur-suant to the state’s Tort Claims Act, seekingdamages based on the “intrinsic” value of Lacito them and citing the 1988 decision in


Freeman, Inc. v. Alderman Photo Co.1

Defendant’s answer admitted negligence andrequested a hearing on the issue of damages.The initial hearing officer awarded Plaintiffsonly $2,755.72, the amount the pet ownershad paid the hospital for treatment billedfrom March 31 through April 6, 2007.Reviewing this award, the full commissionincreased the damages by $350, which itfound to be the cost of replacing Laci withanother Jack Russell. The commissionemployed the replacement value measure ofdamages upon finding that the aged Laci hadno fair market value. The commission notedthat North Carolina courts have recognizedintrinsic value as a category of damages that isappropriate in some circumstances, butdeclined to expand applicability of that meas-ure of damages to cases involving injury to ordeath of companion animals.

The Court of Appeals Affirms Based onInsufficient Evidence

The court of appeals affirmed, initiallyholding that replacement value is properlyemployed to assess damages where damagedproperty had no market value (citing casesinvolving a damaged power pole and trans-former and a stolen pay telephone). The courtdid note that in the Freeman case—where thedefendant’s negligence resulted in the destruc-tion of “hundreds of architectural drawings,work papers, and surveys”2 that had no mar-ket value—recovery of damages based onintrinsic or actual value to the plaintiff of thelost property was approved.3 In Freeman thejury had been instructed that one factor toconsider in determining intrinsic or actualvalue was “the uniqueness of that [destroyed]property.”4 The evidence in Freeman estab-lished that some, although not many, of thelost drawings—which were unique—could bereused if recreated. On the other hand, exam-ination of the evidence in the Shera case ledthe court of appeals to conclude, in essence,that Laci was not a unique pet. In sum, theplaintiffs could not get the benefit of Freemanbecause of a failure of proof.

The inadequate evidence included testi-mony that Laci “brought so much joy” to theShera home and “brought so much comfort”to Mr. Shera, who suffered from a heart con-dition; and that Laci “was just very helpful instressful situations.”5 The court of appealsacknowledged that Mrs. Shera testified that“Laci was unique. She had her own personal-ity.”6 But apparently this was viewed as too

conclusory to support an award of damagesbased on intrinsic value. Said the court: “Thetestimony reveals no absolute unique tasks orfunctions that Laci performed for plaintiffs,aside from her calming presence....”7

Plaintiffs also argued that the large sums ofmoney they had spent treating Laci for cancerproved that Laci had an intrinsic value or actu-al value to them in excess of replacementvalue.

The court of appeals rejected the argu-ment, stating: “[P]laintiffs fail to adequatelyexplain how amounts spent on the dog’s careprior to 31 March 2007, when Laci wasadmitted to defendant’s care and negligentlykilled, were proximately related in any way todefendant’s negligent act on 6 April 2007 andplaintiffs’ resulting injury.”8 While this state-ment does not address the point made byPlaintiffs, it would seem to establish that, forsome reason, amounts spent on health care fora pet are not relevant when intrinsic damagesare sought.

“The sentimental bond between a humanand his or her pet companion,” the Sheracourt concluded, “can neither be quantified inmonetary terms or compensated for underour current law.... [H]ow to value the loss ofthe human-animal bond between a pet ownerand his or her companion animal...is moreappropriately addressed to our legislature.”9

Unfortunate Dictum for Pro-AnimalAdvocates

While the narrow holding of Shera is thatthe plaintiffs failed to prove any intrinsic valueto them of their dog, apparent dictum in thecase renders Freeman (the architectural draw-ings case) and its intrinsic value theory ofdamages essentially worthless in future litiga-tion concerning death of or injury to a pet.Shera read Freeman as employing the intrinsicvalue measure of damages “rather than theproperty’s replacement value,” which itinferred would be greater.10 “Thus, the ‘actualvalue’ instruction in Freeman was applied tolimit, rather than enhance, the plaintiff ’srecovery....”11 Intrinsic value “damageawards,” said the Shera court,

have proven to be the rare exception andhave never been applied to either enhancea damages award or to the recovery of dam-ages for the loss of companion animals.This is surely due in part to the fact that amultitude of companion animals are avail-able in society, and...replacement of thetype of property—a companion animal—

currently is possible under our law.12

This seems to tell pet owners as future litigantsthat they should just prove replacement valuein the absence of market value, as the Freemancase and its theory of intrinsic value will notentitle them to recover anything more. Ahighly trained service dog will have intrinsicvalue, but will also have a market value, a factthat will preclude resort to the intrinsic valuetheory of damages.

The Shera Decision has No Effect onFuture Claims for Emotional Damages

The actual holding in Shera leaves wideopen the question whether in North Carolinaemotional damages may be recovered for thetortiously-caused injury or death of a pet thatwas treated by its owners as a member of thefamily. That is so because the plaintiffs inShera rested their claim to intrinsic value dam-ages on the Freeman case where the propertydamaged—architectural drawings—was non-sentient personal property, and where thecourt specifically held that intrinsic valuedamages did not include “purely emotionalvalue” that the property may have had.13

The court of appeal in Shera stated: “Thecurrent law in North Carolina is clear that themarket value measure of damages applies incases involving the negligent destruction ofpersonal property, whether sentient or not.”14

Since the plaintiffs in Shera had not arguedthat a special rule of damages—that permittedrecovery of emotional damages—appliedwhere the property negligently destroyed wasa sentient pet, the quoted statement is at bestdictum. It is also wrong. It cannot be “clear”that North Carolina law bars recovery of emo-tional damages where a pet has been negli-gently killed (or injured) because the issue hasnot been before the courts of the state in areported decision. On the other hand, as dis-cussed previously in this journal,15 a 1913decision of the North Carolina SupremeCourt can readily be construed as establishingthe right by a plaintiff-owner to recover emo-tional damages for the willful killing of a petdog in the plaintiff ’s presence.16 This olderdecision could lead North Carolina courts tofollow the precedents of Florida, where emo-tional damages are recoverable for the willfulor grossly negligent killing or injury of a pet,but not if the level of fault by the tortfeasor isordinary negligence.17 In other states there isa trend to allowing emotional damages to beawarded where a pet has been injured or killedwillfully.18 Such decisions recognize pets as a

WINTER 201216

special type of personal property subject tounique rules concerning recovery of damages.

The Hospital had Grounds to Appealthe Award of Economic Damages

Because the veterinary hospital in Sheradid not appeal, the decision there is not prece-dent supporting the amount of economicdamages awarded to the pet owners by thecommission panel. The $350 replacementvalue surely was based on the cost of buying ayoung Jack Russell Terrier, but Laci was a sick-ly 12 3/4-year-old dog.19 Should not her ageand health status have guided the determina-tion of replacement value?

In addition, the veterinary hospital couldhave objected on appeal to being ordered bythe commission to refund all of the veterinarybills paid by a pet owner after the hospitalconceded there had been veterinary malprac-tice. Much of the $2,755.72 that the pet own-ers had paid the hospital related to veterinarycare during the period March 31 throughApril 4, which involved no malpractice.Should the improper placement of the feedingtube on April 5 have tainted the non-objec-tionable veterinary services rendered prior tothat negligent act?20

Must a Non-Veterinarian TortfeasorWho Injures a Pet Reimburse forReasonable Veterinary Bills that Exceedthe Market or Replacement Value ofthe Animal?

Even if North Carolina courts establish aprecedent that a veterinarian guilty of mal-practice that injures or kills a pet cannot retainsums paid by the pet’s owners for treatment,such a development would not necessarily dic-tate how the state’s judiciary will answer thequestion whether a non-veterinarian tortfea-sor who injures a pet is liable to reimburse thepet owner for veterinary expenses reasonablyincurred to save (or attempt to) the life of theanimal when those expenses exceed the fairmarket value or, if there is no market value,the replacement value of the animal. Wherean item of inanimate personality has been tor-tiously damaged, North Carolina measuresrecoverable damages as “the differencebetween its fair market value immediatelybefore and immediately after the injury.”21

Where the damaged item of inanimate per-sonal property has no market value, the cost ofrepair is the measure of damages.22

Other states with similar rules appliedwhere damaged personality is inanimate per-

mit recovery of veterinary expenses far inexcess of replacement value of an injured petthat had no market value (for example,because it was an older mixed-breed dog). In a2011 California decision,23 after defendantshot Plaintiff ’s cat, Plaintiff spent $36,000 tosave the cat’s life and treat it for paralysis.Reversing the trial court, the appellate court’sholding was that if the veterinary expenseswere reasonable the defendant was liable forthem. Suppose, however, the cat was a youngand attractive pure-bred Persian, and the trierof fact was convinced it had market value of$25. That such a finding should bar Plaintiff ’sclaim for recovery of all but $25 of the veteri-nary bills is grossly unfair, yet the Californiacourt stressed the absence of market value forthe cat in question.

North Carolina should follow the lead ofNew Jersey, which holds that a tortfeasor whohas injured a pet—whether negligently orthrough willful misconduct—is liable for rea-sonable veterinary costs incurred to save orattempt to save the animal’s life even thoughthe animal had a market value far less than thetotal of the bills for veterinary care. In 1998New Jersey’s intermediate appellate courtaffirmed a judgment awarding reimbursementof the full amount of $2,500 in veterinary billspaid to save the life of a tortiously injured petdog despite a finding that the dog’s replace-ment value was $500, holding: “[A] house-hold pet is not like other fungible or dispos-able property, intended solely to be used andreplaced after it has outlived its usefulness.”The New Jersey Supreme Court subsequentlyapproved this decision on the ground “thatpets are a special variety of personal proper-ty.”25

Market or Replacement Value ShouldNot Be a Cap on Intrinsic ValueDamages

New Jersey’s approach should also beapplied to cases where the pet owner seeksdamages based on intrinsic value of the tor-tiously injured or killed pet and proves thatthe pet had—before the injury—providedspecial services but could no longer do so. Forexample, in a 1980 case from New York, afinding that a negligently killed pet dog hadno market value as a mixed breed entitled theowner to recover $550 in damages on proofthat “plaintiff relied heavily on this well-trained watchdog and never went out into thestreets alone at night without the dog’s protec-tion.”26 The law should not let the negligent

defendant escape paying such damages byconvincing the trier of fact that because of itstraining as a watchdog, the mutt had a marketvalue of $25. n

Calley Gerber is the principal attorney inRaleigh’s Gerber Animal Law Center and wascounsel for the pet owners in the Shera case dis-cussed in this article. William Reppy is theCharles L. B. Lowndes Professor of LawEmeritus at Duke University.

Endnotes1. 365 S.E.2d 183 (N.C. App. 1988).

2. Shera, 732 S.E.2d at 355.

3. The intrinsic value damages recovered in Freemantotaled $73,600. 365 S.E.2d at 184.

4. Id. at 186.

5. Shera, 732 S.E.2d at 355.

6. Id. at 356. Plaintiffs also placed in evidence this state-ment found on the defendant hospital’s website:

The bond formed between humans and animals isunique....They become members of our familyand can provide a sense of constant supportthrough various life changes in our lives....Thisspecial human-animal relationship is what makesthe death of a pet one of the most significant loss-es we experience in our lives.

Trial Transcript Exhs pp 687, 24.

7. 732 S.E.2d at 356.

8. Id. at 357.

9. Id.

10. Id. at 355.

11. Id.

12. Id. at 357.

13. Shera, 723 S.E.2d at 355, quoting Freeman, 365S.E.2d at 186.

14. Shera, 723 S.E.2d at 357 (emphasis added).

15. William A. Reppy Jr., A New Specialty: Animal Law,NC State Bar Journal, spring 2002, at pp. 12-13.

16. Beasely v. Bynum, 163 N.C. 3, 79 S.E. 270. The causeof action asserted there was apparently trespass both tothe home where the slaying occurred and to a chattel,the pet dog. The court held that damages could bebased on evidence that “the alarm and shock caused bydefendant’s conduct had caused her [Plaintiff] greatsuffering.” Id. at 4, 79 S.E. at 271. The opinion wouldnot have focused on the killing of the dog, in additionto the entry into the home, if the pet’s death had notbeen pertinent to the assessment of damages.

17. Compare LaPorte v. Associated Independents, Inc., 163So.2d 267 (Fla. 1964) (willful tort) and KnowlesAnimal Hospital, Inc. v. Wills, 360 So.2d 37 (Fla. App.1978) (gross negligence), with Kennedy v. Byas, 867So.2d 1195 (Fla. App. 2004) (ordinary negligence).

18. See, e.g., Plotnik v. Meihaus, 2012 W.L. 3764874 (Cal.App., Aug. 31) (recovery of over $50,000 for clubbingof pet dog); Womack v. Von Rardon, 135 P.3d 542(Wash. App. 2006).

19. Although the defendant in Shera admitted negligence,that should not have resulted in the imposing on it theburden of proving that there was no market in mature


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Professionalism – The Loss ofCivility in the Legal Community

B Y C L I F T O N W . E V E R E T T J R .

WINTER 201218

It is hard to really comprehend that thispast summer—August 2012—I was licensedto practice law in North Carolina for 45years. When I finished law school, we werestill operating under the old Rules of CivilProcedure (we were required to learn boththe old and new rules at Wake Forest), andthe district court system as we know it in

North Carolina had not yet been fullyimplemented throughout the state. In fact,in my home district, my first appearances incourt were before Judge Dink James, thecounty recorder’s court judge. All of the localmayor’s courts, the justice of the peacecourts, and the various recorder’s courts andcity courts then in existence were utilized by

the attorneys in their practice. The districtattorney was then referred to as the “solici-tor.” In the 33 counties comprising the 1stDivision of the North Carolina SuperiorCourt, there were eight elected residentsuperior court judges. They were all very dis-tinguished gentlemen who had all enjoyed asuccessful career at the bar before assumingthe bench, and most were no younger than50 years of age. With the exception of maybetwo, these superior court judges ran theircourtrooms with a tight hand, expected youto be prepared to try your case and beknowledgeable in the law, be prompt in yourattendance to your court functions, be wellmannered and courteous to the bench, andbe civil to your opposing counsel.

At that time, lawyers made an effort toconverse with each other prior to the filingof civil actions in an effort to spare theirclients the undue expense of protracted liti-gation, resolved the dispute in an expedi-tious manner, and tried to keep parties outof court. Pleadings were detailed and exten-sive. Pre-trial discovery—including inter-rogatories, requests to admit, depositions,and the ever persistent pre-trial motions,which are prevalent today—were virtuallyunknown. Lawyers who practiced alone orwith small groups did most of their owninvestigations, interviewed witnesses them-selves, and took an active role in the nutsand bolts of preparing cases for trial. I amproud to say that I came to the bar duringthe twilight years of the great civil triallawyers and criminal defense attorneys. Itwas a great time to be a lawyer. We all had agood time practicing law and socializing.There was a marked absence of carping andsniping. Older members of the bar made aconscious effort to mentor and direct

Some time ago, Charles Hardee asked if I would consider

writing an article for the Journal on the subject of profes-

sionalism. After giving the matter some thought, I decid-

ed that after 27 years of practicing law and 18 years on

the superior court bench, I was probably as knowledgeable about the subject as anyone else who

would agree to undertake a discussion of professionalism. In addition, one of my private disap-

pointments—and, to a few of my friends, a public sadness—is the lack of participation of the

practicing bar east of Raleigh in bar activities that further the progress of the legal profession. I

have been asked on several occasions to lecture at CLE seminars, and have always agreed to give

freely of my time and resources to the legal community. Hopefully, those of us who do participate

will encourage others to also give of their time, talents, and resources in this endeavor.

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younger members of the bar in developingtheir legal skills. Certain lawyers who hadthe judge’s confidence were often asked pri-vately to counsel on a knotty legal problemthe court was then involved with which, ofcourse, did not involve that lawyer.

I remember well an episode involvingJudge William J. Bundy and my father. Theywere very close friends, and the good judgewould often seek out my father’s advice on alegal matter with which he was uncertain.The story goes something like this: At theoutset of Judge Bundy’s appointment to thesuperior court bench, he was scheduled forTarboro in Edgecombe County. It was a willcase. Judge Bundy related to my father thenature of the case, and his uncertainty andtrepidation in having to try a matter withwhich he had little experience. My fatheradvised Judge Bundy that it was not a diffi-cult matter to handle—most of the evidencerelating to the testator’s state of mind andrelationship with others could be admitted.Judge Bundy was still not satisfied, and myfather gave him a will brief that he hadworked up containing all the will law andcaveat proceeding law to that date. He toldJudge Bundy to read it over and it would

familiarize him with the matter he was tohandle. Some time during the next week,My father was in Tarboro attending to amatter and decided to go to the superiorcourtroom to see what Judge Bundy was allabout. He walked into the courtroom andsat in the fourth row. Judge Bundy was upon the bench, his head back in the chair andhis eyes closed. (Judge Bundy, as some ofyou may remember, had a speech impedi-ment in which he stuttered rather obviouslyuntil after 5 PM, when his stuttering calmeddown.) Momentarily, one of the attorneysrose to his feet and, in a loud voice, shouted,“Objection, Your Honor.” Judge Bundypopped open his eyes, wheeled his chairaround, and looked directly at my father.My father nodded his head in the affirma-tive. Judge Bundy then said to the lawyer,“objection sssssssssssustained.” A few min-utes later, one of the lawyers on the otherside arose and exclaimed, “Objection, YourHonor.” Judge Bundy, following the samepractice, turned and looked at my fatherwho, on this occasion, shook his head in thenegative. Judge Bundy then said, “Objectionoooooooooverruled.” Later, my father visit-ed Judge Bundy in his chambers and was

told, “Cliff, I think I am getting the hang ofthis.” I am sure this story is very amusingand somewhat amazing to some of you whoread this article, but I can assure you that itis absolutely true and is probably somethingnot entirely uncommon in that era. Such anevent this day and time might have the judgeand the lawyer brought up on disciplinarycharges since we have to be, like Caesar’swife, beyond reproach. I will have to admitto you that my view from the bench in pres-ent-day times is somewhat different than myview of the bench at the beginning of mylegal career and during it.

The handling of civil litigation matters,which encompasses discovery practice, dep-osition matters, and especially the motionpractice, is the most onerous and burden-some duty I have to perform as a judge.When a civil action finally reaches a trialposture, it is fairly pleasant. However, ittakes an undue amount of time to reach thatposture. My observation from the bench as atrial judge and in my district as a residentjudge is that very little interaction, coopera-tion, conversation, or accommodation goeson between litigant attorneys. It appears thatneither side—the plaintiff nor the defen-

WINTER 201220

dant—is anxious to resolve any civil litiga-tion until the proper amount of “time” hasbeen spent filling the court file with reams ofpaper. Civil motion day in my district is areal back-breaker. The last motion day I con-ducted some several weeks ago included acalendar of 32 motions running the gamutfrom A to Z. Of course, I was unable to hearall of the matters, some of which were veryprotracted, and left the bench about 6 PMthat day. It was only because I had arrangedto have the following week free that I wasable to come back Monday and Tuesday andfinish the calendar for some of the lawyerswho actually begged me to do so. I wasabout to leave my home district for a newrotation, and I guess the lawyers wanted toget their best shot in while they had me.This was somewhat of a dubious honor, butI took it.

On the rarest of occasions do lawyersattempt to resolve matters in the motionfield or discovery field, or the perceivedsanction field, by conversation prior to com-ing to court. There is an air of hostility andsuspicion between many lawyers who appearbefore me, and it is readily evident andapparent to the court. This attitude makes aday on the bench for this old judge hard andtiring, and it detracts from the professional-ism that should be evident between col-leagues at the bar even while representingdifferent opinions and points of view.

As was stated by Judge Doug Albright,retired senior resident superior court judgefrom Gilford, in his excellent article in theSpring 2007 Journal, which I enthusiastical-ly and whole-heartedly recommend that youread and assimilate:

I am sad to say, however, that some veryobservable negative developments havecrept into the practice. I see tangible evi-dence demonstrated all too frequentlythat there is an insidious, perceptibledecline in respectful professionalism(noticed by just about every objectiveobserver of the scene). Professional civili-ty, common courtesy, polite cordiality,and mutual respect between lawyers toooften gives way to open rancor, bitteracrimony, adversarial hostility, and abra-sive gamesmanship. Lawyer relations attimes become contentious and some-times just plain rude. The old days whenmost, if not all, problems in litigationcould be cleared up by a single five-minute telephone call are long gone, to

put it mildly. Harsh allegations and abu-sive epithets fly about with reckless aban-don. There is a rush to take technicaladvantage of one’s opponent and openlyquestion his or her ethics. Suspicion ofmotives hovers over the length andbreadth of professional actions. Have Ioverstated the case? Would that it be so.This sort of thing just poisons a well andmakes trying cases too unpleasant tobear. I for one have become sick of it.Relations between lawyers shouldn’t belike that.What an apt and brilliantly stated obser-

vation of the present state of civil litigation.You should read this article, not only for itscontent, but also for a brilliant perspective ofa seasoned trial judge who has been on thefiring line of developing civil litigation formore than 30 years. Although JudgeAlbright is now retired, I could not have bet-ter expressed to you today what he said in hisarticle, and I wanted to refer to it to high-light what I have said and will say further inthis article. As a trial judge, it is always apleasure to hear good lawyers argue andpresent their legal positions, which arealways done in a civil, polite, and profession-al process. Neither side will interrupt theother during presentation and neither sideever has a caustic or accusatorial commentabout the other lawyer during any point ofthe hearing. This is as it should be.

Study after study has been done aboutthe problem with professionalism in thelegal practice. The chief justice has evenestablished a commission on professionalismto address these problems I have mentioned.The North Carolina State Bar and theNorth Carolina Bar Association have variousprograms dealing with chemical dependencyby lawyers, depression among lawyers, andthe general lack of civility among thoseappearing in the civil trial courts of our state.Sadly, the day is almost gone where mem-bers of the legal profession avail themselvesof the opportunity to participate in civicendeavors, serve on commissions andboards, and serve in the General Assembly,where the lack of legal knowledge on mattersbeing taken up by the House and Senate hasresulted in the unwieldy legal approach tolegislation, and the problems and pitfallscould be addressed by lawyers if they werewilling to serve.

So what does the term “professionalism”entail? Black’s Law Dictionary defines a “pro-

fession” as follows: “A vocation or occupa-tion requiring special, usually advanced,education and skill; such as law or medicalprofessions. The term originally contemplat-ed only theology, law, and medicine, but asapplications of science and learning areextended to other departments of affairs,other vocations also receive the name, whichimplies professed attainments in specialknowledge as distinguished from mere skill.”Professionalism is defined by Webster’sDictionary as “the conduct, aims, or qualitiesthat characterize or make a profession.”

Several months ago I was honored to par-ticipate in the presentation and hanging ofan oil painting of Mr. Louis W. Gaylord Jr.,a prominent Greenville attorney who retiredfrom the practice of law several years ago andis now 94 years old. A vigorous 94, I mightadd. He is truly a remarkable individual. Iwell remember coming to Greenville withmy father to attend to court business andother work at the courthouse. I rememberseeing Mr. Gaylord as a young boy—he wasa sight to behold. Tall, erect, possessing abooming and very persuasive voice, he effec-tively represented his clients before thecourt. A skilled trial lawyer in every respect,Louis Gaylord primarily devoted his court-room appearances to defense work—bothcriminal and civil—and handled some of themore complex cases that have come beforethe court in Pitt County. He and my fatherwere adversaries on many occasions, butwere always, always good friends, and werecourteous and professional to each other. Isay all of this to you to let you know thatLouis Gaylord, and those of his generationat the bar, practiced law in the grand man-ner. They were always well prepared, pos-sessed skill in the trial of cases, professionalto their opposition, never entered into anypicks or quarrels in the courtroom before thecourt, never made any insulting remarksabout the perceived integrity of the otherlawyer, or any of those things that dailycome before me as a judge now. I am sad-dened by the fact that I have to listen tothose things from lawyers when they shouldnever be personal to each other. As my fathersaid, “always remember, son, it is the client’scase and not yours.” We all have a duty torepresent our clients professionally, ethically,and strenuously, but we should never fallvictim to personal swipes and demeaningcomments of our opposing counsel. LouisGaylord never stooped to this level. Nor, I


am sure, did he enjoy seeing it take placeduring the latter year of his practice. LouisGaylord was a mentor to all the youngerlawyers. He viewed his example of law prac-tice as the gold bar or standard, which every-one should try to emulate. He, as well asothers I have mentioned of his generation,did set the standard for younger lawyers, andolder lawyers of that era were quite free ingiving their advice and counsel to youngerlawyers who sought them out. It made agreat deal of difference in the type of lawyerswe had during that period of time—theirdemeanor and their interaction with theirfellow members of the bar. That is sorelymissing these days, and it shows itself, unfor-tunately, in the civil as well as the criminalarena. I can truly say that I began my legalcareer in 1967 during the swan song of thegolden era of law practice. I enjoyed itimmensely and enjoyed my relationshipwith those lawyers I have mentioned, all ofwhom I knew personally, as well as havingpracticed 22 years with my father, who wasalso of that generation and was always readyand willing to assist others with their legal

problems. I am sure Louis Gaylord had thesame experience and that is why, to a greatdegree, he was such a successful practitionerof the law. Additionally, Mr. Gaylord devot-ed a considerable amount of time to mattersoutside of his law practice, such as servingon the Board of Education for a number ofyears, actively participating in the businessof his church, serving on the regional bankboard, and other such examples of publicservice. Several years ago, Mr. Gaylord wasrecognized by the North Carolina BarAssociation as an inductee into the GeneralPractice Hall of Fame. This designation isawarded yearly to those lawyers who havedistinguished themselves in the various fieldsI have mentioned, and Louis Gaylord was sorewarded prior to the time he ceased hisactive practice of law. I use Mr. Gaylord asan example of what the legal profession andprofessionalism should be about. As statedby The Honorable Edwin Godwin Reade,attorney at law and later justice of theSupreme Court, on July 9, 1884:

What shall be your behavior in your pro-fession? Your oath will oblige you, to well

and truly demean yourselves. This com-prehends the whole duties of a courteousgentleman and faithful agent. Theremust never be the slightest departurefrom the strictest rule of propriety, northe shadow of a shade of professionaldelinquency.Temptations, in whatever shape they maycome, and whether they threaten, harmor promise favor, must not only have noforce or charm, but they must be severelydespised. But this inquiry is intendedmainly, as to your general and publicbearing as lawyers, officers of the court,engaged in administering the law. Thelaws of this country are its majesty. Thecourts and their officers are the represen-tatives of majesty. Your deportmentshould be as in the presence of majesty;not with arrogance, but with gentlenessand dignity, towards the court, and allwho have business there. The best practitioner sometimes findsthemselves at fault: and then indulgenceor favor from the opposing counsel isvery grateful. Some are so liberal as to

WINTER 201222

grant any favors at any time, others nei-ther grant nor ask them. There may benothing dishonorable in either, but Iadvise liberality where a brother hasmade a slip, a slip which would injurehim if taken advantage of and where nosubstantial right of your client is surren-dered, and when you do not put yourselfin fault by seeming indifference to yourclient’s advantages. My own practice wasto allow a brother to supply defects, cor-rect errors, and do almost anything hedesired to do in fixing up his case beforetrial; but, when the trial commenced,and swords were drawn, I threw away thescabbard and fought for a funeral.How apt are Justice Reade’s remarks to

the problems we face today with profession-alism. He summed it up beautifully.

I can say to you that I am acutely awareof the financial and economic pressuresexerted by law firms on their lawyers.Hourly billing has run amok and has placedthe cost of civil litigation beyond the meansof most citizens. Mediation and arbitrationand other alternative resolutions to court-room trials will and could do a great deal toalleviate many civil disputes, but only if it iseffectively embraced by the parties. I placespecific emphasis on the word “effectively”in this regard. Statistics show that the greatmajority of civil litigation is resolved otherthan by trial to a jury. Statistics also showthat only 10% of civil litigation is carried toa jury verdict. With the exception of medicalmalpractice action, class action lawsuits, andlarge personal injury actions, civil court-room trials have virtually dwindled down torear-end collisions and soft tissue injuries,which are more often than not tried to a juryverdict simply because the insurance compa-ny is well aware that most jurors are fed upwith this type of lawsuit and are not going toaward any sizeable verdict. As a conse-quence, the day of the great trial lawyers isfast approaching its demise.

We have, unfortunately, over the last 30or 40 years strayed from the definition ofprofessionalism and what the legal profes-sion should be. This is due in large part tothe introduction of hourly billing, whichrequires a lawyer to produce a certain num-ber of hours per year in order to substantiatehis or her position in the firm. Needless timeis spent generating needless reams of paperin order to fill the file and increase compen-sation. As one lawyer said, it is not the rate

per hour so much as it is the number ofhours that are billed. That statement directlycorrelates to the lack of professionalism weare now experiencing. Money is the rulerand until we, as a profession, get a handle onthe money problem, we will continue to dis-cuss the problem of professionalism ad nau-seam. Legal practice has slipped away from aprofession into a business. Law firms areoperated with a view to the bottom line andnot necessarily what is in the client’s bestinterest. Of course, this subject is taboo andis not discussed in any seminars I haveattended regarding professionalism. The lackof responsibility by newer lawyers is so evi-dent that it smacks you in the face as a judge.Law schools are evidently not doing a properjob of educating the new lawyer on the pro-fessional aspects of the law practice, and thefact that it is not necessary to pursue a mat-ter with “winning” being the only drivingforce of the litigation.

In my small way, I always try to encour-age lawyers to discuss their differences and toattempt to avoid the unpleasantness of seek-ing motions of retribution. I can say, howev-er, as an old civil lawyer myself, that duringmy time on the bench I have attempted notto meddle with lawyers when they are tryingtheir cases. I always resented that of a judgewhen I was practicing. My normal practiceduring a civil term is to call the lawyers intomy chamber and receive an assessment as tothe nature of the case and where they are inan attempt to resolve the dispute. After hav-ing obtained that information, I ask if thereis anything I can do to assist them in resolv-ing the lawsuit. If I am advised that consul-tation with the trial judge will help, I partic-ipate in their discussions. If I am advisedthat the litigants are so far apart that there isno reasonable expectation of settlement,then I begin the trial and that is the end ofmy bullying. I allow justice to take its natu-ral course. In addition, I allow the attorneysto pick their jury because, in my view, that iswhat their clients have paid them to do, andclients like to see their lawyers perform. Ifcertain lawyers are not able to do this effec-tively and expeditiously, I may attempt tohelp them “move along.” But, generally, I trynot to meddle with lawyers during the trial.I am aware that this is not a uniformlyaccepted practice among my colleagues, butit is my practice.

If I were asked to give some pointers tolawyers involved in civil litigation, I might

start by relating what a classmate of minetold me his father—who was an attorney—told him were the two most importantattributes of being a lawyer. The first, hesaid, is to dress and look like a lawyer; andthe second, show up. All too often thesedays that is not the case. Also, I might tellyou what my father told me when I beganthe practice of law so many years ago. Hesaid there are three things a lawyer needs toknow how to do to be successful. He toldme, first, a lawyer needs to know how tocharge for his or her work—if a lawyer doesnot know how to charge for his or her work,no substantial income will ever be made.Second, a lawyer needs to know how toretreat—that is, back away from a conflictand not go full boar all of the time. Third,he said, a lawyer needs to know when his“A” is whipped and get out (he related thathe had seen lawyers cost their clients moremoney by not knowing that third elementthan anything else he knew). I might add tothose that a lawyer needs to be prompt inattendance, be attentive to the business ofthe court, always be well prepared to arguehis or her point for a client’s case, be knowl-edgeable about the law, be conversant withthe facts, and, when citing case authority,give the court a factual situation analogousto the case at hand and not just boiler platelanguage from the opinion. Also, bestraight-up with the judge and never, neverever prepare an order for a court to signfinding facts which are not supported by theevidence, or try to slip in some provision notconsidered by the court or supported by thetestimony or other evidence and exhibits.Your reputation in this regard is paramountand, if ever breached, will slacken your rep-utation with the court forever and make thepractice of law in civil litigation that muchmore rigorous and unpleasant.

In closing, I want to say that I hope theseremarks on the subject of professionalismwill be a benefit to the bar as an insight intohow one judge views the legal practice andthe professional aspects of it during ourtime. I hope you find herein something thatwill awaken your duties as a member of thelegal profession and the professionalism thatis required of that position. n

Clifton W. Everett Jr. was elected in 1994as a resident superior court judge for District3A (Pitt County). Prior to assuming the bench,he practiced law for 27 years in Greenville.

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State Taxation of the Pro HacVice Lawyer

B Y J E R R Y M E E K

In 2010 the NC State Bar amended its Pro Hac Vice Admission

Registration Statement to require the out-of-state attorney to

sign a statement verifying that he or she will report to the NC

Department of Revenue any income earned in the case, “if

required to do so by law.” The amendment prompts the obvious question:

When will an out-of-state attorney be required to pay North Carolina

income tax? And, relatedly, when should a North Carolina attorney be con-

cerned about paying income tax in another state?

WINTER 201224

Both the Due Process Clause and theCommerce Clause limit a state’s ability to taxnon-residents. As the United States SupremeCourt held in Complete Auto Transit, Inc. v.Brady,1 a state can tax non-residents only ifthe non-resident is engaged in an activitywhich has a “substantial nexus” with the tax-ing state, and if the tax imposed is “fairlyapportioned” among the states.

For income tax purposes, it’s not clearwhat is required for “substantial nexus” toexist. In Quill Corp. v. North Dakota,2 the USSupreme Court held—in the context ofrequiring a non-resident to collect salestaxes—that substantial nexus required physi-cal presence in the taxing state. But in A&F

Trademark, Inc. v. NorthCarolina,3 the NorthCarolina Court of Appealsrejected the argument that the physical pres-ence test applied to taxes other than salestaxes. According to our court of appeals, theexistence of sufficient economic ties will sub-ject a non-resident to income taxation in ourstate, even absent physical presence.

Often, the pro hac vice attorney will travelinto our state in furtherance of the represen-tation, thereby indisputably creating substan-tial nexus. When the non-resident attorneyperforms services without ever physicallyappearing in our state, there is a continuingdispute over whether or not North Carolina

has jurisdiction to impose an income tax.Notwithstanding this dispute, ultimatelywhether any tax is owed depends upon howany income generated from the representa-tion is apportioned.

Each state, including North Carolina, hasadopted legislation to implement theConstitution’s requirement for fair apportion-ment of multistate business income. The goalof apportionment statutes is to roughlyapproximate the income that can be said tobe fairly related to the services provided bythe respective states. In the context of multi-

©iStockphoto.com

Animal Damages (cont.)

Jack Russells in which a replacement for Laci couldhave been bought for less than $350.

20. Consider, too, whether ordering the refunding of vet-erinary charges paid by the Sheras was a remedy sound-ing in breach of contract that was not available in theirsuit against state veterinary hospital under the NorthCarolina Tort Claims Act.

21. Heath v. Mosley, 286 N.C. 197, 199, 209 S.E.2d 740,742 (1974). Costs of repairs are some evidence of thedecrease in value.

22. Givens v. Sellars, 273 N.C. 44, 51, 159 S.E.2d 530,536 (1968).

23. Kimes v. Grosser, 126 Cal. Rptr. 3d 581 (App. 1911).See also Burgess v. Shampooch Pet Industries, 131 P.3d1248 (Kan. App. 2006) (full amount of veterinary billsrecoverable, although plainly in excess of replacementvalue, where 13-year-old dog had no market value).

24. Hyland v. Borass, 719 A.2d 662, 664 (NJ App. Div.1998). Accord, Leith v. Frost, 899 N.E.2d 635, 641 (Ill.App. 2008).

25. McDougall v. Lamm, 48 A.3d 312, 324 (NJ 2012).

26. Brousseau v. Rosenthal, 443 N.Y.S. 2d 285, 286 (Civ.Ct NY Cnty, 1980).


state legal services, this is rarely the same aswhat the client actually paid for the services.

Under most statutes, states employ a three“factor” formula for apportioning the busi-ness income earned by multistate actors,including lawyers. Usually these formulastake into account the taxpayer’s property, pay-roll, and sales in each state, relative to the tax-payer’s total property, payroll, and sales.Different states apply different weights tothese factors. North Carolina weighs the salesfactor twice as heavily as either of the othertwo factors.

Since it is unlikely that a non-residentattorney appearing pro hac vice in NorthCarolina will own or rent any real or tangiblepersonal property in our state, the propertyfactor is likely to be zero. Similarly, since thenon-resident attorney typically will not paycompensation in our state, the payroll factoris likely to be zero.4

As a result, the sales factor is of greatestconcern to the non-resident attorney. Thesales factor represents the gross revenuesourced to North Carolina, divided by thegross revenue from all states. Especially in thecontext of services revenue, the critical task isdetermining to what state the revenue shouldbe sourced. Two main approaches have devel-oped.

First, in states that have adopted theUniform Division of Income for TaxPurposes Act (UDITPA), services revenue isattributed to the state in which the greaterproportion of costs are incurred to performthe activities that give rise to the income.Second, in the 11 states which have adopteda market-based sourcing rule, services revenueis attributed to the state where the customeror client receives the benefit.

North Carolina employs a variation onthe UDITPA approach. Services income issourced to our state if the “income-producingactivities are in this state.”5 This ratherunhelpful rule is explained through guidanceissued by the NC Department of Revenue,which provides that when services are per-formed across state lines, gross receipts forperforming those services “shall be attributedto this state based upon the ratio which thetime spent in performing such services in thisstate bears to the total time spent in perform-ing such services everywhere.” Consequently,a non-resident lawyer who spends no time inNorth Carolina will owe no North Carolinatax, even if paid for appearing in a NorthCarolina action.

Let’s take a practical example. A nonresi-dent lawyer is admitted pro hac vice in NorthCarolina. She has no real or tangible propertyin our state and pays no “compensation”within our state. The property and payrollfactors are therefore zero. She is paid$150,000 for 500 hours of work on the case.She spent 100 of those 500 hours in NorthCarolina. The numerator of the sales factor istherefore $150,000 x [100/500], or $30,000.Assuming that her gross receipts from allstates during the year was $600,000, the salesfactor is $30,000 / $600,000, or 0.05.

To calculate the apportionment factor, allof the factors must be combined, with thesales factor weighted twice: [0 + 0 + 0.05 +0.05] / 4 = 0.025. This apportionment factoris then multiplied by her net business incomefrom all states to determine the income thatmust be reported in North Carolina. Thus, ifher net business income for the year was$320,000, the amount which must be report-ed to North Carolina is $320,000 x 0.025, or$8,000.

Fortunately, her home state will typicallygive her a credit for any tax she paid to NorthCarolina. She will in the end face a highertotal tax burden only if her North Carolinatax bill is greater than her home state’s bill.Obviously, if her home state has no incometax, this burden can be significant.

A similar calculation results when a NorthCarolina lawyer performs legal services in aforeign state. But since the Supreme Court’sinterpretation of the Commerce Clause givesthe states considerable discretion whenadopting apportionment formulas, differ-ences abound. South Carolina, for example,adopts a single factor formula, under whichonly sales sourced to the state are consideredin determining the tax. As a result of thisdiversity, apportionment formulas couldoverlap, resulting in double taxation of thesame income. When a firm’s employees arephysically present is another state, somestates may even require the payment of pay-roll taxes.

Finally, if the non-resident attorney is apartner, member, or shareholder of a partner-ship, LLC, or S-corporation, must each part-ner, member, or shareholder file a tax returnin North Carolina? Because the distributiveshare of each owner of a pass-through entitywill include income apportioned to NorthCarolina, the answer is generally yes.Fortunately, North Carolina—along withmost other states—permits the partnership,

LLC, or S-corporation to file a “compositereturn,” thereby paying the tax on behalf ofall of the firm’s owners. This will avoid theadministrative and compliance burdens asso-ciated with filing and processing multipleindividual returns, often with little income toreport. n

Jerry Meek is a Mecklenburg County businessand tax attorney. He is a graduate of DukeUniversity (BA, Economics and PoliticalScience), the University of Notre Dame (MA,Government), Duke Law School (JD), andGeorgetown Law Center (LL.M., Taxation). Heis licensed to practice law in North Carolina,South Carolina, Texas, Oklahoma, andArkansas.

Endnotes1. 430 U.S. 274 (1977).

2. 504 U.S. 298 (1992).

3. 167 N.C. App. 150 (2004).

4. This is true because, under N.C.G.S. § 105-130.4,compensation is considered “paid in this state” only if:(a) the individual’s service is performed entirely inNorth Carolina; (b) only an incidental amount of theservice is performed in another state; or (c) the base ofoperations, or place from which the service is directed,is in our state. Typically, the pro hac vice attorney willperform a substantial (and therefore non-incidental)amount of the services in his or her home state—draft-ing pleadings, preparing or responding to written dis-covery, or preparing for depositions or trial.

5. N.C.G.S. § 105-130.4(l)(3)(c).

In the early 1990s what was then the StateBar Quarterly published a series of articles looselyheld together with the theme, “Meet the FederalJudges.” In the next few editions of the State BarJournal, we will be updating that series.

Chief Judge Robert J. Conrad Jr.“He has shown you, O Mortal, what is

good. And what does the Lord require of you?To act justly and love mercy and to walkhumbly with your God.” Micah 6:8.

These words give insight into the experi-ences and character of Judge Bob Conrad.

Judge Conrad credits his father—a corru-gated box salesman—with his early success asa litigator, at least to the extent that he learnedthe art of “a good sales pitch.” He grew upwith his younger brother and two sisters in asuburb of Chicago. He was 14 years old whenhis youngest sister was born and she became anice “magnet” for the good looking girls!

It was a basketball scholarship to ClemsonUniversity that enticed Bob Conrad to movesouth. He majored in history, minored inGerman, and played point guard for whatcould be considered the university’s best bas-ketball team—the Elite Eight of the NCAABasketball Tournament in 1980. In fact, he isnow included on a poster that he keeps in hisoffice depicting the “25 Man All-time Team”which was recognized as part of the 100 yearanniversary of basketball at Clemson.However, he is quick to point out that heembraced a love of learning once he began hisstudies at Clemson. While he jests that hemight be the only ACC player whose gradepoint average was higher than points scored,it’s hard to argue with his eight for eight freethrows in an upset overtime victory over #1Duke—the first time in the school’s historythat Clemson had beaten a first-ranked team.The combination of excellence in athletics and

scholarship earned him the Atlantic CoastConference James Weaver Award for top stu-dent athlete, and Clemson’s Norris Medal forMost Outstanding Student.

Basketball not only afforded Bob Conradwith an opportunity to attend college, but alsoprovided him with tools for success. Heexplains that the game is not only competitive,but also requires a constant striving for excel-lence and building relationships, as well asrespect for the dignity and worth of others. Hecertainly carries this forward in his work at thecourt where he has the utmost respect forcourt personnel—the administrative staff, themarshalls, his clerks, the maintenance crews,and, of course, the parties and attorneys whoappear before him.

Judge Conrad isn’t entirely sure what moti-vated him to choose law as a vocation. Hedoes remember a lawyer who lived close byand whom he wanted to emulate. Once there,he says, he thoroughly enjoyed every aspect oflaw school from the challenge of study to thecollegiality and campus life at the University ofVirginia, where he graduated in 1983.

The practice of law began with Michie,Hamlett, Donato & Lowry, a 12-person lawfirm in Charlottesville, where he handledplaintiff ’s litigation. He then moved toCharlotte where he practiced general litigationwith Horn & Conrad, and later with Bush,Thurman & Conrad. In 1989 Conrad wasappointed as assistant US attorney for theWestern District of North Carolina, and in2001 he was promoted to US attorney.Although he found the private practice of lawappealing, occasionally he would pick up theold billable hour notepad that he first used inhis law practice to remind him that he didn’tmiss having to keep time in the least bit!

Judge Conrad’s career as a United Statesattorney brought its own challenges. In 1999

Attorney General Janet Reno appointed himas head of her Campaign Financing Task Forcecharged with investigating fundraising impro-prieties during the 1996 election campaigns.He deposed both President Clinton and Vice-President Gore in the same week! Then in2001 Attorney General John Ashcroftappointed him to the Advisory Committee onTerrorism. In connection with that assign-ment he prosecuted supporters of a Hezbollahterrorist cell in North Carolina and testified onterrorism related matters before the US Senate.

In 2004 Conrad became a partner atMayer Brown where he remained until he wasappointed to the federal bench by PresidentBush and later confirmed by the Senate inApril 2005. He has been the chief judge since2006. His seven-year term will expire in June2013 at which time Judge Whitney has been

26 WINTER 2012

Meet the Federal Judges—ChiefJudge Robert J. Conrad Jr.

B Y M I C H E L L E R I P P O N

selected to take over this responsibility. Hefinds the work on the court enjoying andenriching. “No case is typical,” he says, whichalso makes the work always interesting. He canstill be a lawyer, but with a different skill setwhere the role is deciding instead of advocat-ing. It does give him the opportunity to taketime to research and to work on a case until he“gets it right”—a real luxury! “Sentencinghearings,” he says, “are the most intense andchallenging aspect of this work, particularlynow that the judge must take the facts of eachcase into consideration and exercise discretionin reaching a decision.” Close to 90% of allcriminal cases are resolved with a plea, whichexplains the significant caseloads.

Judge Conrad enjoys trying cases. Herespects the work that the trial lawyers put intotheir cases and believes in the jury system asthe best way to resolve cases. For the most part,“the jury gets in right.” He also believes thattrials are “cathartic for the litigants.” In fact,the judge worries that while dispute resolutionmay be less expensive and offer a faster resolu-tion, important legal issues remain unresolved.He refers to Joe Anderson’s law review article,“The Vanishing Civil Jury Trial,” and observesthat as fewer and fewer cases reach a trial, thereis a lessening of trial skills among attorneys—especially a good grasp of the rules of evidenceand civil procedure. Rather, attorneys “work atbecoming skilled at taking depositions andresolving cases in mediation.”

Judge Conrad has the greatest respect forhis law clerks with whom he enjoys both a col-legial and a coaching relationship. He explainsthat if students are “obsessive” in law school,they will generally carry that obsessiveness overto the practice of law. Instead he looks forclerks who have not only excelled in lawschool, but who also bring with them goodjudgment and a balanced approach to life. Hisadvice to them is, “people matter, your wordmatters, your character matters.” His respectand consideration for those who work withhim is no better illustrated than with the deci-sion to hire his career law clerk.

Bob Conrad first met TJ Haycox in 1987when he came to work at Bush, Thurman &Conrad as a summer intern between highschool and college. Even at that early age, TJrecognized that Conrad was someone specialin that he was remarkably able to balance hislaw practice while genuinely caring for hisfamily. Once in law school, TJ decided that hewanted to practice criminal law. By thenConrad was working in the US Attorney’s

Office, and with Conrad’s help TJ was able tointern in that office between his second andthird year of law school. After graduation, TJtook a job in the District Attorney’s Office inNashville, Tennessee. They continued to keepin touch. The two worked together againwhen, with the blessing of Janet Reno, Conradasked TJ to join him on the CampaignFinancing Task Force, and he was appointed asan assistant US attorney out of the Nashvilledivision. As the work on the task force phasedout, TJ returned to the US Attorney’s Office towork as a federal prosecutor. By 2005 TJ wasmarried with a family. He had never forgottenthe lessons he learned from his early coach andmentor about making family count and hewas finding it more and more difficult to workthe kind of hours he was expected to work anddevote time to his family. He knew that JudgeConrad would appreciate his priorities andtogether they decided that TJ would be thecareer clerk.

Coaching has been a major influence inJudge Conrad’s life. Basketball was his passionand coaching was, at one time, his goal. This,he explains, is maybe why none of his five chil-dren followed his example and becamelawyers. He instilled in them his love of thesport and used the “coaching method” to raisethem. All except the youngest have graduatedfrom university and all are successful—”Theyall have jobs!” His youngest son is a senior atBelmont Abby where he plays on the basket-ball team and plans a career as a college basket-ball coach. His older brother teaches religionat Charlotte Catholic and will be coaching thebasketball team at Belmont Abby this year.

As is the case with many of his colleagues,Judge Conrad feels a sense of isolation—oneof the few negatives to the job. If he socializeswith attorneys he is “funnier and right moreoften.” He does actively support theMecklenburg County Bar and the NorthCarolina Bar Association where he has servedon the Board of Governors. He will be partic-ipating with a panel on, appropriately, sportslaw at the Southern Conference of BarAssociation Presidents later this year. He,along with his clerks and other court person-nel, run on Fridays before work. And he par-ticipates in “lunch and learn” opportunities forinterns to meet and talk with other law clerks,judges, and court personnel.

No summary of Judge Conrad’s life orcareer would be complete without mentioningthe pride and devotion he has for his family. Inan article written by his daughter Kim in

2004, she began, “He is a storyteller and areader, an adventurer and a homebody, a joke-ster and a leader. Bob Conrad is a man of con-tradictions, two people in one personality—adistinguished career man and a giving father.”This is a worthy tribute by a talented andproud daughter for a loving and deservingfather. His daughter also recalls the time whenConrad spent 15 months from January 2000to April 2001 working in Washington, DC, inconnection with his work on the CampaignFinancing Task Force. He would come homeon weekends and begin to do laundry. Whenhis wife Ann asked him why he was suddenlydoing laundry, he told her, “I just tried tothink of something that would make your lifeeasier.” His ability to maintain the priorities offamily life with a strong work ethic has beenentirely intentional as he integrated his familylife with his work. As the children were grow-ing up the ritual was Saturday morning break-fast together at Anderson’s and then all off tothe office. When he traveled he would make apoint of taking one child at a time with himfor quality alone time. The family meetstogether on a regular basis and his childrenhave remained best friends.

Judge Conrad presides in the courtroomonce occupied by his friend and mentor BobPotter. Under the glass top of Judge Potter’sdesk were these words of wisdom: “Bad plan-ning on your part does not necessarily consti-tute an automatic emergency on my part!”The saying is no longer there, but his col-league’s sense of humor has not been forgot-ten. While attorneys see the serious and delib-erate side of Judge Conrad in the courtroom,behind that exterior is the gentle, often hum-ble humor of a man who is comfortable withhimself.

Behind his desk hang two portraits: one isof Sir Thomas More the English lawyer, socialphilosopher, statesman, and author of Utopia,who died the king’s servant but God’s first.The other is of Fr. John Bradley, one timeassistant to Bishop Fulton Sheen and presidentat Belmont Abbey College. Also decorating hisoffice walls are two beautiful oil paintings ofchildren done by his wife Ann, an accom-plished artist; a framed flag given to him at hisswearing-in; and a framed rendition of thefamous Shroud of Turin. He also keeps a copyof the Bible and a treatise on the United StatesConstitution on a table in the sitting area ofhis office.


THE NORTH CAROLINA STATE BAR JOURNAL 27

28 WINTER 2012

Q: What can you tell us about your roots?I’m a native of North Carolina with deep

Tar Heel roots on both my mother’s andfather’s side. I was born in Winston-Salemand grew up between Rural Hall andBethania in Forsyth County. My parents liveon a farm in Forsyth County that has beenin my father’s family since the 1790s. Mymother is from the Yadkin River Valley inWilkes County, where her family history isequally as long. Q: When and how did you decide tobecome a lawyer?

I studied history and English at UNC-Chapel Hill. As a Morehead Scholar, I hadthe privilege of participating in a programthat strongly emphasizes leadership andresponsibility. I took advantage of leadershipopportunities on campus, particularly in theDialectic and Philanthropic (Di-Phi) debat-ing societies, which I served as president.However, at first I had no clear idea whatprofession would combine my interest inscholarship with the chance for leadership.Academia looked like a good option. I couldsee myself as an American history teacher.Ministry within the Moravian Church was apossibility, too. I chose to apply to lawschool in part because a number of the men-tors I met at the university—especiallyamong Di-Phi alumni—were lawyers. JohnSanders, past director of the Institute ofGovernment and past vice-president of theuniversity system, is an outstanding exam-ple. Another is Chuck Neely, who hired meat Maupin Taylor and Ellis. That gruelingfirst year at UNC Law did not convince methat I had made the right choice! The movieThe Paper Chase was just a couple of yearsold at that time, and I promise you – Iunderstand completely why that first-yearstudent literally lost his lunch, because myseatmate did exactly the same thing in theface of UNC’s version of Professor

Kingsfield! What made the difference for mewere, again, the people of the law—thelawyers themselves practicing an honorableprofession. After my first year I was fortu-nate to obtain a summer clerkship with theWinston-Salem firm of Hall, Booker, Scalesand Cleland. Back then, law students didn’talways have clerkships that first summer.Some firms preferred to wait until the end ofthe second year to offer that experience.From the first week I knew that the law waswhere I was meant to be. One of the part-ners, Roy Hall, was a terrific lawyer and acounty commissioner, demonstrating that ademanding profession and public service cango together. Everybody put in long hours ofhard work yet seemed to have time for greatfamilies and interesting lives. They treatedme as one of the team. 2012 marks the 33rdanniversary of my admission to the bar. Ihave been glad of my choice and proud of

my profession for every one of those years.Q: What’s your practice like now, and howdid it evolve?

I have a commercial and administrativelitigation practice. To my knowledge, I wasthe last associate hired by Maupin Taylorand Ellis who was required to try a case,draw a will, draft a contract, close a piece ofreal estate, and go to an administrative hear-ing. What stuck with me out of all that wasthe dispute side rather than the transactionalside. However, I am thankful for the broadknowledge I got in those early years of takingevery file in the firm that either nobodyknew how to handle or that nobody wantedto handle. I believe because of that training Iam able to see issues in cases that lawyerswho are more focused and specialized do notnecessarily see.Q: You are a partner in a large interstate lawfirm and the majority of lawyers in North

An Interview with New PresidentM. Keith Kapp

With his wife Chancy looking on, M. Keith Kapp is sworn in as president of the State Bar.

Carolina are practicing alone or in verysmall firms. Can you relate to the averagelawyer and understand his or her problems?

My service to the bar at the local, region-al, and the state level has brought me intocontact with what you describe as the “aver-age lawyer” in North Carolina. I’ve practicedwith the “average lawyer” throughout mycareer. At each level of service, whether aspresident of the Wake County Bar or on theBoard of Governors of the North CarolinaBar Association, or as a councilor to theState Bar, I’ve tried to focus on what is bestfor the practicing lawyers in the state. I’malso supported by a State Bar Council wherethe great majority of the members are prac-ticing in small firms or as solo lawyers intheir judicial districts. They were a constantsource of help to me as a fellow councilorand will continue to be so as a State Bar offi-cer.Q: How and why did you become involvedin State Bar work?

I was elected as a councilor for WakeCounty 10th Judicial District in 1999 andserved three terms. This was my first involve-ment with the Bar Council. However, myState Bar involvement goes back to the era ofRoy Davis, as president of the Bar, and BillDavis, as chair of the Ethics Committee. Atthat time, the State Bar embarked on a pro-gram to get young lawyers’ views on issues,and I was appointed the only young lawyeron the State Bar Ethics Committee. In thatservice I wound up drafting the initial ethicsopinion adopted by the committee and thecouncil which led to the case of Gardner v.State Bar, wherein it became the law in NorthCarolina that an insurance captive law firmcould not represent the insureds of insurancecompanies (316 N.C. 285 (1986)).Q: What has your experience on the BarCouncil been like and how has it differedfrom what you anticipated?

My experience with the State BarCouncil has been wonderful. I’ve never meta more dedicated group of people. The abil-ity to have people on board from literallyManteo to Murphy and from small townsand large cities and different parts of the pro-fession makes it truly a diverse group. As tohow it differed from what I anticipated, ithas been more rewarding than I expected itwould be when I came to serve the first yearof my three terms as a councilor.Q: Can you tell us about the most difficultissue you’ve faced as a member of the Bar

Council?The most difficult issue I’ve faced was my

participation in the special committee thatlooked into the Hoke/Graves matter or, assome people call it, the Gell matter. It wasvery hard to reconcile the decision of theDisciplinary Hearing Commission and toexplain the State Bar’s part of it as the prose-cutor. Perhaps we didn’t present the bestcase, but still, justice was done and adminis-tered by the Disciplinary HearingCommission. The public does not under-stand the distinctions for due process for theaccused provided by the investigator, theprosecutor, and the judging body. Q: What do you think are the biggest issuescurrently facing the council?

The increased globalization of the prac-tice of law and the technology changes thatare wrought on a daily basis are the biggestissues with which we must wrestle in theState Bar. Change is constant, but change ismuch more rapid than it was in the past.Q: You have indicated that the State Barought to assist lawyers as they enter theprofession and as they leave it. What doyou see as the biggest problems facing newlawyers and what should the organized barbeing doing about them?

This year we had the highest number ofapplicants in our history for the bar exam inJuly. Our state has seven schools of law. Thisyear 42,000 people nationwide took the barexam, and only half that number of legalpositions are open in the country. Howmany of these new lawyers have taken onhuge debts in order to earn their law degrees,expecting that at least a decent living awaitsthem? How many hesitate to go into publicservice law because government salaries can’tkeep up with debt payments? Our State Baralready works with law school deans andothers to make sure that prospective studentshave a clear, accurate understanding of thedemands and rewards of the profession—and of the realities of potential employment.Q: Are there too many lawyers? Is that alegitimate concern of the State Bar?

There are too many lawyers. Most statis-tics I’ve seen in the past year support that. AsI mentioned earlier, we have twice as manypeople sitting for bar exams in this countryas we have job openings for lawyers. I per-sonally trust in the free market, and I believethere will be correction in that regard.However, it is a legitimate concern of theState Bar because many of these people who

have licenses and no employment have prob-lems with addiction, stress, or mental illness,and we are seeing them in the LAP program.Inexperienced, unmentored young lawyersdo not know what they are doing, and weare seeing grievances filed against them.They do things that are unethical becausethey do not know the North Carolina Rulesof Professional Conduct or State Bar ethicsopinions. It is one thing to pass the multi-state ethics exam and another to know whatthe North Carolina Rules and ethics opin-ions require in practical application.Q: What about lawyers who are approach-ing the end of their legal careers? Does theState Bar have a role to play facilitatingtheir retirements?

Lawyers now practice and live longerand, with the aging of baby boomers (myselfincluded!), we must acknowledge that morelawyers will be facing illness, family stresses,addictions, and dementia. The State Bar hasan excellent LAP in place, and interventionsfor cognitive impairment due to age are onthe rise in LAP. In the coming year, we willbe looking at additional ways to assistlawyers as they exit practice.Q: Are you concerned at all about global-ization and whether the State Bar ought tobe involved in the regulation of foreignlawyers?

We should regulate only those for whomwe provide licensure. The question iswhether we should license foreign lawyers,and that is a question first for the Board ofLaw Examiners.Q: You’ve been an officer during the pasttwo years, first as vice-president and then aspresident-elect. What has that been like?Does the president generally call the shotsunilaterally or does he seek consensusamong all the officers before taking action?

The presidents I have served under havealways sought consensus. I plan to doabsolutely the same thing. I also plan to getthe involvement of the councilors. Beingpresident of a licensing body does not makeone a czar.Q: Can and should anything be done tofacilitate the licensure of lawyers whosemilitary spouses are transferred to bases inNorth Carolina from other states?

This has already been done. I commendthe work of our immediate past president,Tony di Santi, and his committee made upof members of the Board of Law Examinersand councilors of the State Bar. Their work


resulted in changes to the Board of LawExaminer’s rules which will allow thesespouses to timely seek licensure in this state.The military is very important to our coun-try and this state. We have reached out as aself-regulating, licensing entity and providedassistance in this area by: (1) giving thespouses of those in the military priority inprocessing of applications, (2) providing acomity rule that recognizes their need tomove between jurisdictions as often as everytwo years, and (3) recognizing the cost bur-den to them. These are excellent actions. Iwill be pleased to preside in January at themeeting where these rules are brought by theBoard of Law Examiners to the council forapproval.Q: The State Bar has been sued byLegalZoom. What’s the dispute about,what is the status of the case, and why is thelitigation important?

LegalZoom is an online legal documentpreparation service that operates nationwide.At its website, LegalZoom asks the cus-tomer—a member of the public—a series ofquestions. Based upon the customer’sanswers, LegalZoom prepares a legal docu-ment which it either delivers to the customeror files for the customer. In 2008 the StateBar’s Authorized Practice Committee sentLegalZoom a letter advising it to cease anddesist engaging in the unauthorized practiceof law in violation of N.G. Gen. Stat. §§ 84-2.1, 84-4 and 84-5. LegalZoom sued theState Bar, asking the court for a declarationthat it is not engaged in the unauthorizedpractice of law. It also asked the court tocompel the State Bar to register a purportedprepaid legal services plan. LegalZoom con-tends that the State Bar is violating the anti-monopoly and equal protection clauses ofthe North Carolina Constitution. The casehas been designated by the chief justice andby the chief judge of the North CarolinaBusiness Court as a Mandatory ComplexBusiness Case under N.C. Gen. Stat. § 7A-45.4. The court denied the State Bar’smotion to dismiss under Rule 12(b)(6). TheState Bar filed a counterclaim asking thecourt to enjoin LegalZoom from engagingin the unauthorized practice of law. TheState Bar expects to file additional disposi-tive motions. The case has not been sched-uled for trial. The State Bar’s interest in thiscase is to fulfill its duties under Chapter 84to protect the people of North Carolinafrom harm resulting when legal services are

provided by those unqualified to providesuch services. Q: In your opinion, does it make sense forlawyers to be regulating themselves? Is itgood public policy? Do we deserve the pub-lic’s trust?

It does make sense for lawyers to regulatethemselves. It is part of our heritage begin-ning with the Temple Bar and other Bars inLondon that go back to the Middle Ages.These are early examples of lawyers policingand regulating themselves. It is a tested poli-cy that is tried and true. As long as we havethe public trust, then we should be allowedto regulate ourselves. I believe, at present, wehave the public trust in the manner in whichwe regulate the profession. Q: You served on the State Bar’s EthicsCommittee for many years. What was thatlike? Was all that arguing worthwhile? Doesthe Ethics Committee make a difference inthe professional lives of attorneys? Does theprocess benefit the public?

The North Carolina State Bar EthicsCommittee is one of the last great debatingsocieties in the western world. The debatethat goes on within that committee on thefine points and the broad strokes of whereethics covers the profession is just amazing.Chairing the Ethics Committee and givingeverybody the opportunity to be heard hasbeen one of the most challenging things I’vedone in my professional career. It is muchbetter to have a chance to ask what is ethicalbefore being informed that what you havedone is in violation of the rules and subject-ing yourself to the potential loss of yourlicense. This is the first step in protecting thepublic. The Grievance Committee and itsrecommendations to the DisciplinaryHearing Commission protect the public, butmany, many more reap the benefits whenlawyers are able to get guidance on what isand is not right before they make a mistake.Q: At one time you chaired the State Bar’sFacilities Committee. Can you tell us wherewe are in regard to the construction of theState Bar’s new headquarters?

The State Bar exists to regulate the pro-fession and to serve North Carolina’s citizenswho deserve quality representation fromlawyers of integrity. For years the staff andfacilities that enable the Bar to carry outthose functions have been scattered acrossseveral locations, many of them leased. Thenew building at the corner of Blount andEdenton Streets will have space and technol-

ogy to enable staff to do their jobs effectivelyand efficiently and, very importantly, to pro-vide the convenient public access we havenot had in previous facilities. The State Baris a state agency, and our council meetings,disciplinary hearings, and trials are open tothe public. We are on time with the con-struction, within our original cost estimates,and we plan to occupy the building in early2013. I look forward to presiding when theribbon is cut for the new building in April.We have had phenomenal support for thebuilding from inside and outside the profes-sion. I’m very appreciative of the work of thegovernor’s staff, the Department ofAdministration, the State ConstructionOffice, and the Council of State. I am grate-ful for the North Carolina State BarFoundation, which was created by some ofour past presidents to provide an opportuni-ty for lawyers in the state to contribute ifthey so desire to the enhancement of thebuilding project. Q: The North Carolina State BarFoundation, which is independent of theBar Council, is running what appears to bea very successful fund-raising campaign insupport of the new building. Do you thinklawyers ought to contribute?

I’m not yet a past-president and, as partof the group that continues to regulate theprofession, I’ve not been heavily involved inthe activities of the North Carolina State BarFoundation. I’m appreciative of what theyhave done, and I have thanked a number ofpeople as I’ve become aware of their contri-butions to and through the North CarolinaState Bar Foundation. The opportunity togive is a matter of personal choice, and Iappreciate those who are willing and able tomake gifts. Q: Is there anything else you would like toaccomplish during your year as president?

Always and foremost I will seek to pro-tect the public as well as support the legalprofession in North Carolina. I hope that wewill be able to keep moving forward with allthe good work my predecessors have put inplace. Again, I am interested in working tomake sure that as the regulatory body, we aredoing the best we can for the lawyers whoare at the beginning of their practice andthose who are at the end of their practice.Q: If you had not chosen to become alawyer, what do you think you would have

C O N T I N U E D O N PA G E 4 5

30 WINTER 2012

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

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

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

32 WINTER 2012

The RingB Y T E R R Y O R N D O R F F

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

“To be yourself in a world that is constant-ly trying to make you something else is thegreatest accomplishment.”

—Ralph Waldo Emerson

* * * * *

Every nerve in Luke’s body tingled as hecrossed into enemy territory. Shouldering hisgear, he drew a deep breath and carefully madethe initial climb to the top of the incline. Thatwas the easy part, he thought. Here the hot,damp air seemed almost viscous. His lungsstruggled at twice their normal rate, and hischest shook as his heart hammered against hisrib cage. Even as his body began the requiredturn to the left, his brown eyes were alreadyscanning ahead for any hint of danger. Hepaused briefly to assess what lay ahead. It wastoo quiet—an unnatural quiet. He couldalmost sense an evil presence ahead. A ribbonof sweat trickled down his forehead andburned in his right eye. He removed his glass-es, ran his sleeve across his face, and replacedthem in one smooth motion. This is insanity,he thought, but I have no choice. I must movenow, before I am noticed. Only a few moreyards to go, but they would be the mosttreacherous of all. Luke knew from experiencethat he should continue with a slow, careful,stealthy approach. Unfortunately, the adrena-line surging through his body began to wrestlecontrol from his prefrontal cortex. Fight orflight. He put his head down and began aquick forward drive. Only a few more feet...hecould still make it.

A silent projectile rocketed toward Luke.Its aim was true. He felt a swarm of angry hor-nets attack the base of his skull just before ablanket of darkness encompassed him.

As the haze slowly lifted, Luke awoke to athrobbing pain in his head. He was groggy,but alive. He lifted his face from the groundand brushed the sand off his cheek. But it was-

n’t sand. It was gritty like sand, but it had afamiliar, unpleasant odor...and it was sticky.His hands instinctively began searching for hisglasses. “The ring!” he thought. He reached tohis chest to find that the ring was still on thechain hanging from his neck.

“Kid, get in a seat now!” the bus driveryelled at Luke as he struggled to his feet.

The school bus was already moving andLuke fought to maintain his precarious bal-ance. As he bent down to retrieve his glasses,he saw the weapon at his feet—an eighthgrade algebra book. The laughter subsided,and Luke attempted to obey the bus driver’scommand as the vehicle jostled him from sideto side.

“Yeah, sit down, freak!” a voice barkedfrom the back.

This comment initiated another wave oflaughter. As he approached each row, the seat-ed passengers scooted toward the aisle. No onewanted to sit next to a target for fear that theymight catch some shrapnel as well. Hesearched for Amy’s face without success. Amyalways saved a seat for him. Well, not really“saved” a seat, since no one wanted to sit withher either. But her bus stop was one of the firstin the morning, so she was usually able to finda seat for herself, and for Luke.

The other students regularly terrorizedAmy because of her weight and how shedressed. She wore long sleeves even on thehottest of days. Luke thought he knew whyshe wore the long sleeves. Last month, theschool bus had hit a bump that almost sentAmy’s clarinet case to the floor. When shereached out to keep it from tumbling, Lukewas able to see a series of straight scars runningup and down her forearm like railroad tracks.Amy quickly pulled her sleeve over the disfig-urement and turned away. It was never dis-cussed by either of them.

As Luke’s left buttock finally caught holdof the corner of a crowded seat, he reached for

the ring, closed his eyes, and thought abouthis father. Though he would never admit thisto anyone, Luke felt like he somehow con-nected with his father when he held the ring.

Only seven months had passed since the“dark day,” the worst day of his young life. OnAugust 18th, Luke’s father was driving homethrough the angry remnants of a tropicalstorm known only as “TS Four.” Five milesfrom home, he spotted a stranded motoristthrough the downpour. While he assisted theelderly gentleman with a flat tire, a green vansuddenly swerved out of the mist. The impactthrew his father’s body over 15 yards. It wasthe next day that Luke received the ring.

Luke had just made it into the schoolwhen he heard a voice that made his bonesturn to liquid.

“Hey Puke! You got my report yet?” NedBarfield said.

“I have to get to class,” Luke replied, as hetried to move ahead through the herd of stu-dents.

Luke felt a hand grab the collar of his shirtand he was suddenly slammed against thelockers. Ned then turned him around so thatthey were face-to-face, or in this case, face-to-chest.

Ned had his hand on Luke’s throat, pin-ning him against the lockers. Breathingbecame difficult.

The Results Are In!

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

“It’s due tomorrow, and I better get ittomorrow. You understandin’ me, Puke?”

Luke hesitated, and then nodded slightly.Ned leaned down and spoke softly so that

others couldn’t hear. His yellow teeth wereonly inches from Luke’s ear and his thick, hotbreath smelled like old eggs.

“And you better not think I’m going to feelsorry for you because your daddy died, you lit-tle puke. What a waste he was. He sure didn’tteach you how to be a man. Do you cry foryour daddy at night like a little baby? Huh?Do you curl up in a little ball and whimper?Do what I tell you, or I just may show up atyour house and get rid of your mommy, too.Then you’ll be an orphan baby. How ‘boutthat? I know where you live. Maybe I’ll sneakin your house and put rat poison in her coffeemaker. You like that? Or how ‘bout I just showup one night and take my ball bat to the backof your mommy’s head? I’ll do it—you thinkI’m kidding, Puke? Do you?”

Luke shook his head. “Is there a problem here?” Assistant

Principal Coffman asked. Neither boy hadnoticed his approach.

“No sir,” Ned said immediately. “Mybuddy Luke and I were just playing around.”

“I don’t believe you,” Coffman said, “and Idon’t know who started it, but I want it to endright now!”

“Really?” Luke thought, “You don’t knowwho started it? Seriously?” But he said noth-ing.

“Now get to class, both of you,” Coffmanordered.

* * * * *

“Luke, did you see Amy in school today?”his mother asked as he slung his book bag upon the kitchen table.

“No, she must be sick again,” Luke replied.“I spoke to her mother this morning. She

was having a time trying to get Amy to go toschool. She said that her depression has gottenso bad that she may have to take her to thedoctor to get medication.”

“She doesn’t need medication, Mom. Sheneeds kids to stop picking on her because ofher weight. All the girls call her Fats McCoy.”

“Well, kids do tease, especially girls at thatage.”

“It’s not just teasing when you’re beingcruel to someone every minute of every day,”Luke said.

“Sweetie, I was not defending the girls, it’s

just something that we all went through. Itwill all work out eventually.... Luke, how inthe world did you manage to get dirt there?”

Before Luke could react, his mother hadalready reached out and began rubbing hisneck with her thumb.

“Ow Mom, stop!” Luke reached up, pro-tecting his neck.

“Luke, are those bruises?”“It’s nothing Mom, we were playing foot-

ball today at recess.”“Are you sure?” Luke’s mom asked. He

could tell from her tone that she was suspi-cious. Now her hand palmed the top of hishead and tilted it slightly, first left, then right,all the while scanning for other marks.

“Yes Mom, it was football. I’m kinda hardto take down,” he said with a crooked smile.

At 13 years old, he was the man of thehouse now. He had to take care of himself andhis mother. Mom had enough to worry about.Sometimes, late at night, he could still hearher crying softly in their room...her room.

“Are you still getting picked on by the kidsat school...that Barfield boy?”

“No, Mom.” Luke drew out the word“Mom” like she’d just asked if she could walkhim to class on the first day of a new schoolyear.

“It’s kind of odd how he suddenly stoppedbothering you after your father...” her voicetrailed off.

“Everything is fine! Ok Mom?” He hadmade it to his room before she could reply.

“Ok, honey,” she said to the closing door.Luke lay in his bed, staring at the ceiling.

His face burned with shame as tears silentlyglided down to the pillow. He closed his eyes.The room was silent, other than the quiethum of the Batman clock, and the whisperthat escaped his trembling lips, “I miss you,Dad.” Then he allowed his mind to relax, todrift back...to better times...a time before...

* * * * *

They were a complete family again, play-ing on the beach where they had spent manyhappy times before the Dark Day.

“Wow, nice throw!” Ken Winston said asLuke whipped the ball over the waves.

“Thanks, Dad,” Luke grinned. He wasn’t about to tell his dad that he had

practiced his throws every chance he couldsince they bought the water ball. The ball,made of a soft rubbery material covered incloth, was designed to skip across the top of

the water. But it could also be used just to playcatch, as Luke and his dad often did. Theywould usually make it a contest to see how farapart they could get and still throw accurately.Luke didn’t have a friend to practice with, soevery day after school he would throw rocks atdifferent targets in the woods.

“You really should consider trying out forthe baseball team this year.”

“Nah, I just like throwing with you, Dad.”Luke’s mom called from the beach, “You

boys need to finish up if you still want to havetime to get to Fort Macon.”

It was almost a tradition by now. Beforethe drive home, Luke’s mom would take abook and read by the pool, “one last slice ofbliss” she called it, whatever that meant.“Borrring,” Luke thought. But the menwould do something fun. They would driveup to Fort Macon State Park and walk aroundthe old fort.

As Luke and Ken Winston sat on a set ofsteps inside the fort, they watched the swollenclouds drifting over the ocean. Luke’s fingerstraced the century old grooves in the steps thatwere left by a shot from a Union cannon. Theshot had chipped the edge of each step as itslid down the stairway. Eventually, theConfederates who manned the fort had sur-rendered to the Union Army.

“Did they surrender because they weren’tbrave enough?” Luke asked.

“No, Luke. There were many brave menand women on both sides in that war.Choosing not to fight is often the right thingto do. You can’t worry about what othersthink, you have to do what you know to beright.”

After a pause, Luke said, “last week in thecafeteria, some of the guys dumped theirgarbage on my tray while I was eating. Icouldn’t eat the rest of my food.”

“Did you tell a teacher?” his father asked.“I told one of the cafeteria workers, but

they just told me to clean it up. While I wascleaning it up, a boy at the next table called mea ‘wimp.’ I guess he thought I should havefought them,” Luke said.

“Do you think you should have?” “I guess not. If I had tried, I would have

been beaten up, and probably would have got-ten suspended, too.”

Luke looked down at the steps so his fatherwouldn’t see the tears beginning to well up inhis eyes. “I can’t wait until I’m out of schooland I don’t have to worry about bullies any-more.”


His father reached down and placed hishand over Luke’s. The ring on his right handglared in the sunlight.

“Luke, you need to understand that youwill run into bullies all of your life.”

Luke looked into his father’s eyes, hopingthat he was joking, but knowing he wasn’t.

“Even after I’m out of school?” Luke asked.“Yes,” his dad said. “It doesn’t matter where

you go or what you do, you will come acrossbullies. Most of the officers I work with arevery good, honorable people, but over theyears I have met some that use their authorityto bully others. I’ve seen it happen with politi-cians, lawyers, prosecutors, even judges.Anybody with power over someone else canbe a bully.”

“Do they hit people and dump garbage onthem?” Luke asked.

Luke’s father smiled at the question.“When an adult bullies another adult, it’s usu-ally not physical abuse, it’s an abuse of power.They use some advantage they have over oth-ers to try to demean them, to make them feelweak and helpless.”

“Why would anyone do that?” “Often, it’s because they themselves have

been the victim of abuse in the past.”His father reached down to the bottom of

one step and picked up a small flat piece ofblack and gold paper. He unfolded it into itsoriginal cylindrical shape, and handed it to hisson. Luke could just make out the word“Macanudo” on it.

“Abuse can be a circle, like that cigar band.In some families, children are bullied by theirown parents, and that violence can travelthrough many generations.”

Luke frowned. “Does everyone who is bul-lied later become a bully?”

“No. We don’t know why a change occursin some victims of abuse but not others.”

“How can you tell who has been changedinto a bully?” Luke asked.

“Unfortunately, if abuse changes someone,you won’t know until they acquire some typeof power over others—and that may takeyears or even decades.”

Luke and his father got up and walkedthrough the fort, past the field cannon, andtoward the entrance. As they reached the sallyport, Luke asked, “If someone is being abused,how can they make sure that they aren’t beingchanged into a future bully, Dad?”

His father smiled and led him to a bench.As they sat down, Luke watched his fatherbegin working the gold ring off his right hand.

“With this,” he said, as he held the ring upto Luke.

Luke took the ring and studied it. It wasthe first time he’d ever held it. There was nostone, and only one word on the face of it -“Love.” It was the ring Luke’s grandpop andmemaw had given his father the day he’d leftfor basic training.

“Is this supposed to be a magic ring?” Lukegrinned.

“The ring itself is only a symbol. Do youstill have that cigar band?”

Luke held it up beside the gold ring.“The cigar band represents a circle of

abuse, but this ring represents a circle of love.Your grandpop and memaw were loved deeplyby their parents. They were treated with fair-ness and respect throughout their childhoods.Then, when I was born, they treated me thatway. I was brought up in an open, lovinghome, where I could talk to my mom and dadabout anything.

“Just like me!” Luke interrupted.“Yes, and when they disciplined me, they

did it for me, not to me—even punishmentwas done in love, not anger. On the day I leftfor the marines, your grandpop told me thatas I got older, I would probably forget muchof my childhood. He made me promise that Iwould remember one thing above allelse...that I was loved. That’s when he gave methis ring.”

Luke’s father’s eyes seemed to glisten as helooked thoughtfully into the distance. “Andit’s that foundation of love that gives you theability to resist becoming a bully.”

“I guess not every kid gets a Luke sand-wich?” Luke asked with a grin.

The “Luke sandwich” had first begunwhen he was very young. As far back as hecould remember he would call for a Lukesandwich. Usually this occurred while he andhis parents were on the sofa together, or some-times as he was going to bed at night. Theunwritten rules declared that upon his cry of“Luke Sandwich!” his father and mother werethen obligated to wrap around him on eitherside, thereby becoming the bread of the sand-wich—a family hug. And though there wereno minimum time requirements, the hugwould always last at least a full minute, andoften longer.

“That’s right, not every child is raised in aloving home. Always remember that the cycleof love can overcome the cycle of abuse andhate, okay?”

Luke nodded as he watched the gold ring

slide back onto his father’s right hand with theword “Love” upside down. If he had pointedthis out to his father, the response would bethe same as always, “It’s more important that Ican read it.”

They left the fort and began walking upthe cobblestone tracks toward the parking lot.“Sometimes I have nightmares about you get-ting hurt, getting killed...” Luke said.

“Well, I was in the marines for eight yearsand I’ve been a police officer for five now...sofar, so good,” he said with a grin.

“I’m serious, Dad. Don’t you ever worryabout getting hurt or killed?”

“I don’t worry about it,” Ken Winstonsaid. “Worrying isn’t helpful. I try to always dowhat’s right, which is not always what’s safe.Besides, I figured out the secret to living forev-er.”

“Sure you did,” Luke smiled, “What is it?”As they approached the car, Ken Winston

stopped, looked his son in the eyes, and said,“Your whole life, day after day, little by little,I’ve been downloading myself into you.Whenever we spend time together, each timewe talk like this, I leave a little more of me inyou. Through you, and then through yourchildren, I will live forever.” Then he winkedat Luke as he opened the car door.

“Ha! Sure, Dad,” Luke laughed.Suddenly, Luke heard a scream from across

the parking lot. But it wasn’t the parking lotany more. It was...Luke shot upright in bed.The screaming sounded like his mother, and itwas coming from outside. Luke bolted out thefront door.

“Luke, stay back!” his mother cried. Luke’s body instinctively froze as his eyes

took in the immensity of the beast that was infront of her. It was Bear, the large mixed-breeddog that brutally mauled a 16-year-old girl inthe neighborhood last year. The dog’s greatround head seemed the size of a basketball. Asthe dog snarled and growled, long strings offoamy, white saliva swung from its jaws. Thelips drew back to reveal impossibly large teeth.Luke looked around for a weapon, but sawnone. Finally, his eyes fell upon the water hoselaying in the yard. Within seconds, a hardstream of cold water struck the dog in the face.Bear yelped in surprise, and jumped back, butimmediately recovered and advanced towardthis new adversary. The low rumbling growlpenetrated Luke’s body. Luke adjusted the aimof the water stream and gave Bear anotherhard shot in the face. Bear shook his fur,looked at Luke, and then turned and ran

34 WINTER 2012

down the road, out of sight.“Luke!” his mother ran to wrap her arms

around him. Though the dog had never got-ten closer than five feet to him, his mother’seyes took a quick inventory of his body parts,making sure everything was present andaccounted for.

* * * * *

“Are you okay, Amy?” Luke asked. She just nodded and looked at him with a

slight smile, but what was troubling was theway she seemed to be looking right throughhim. It’s the medication, he thought.

When she didn’t board the bus home,Luke searched for her, and eventually foundher at the edge of school property, beside theold supply shed.

“Amy, if we don’t leave now, we’ll miss thebus. We may have missed it already.”

“Oh, you’re going to miss the bus, Puke.”Ned Barfield had appeared by the supply trail-er holding a liquor bottle. Worse yet, his twoaccomplices, Mike Bradford and Kevin“Goat” McMillan, were with him. Mikewasn’t too bad when he was by himself. Hewas really just an immature punk who liked todisrupt class with fart noises, both imitationand authentic. But Goat was almost as meanas Ned.

“So you decided to skip the report andmake me fail history, huh Puke? Maybe youthought I was joking before? Is that it, Puke?”

Before Luke could even get to his feet,Mike and Goat grabbed him, twisted his armsbehind him, and jerked him up. Pain shotthrough his elbows.

“And looky here, the skinny wimp’s girl-friend is a big tub of lard.” Ned laughed. Heleaned over and put his face close to Amy’s.“Heya, Fats.” Amy just stared ahead.

“Take him to the creek,” Ned ordered. “It’stime for little Puke here to get a lesson inrespect. And I’ll take Princess Jabba along aswell. She seems like lots of fun.”

Ned reached down, grabbed onto Amy’shair, and pulled until she rose to her feet.

Mike and Goat began forcing Luke to thewoods with Ned and Amy following. Theywere holding Luke so tight that every time hehesitated, or stumbled, it was a new adventurein pain. The creek lay only a few yards insidethe woods. It was about 30 feet across andlined with rocks and pebbles. They forcedLuke to his knees at the water’s edge. Ned satAmy down on the side of a large fallen tree

about 20 feet away. “Look Fats, we have front row seats,” Ned

said. He then turned toward Mike and Goatand said two words: “Dunk him.”

Luke had just opened his mouth to saysomething when suddenly his head was forcedinto the water. Murky, slimy water rushed intohis mouth. He struggled without success.“This is how I’m going to die,” he thought.“I’m going to die and they will get away withit. I will be just another kid who drownedwhile playing in a creek where he shouldn’thave been. And Amy isn’t in any condition totell what really happened.” Luke began con-vulsing and just when he was sure that he wasabout to lose consciousness, he was broughtup, sputtering and coughing.

Luke was only up for a few seconds, andhad almost caught his breath, when Ned said,“Again,” and he was back in. Luke could feelthe gritty residue in his mouth. His lungsburned as he fought against the autonomicreflex to breathe. As the burning becamewhite-hot, he involuntarily released hisremaining air in a great “Huuffff!” Just as hewas about to inhale the filthy water, he wasbrought up again.

“Woo hoo!!” Ned was euphoric fromLuke’s near drowning.

“Now that’s how you teach respect, isn’tthat right, Fats?” Ned eyed Amy up anddown. “You know you need to learn a littlerespect, too. I mean, how can I respect you ifyou don’t respect yourself?” Ned said mock-ingly. “Just how many rolls do you have underthere?” He pulled a knife from his pocket andplaced the blade under one of the buttons onher blouse. With the flick of his wrist, the but-ton was gone.

Luke heard Mike say, “Ned, what are youdoing? I don’t want to be part...” and Lukewas back under water.

This time it was only Goat pushing himdown. Maybe Mike was still arguing withNed, or maybe he just got scared and left, butit didn’t matter—Luke was too weak to fight.

Time began to slow. Luke felt the ring onthe chain tap, tap, tapping on his nose in thewater’s slow current. Words from his fatherswirled in his mind—not to let the bullyingchange him—but there had been a change. Iact like a coward now, but is that who I reallyam? He thought of facing Bear with nothingbut a hose, protecting his mother. I am not acoward. He recalled his father talking about“downloading” himself into Luke, and Lukehad laughed at that, but didn’t some truth lie

behind those words? Wasn’t he, at least partly,becoming the man his father was? His fatherdid what was right, not only what was safe.Luke felt the truth hit him like a great rushingwave. “My father fought injustice until theday he died. He was not a bully or acoward...and neither am I.”

This time as he was brought up out of thewater, Luke put all the strength he had leftinto whipping his head backwards. The backof his skull made crunching contact withsomething soft and squishy.

“Ahhhrr! My nose!” Goat screamed. Luke looked back to see Goat rolling on

his back with both hands over his face. Bloodwas already streaming from between his fin-gers.

Luke rapidly sucked in the sweet oxygen ashe struggled up to his hands and knees. Henoticed three things in quick succession. First,Mike was nowhere around. Second, Ned wasstill cutting at Amy’s clothes while laughingmaniacally. And third, he felt a familiar,smooth, cold object beneath his right hand.He palmed it as he rose to his feet. Ned’s cack-ling laugh was so loud that it took a few sec-onds for him to notice that Goat was nolonger laughing with him, but instead wasscreaming in pain.

Even as Ned turned and advanced towardLuke, Amy didn’t take the opportunity to run.“She’s completely retreated into herself now,”Luke thought.

“You die today, Puke. They will find yourbody downstream in a few days and yourmommy will cry for her stupid little baby.”

Despite the knife in his hand, Ned didn’tsound as confident as he once did. Maybe itwas the way Luke’s eyes locked on his, or justmaybe he, too, sensed the change in Luke.Not really a change, Luke thought, a reversionhis true self, to the Luke that had existedbefore the fear, the Luke who hated injustice,just as his father before him. A feeling of calmfocus flowed through Luke’s body.

“Run or die, Puke!” Ned yelled. Ratherthan retreating, Luke began to walk slowlytoward Ned. When Ned’s leading knife handwas about 15 feet away, Luke leaned back andthen snapped forward, his right arm was ablur. He fired the cue ball size rock with flaw-less aim. As it slammed into its mark, therewas no scream of pain, but only a dull thud.Ned crumbled to the ground. Luke checkedthat he was breathing, and picked the knife up



36 WINTER 2012

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

Profiles in Specialization—Laurie Burch, RobertJoneth, and Kevin RodgersB 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

Irecently had an opportunity to talkwith law partners Laurie Burch,Robert Joneth, and Kevin Rodgers,all board certified specialists practic-

ing in Raleigh. Burch attended CampbellUniversity School of Law, Joneth attendedthe University of Wisconsin Law School, andRodgers received his law degree from WakeForest University School of Law. Each begantheir legal career in Social Security disabilitylaw, Joneth working for the Social SecurityAdministration, Rodgers as a Hyatt lawyer,1

and Burch in private practice. They formedBurch, Joneth and Rodgers in 2000 afterworking together at a larger firm for nearly adecade. In 2006 when the Board of LegalSpecialization launched the new certificationin Social Security disability law, they quicklysigned up for the exam. Their firm is one ofthe few in the state in which all of the lawyersare board certified specialists. Following aresome of their comments about the specializa-tion program and the impact it has had ontheir firm.Q: When you established Burch, Jonethand Rodgers, what was your vision for thefirm?

Burch – We knew that the firm wouldspecialize in Social Security disability law. Weknew that we worked well together and thatwe shared the common goal of doing ourabsolute best for clients with Social Securityand disability problems.

Joneth - Our common vision was toreach out to this segment of the populationthat has traditionally had a great deal of dif-ficulty finding qualified legal assistance.

Rodgers – The reality is that the work hasbecome much more difficult in recent years asprocedures are changing and the SocialSecurity Administration has faced budgetproblems. Our firm’s vision, however, remainsthe same—to provide our clients with the bestrepresentation and counsel possible.

Q: Does certificationhelp the firm and yourclients?

Rodgers – Yes, itdoes. We’ve all hadextensive training inSocial Security law andhave attained a depthof knowledge in thatone practice area. Wedon’t handle a mix ofcases—we handle thisone type of case andwe are committed todoing it well. Clientsare better educatednow than even ten years ago; they knowwhat to look for in a lawyer.

Joneth - They come in with a list of ques-tions about how long we’ve been handlingthese types of cases, what our success rate hasbeen, the other types of cases we handle, etc.They are typically happy to find a lawyerwith substantial expertise in the practice area.Q: What do your clients say about the cer-tification?

Burch – Some come in to the office hav-ing done a lot of research beforehand andalready knowing that we are board certified.They see it as a good thing. They appreciatethe extra effort that we’ve made and our com-mitment to Social Security disability law.

Joneth – Social Security law is unique inthat there are also non-lawyer representativesthat handle these cases. Some of them aregood at what they do, but some of them aremisleading about their ability to handle acomplicated case in its entirety—through anappeal. Some clients come to us confusedand dissatisfied with their former non-lawyerrepresentation. We can assure our clients thatwe are able to handle their case through anappeal at the highest level—to federal court.

Rodgers – Clients can now file their own

forms with the Social SecurityAdministration. There are so many differenttypes of claims to choose from that it can bevery confusing. In many cases there are alsoperipheral issues, like retirement or unem-ployment benefits or workers’ compensationclaims that really require a sophisticatedunderstanding of the law. Our clients look tous to help them figure out what’s best fortheir particular situation. Q: How do clients find you? What are yourbest referral sources?

Burch – Most of our referrals come fromformer, satisfied clients.

Rodgers – We also get a fair number fromworkers’ compensation attorneys.

Joneth – Also television advertising, otherattorneys, and doctors. We have satelliteoffices in Rocky Mount, Fayetteville,Smithfield, and Goldsboro. In those smallertowns, the television advertising is really themost effective way of reaching individualsfacing these types of problems. Q: Are there any hot topics in your practicearea?

Joneth – One issue that’s really having animpact on the practice of Social Security lawis the distancing of the client from the judges

Kevin Rodgers, Laurie Burch, and Robert Joneth


State Bar Outlook (cont.)

light-fingered lawyer, finding herself in thethroes of a temporary cash-flow crisis andknowing that a big personal injury case willsettle next week, rationalizes that she is simplyborrowing from Peter to pay Paul and giveslittle or no thought to disguising the transac-tion. This is, it seems, most likely to happenin the context of solo practices, probablybecause no one else is looking. Inevitably, thePI settlement falls through, necessitatingadditional “borrowing” from the trustaccount. Sooner or later the lawyer is so far“out of trust” that even a cursory comparisonof the books with the latest bank statementfairly screams misappropriation and portendsthe disbarment that generally results. Imagineher dismay when Bruno calls for an appoint-ment. Although his methodology is not thatof a full financial audit, he is always advertentto irregularities that are in plain view. Perhapsnot surprisingly, several lawyers visited byBruno have fully confessed before he has evenhad a chance to hang up his coat.

You just can’t beat that kind of moralauthority and, regrettably, it’s in fairly shortsupply. Fortunately, we have found a man in

Tim Batchelor who has what it takes and isequal to the task, but no one expects him tocompel compliance like his predecessor sim-ply by showing up. They broke the moldwhen they made that guy. In that regard I amreminded of a story told by Coach DeanSmith at an alumni gathering shortly afterthe Tar Heels won the national champi-onship in 1982. As I recall, he said that hehappened to be standing among a largegroup of people at another social functionearlier in the week and had overheard oneCarolina fan commiserating with anotherregarding the then recent decision of star for-ward James Worthy to forego his last year ofeligibility and jump to the NBA. The gentle-man was heard to say, “Don’t worry. Ol’Dean will just go out and get himself anotherWorthy.” After recounting this conversation-al fragment, Coach Smith sighed audibly,shook his head, and said, “That fellow could-n’t have been more wrong. Ol’ Dean willnever find another Worthy.”

In much the same vein, I’m here to tellyou that I doubt we will ever find anotherBruno. n

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

Samuel Phillips (cont.)

in the house built by her daughter’s husband;it is now occupied, somewhat fittingly, by theUNC Center for the Study of the AmericanSouth.

Samuel Field Phillips has been forgotten,with no record or reminder of his brave,remarkable legacy. So, the next time you’re atUNC and walking around the beautiful cam-pus, I hope you will wonder as I do: Whereis the monument that honors our own SamPhillips? n

Donna LeFebvre is a senior lecturer inUNC’s political science department and teacheslaw-related courses to undergraduates. She haswon 13 teaching awards, including two TannerUndergraduate Teaching Awards and threeStudents’ Undergraduate Teaching Awards, andshe has won the UNC Bryant Public ServiceAward for extraordinary service to theUniversity community. She was elected to theOrder of the Golden Fleece, UNC’s highest andoldest honor society, for outstanding contribu-tions to undergraduate education.

Article reprinted with permission ofCarolina Alumni Review.

and even from the lawyers. Rodgers – There are a few very large, out-

of-state law firms handling cases here inNorth Carolina. They send forms to clientsthrough the mail and don’t actually meettheir clients or appear in person at the hear-ings. In addition, many of the hearings arenow handled through video conferencingrather than in person.

Joneth – This places even greater barriersbetween the judge and the client. Barriers interms of education and socioeconomic statusalready exist. When you add to that, it makesit even more difficult for a client to be heard,understood, and believed.

Burch– That’s why it’s so important to us thatwe meet our clients before and at the hearing. Weview our clients’ credibility as a very importantpart of the case that we’re handling. Q: Does certification benefit the legal pro-fession?

Rodgers – Attorneys do a better job, ingeneral, when they focus on learning onearea well. When we studied for the specializa-tion exam, we all learned something new

that then helped us in our practice. Joneth – Just like in the medical profes-

sion, if you choose a board certified specialistyou can safely assume that you will be gettinga more sophisticated level of service. Q: Any tips for other lawyers preparing totake the exam?

Burch – There are many resources avail-able to help with studying, including theNOSSCR (National Organization of SocialSecurity Claimant’s Representatives) month-ly newsletters and the North CarolinaAdvocates for Justice list-serve.

Rodgers – It is a challenging test, so Iwould recommend taking a review course,talking with other lawyers who took theexam, and to start memorizing numbers—things like limits, dates, and exceptions.Having some of those things memorized willhelp answer some of the questions quicklyand leave additional time for thought on themore complicated questions.Q: How do you see the future of specializa-tion?

Rodgers – These days you can’t be com-

petitive unless you specialize, particularly in acity like Raleigh where there are so manyattorneys. It’s more and more difficult tohave a general practice and do good work.And you have to do good work—clients fig-ure out which attorneys are good at handlingcomplex cases.

Joneth – I think that the program willcontinue to expand. As the law gets moreand more complex, you have to have a wayof denoting which lawyers are really up tospeed in different practice areas. n

For more information on the State Bar’s spe-cialization program, please visit us on the webat nclawspecialists.gov.

Endnote1. Hyatt was a class action brought in the 1980s on

behalf of NC claimants who were denied benefits dueto failure of the Social Security Administration (SSA)to consider complaints regarding pain, hypertension,and diabetes. The federal courts required the SSA toreadjudicate thousands of cases that were improperlydecided.

38 WINTER 2012

Iam a lawyer and an alcoholic, butnot necessarily in that order. I wasan alcoholic long before I even con-sidered becoming a lawyer. I don’tbelieve that the inherently stressful

nature of the practice of law caused or evenexacerbated my alcoholic drinking. I dobelieve that because I am a lawyer I wasoffered the care and assistance of the LawyerAssistance Program of the North CarolinaState Bar, and that the program, quite frankly,saved my life.

I grew up with few challenges. My fatherwas a doctor, and my mother stayed home toraise me and my three older brothers. Welived in a nice neighborhood with great pub-lic schools. My parents loved and respectedeach other and never raised a hand in anger tous or each other. While my father was farfrom savvy as a businessman or investor,finances were never an issue. I always feltloved and watched over.

Alcohol was present in the home, but notof particular importance. My mother andfather frequently shared a drink together afterhe came home from work while she waspreparing dinner. There was an occasionalbeer on summer evenings while they sat inthe yard listening to the ballgame, or playedYahtzee with my aunt and uncle. I have norecollection of either of them exhibitingmood changes related to their alcohol con-sumption.

Like many alcoholics, I remember that inmy childhood and adolescence I had distinctfeelings of emotional unease. I felt I wassomehow different from, and did not meas-ure up to, the other kids in my neighborhoodand school. While other kids seemed to carrythemselves with confidence and ease, I wasself conscious, a bit depressed, and justuncomfortable in my own skin. Just after Iturned 15, my father went to work onemorning and suffered a massive heart attack,dying on the spot. My siblings were already inor past college, so the household was sudden-ly just me and my grieving mother. She was

amazing in her grief, and managed the homewith quiet care and grace.

It was in the year following my father’spassing that I began my relationship withalcohol. My very first time drinking alcoholwas the typical experimentation withfriends—a carefully-planned outing with astash of alcoholic contraband. My recollec-tion of the intense feeling of that first intox-ication remains to this day more vivid thanany other childhood or adolescent memory.At that moment, I felt accepted, self-assured,and connected to my friends as never before.I did not know it at the time, but a switchwas thrown in my brain that would affectand direct my decision making for manyyears to come.

High school became a framework foralcohol-related social functions. Weekendswere for drinking with my close-knit groupof like-minded friends, either at parties orotherwise. The excitement would begin withthe anticipatory planning, peak with theconsumption, and continue with the talkabout it the following week. I went to collegebecause everyone did, and relished the free-dom it offered me. I was 300 miles awayfrom home and could pursue my passion foralcohol as an adult and on my own terms. Itook college seriously and did well enough,but pursued and obtained a degree with nothought of its use.

After college I married a woman with adecent job, and continued my life of under-achievement. After several years my wifepushed me to obtain a graduate degree. Itseems ridiculous in retrospect, but the choiceof law school resulted primarily from myinability to come up with any profession Ireally wanted to pursue. I did not even intendto practice law, but as fate has it, I was accept-ed into law school and my journey with thelegal profession began.

Law school demanded more effort andfocus than I had ever been called on to give tothat point in my life. I took it seriously,worked hard, and achieved a modicum of

success. Looking back, I think the concentra-tion of time and thought required from me tomake it through was healthy for me, andupon graduation I felt a real sense of accom-plishment for the first time. Armed with thedegree and licensed to practice, I took a jobwith a local firm and joined the fraternity oflawyers. Learning to practice law was notwithout its challenges. It is for many of usanother opportunity to feel that we don’tmeasure up, to wait for the curtain to bethrown back, displaying for the world that wehave no idea what we are doing. But the fra-ternity of lawyers in the local communityproved to be helpful, accepting, and friendly,and I felt both proud and comfortable to beone of them. What I lacked in brilliance, Imade up for in work ethic, and I did well forthe firm.

A few years into practice my marriagebegan to go downhill, and my alcohol con-sumption began to grow. I focused all theenergy necessary to continue performingwell in my practice, but beyond that I spentmost of my time drinking. While it mighthave seemed obvious to those around methat I was on a path to destruction, we alco-holics are masterful at segmenting our livesto hide what is really going on. I was not asocial drinker and rarely drank in public. Idrank by myself, where I did not have to beconcerned about anyone forming a judg-ment about the amount or frequency of myconsumption.

In another few years the trajectory of mydrinking really took off, and it became moreand more difficult to be in an alcohol-freeoffice all day. I began drinking before work,

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

Being a Lawyer Saved My LifeB Y A N O N Y M O U S

coming in later, drinking at lunch, and leav-ing the office early to drink. At this point,even I could not ignore the fact that I couldnot manage my drinking. I was not ready toadmit I was an alcoholic, but I knew I need-ed to change my drinking or I was going towreck my career, cause an accident, orbecome sick. I began a series of attempts tocurb or stop my drinking by the sheer forceof my own will and the power of decision.Night after night I swore off the alcohol andprayed for an end to the drinking. I was con-vinced that if I could only stop long enoughfor the alcohol to get out of my system, Iwould be free to not drink again. These werefutile efforts. If I was determined enough tomake it through the next morning without adrink, I might get by for a few weeks.However, I never lasted more than a coupleof weeks before I was back to my normalroutine.

My “bottom” lasted about a year. Firstcame a car accident resulting in an arrest andconviction for driving while impaired. Iearnestly told the judge I had learned my les-son and that this was the wake-up call Ineeded. I earnestly believed it. My limiteddriving privilege allowed me to drive to workand back, and I did not miss a beat. My lawpartners were relieved and appreciative whenI told them the good news that I was dedi-cating myself to cleaning up my act. I attend-ed my first 12 step program meeting, lis-tened intently, and tried to fit in. After aboutten meetings, I stopped going. I was not likethose folks. I was a professional with animportant job that took up all of my time.After a few weeks of doing it on my own, Ibegan drinking again and embarked on myfinal spree.

I separated from my wife and moved intoa small apartment. The second arrest cameless than a year after the first conviction. Thehumiliation and fear that followed the arrestwere unbelievable. The house of cards thatwas my life was collapsing before my eyes,and I was seemingly powerless to stop it. Iwas sure my career was over and that I wouldlose everything. The morning after the sec-ond arrest I walked into my senior partner’soffice and told him I had been arrested again,certain the result would be my immediatetermination. In an act of absolute grace,rather than terminate me, he told me to callthe Lawyer Assistance Program (LAP). Imade the call and asked for a call back.Within an hour I received a call from the

LAP director. He explained that everythingwe discussed would be subject to attorney-client privilege and held in strict confidence,and I told him I needed help. In a matter ofdays, we met in person and he laid out forme the framework for a plan of action. Hearranged an appointment for an alcoholassessment with the director of an alcoholand substance abuse treatment program,leading to my enrollment in an intensiveoutpatient program.

I was introduced to a LAP volunteer whotook me to dinner and an AA meeting. Wespoke freely, and for the first time I was ableto share the secret of my alcohol addictionwith a fellow lawyer. The things I shared withhim that I thought were unique to me hecould immediately relate to. When wewalked into the meeting, it was clear he wascompletely at home with the members ofthis same fellowship I had felt so uncomfort-able with on my own. After the meeting wewent for coffee and we talked about what theLawyer Assistance Program could offer me.The program would be an advocate for me asI worked through my legal challenges. Inexchange, I would be expected to follow aregimen of recovery actions. I was intro-duced to the LAP “contract”—a written con-tract between me and LAP in which I agreedto complete my outpatient treatment pro-gram, attend regular peer support meetings,and submit to random chemical analysis toconfirm my abstinence. In addition, I wasassigned to a monitor—a LAP volunteer inmy community who would monitor mycompliance with the terms of my contract.

The first six months of sobriety werefilled with extreme emotions. Work served attimes as a distraction from the fear, anger,and remorse typical in early sobriety, butonly at times. With the legal consequences ofmy actions still in front of me, I had nochoice but to soldier through it. But the new-found fellowship and support of my col-leagues in the LAP enabled me to face theconsequences from a position of increasedpersonal strength. With a statement from theLawyer Assistance Program confirming sixmonths of abstinence from alcohol and com-pliance with my LAP contract, the courtexercised the little discretion it had andallowed me to do my time monitored athome followed by probation. The relief ofputting this behind me was almost indescrib-able, and marked the beginning of theprocess of putting my life back together.

The next few years were spent doing theright things. I attended peer support meet-ings, met with my LAP monitor, workedhard in my practice, and stayed clean andsober. I remarried, had two children, andcame to know a peace in my life that had pre-viously eluded me. After I successfully com-pleted my LAP contract, I was asked tobecome a LAP volunteer. As a LAP volunteerI have the privilege of helping other attorneysimprisoned by their addiction. When anattorney’s struggles come to the attention ofthe LAP, volunteers reach out to the attorney,share with them their stories, and let themknow of the opportunities the LawyerAssistance Program has to offer. For thoseattorneys who are ready to accept help, vol-unteers work with them as mentors, contractmonitors, friends, and colleagues. As anyalcoholic in recovery will tell you, workingwith other alcoholics is an integral and essen-tial part of successful, long-term recovery,and being a LAP volunteer provides a con-tinuing opportunity to do just that.

I began my story by stating that becom-ing a lawyer and having the opportunity toreach out to the Lawyer Assistance Programlikely saved my life. Like so many active alco-holics, I would not allow myself to open upto and become part of a recovery fellowshipof which I (incorrectly) believed I had noth-ing of significance in common. It was onlywhen I finally asked for help from my fellowlawyers that I was able to see that I was notso terminally unique. Had I not gained theability to accept the grace of the fellowship ofrecovery, I’m convinced I would have longago met an all-too-common alcoholic death.It was the Lawyer Assistance Program thatgave this alcoholic lawyer that ability to reachfor the prize, and for that I will be forevergrateful. n

The North Carolina Lawyer AssistanceProgram is a confidential program of assistancefor all North Carolina lawyers, judges, and lawstudents, which helps address problems of stress,depression, alcoholism, addiction, or other prob-lems that may lead to impairing a lawyer’s abil-ity to practice. If you would like more informa-tion, go to www.nclap.org or call: Cathy Killian(for Charlotte and areas west) at 704-892-5699, Towanda Garner (in the Piedmont area)at 919-719-9290, or Ed Ward (for Raleigh anddown east) at 919-828-6425.

To contact the author, send an email toRobynn Moraites, [email protected].


40 WINTER 2012

IncomeNC IOLTA income has suffered more than

a 50% decline from our highest income—justover $5 million—in 2008, and income fromIOLTA accounts remains depressed. Totalincome from IOLTA accounts for 2011 wasflat at $2.2 million, though it declined by 16%during the last two quarters as the boost fromimplementing comparability ended. The firsttwo quarters of 2012 showed declines of 17%and 15%. We expect this situation to continueas banks are now recertifying their comparabil-ity compliance at even lower interest rates.Additionally, the Federal Reserve is predictingthat they will keep interest rates at the currentunprecedented low level into 2015.

Class Action Residuals. Fortunately, howev-er, total income for 2012 had already sur-passed our 2011 income figure of $2.4 millionby the end of August due to the over $1.2 mil-lion received from residual funds directed toIOLTA programs across the country in aWashington state class action case. After fol-lowing the Washington state court rule thatsent 25% of such residual funds to the state’sIOLTA program, the court ordered that theremaining 75% of the funds go to all otherIOLTA programs on a pro rata basis using anestimate of the statutorily prohibited activity(fax blasting of unsolicited advertisements)that occurred in each state. The court foundthat these entities promote access to the civillegal justice system, something that membersof the certified class, who had claims underconsumer protection and other laws, desireand need.

Receiving these funds raised the visibilityof the North Carolina statute that sets out a

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

Settlement Agent Accounts. We are nowreceiving some funds from settlement agentaccounts as an amendment to the Good FundsSettlement Act (N.C. Gen. Stat. 45A-9)—requiring that interest bearing trust and escrowaccounts of settlement agents handling closingand loan funds be set up as IOLTA accounts—became effective on January 1, 2012.

Though many of these accounts are notinterest bearing and are not being set up asIOLTA accounts, we have identified over 45new accounts as settlement agent onlyaccounts (those not associated with an attor-ney licensed in North Carolina), and receivedover $20,000 from those accounts throughAugust. We are hopeful that we will gain addi-tional income from these accounts as the vol-ume of transactions increases.

The State Bar Council and the NC

Supreme Court have approved an IOLTA rulerevision to allow an exception for out of statebanks with no NC branches to hold NCIOLTA accounts for settlement agents. Severallarge title company accounts will now be NCIOLTA accounts.

GrantsBeginning with the 2010 grants, we have

limited our grant-making to a core group of(mainly) legal aid providers. Even with thatrestriction and using a total of almost $1.4 mil-lion from our reserve fund over three consecu-tive years, grants have dramatically decreased--by over 40%. Following those decisions, wehave under $450,000 remaining in reserve forfuture use. The cy pres funds from Washingtonstate will make a significant difference in ourability to make 2013 grants. We should be ableto keep grants at the 2012 level without usingany additional funds from reserve.

State FundsIn addition to its own funds, NC IOLTA

administers the state funding for legal aid onbehalf of the NC State Bar. Total state fundingdistributed for 2011-12 was $3.8—downfrom over $5 million administered for 2010-11. The decrease was the result of reductionsto both the appropriated funds (decreased by$112,500) and the filing fee allocation forlegal aid (from $2.05 to $1.50). The work ofthe Equal Access to Justice Commission,NCBA, and legal aid programs saved statefunding from another serious decrease in2012-13—a proposed loss of the appropriatedfunds. Funding for the 2012-13 year remainsat the 2011-12 levels. n

I O L T A U P D A T E

NC IOLTA Income is Boosted by New Sources of Funds

NC IOLTA Grantee SpotlightCharlotte Nonprofits Celebrate andRecognize Pro Bono Attorneys andAdvocates

The North Carolina Rules of Professional

Responsibility recognize that, “Every lawyerhas a professional responsibility to providelegal services to those unable to pay. A lawyershould aspire to render at least 50 hours of

pro bono publico legal services per year.”Support for pro bono service has been animportant part of NC IOLTA’s grant-mak-ing from its inception. Beginning in 1992,


the NC IOLTA increased its commitment topro bono by proactively offering to makegrants to volunteer lawyer programs basedon a per lawyer formula to make sure thatvolunteer lawyer assistance could be provid-ed statewide. Support for such programs hascontinued, and, through 2012, NC IOLTAhas granted over $10 million to support suchprograms. In Charlotte we currently supporta volunteer lawyer program jointly operatedby Legal Aid of NC (LANC), Legal Servicesof Southern Piedmont (LSSP), and theCustody Advocacy Program at the Councilfor Children’s Rights (CFCR), which uses aninnovative team approach (using volunteerattorneys and lay advocates with staff attor-ney supervision) to handle cases by courtappointment.

This year these three NC IOLTA granteesin Charlotte—that area’s largest recipients ofpro bono services—hosted their first annualPro Bono Awards celebration sponsored byLawyers Weekly, Bank of America, and Mooreand Van Allen. More than 200 attorneys,judges, advocates, and community membersgathered on September 11 at the CharlotteCity Club to honor the advocates who havegenerously given their time and expertise tolocal indigent families, and to celebrate theiraccomplishments. In 2011 approximately300 attorneys and advocates gave more than5,500 pro bono hours to CFCR, LANC, andLSSP, serving upwards of 450 local familiesand individuals in need, and donating theequivalent of almost $1.4 million in legalservices. The local firms, attorneys, andadvocates recognized and honored at theevent made considerable pro bono contribu-

tions toward the community’s access to vitallegal services, which transformed the lives ofhundreds of area residents.

In addition to recognition for the out-standing service of law firms and individuals,George V. Hanna III of Moore & Van Allenreceived the Distinguished Pro Bono ServiceAward, a lifetime achievement honor recog-nizing an individual whose longstanding andexceptional dedication to pro bono legal serv-ice has made a meaningful impact on accessto justice in the community and state. In hisremarks, Hanna said, “Participating in andsupporting pro bono efforts is not merely abenefit for the client; it is a rewarding and

enriching endeavor as counsel. We as lawyershave the unique and privileged opportunityto increase access to counsel and legal assis-tance for those in need. In doing so, we helpthe justice system deliver outcomes that arefair and accessible to all.”

As the need for legal services for low-income families grows each year, more attor-neys are stepping outside of their privatepractices to volunteer with legal aid organiza-tions to help eliminate the financial obstaclesto accessing justice. You can offer your assis-tance anywhere in the state through the NCEqual Access to Justice website, ncaccessto-justice.org. n

Brett A. Loftis, Executive Director, Council for Children’s Rights; Kenneth L. Schorr, ExecutiveDirector, Legal Services of Southern Piedmont; Distinguished Pro Bono Service Award WinnerGeorge V. Hanna III, Moore & Van Allen, PLLC; Theodore O. Fillette, Senior Managing Attorney,Legal Aid of North Carolina-Charlotte. Photo courtesy of David Ramsey Commercial Photography,

The Ring (cont.)

from the leaves. The large gash in Ned’s fore-head quickly filled with blood. Luke consid-ered cutting Ned’s clothes off of him, to lethim wake up naked and humiliated. He con-sidered doing things much worse thanthat...gruesome things...but as his left handreached up to hold the ring, he thought, “No,that’s not who I am.”

Luke never saw either Ned or Goat againafter that day. His mother said that they weretaken to a place where they trained kids who“misbehaved.”

* * * * *

But that was 15 years ago, Luke thought ashe forced his attention back to thepresent...back to the oath of office he was nowtaking as a North Carolina prosecutor.

“...I will, in the execution of my office,endeavor to have the criminal laws fairly andimpartially administered, so far as in me lies,according to the best of my knowledge andability; so help me, God.”

Luke didn’t know what type of prosecutorhe would be, but he was confident of twothings. He would be neither a coward nor abully.

As he finished the oath, nobody noticed asLuke reached with his left hand to hold theworn gold ring on his right ring finger...andnot even the most seasoned court reporterwould have detected the whisper that camefrom his lips. “I remember, Dad. I was loved.”

Luke walked over to where his mother waswiping her eyes, put his arm around her,closed his own eyes, and thought, “Luke sand-wich.” n

Terry Orndorff lives in Wilson, NorthCarolina, with his wife Merry and their sonLogan. He has served as an assistant districtattorney in the 7th District for the past 16 years.

42 WINTER 2012

DisbarmentsWilmington lawyer Linda Clark cashed

counterfeit money orders. She was disbarredby the DHC.

Russell Crump of Gainesville, Florida,was disbarred pursuant to an Order ofReciprocal Discipline entered by the chair ofthe Grievance Committee. In April 2012 theSupreme Court of Florida disbarred Crumpafter he was convicted of one count of childabuse, a 3rd degree felony.

In three different real estate closings, JodiErnest of Greensboro erred in a variety ofways, including committing acts of dishon-esty, neglecting clients, and failing to proper-ly maintain and deliver entrusted funds.Ernest surrendered her law license and wasdisbarred by the DHC.

Creighton (“Zeke”) Sossomon ofHighlands misappropriated entrusted funds.Disciplinary proceedings were stayed for sev-eral months because Sossomon contended hewas disabled due to ADHD. The DHCdetermined that Sossomon was not disabled.Just before the October 11 disciplinary hear-ing, Sossomon surrendered his license andwas disbarred by the DHC.

Suspensions & Stayed SuspensionsValderia Bruson of Creedmoor violated

multiple trust accounting record keepingrules. The DHC entered a consent order ofdiscipline suspending Brunson for twoyears. The suspension is stayed for five yearsupon Brunson’s compliance with extensiveconditions.

Dawn Johnson of Graham disrupted thecourt by failing to appear in court on time,or at all, and was untruthful with the court.The DHC suspended her for three years.After serving one year of active suspension,Johnson may apply for a stay of the balanceupon compliance with numerous condi-tions.

Steven McFarlane and Susan McFarlaneof Louisburg knowingly failed to timely filestate and federal tax returns and did not paytheir tax obligations for four years and twoyears, respectively. Steven McFarlane

received a two-year suspension, stayed fortwo years, and Susan McFarlane received aone year suspension, stayed for two years.

Jan P. Paul, a former prosecutor fromDurham, instructed law enforcement offi-cers to take out charges unsupported by factand/or law against the mother of a child sex-ual abuse victim. The mother had just testi-fied in support of the perpetrator. Paulauthorized the charges to prevent the moth-er’s imminent visitation with the child pur-suant to a civil court order. Paul’s license wassuspended for one year and the suspensionwas stayed for one year upon Paul’s compli-ance with conditions.

Louie Wilson of Windsor did not prop-erly reconcile his trust account, leading tomisappropriation by a staff member. TheDHC entered a consent order suspendingWilson for two years. The suspension isstayed for two years upon his compliancewith numerous conditions.

Show Cause HearingsThe DHC found that Robert J. Burford

of Raleigh did not comply with the condi-tions for a stay of his disciplinary suspensionby failing to timely and unconditionallyrefund money to his former clients, and vio-lating the Rules of Professional Conductduring the stay. The DHC lifted the stayand activated the two-year suspension ofBurford’s license.

CensuresRalph L. Gilbert of Shelby was censured

by the Grievance Committee for numerousviolations of the trust accounting rules andfor failing to respond to the State Bar.

Jeffery P. Boykin of Raleigh was cen-sured by the Grievance Committee. Boykinneglected his client’s personal injury case,did not communicate with his client aboutthe case, and misled his client about the sta-tus of the case.

ReprimandsColin P. McWhirter of Shelby was repri-

manded by the Grievance Committee.McWhirter did not communicate with his

client, did not promptly prepare an orderthat would have allowed his client to collecta judgment, and did not timely respond tothe Grievance Committee.

William I. Belk of Charlotte was repri-manded by the Grievance Committee. Belkwas custodian of funds for his minor daugh-ter and violated his statutory duty by mak-ing expenditures that were inappropriateand not for his daughter’s direct benefit.

Benjamin Small of Concord was repri-manded for failing to respond timely to theGrievance Committee.

Timothy D. Smith of Charlotte wasreprimanded by the Grievance Committee.Smith did not communicate with hisclient, did not diligently represent hisclient, did not provide a copy of a finaldivorce judgment to his client, and final-ized the divorce judgment without firstdetermining if he needed to file for equi-table distribution.

Transfers to Disability Inactive StatusThe DHC transferred Albert Neal Jr. of

Candler to disability inactive status.

ReinstatementsDean Humphrey of Wilmington was

suspended for one year. After serving sixmonths, Humphrey was eligible to obtain astay of the balance upon compliance withconditions. Humphrey complied with thoseconditions. The secretary entered an orderstaying the balance and reinstatingHumphrey to active practice. n

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

Thank You to OurMeeting SponsorsWilliams Mullen for sponsoring the Annual Reception

Lawyers Mutual Liability InsuranceCompany for sponsoring the AnnualDinner


P A R A L E G A L C E R T I F I C A T I O N

I Brake for Notarial Certificates!B Y K E L L Y F A R R O W

Before I joined the State Bar I worked as anintellectual property paralegal for over tenyears. Intellectual property, like many areas oflaw, is extremely detail-oriented—one wrongnumeral in a patent number or not followingthe Patent Office rules precisely can cause bigproblems for your client and your firm.

A part of my job now is to process theincoming initial certification applications andrecertification applications. My review proce-dure is quite regimented, and there are specif-ic things that I must check for when review-ing these applications. One of these things isa notarized signature.

Being a person who is all about details andfollowing rules, I have been surprised by thenumber of applications that are not correctlynotarized. Not all certified paralegals arenotaries, and not all notaries are paralegals,certified or not. However, a paralegal shouldbe able to review a document (especially adocument that he or she has signed) to makesure it has been correctly notarized, regardlessof his or her status as a notary.

If you have not taken the Notary PublicCourse or read the Notary Public Act in theNorth Carolina General Statutes (N.C. Gen.Stat. §10B), you may not be familiar with thestatutory notarization requirements in NorthCarolina. As a paralegal, however, you mayhandle or review notarized documents as apart of your job. Even if you are not a notary,it is beneficial for you to be familiar with therules for notarizing documents so you canensure that they are notarized correctly to bet-ter assist your supervising lawyer and yourclients. Incorrectly notarized documents canlead to invalidated documents and lawsuitsagainst the notary and/or the law firminvolved.

What Are the Notarial Requirements?I have several things that I look for when

I am checking the notarization of an applica-tion. The first thing I do is make sure thedate of the notary execution and the date ofthe applicant execution are the same. This is

the most common error I see on the applica-tions, by far. The notarial certificates on theapplications are “oaths” (N.C. Gen. Stat.§10B-3(14)), and include the language“[s]worn to (or affirmed) and subscribedbefore me.” For this type of notarial act, thenotary must verify the applicant’s identity,and then must administer an oath and havethe applicant make a vow of truthfulness.(This is the “sworn to (or affirmed)” part.)The applicant must also sign the documentin the presence of the notary, meaning that thenotary must physically see the applicant signhis or her name on the application. (This isthe “subscribed before me” part.) Therefore,the date of the applicant’s signature and thedate of the notary’s signature should alwaysbe the same. If they are not, it could be anindication that the applicant was not presentto sign the document in front of the notary,and thus the document was not notarizedproperly. According to the National NotaryAssociation, “[n]otaries are sued and havetheir commissions revoked more for a failureto require personal appearance than for anyother violation.”1 Yes, it’s that serious.

A notarial “oath” is different than an“acknowledgment,” (N. C. Gen. Stat. §10B-3(1)) which is another very common type ofnotarial act. For acknowledgement, the docu-ment can be signed by an individual beforepresenting it to the notary to be notarized,and thus the date of the individual’s signatureand the date of notarization can and may bedifferent. However, the individual must stillappear in person before the notary to presentthe document, and the notary must still verifythe identity of the individual before notariz-ing the document.

Most of the time the differences in datesin the notarial certificates on the applicationsare due to either the applicant or the notarysimply writing down the wrong date. This issurprising, given the high standards to whichcertified paralegals are held. It is an error thatis easily fixed with a quick review of the sig-nature page by both the notary and the cer-

tified paralegal. Two sets of eyes are alwaysbetter than one!

Any violation of the Notary Act shouldbe reported directly to the NotaryEnforcement Section of the Secretary ofState’s Office. The paralegal certification pro-gram has adopted a policy of notifying theapplicant and the notary of the error, askingthe applicant to fix the error by signing a newsignature page and having it notarized cor-rectly, and telling the notary to report theviolation to the Notary Enforcement Sectionhimself or herself. The Notary EnforcementSection will investigate the matter and con-tact the notary directly. To resolve the matter,the Notary Enforcement Section will usuallyask the notary to: 1) acknowledge that he orshe made an error; 2) tell and show what heor she should have done; and 3) state if he orshe needs to be a notary public as part of hisor her job. If the Notary EnforcementSection finds that there was a violation, it canwarn the notary; require the notary to retakethe notary public course; restrict, suspend, orrevoke a notary’s commission; or, in extremecases, prosecute the notary for a misde-meanor or felony.

Most errors are usually due to haste andcan be easily prevented with a quick reviewof the application before mailing. Being acertified paralegal is much more than justmeeting certain requirements or passing anexam. It’s about doing your best work andproudly representing the paralegal profes-sion. Even when you are busy, slow downand take a minute to double-check yourwork. As a certified paralegal you are only anasset to your supervising lawyer and yourclients if you are careful, accurate, and thor-ough. n

Kelly Farrow is the assistant director of theParalegal Certification Program.

Endnote1. nationalnotary.org/bonds_and_insurance/minimize_

liability/index.html.

44 WINTER 2012

We all know that Rule 1.6 of the Rules ofProfessional Conduct governs a lawyer’s dis-closure of client information. However, inaddition to Rule 1.6, there are other rulespertaining to client information. These rulesmay distinguish between one or more of thefollowing: (1) current and former clients; (2)use versus the disclosure of the information;and (3) information that is, or is not, “gener-ally known.” Let’s take a look.

The Low DownRule 1.6(a) provides that a lawyer shall

not reveal information acquired during theprofessional relationship with a client unless(1) the client gives informed consent; (2) thedisclosure is impliedly authorized; or (3) oneof the exceptions set out in Rule 1.6(b)applies. Interestingly, neither Rule 1.6, norany of the other rules discussed below, actu-ally refer to “confidential information.”Rather, these rules protect information“acquired during the professional relation-ship with a client” or information “relating torepresentation of a client.”

There is no distinction between currentand former clients in Rule 1.6. The dutiesunder Rule 1.6 continue after the termina-tion of the relationship. Rule 1.6(b) does notcontain an exception pertaining to clientinformation that is “generally known.” Thebottom line of Rule 1.6 is that a lawyer maynever disclose information obtained duringthe representation of a client, even if theclient becomes a former client, and even ifthe client’s information becomes “generallyknown.”

In contrast to Rule 1.6, which deals withdisclosure of information, Rule 1.8(b) per-tains to a lawyer’s use of client information.Rule 1.8(b) is limited to current clients. Therule provides that a lawyer may not use infor-mation relating to representation of a clientto the disadvantage of the client, unless theclient consents. There is no exception forinformation that is “generally known.”However, the prohibition in Rule 1.8(b) only

applies if the lawyer is using the information“to the disadvantage of the client.” By impli-cation, Rule 1.8(b) allows a lawyer to use(but not reveal) current client information,so long as the use is not disadvantageous tothe client.

Say What?Now on to what I believe is one of the

more confusing rules addressing client infor-mation, Rule 1.9(c). Lawyers often fail torealize that, unlike Rule 1.9(a) and (b),which address a lawyer’s duties in a represen-tation adverse to a former client, Rule 1.9(c)applies even when the lawyer has not under-taken a representation adverse to the formerclient.

Rule 1.9 is limited to former clients. Rule1.9(c)(1) addresses use of a former client’sinformation, while Rule 1.9(c)(2) deals withdisclosure of a former client’s information.Rule 1.9(c) is the only rule with an exceptionfor information that is “generally known.”Rule 1.9(c)(1) allows a lawyer to use a formerclient’s information if it is not being used tothe disadvantage of the former client or if ithas become “generally known.” Rule1.9(c)(2) prohibits disclosure of a formerclient’s information, regardless of whetherthe information has become generallyknown. (Rule 1.18, dealing with prospectiveclients, prohibits the use or disclosure of aprospective client’s information except aspermitted by Rule 1.9.)

Let’s take a closer look at the distinctionspresent in the various rules. First, what is thedifference between “using” client informa-tion and “revealing” it? In discussing the useof information related to a current represen-tation (Rule 1.8(b)), comment [5] to Rule1.8 provides:

Use of information relating to the repre-sentation to the disadvantage of the clientviolates the lawyer’s duty of loyalty.Paragraph (b) applies when the informa-tion is used to benefit either the lawyer ora third person, such as another client or

business associate of the lawyer. Forexample, if a lawyer learns that a clientintends to purchase and develop severalparcels of land, the lawyer may not usethat information to purchase one of theparcels in competition with the client orto recommend that another client makesuch a purchase. The Rule does not pro-hibit uses that do not disadvantage theclient. For example, a lawyer who learns agovernment agency’s interpretation oftrade legislation during the representationof one client may properly use that infor-mation to benefit other clients. In each of the examples above, the lawyer

is using the current client’s information with-out actually revealing the information. Theuse of a current client’s information is notpermissible if it is being used to the disadvan-tage of the client. As noted above, a lawyermay use a former client’s information, evento the disadvantage of the former client, if ithas become “generally known.” Rule1.9(c)(1).

Duh!So when is information “generally

known”? Comment [8] to Rule 1.9 providesthe following explanation:

The fact that a lawyer has once served aclient does not preclude the lawyer fromusing generally known information aboutthat client when later representing anoth-er client. Whether information is “gener-ally known” depends in part upon howthe information was obtained and in partupon the former client’s reasonable expec-tations. The mere fact that information isaccessible through the public record orhas become known to some other personsdoes not necessarily deprive the informa-tion of its confidential nature. If theinformation is known or readily availableto a relevant sector of the public—such asthe parties involved in the matter—then


L E G A L E T H I C S

Mum’s the WordB Y S U Z A N N E L E V E R

Ann Conner lives and works in NorthCarolina. Using non-endangered nativewood and brilliant color palettes, Connercreates colorful, conceptualist woodcuts thatreveal the intrinsic grain of the wood. Thesevibrant woodcuts employ the isolation ofhard-edged abstraction to create a space

defined exclusively by shape and color. Herprints, which use templates of sophisticatedpatterns and symmetry are, nevertheless,reminiscent of the spirograph drawings thatso many of us made as children.

Recent exhibits include Two Visions,New Elements Gallery, Wilmington, NC;New Prints 2012/Winter, IPCNY,International Print Center New York; 2012Delta National Small Prints Exhibition,Arkansas State University; BostonPrintmakers 2011 North American PrintBiennial; New Prints/Autumn, IPCNY;Advancing Tradition Twenty Years ofPrintmaking at Flatbed Press, AustinMuseum of Art, 2010–2011; ColorPrintUSA 40th Anniversary, Museum of TexasTech University, 2010; and BostonPrintmakers’ 2009 North American PrintBiennial.

Conner’s work is included in over 40major museum and corporate print collec-tions in the US including Philip Morris NewYork; Federal Reserve Bank of Richmond;Neiman Marcus; Ritz-Carlton Hotels; New

York Public Library; Museum of Fine Arts,Boston; Library of Congress; Credit SuisseFirst Boston, London; RJR Nabisco; andAckland Art Museum, Chapel Hill. n


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

Featured Artist—Ann Conner

Each quarter the works of a differentcontemporary North Carolina artist aredisplayed in the storefront windows ofthe State Bar building. The State Bar isgrateful to The Mahler Fine Art, theartists’ representative, for arranging thisloan program. The Mahler is a full-ser-vice fine art gallery in Raleigh represent-ing national, regional, and NorthCarolina artists, and provides residentialand commercial consulting. Readerswho want to know more about an artistmay contact owner Rory Parnell at (919)896-7503 or [email protected].

Kapp Interview (cont.)

done for a living?I would have been a minister or a

teacher of history.Q: Tell us a little about your family.

My wife Chancy and I have beentogether since we were undergraduates atUNC-Chapel Hill. Our daughter MaryKatherine “Katie” Muto, the apple of myeye, lives in Kernersville with her husbandDaniel Muto. Katie is a social worker. Myparents Bill and Betty Kapp live on thefamily farm between Rural Hall andBethania. My younger brother Karl and hiswife Toni live in Winston-Salem. Theyhave two sons, Jonathan and JacobMadison.Q: What do you enjoy doing when you’renot practicing law or working for the

State Bar?I enjoy spending time with my family,

cheering for the Tar Heels, working in mygarden—particularly my herb garden—walking on the family farm, and readingnonfiction, particularly biographies andByzantine history.Q: How would you like for your adminis-tration to be remembered when the histo-ry of the State Bar is finally written?

I would like it to be remembered as atime when we provided a facility for ourdedicated staff to better serve the publicand the profession. I also hope that it willbe remembered as a time when the StateBar took on the tough challenge of address-ing rapid changes in the business and thetechnology of legal practice while continu-ing to uphold the status of the law as a pro-fession. n

Judge Conrad (cont.)

For Judge Conrad, his life, skills, and tal-ents are gifts from God and his commitmentis to insure that his life reflects those gifts. Ashe looks back on his life, he sees a divine plan.As there is no way to determine the future,“the best we can do is pursue excellence in themoment,” and so he takes advice fromProverbs 3:5-6, “Trust in the Lord with allyour heart, and do not rely on your owninsights. In all your ways acknowledge Him,and He will make straight your paths.” n

Michelle Rippon is of counsel with ConstangyBrooks & Smith in Asheville. She is also anadjunct professor in the Business ManagementDepartment at UNC-Asheville and serves as theattorney for the Asheville Area Chamber ofCommerce.

Westwood

46 WINTER 2012

Council ActionsAt its meeting on October 26, 2012, the

State Bar Council adopted the ethics opin-ions summarized below:

2012 Formal Ethics Opinion 5Reviewing Employee’s Email

Communications with Counsel Using Employer’sBusiness Email System

Opinion rules that a lawyer representingan employer must evaluate whether emailmessages an employee sent to and receivedfrom the employee’s lawyer using the employ-er’s business email system are protected by theattorney-client privilege and, if so, decline toreview or use the messages unless a courtdetermines that the messages are not privi-leged.

2012 Formal Ethics Opinion 6Use of Leased Time-Shared Office Address

or Post Office Address on Letterhead andAdvertising

Opinion rules that a law firm may use aleased time-shared office address or a postoffice address to satisfy the address disclosurerequirement for advertising communicationsin Rule 7.2(c) so long as certain requirementsare met.

2012 Formal Ethics Opinion 8Lawyer’s Acceptance of Recommendations

on Professional Networking WebsiteOpinion rules that a lawyer may ask a for-

mer client for a recommendation for a lawyerto be posted on the lawyer’s profile on a pro-fessional networking website and may acceptthe recommendation if certain conditions aremet.

Ethics Committee ActionsAt its meeting on October 25, 2012, the

Ethics Committee voted to send the follow-ing proposed opinions to subcommittees forfurther (or continued) study: Proposed 2011FEO 11, Communication with RepresentedParty by Lawyer Who is the Opposing Party,

and Proposed 2012 FEO 7, CopyingRepresented Persons on Email Communications.The Ethics Committee also voted to publishthe following two revised opinions and sevennew proposed opinions. The comments ofreaders are welcomed.

Proposed 2012 Formal Ethics Opinion 2Lawyer-Mediator’s Preparation ofContract for Pro Se Parties to MediationOctober 25, 2012

Proposed opinion rules that a lawyer-media-tor may not draft a business contract for pro separties to mediation.

Inquiry:May a mediator, who is also a lawyer, draft

a business contract for two business propri-etors at the conclusion of a successful media-tion concerning a matter that is not currentlythe subject of litigation when neither party isrepresented by individual counsel?

Opinion:No. It is a non-consentable conflict of

interest. Rule 1.12(a) allows a lawyer to represent

a party in connection with a matter in whichthe lawyer participated personally and sub-stantially as a mediator if all parties to theproceeding give informed consent, con-firmed in writing. However, under Rule1.7(a), joint representation of two parties toan agreement presents a concurrent conflictof interest even if the lawyer-mediator hastheir consent.

Although Rule 1.7(b) provides for circum-stances under which a lawyer may representjoint clients, an analysis of the risks associatedwith the proposed joint representation leads tothe conclusion that such representation is notappropriate. Therefore, the lawyer-mediatorshould not draft the business contract.

When contemplating joint representation,a lawyer must consider whether the interestsof the parties will be adequately protected ifthey are permitted to give their informed con-sent to the representation, and whether anindependent lawyer would advise the parties

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

Committee Analyzes the Roles a Lawyer MayPerform When Appointed to Represent a Child ina Contested Custody Case

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: N.C. Rules ofProf ’l Conduct Rule 1.1 (2003)

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

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

to consent to the conflict of interest.Representation is prohibited if the lawyercannot reasonably conclude that he will beable to provide competent and diligent repre-sentation to all clients. See Rule 1.7, cmt.[15]. As stated in comment [29] to Rule 1.7,the representation of multiple clients “isimproper when it is unlikely that impartialitycan be maintained.”

The complex issues that must beaddressed when crafting a comprehensivebusiness contract may result in adverse inter-ests. Even if the parties agree on the broadoutlines of a business contract at the conclu-sion of the mediation, a disinterested lawyerwill not be able to conclude that the interestsof each party can be completely represented.With respect to the terms on which thereappear to be agreement, one or both partiesmay benefit from a disinterested lawyer’sadvice as to whether the agreement meetswith the party’s legitimate objectives, andwhat other procedural alternatives may beavailable to achieve more favorable terms. Inthe instant inquiry, neither party is represent-ed by individual counsel.

Joint representation could lead to ques-tions about the integrity of the mediationprocess. The lawyer’s duty to provide eachclient with necessary and appropriate advicemight require informing one party that theymade a “bad deal” during the mediationprocess. It is untenable for a lawyer to coun-sel a client that an agreement the lawyer-mediator has assisted him to reach in media-tion may not be in that client’s best interests.If the ultimate agreement turns out to beone-sided and unfavorable to one party, thelawyer-mediator’s role could be closely scru-tinized.

Finally there is the risk that the proposedjoint representation will fail or that the busi-ness contract will be the subject of future liti-gation between the two parties. In eitherevent, the parties will have to retain newlawyers for the subsequent litigation.

For the reasons cited above, the lawyer-mediator in the facts presented may not joint-ly represent both parties by drafting their newbusiness contract.

Regardless of the above analysis, thelawyer-mediator will be governed by theSupreme Court’s Standards of ProfessionalConduct for Mediators, which may also pro-hibit the lawyer’s representation of one ormore of the parties following the mediation.

This opinion does not prohibit a lawyer-

mediator from assisting the parties in prepar-ing a written summary reflecting the parties’mutually acceptable understanding of theissues resolved in the mediation, as long as thelawyer-mediator does not represent to the prose parties that the summary is being preparedas a legally enforceable document.

Proposed 2012 Formal Ethics Opinion 4Screening Lateral Hire Who FormerlyRepresented Adverse OrganizationOctober 25, 2012

Proposed opinion rules that a lawyer whorepresented an organization while employedwith another firm must be screened from partic-ipation in any matter, or any matter substan-tially related thereto, in which she previouslyrepresented the organization, and from anymatter against the organization if she acquiredconfidential information of the organizationthat is relevant to the matter and which has notbecome generally known.

Inquiry #1:Attorney J was employed with Law Firm

H where she did workers’ compensationdefense work. During this time, Attorney Jhandled many such cases for LargeManufacturer and its insurer. In addition,Attorney J was privy to Large Manufacturer’sworkers’ compensation policies and proce-dures, litigation strategies, and system for casepreparation. Attorney J participated in work-ers’ compensation strategy meetings with rep-resentatives of Large Manufacturer as well aswith defense counsel from Law Firm Y,another firm providing workers’ compensa-tion defense representation to LargeManufacturer.

Attorney J resigned from Law Firm H towork for Law Firm S, a plaintiffs’ personalinjury firm that routinely handles workers’compensation cases against LargeManufacturer.

May Attorney J work at Law Firm S?

Opinion #1:Yes, if Attorney J is properly screened from

participation in (1) any matter in whichAttorney J represented Large Manufactureror any other adverse party; (2) any matterthat is substantially related to a matter inwhich Attorney J represented LargeManufacturer; and (3) any matter in which alawyer with Law Firm H represents or repre-sented Large Manufacturer or any other

adverse party and about which Attorney Jacquired material confidential informationwhile she was employed with Law Firm H.Written notice of the screen must be given toLarge Manufacturer and any other affectedformer client.

Rule 1.9(a) prohibits a lawyer who hasformerly represented a client in a matter fromthereafter representing an adverse party in thesame or a substantially related matter unlessthe former client gives informed consent.This provision of the rule prohibits AttorneyJ from representing any workers’ compensa-tion claimant on a claim for which she for-merly defended Large Manufacturer andfrom representing any claimant on a claimthat is substantially related to a matter uponwhich Attorney J formerly represented LargeManufacturer.

Comment [3] to Rule 1. 9 provides thefollowing explanation of disqualificationbecause of substantial relationship:

[m]atters are “substantially related” forpurposes of this Rule if they involve thesame transaction or legal dispute or ifthere otherwise is a substantial risk thatinformation as would normally have beenobtained in the prior representationwould materially advance the client’s posi-tion in the subsequent matter...Information that has been disclosed to thepublic or to other parties adverse to theformer client ordinarily will not be dis-qualifying. Information acquired in aprior representation may have been ren-dered obsolete by the passage of time, acircumstance that may be relevant indetermining whether two representationsare substantially related. In the case of anorganizational client, general knowledgeof the client’s policies and practices ordi-narily will not preclude a subsequent rep-resentation; on the other hand, knowledgeof specific facts gained in a prior represen-tation that are relevant to the matter inquestion ordinarily will preclude such arepresentation. The substantial relationship test serves as a

proxy for requiring a former client to discloseconfidential information to demonstrate thatthe lawyer has a conflict of interest:

A former client is not required to revealthe information learned by the lawyer toestablish a substantial risk that the lawyerhas information to use in the subsequentmatter. A conclusion about the possessionof such information may be based on the


48 WINTER 2012

nature of the services the lawyer providedthe former client and information thatwould in ordinary practice be learned by alawyer providing such services.

Rule 1.9, cmt. [3].Rule 1.9(b) prohibits a lawyer from repre-

senting anyone in the same or a substantiallyrelated matter in which a firm with which thelawyer was formerly associated had previouslyrepresented the adverse party and aboutwhom the lawyer acquired confidential,material information, unless the former clientgives informed consent. This provision of therule prohibits Attorney J from representing aworkers’ compensation claimant in a matterin which one of the other lawyers at Law FirmH defended Large Manufacturer and aboutwhich Attorney J acquired confidential infor-

mation that is material to the matter.If Attorney J is disqualified under any pro-

vision of Rule 1.9, Rule 1.10(c) permitsscreening of Attorney J to avoid imputing herdisqualification to the other lawyers in hernew firm. The rule provides:

[w]hen a lawyer becomes associated with afirm, no lawyer associated in the firm shallknowingly represent a person in a matterin which that lawyer is disqualified underRule 1.9 unless:

(1) the personally disqualified lawyer istimely screened from any participationin the matter; and(2) written notice is promptly given toany affected former client to enable it toascertain compliance with the provisionsof this Rule.

Comment [4] to Rule 1.9, which relatesto lawyers moving between firms, elucidatesthe policy considerations justifying the use ofscreens in this situation:

[w]hen lawyers have been associatedwithin a firm but then end their associa-tion, the question of whether a lawyershould undertake representation is morecomplicated. There are several competingconsiderations. First, the client previouslyrepresented by the former firm must bereasonably assured that the principle ofloyalty to the client is not compromised.Second, the rule should not be so broadlycast as to preclude other persons fromhaving reasonable choice of legal counsel.Third, the rule should not unreasonablyhamper lawyers from forming new associ-ations and taking on new clients afterhaving left a previous association. In thisconnection, it should be recognized thattoday many lawyers practice in firms, thatmany lawyers to some degree limit theirpractice to one field or another, and thatmany move from one association toanother several times in their careers. Ifthe concept of imputation were appliedwith unqualified rigor, the result wouldbe radical curtailment of the opportunityof lawyers to move from one practice set-ting to another and of the opportunity ofclients to change counsel. As long as a screen is implemented to iso-

late Attorney J from participation in thesematters, the consent of Large Manufacturerto the representation of the claimants by alawyer with Law Firm S is not required. SeeRule 1.0(l) and 2003 FEO 8 (setting forthscreening procedures).

Inquiry #2:Large Manufacturer contends that any

new workers’ compensation claims againstLarge Manufacturer that Attorney J handlesat Law Firm S will be substantially related toher prior representation of LargeManufacturer because Attorney J was privy toinformation about Large Manufacturer’sdefense of workers’ compensation cases andthis information will materially advance theinterests of any client with a workers’ com-pensation claim against Large Manufacturer.

May Attorney J represent claimants onnew workers’ compensation cases againstLarge Manufacturer if the claimant did notseek representation from Law Firm S untilafter Attorney J’s employment?

Opinion #2:It depends. If a new matter is not the same

or substantially related to Attorney J’s priorrepresentations of Large Manufacturer, she isnot disqualified from the representationunless, during her prior employment withLaw Firm H, she acquired confidential infor-mation of Large Manufacturer that is materialor relevant to the representation of the newclient, may be used to the disadvantage ofLarge Manufacturer, and is not generallyknown. Attorney J has a continuing dutyunder paragraphs (a) and (b) of Rule 1.9 tomonitor any new matter involving LargeManufacturer to determine whether it is sub-stantially related to her prior representation ofher former client or she acquired confidentialinformation from Large Manufacturer that ismaterial to the matter. If so, she is personallydisqualified and must be screened. SeeOpinion #1.

Even if the matters are not substantiallyrelated, however, Attorney J has a continuingduty under paragraph (c) of Rule 1.9 to ensurethat the representation will not result in themisuse of confidential information of LargeManufacturer. Rule 1.9(c) prohibits a lawyerwho has formerly represented a client in amatter or whose former firm has formerly rep-resented a client in a matter from thereafterusing confidential information relating to therepresentation to the disadvantage of the for-mer client except as allowed by the Rules orwhen the information has become “generallyknown.” A screen must be promptly imple-mented to isolate Attorney J from participa-tion in any such case. See Opinion #1.

Comment [8] to Rule 1.9 explains theexception for information that is “generally

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 31, 2012.

Captions andHeadnotesA caption and a short description of

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

known” as follows:...the fact that a lawyer has once served aclient does not preclude the lawyer fromusing generally known information aboutthat client when later representing anotherclient. Whether information is “generallyknown” depends in part upon how theinformation was obtained and in partupon the former client’s reasonable expec-tations. The mere fact that information isaccessible through the public record or hasbecome known to some other persons doesnot necessarily deprive the information ofits confidential nature. If the information isknown or readily available to a relevant sec-tor of the public, such as the partiesinvolved in the matter, then the informa-tion is probably considered “generallyknown.”Similarly, the Restatement (Third) of The

Law Governing Lawyers adopts an accessapproach to the determination of what infor-mation is “generally known”:

Whether information is generally knowndepends on all circumstances relevant inobtaining the information. Informationcontained in books or records in publiclibraries, public-record depositaries such asgovernment offices, or in publicly accessi-ble electronic-data storage is generallyknown if the particular information isobtainable through publicly availableindexes and similar methods of access.Information is not generally known whena person interested in knowing the infor-mation could obtain it only by means ofspecial knowledge or substantial difficultyor expense. Special knowledge includesinformation about the whereabouts oridentity of a person or other source fromwhich the information can be acquired ifthose facts are not themselves generallyknown.

Restatement (Third) of the Law GoverningLawyer, §59, cmt. d.

Attorney J’s general knowledge of LargeManufacturer’s workers’ compensation casemanagement, settlement, and litigation poli-cies and practices may be sufficient in somematters to disqualify her. As observed in thediscussion of “substantial relationship” incomment [3] to Rule 1.9, “[i]n the case of anorganizational client, general knowledge ofthe client’s policies and practices ordinarilywill not preclude a subsequent representation;on the other hand, knowledge of specific factsgained in a prior representation that are rele-

vant to the matter in question ordinarily willpreclude such a representation.”

When evaluating whether a representationis substantially related to a prior representationof an organizational client or whether a lawyeracquired confidential information of a formerorganizational client that is substantially rele-vant to the representation of a client and maybe used to the disadvantage of the formerclient, the following factors, among others,should be considered: the length of time thatthe lawyer represented the former client; thelawyer’s role in representing the former client,including the lawyer’s presence at strategy anddecision-making sessions for the former client;the relative authority of the lawyer to makedecisions about the representation of the for-mer client; the passage of time since the lawyerrepresented the former client;1 the extent towhich there are material factual and legal sim-ilarities between former and present represen-tations; and the substantial relevance of theformer client’s litigation policies, strategies,and practices to the new matter.

Inquiry #3:May the other lawyers in Law Firm S rep-

resent claimants on new workers’ compensa-tion cases against Large Manufacturer?

Opinion #3:Yes, if Attorney J is screened from those

matters for which she acquired confidentialinformation of Large Manufacturer that isdisqualifying. See Opinion #2.

Inquiry #4:Should Attorney J be screened from par-

ticipation in workers’ compensation casesagainst Large Manufacturer that were defend-ed by lawyers from Law Firm Y whileAttorney J was employed by Law Firm H?

Opinion #4:Yes, if she acquired confidential informa-

tion of Large Manufacturer that is disqualify-ing. See Opinion #2.

Inquiry #5:Large Manufacturer has many long-term

employees who over time may file multipleworkers’ compensation claims against LargeManufacturer. If Lawyer J or another lawyerwith Law Firm H defended LargeManufacturer against a particular employeewhile Attorney J was employed by the firm, itis contended that there is a substantial risk

that Attorney J will have specific confidentialinformation of Large Manufacturer thatwould be relevant and useful to the represen-tation of the particular claimant. For exam-ple, a manager’s thoughts and opinionsregarding the claimant could be informationthat would not be generally known andwhich might be used to the disadvantage ofLarge Manufacturer.

May Attorney J represent a claimant on anew workers’ compensation case againstLarge Manufacturer if the claimant had pre-viously filed a workers’ compensation caseagainst Large Manufacturer that was defend-ed by a lawyer from Law Firm H whileAttorney J was employed by the firm?

Opinion #5: As stated in Opinion #2, Attorney J has a

continuing duty to monitor any matterinvolving Large Manufacturer to be sure thatthe representation will not result in the use ofconfidential information of LargeManufacturer that has not become generallyknown to the disadvantage of LargeManufacturer in violation of Rule 1.9(c). Ascreen must be promptly implemented to iso-late Attorney J from participation in any suchmatter.

Endnote1. For an example of a timeframe deemed to be sufficient

to manage post-employment conflicts of interest forfederal government employees, see the Ethics inGovernment Act of 1978, 18 U.S.C.§207(c).

Proposed 2012 Formal Ethics Opinion 9Identifying the Roles andResponsibilities of a Lawyer Appointedto Represent a Child or the Child’sBest Interests in a Contested Custodyor Visitation CaseOctober 25, 2012

Proposed opinion holds that a lawyer askedto represent a child in a contested custody or vis-itation case should decline the appointmentunless the order of appointment identifies thelawyer’s role and specifies the responsibilities ofthe lawyer.

Introduction:This opinion is limited to an examination

of the role of a lawyer appointed to representa child in a contested custody or visitationproceeding. It does not examine other con-texts in which a lawyer may be appointed to


represent a child1 such as when a child isalleged to be abused or neglected or is a partyin civil litigation. To avoid confusion, thelabel “guardian ad litem” will not be used inthis opinion when referring to a lawyerappointed to represent a child in a contestedcustody or visitation proceeding although acourt may choose to apply this label. Thisopinion does not address or seek to questionthe authority of a court to appoint a lawyer torepresent a child in a contested custody pro-ceeding. It seeks only to assist the lawyer andthe court to clarify the responsibilities of alawyer serving in such a role.

In a contested custody or visitation pro-ceeding—especially a “high conflict” pro-ceeding—the court will, on occasion, appointa lawyer to represent the child or childrenwhose custody is at stake. Although theauthority for such appointments is not clear2

and may reside with the court’s inherentauthority to administer justice, such appoint-ments are becoming more common as seen inrecent inquiries to the Ethics Committee.3

The appointment presents a number of diffi-cult issues of professional responsibility forthe appointed lawyer. These issues cannot beresolved unless the lawyer’s role is clearly des-ignated and understood by all of the parties tothe proceeding, especially the appointedlawyer and the court.

This opinion identifies the possible rolesthat a lawyer appointed in a contested cus-tody case may play and recommends that theorder of appointment specify the role andresponsibilities of the appointed lawyer. Theopinion also addresses some specific issues ofprofessional responsibility that arise fromthose roles. Although there are limited refer-ences to the Rules of Professional Conduct inthis opinion, identification of the client andof the lawyer’s role relative to that client isfundamental to the application of the Rules.

Inquiry #1: What are the roles for a lawyer who is

appointed to represent a child in a contestedcustody or visitation proceeding?

Opinion #1:Two distinct roles for a lawyer for a child

are recognized: (1) “Child’s Attorney” and (2)“Best Interests Attorney.”4 As described in theAmerican Bar Association, Section of FamilyLaw Standards of Practice for LawyersRepresenting Children in Custody Cases(2003)(“ABA Standards”), the Child’s

Attorney “provides independent legal repre-sentation in a traditional attorney-client rela-tionship, giving the child a strong voice in theproceedings”; the Best Interests Attorney, onthe other hand, “independently investigates,assesses, and advocates the child’s best interestsas a lawyer.”5 The former role is “client direct-ed” in which the lawyer serves as the tradition-al advocate for the objectives articulated by thechild and owes the child “the same duties ofundivided loyalty, confidentiality, and compe-tent representation as are due to an adultclient.”6 The latter role is “advocate directed,”7

where the advocate’s judgment is substitutedfor that of the child with “the purpose of pro-tecting a child’s best interests without beingbound by the child’s directives or objectives.”8

Because the differences in the two roles arefundamental—particularly with regard to thelawyer’s relationship to the child and respon-sibilities to the court—a lawyer who isappointed to represent a child in a contestedcustody proceeding must be sure that sheknows which role she has been appointed toperform.

There is another possible role for a lawyerto play. The court may appoint a non-lawyeror a lawyer to be an advisor (“court-appointedadvisor”) to assist the court by investigatingand reporting information to the court or byproviding the court with an opinion on somematter.9 The lawyer in such a role is not act-ing as an advocate or serving as counsel foreither the child or the child’s interests. As anadvisor to the court, the lawyer may becomea witness who is subject to examination bythe parties. The lawyer appointed to serve inthis function should also take steps to insurethat the order of appointment specifies thisrole and its duties.

Inquiry #2:What are the professional responsibilities

of a Child’s Attorney?

Opinion #2: A Child’s Attorney serves in the traditional

role of counsel for the child and must fulfillthat role in accordance with the Rules ofProfessional Conduct. The lawyer must ascer-tain the child’s objectives for the representa-tion and then seek to obtain those objectiveswithin the bounds of the Rules of ProfessionalConduct. Rule 1.2. The lawyer owes the dutyof confidentiality to the child and her com-munications with the child are protected bythe attorney-client privilege. See Rule 1.6. If

the lawyer is appointed to represent more thanone child of the dissolving marriage, thelawyer must monitor the representation forpotential conflicts of interest between the chil-dren’s differing objectives for the representa-tion. See Rule 1.7. If a conflict evolves thatcannot be managed, the lawyer may have todecline the representation or withdraw.10

A lawyer who is appointed a Child’sAttorney must determine whether the child issufficiently mature and articulate to partici-pate meaningfully in the client-lawyer rela-tionship. As permitted by Rule 1.14(a), whena client’s capacity to make adequately consid-ered decisions is diminished “because ofminority,” the lawyer “shall, as far as reason-ably possible, maintain a normal client-lawyer relationship with the client.” However,if a child is too young to articulate his or herobjectives for the representation or to makedecisions about the representation, the lawyershould recommend to the court that thelawyer be appointed to serve as a BestInterests Attorney rather than a Child’sAttorney.


of a Best Interests Attorney?

Opinion #3:A Best Interests Attorney is bound by the

Rules of Professional Conduct “except as dic-tated by the absence of a traditional attorney-client relationship with the child and the par-ticular requirements of [her] appointedtasks.”11 The lawyer must determine thechild’s best interests based upon objective cri-teria “as set forth in the law related to the pur-poses of the proceedings.”12 Any objectives orpreferences expressed by the child are but onefactor to be taken into consideration whendetermining the best interests of the child.

The child’s communications with the BestInterests Attorney are subject to Rule 1.6, theconfidentiality rule, except that “the lawyermay use the child’s confidences for the pur-poses of the representation without disclosingthem.”13 This means that the lawyer may useconfidential information received from a childto develop other evidence. The example pro-vided in the ABA Standards is of the child whodiscloses a parent’s drug use to the BestInterests Attorney. The lawyer may not dis-close the source of the information but shemay investigate and present evidence of thedrug use.14

50 WINTER 2012

Representation of multiple children doesnot create a conflict of interest for a BestInterests Attorney because the lawyer is notbound, as in a traditional client-lawyer rela-tionship, to advocate for a client’s objectives.As explained in the ABA Standards, “[a] BestInterests Attorney in such a case shouldreport the relevant views of all thechildren...and advocate the children’s bestinterests...”15


of a court-appointed advisor?

Opinion #4:The court-appointed advisor is not acting

as a lawyer; he is not an advocate and does notrepresent a client or a particular interest.Rather, the advisor serves as an investigatorfor the court and owes the court the duty toinvestigate thoroughly and impartially and toreport back to the court.

As an investigator who is responsible onlyto the court, the lawyer has no duty of confi-dentiality or loyalty to any of the parties orwitnesses. Moreover, it is unlikely that theattorney-client privilege will attach to thelawyer/advisor’s communications with partiesor witnesses. When a lawyer is serving in thisrole, he must disclose the capacity in whichhe is acting to anyone who may misunder-stand his role. See, e.g., Rule 4.3(b). It is not aconflict of interest for a lawyer to serve as acourt-appointed advisor if he does not repre-sent any person appearing in the matter andhe does not mislead others about his role. Inparticular, the lawyer must explain that com-munications will not be held in confidenceand may be reported to the court. Since thelawyer is not representing a client in the mat-ter, the prohibition on contact with a repre-sented person in Rule 4.2 does not apply tohis communications with represented per-sons. However, it is recommended that thelawyer/advisor inform the other lawyer priorto speaking to his client.

Non-lawyers, such as social workers andpsychologists, who are more appropriatelytrained to investigate and offer opinions onissues of child welfare, may be better suitedto serve in the role of court-appointed advi-sor. At the time of appointment, a lawyershould consider whether a non-lawyerwould fulfill the role better than the lawyerand, if so, the lawyer should express thisopinion to the court.

Inquiry #5:How does an appointed lawyer know

which role he is being appointed to perform?

Opinion #5:Ideally, the order of appointment will spec-

ify which role the lawyer is to perform.16

However, because confusion about the roles isnot uncommon, a lawyer who is asked toserve must help the court to articulate thelawyer’s role. Standard 1.3 of the Standards forAttorneys for Children in Custody or VisitationProceedings of the American Academy ofMatrimonial Lawyers (“AAML Standards”) isinstructive:

Whenever a court assigns counsel for achild, the court should specify in writingthe scope of the assignment and the tasksexpected, preferably in the form of anorder. In the event that the court does notspecify these tasks at the time of appoint-ment, the counsel’s first action should be toseek clarification from the court of thetasks expected of him or her.17

Similarly, the ABA Standards state:The lawyer should accept an appointmentonly with full understanding of the issuesand the functions to be performed. If theappointed lawyer considers parts of theappointment order confusing or incom-patible with his or her ethical duties, thelawyer should (1) decline the appoint-ment, (2) inform the court of the conflictand ask the court to clarify or change theterms of the order, or (3) both.18

If the order fails to identify the role and thelawyer’s accompanying responsibilities, thelawyer should first request clarification. Inparticular, the lawyer should ask that the orderarticulate whether the lawyer is to be a Child’sAttorney, a Best Interests Attorney (as thoseroles are defined above), or a court-appointedadvisor. If the court indicates that the lawyer isto be a Best Interests Attorney, the lawyershould request that the order specify the dutiesthat accompany this role. If the court indicatesthat the lawyer is a Child’s Attorney, thelawyer should confirm that the child is capableof making decisions about important matterssufficient to establish the goals of the represen-tation.19 If the court indicates that the lawyeris a court-appointed advisor, the lawyer shouldconsider whether a non-lawyer would betterfulfill this role and, if so, make this recom-mendation to the court.

To assist with the clarification of the scopeof the assignment and the tasks expected, the

following questions should be answered at thetime of appointment (the list is not exhaus-tive):Identifying the Role

• Am I being appointed to provide inde-pendent legal representation to the child in atraditional client-lawyer relationship (theChild’s Attorney role)?

- or to investigate, assess, and advocate forthe child’s best interests (the Best InterestsAttorney role)?- or to assist the court by investigating andreporting information to the court, or byproviding the court with an opinion onsome matter (the court-appointed advi-sor)?

Child’s Attorney’s Assignment and Tasks• If appointed to be the Child’s Attorney,

has the child’s capacity to direct the represen-tation been established?

• If appointed to be the Child’s Attorney,does the court agree

- the child will be my client;- I will owe the child the professionalresponsibilities owed to any client includ-ing the protection of confidences fromunauthorized disclosure and the preserva-tion of the attorney-client privilege; and- in accordance with Rule 3.7, it would beinappropriate in most instances for me toserve as both advocate and witness?• If appointed to be the Child’s Attorney,

will I be permitted/expected to do any of thefollowing: make an opening or closing state-ment, introduce evidence including witnesses,examine witnesses for any party, subpoenarecords or witnesses, or participate on behalfof the child/client in consent agreementsbetween the parties?Best Interests Attorney’s Assignment and Tasks

• If appointed to be the Best InterestsAttorney, what duty do I have to investigateand report to the court?

• If appointed to be the Best InterestsAttorney, will my communications with thechild be confidential but I may use the confi-dential information to develop other evi-dence?

• If appointed to be the Best InterestsAttorney, does the court agree that, in accor-dance with Rule 3.7, it would be inappropri-ate in most instances for me to serve as bothadvocate (for the child’s best interests) andwitness?

- If the court expects me to testify, does thecourt understand that this may subject thechild’s confidences to disclosure and may


52 WINTER 2012

jeopardize my ability to gain the trust ofthe child and of witnesses necessary to myinvestigation?• If appointed to be the Best Interests

Attorney, will I be permitted/expected to doany of the following: make an opening or clos-ing statement, introduce evidence includingwitnesses, examine witnesses for any party,subpoena records or witnesses, or participatein consent agreements between the parties?Court Appointed Advisor’s Assignment andTasks

• If appointed to assist the court by inves-tigating and reporting information to thecourt or by providing the court with an opin-ion on some matter, does the court agree thatI will not be serving as a lawyer and I will oweno duties of representation to any party orother person involved in the proceeding?

• If appointed to be an advisor to the court,does the court agree that I may communicatewith represented persons without the consentof their lawyers as would be otherwiserequired by Rule 4.2?

• If appointed to be an advisor to the court,what tasks will I perform?

- Will I submit an oral or a written reportto the court? - Will I limit my role to investigator andreport only my factual findings, or will Iprovide the court with an opinion on somematter?- Will I be a witness in the proceeding sub-ject to testimonial examination?

Because of the potential for the roles to beconfused, regardless of the specificity of theorder, the judge should be reminded at thebeginning of each hearing of the role of theappointed lawyer.20

Inquiry #6: Should a lawyer appointed as the Child’s

Attorney or a Best Interests Attorney agree toinvestigate and present evidence? To testify orpresent a written or oral report or recommen-dation to the court?

Opinion #6:Regardless of the role, the appointed

lawyer, like any lawyer advocating a position,should conduct independent discovery andinvestigation of the facts.21 At hearings, it ispreferable that the lawyer have the authorityto present and cross-examine witnesses andoffer exhibits.22 However, the standards ofnumerous organizations agree that “[n]either

kind of lawyer is a witness.”23 As noted in theABA Standards, “[a] court seeking expert orlay opinion testimony, written reports, orother non-traditional services should appointan individual for that purpose, and makeclear that the person is not serving as a lawyer,and is not a party.”24 The AAML Standardsare even more adamant on this issue:

Courts may choose to appoint someone toinvestigate and report information to thecourt. When they do so, these profession-als should be called “court-appointedadvisors.” Courts may choose to appointsomeone in an expert capacity to providethe court with an opinion about somecontested matter. When they do so, theseprofessionals should be called “experts.”Courts may choose to appoint someone toprotect children from the harms associat-ed with the contested litigation. Whenthey do so, these professionals should becalled “protectors.” There may be otherreasons courts may choose to add a profes-sional to the case.Language matters, however. We believethat assigning any of these tasks to some-one who is called counsel is unnecessary,needlessly confusing, and misleading.Whatever these professionals are called,and whether or not they happen to bemembers of the bar, these professionalsshould never be mistaken for being coun-sel for the child or serving in any kind ofattorney role.25

The potential harm from testifying as awitness is evident. If the Child’s Attorney can-not assure her client that their communica-tions are confidential and the Best InterestsAttorney cannot assure the child or other wit-nesses of the same, the ability of a lawyer toperform in either role will be undermined.

At the time of the appointment, unlessthe lawyer is specifically appointed as an advi-sor to the court with no other role, the lawyershould recommend to the court that she notmake a written or oral report to the court ortestify as to her findings, particularly if thelawyer is appointed as the Child’s Attorney. Ifthe court insists that the lawyer perform thesefunctions, the lawyer may decline theappointment.

Conclusion:Serving as a Child’s Attorney or a Best

Interests Attorney in a contested custody orvisitation case requires special skills, training,and experience. So much so that the AAML

Standard 1.2 requires, “[t]o be eligible forappointment as counsel for a child in a cus-tody or visitation proceeding, a person shouldbe specially trained and designated by thelocal jurisdiction as competent to perform theassignment” and the comment adds, “[a]t aminimum, counsel for children must knowhow to communicate effectively with chil-dren and understand children’s mental andemotional states at different ages and stages oftheir lives.”26

This opinion does not attempt to addressall of the professional responsibilities or obli-gations of a lawyer appointed as a Child’sAttorney, a Best Interests Attorney, or a court-appointed advisor. A lawyer who is asked toserve in any of these roles should understandthe requirements of each role. Familiaritywith the ABA Standards and the AAMLStandards is recommended.

Endnotes1. For example, a lawyer may be appointed, pursuant to

N.C. Gen. Stat. §7B-601(a), to be an attorney-guardian ad litem for a child who is alleged to beabused, neglected, or dependent; a lawyer may beappointed guardian ad litem for a minor who is a partyin civil litigation pursuant to Rule 17 of the NC Rulesof Civil Procedure (see infra note 2); or a lawyer maybe appointed for a minor child in a domestic violenceaction pursuant to N.C. Gen. Stat. §50B-3(a1)(3)h.

2. The NC Rules of Civil Procedure authorize theappointment of a guardian ad litem (GAL) to appearon behalf of a minor plaintiff or defendant in civil lit-igation. N.C. R. Civ. P. 17(b)(1) and (2). The GeneralRules of Practice for the Superior and District Courtsprovide for the appointment of a lawyer to serve asGAL for a minor who is the victim or potential witnessin a criminal proceeding. N.C. Gen. R. Prac. Super. &Dist. Ct. 7.1. Neither rule authorizes the appointmentof a lawyer or a GAL for a child who is a non-party toa civil proceeding.

3. The increasing call for the appointment of lawyers torepresent the children in custody cases is also noted inRepresenting Children: Standards for Attorneys forChildren in Custody or Visitation Proceedings of theAmerican Academy of Matrimonial Lawyer, p. 2,(2011) [hereinafter “AAML Standards”].

4. The terms are found in American Bar Association,Section of Family Law Standards of Practice for LawyersRepresenting Children in Custody Cases (2003)[here-inafter “ABA Standards”]. However, the distinction isrecognized in other writings. See AAML Standards;National Association of Counsel for ChildrenRecommendations for Representation of Children inAbuse and Neglect Cases (2001)[hereinafter “NACCRecommendations”]; New York State Bar Assn.Committee on Children and the Law: Standards forAttorneys Representing Children in Custody, Visitationand Guardianship Proceedings (2008)[hereinafter“NYSBA Standards”].

5. ABA Standards, supra note 3, at 1.


7. NACC Recommendations, supra note 3, at 4.



9. AAML Standards, supra note 2, at 26-27.

10. See ABA Standards, supra note 3, at 9.



13. Id.

14. Id.

15. Id.

16. The lawyer should urge the court to avoid the use ofthe designation “guardian ad litem” which adds to theconfusion about the lawyer’s role because of its affilia-tion with Rule 17 and abuse/neglect appointments.See ABA Standards, supra note 3, at 2 (“The role of‘guardian ad litem’ has become too muddled throughdifferent usages in different states, with varying conno-tations.”)

17. AAML Standards, supra note 2, at 14.


19. Standard 2.1 of the AAML Standards states: “Court-appointed counsel must decide, on a case-by-casebasis, whether their child clients possess the capacity todirect their representation. In the event that the courtseeks to appoint counsel for children who lack capacityto direct their representation, the lawyer should striveto refuse the appointment.” AAML Standards, supranote 2 at15.



22. Id. at 6.

23. Id. at 2; see generally, Standard 3 of the AAMLStandards, supra note 2 at 25;NACC Recommendations,supra note 3 at 10.

24. ABA Standards, supra note 3, at 2-3.

25. AAML Standards, supra note 2, at 26-27.

26. AAML Standards, supra note 2 at 13.

Proposed 2012 Formal Ethics Opinion 10Participation as a “Network” Lawyerfor Company Providing Litigation orAdministrative Support ServicesOctober 25, 2012

Proposed opinion rules a lawyer may notparticipate as a network lawyer for a companyproviding litigation or administrative supportservices for clients with a particular legal/busi-ness problem unless certain conditions are satis-fied.

Introduction:This opinion explores whether a lawyer

may participate as a “network” lawyer for acompany, usually offering its services via theInternet, that provides litigation or adminis-trative support services to clients with a par-ticular type of legal/business problem.

For example, ABC Services offers to assistmortgage holders and mortgage loan servicers(ABC clients) with the nationwide manage-ment of “mortgage defaults.” ABC maintains

a national network of lawyers who haveentered into a “network agreement” withABC to use administrative and litigation sup-port services provided by ABC, includingdefault management application software,and to accept referrals from ABC. The agree-ment establishes the legal fees that a networklawyer may charge to an ABC client as well asthe “administrative fees” the lawyer must payto ABC for the support services provided byABC. An ABC client is considered the mutu-al client of both ABC and the network lawyerwith ABC functioning as the agent of theABC client while providing litigation andadministrative support services to the net-work lawyer. When a mortgage holder or ser-vicer becomes an ABC client, it is providedwith a list of network lawyers. The ABCclient may choose to retain one of the net-work lawyers to provide legal services in con-nection with a default, or it may ask ABC toinvite a lawyer or firm of the client’s choosingto become a network lawyer and subsequent-ly to provide legal services to the client. Thenetwork lawyer invoices the client for thelegal services provided by the lawyer. ABCseparately invoices the network lawyer for theadministrative services it provided in supportof the representation of the ABC client.

Another example of this business model isan Internet-based company, XYZ Company,which offers “an online eviction processingsystem that connects landlords and propertymanagers with real estate attorneys.” The evic-tion services are provided using softwareaccessed via XYZ’s website and a network oflawyers who are licensed by XYZ to use thesoftware. A lawyer who wishes to participatein XYZ’s network signs a licensing agreementfor the use of the eviction software. Thelicensing fee is determined by the size of themarket in which the lawyer will be providingeviction services. The website states that itssystem provides lawyers “with the technologynecessary to: [e]lectronically receive informa-tion necessary to file eviction requests fromclients; [c]ommunicate with clients through amessage center; [p]rint county-specific formsnecessary for eviction filing with the court,completed with pre-populated informationfrom the client; [p]rovide automated updatesto client on the status of the case.” A landlordwho signs up for the service is given the namesof network lawyers who have contracted withXYZ to handle eviction cases within the rele-vant jurisdiction. The selected or assignedlawyer (in the case of single-lawyer jurisdic-

tions) prosecutes the eviction through thecourt system. The lawyer logs actions takeninto XYZ’s software, which creates periodiccase status reports that are automaticallyemailed to the landlord. The website claimsthat these status reports virtually eliminate theneed for direct communications between thelandlord and the lawyer. The legal fee for eacheviction is determined by the lawyer provid-ing the service. The fee is billed and collectedby XYZ and then forwarded to the lawyer.

Inquiry #1:May a North Carolina lawyer or law firm

enter into an agreement to participate in a“network” of lawyers for a company using thisbusiness model?

Opinion #1:No, unless the following conditions are

satisfied.Unauthorized Practice of LawN.C. Gen. Stat. §84-5 makes it unlawful

for any corporation to practice law or “holditself out in any manner as being entitled todo [so]....” Moreover, a lawyer is prohibitedby Rule 5.5(d) from assisting another personin the unauthorized practice of law. Neither alawyer nor a law firm may become a memberof a “network” for a company using this busi-ness model if the company is providing legalservices or holding itself out as a provider oflegal services as opposed to a provider of sup-port services to lawyers and clients and amethod for identifying lawyers who will usethose services to represent the client.

Lawyer Referral ServiceA lawyer may not participate in the net-

work if payments are made to the companyfor referrals or if the company is a for-profitlawyer referral service. Rule 7.2(b) prohibits alawyer from giving anything of value to a per-son for recommending a lawyer’s servicesexcept a lawyer may pay the reasonable cost ofadvertising. Rule 7.2(d) prohibits participa-tion in a lawyer referral service unless the serv-ice is not operated for profit and the servicesatisfies other conditions not relevant here.Comment [6] to Rule 7.2 defines a lawyerreferral service as “any organization that holdsitself out to the public as a lawyer referralservice. Such referral services are understoodby laypersons to be consumer-orientedorganizations that provide unbiased referralsto lawyers with appropriate experience in thesubject matter of the representation....”

Despite the prohibition on participation

in a for-profit referral service, 2004 FEO 1holds that a lawyer may participate in an on-line service that is similar to both a lawyerreferral service and a legal directory, providedthere is no fee sharing with the service and allcommunications about the lawyer and theservice are truthful. In 2004 FEO 1, theonline service solicited lawyers to participateand then charged participating lawyers a reg-istration fee and an annual fee for administra-tive, system, and advertising expenses. Theamount of the annual fee varied by lawyerbased upon a number of factors including thelawyer’s current rates, areas of practice, geo-graphic location, and number of years inpractice. The opinion noted that the onlineservice had aspects of both a lawyer referralservice and a legal directory:

[o]n the one hand, the online service islike a lawyer referral service because thecompany purports to screen lawyersbefore allowing them to participate and tomatch a prospective client with suitablelawyers. On the other hand, it is like alegal directory because it provides aprospective client with the names oflawyers who are interested in handling hismatter together with information aboutthe lawyers’ qualifications. The prospec-tive client may do further research on thelawyers who send him offer messages.Using this information, the prospectiveclient decides which lawyer to contactabout representation.If a litigation support company provides a

prospective client with the names and qualifi-cations of the lawyers in its network who willprovide representation in the jurisdictionwhere the client’s case is located but does notspecify the employment of one particularlawyer, it is not a prohibited lawyer referralservice. Similarly, if at the client’s request, alawyer or law firm is invited to participate inthe network, the company is not operating afor-profit lawyer referral service. As stated in2004 FEO 1, “the potential harm to the con-sumer [of a for-profit referral service] is avoid-ed because the company does not decidewhich lawyer is right for the client.”

Independent Professional Judgment andCommunication with the Client

While a client is entitled to hire an agent tomanage its legal affairs, Rule 5.4(c) specificallyprohibits a lawyer from permitting a personwho recommends, engages, or pays the lawyerto render legal services for another to direct orregulate the lawyer’s professional judgment in

rendering such legal services. See also Rule1.8(f)(compensation from a third party is pro-hibited unless there is no interference in theclient-lawyer relationship). A lawyer has aduty to communicate with the client aboutthe objectives of the representation and toexplain the law to the client to permit theclient to make an informed decision aboutthose objectives. Rules 1.2 and 1.4. There canbe no interference with the lawyer’s commu-nications with the client or with the lawyer’sindependent professional judgment as towhich legal services are required to achieve theclient’s objectives. See Rule 1.2(a)(“a lawyershall abide by a client’s decisions concerningthe objectives of representation and...consultwith the client as to the means by which theyare to be pursued”). The interference in a net-work lawyer’s professional judgment isimproper if the company dictates what legalservices the lawyer is to provide to a client, thecompany is the sole source of informationabout the client and its legal needs, or accessto the client is restricted by the company. Alaw firm or lawyer participating in a networkmust establish the professional relationshipwith the client and maintain control of therelationship through direct communicationsas needed to establish the objectives for therepresentation and to determine the means toachieve them. See Rule 1.2.

Competent RepresentationAlthough a lawyer may use the company’s

services or software, including the forms gen-erated by that software, the lawyer remainsprofessionally responsible for the competentrepresentation of the client including theappropriate determination of the legal servic-es needed to achieve the client’s objectives andthe quality of any work product that is usedin the representation of the client. Rule 1.1and Rule 1.2. If the lawyer determines that aform or pleading generated by the company’ssoftware is not appropriate for a particularclient, the lawyer must competently preparethe appropriate form or pleading and, if addi-tional information from the client is required,the lawyer must communicate with the clientto obtain the information.

Confidential InformationThe confidentiality of the communica-

tions between the client and the lawyer,including email communications using thecompany’s website or software, must beassured or, in the alternative, informed con-sent of the client to the sharing of its commu-nications with the company must be

obtained, in advance, after disclosure of therisks of such disclosure. Rule 1.6. The riskthat the attorney-client privilege for thosecommunications may be forfeited must bespecifically disclosed to the client to obtaininformed consent.

Fee Sharing with NonlawyerIndependent, professional judgment is

maintained, in part, by the prohibition onsharing legal fees with a nonlawyer found inRule 5.4(a). The prohibition helps to avoidnonlawyer interference with the exercise of alawyer’s professional judgment, ensures thatthe total fee paid by the client is not unrea-sonably high, and discourages the nonlawyerfrom engaging in improper solicitation ofbusiness for the lawyer. See 2010 FEO 4. If anetwork lawyer must pay the company an“administrative fee” for every legal servicethe lawyer provides to the client regardless ofthe administrative or litigation support serv-ices provided by the company, the arrange-ment violates the rule. Any payment to thecompany for administrative and litigationsupport services, including payment foraccess to the company’s litigation supportsoftware, must be reasonable in light of theservices provided. See Rule 1.5(a).

Advertising and Solicitation The information that a participating

lawyer provides to the company for distribu-tion to prospective clients must be accurate.Rule 7.1(a) (prohibiting false or misleadingcommunications about the lawyer or thelawyer’s services). If false or misleading state-ments about the lawyer or his services are sub-sequently made by the company on its web-site or in other advertising for the company’sservices, the lawyer must demand that thestatements be corrected or deleted. See RPC241 (lawyer who participates in a joint adver-tising venture or a legal directory is profes-sionally responsible for content of the adver-tisement even if written or prepared byanother). If this does not occur, the lawyermust withdraw from the network.

Rule 7.2(b) prohibits a lawyer from givinganything of value to a person for recommend-ing a lawyer’s services except a lawyer may paythe reasonable cost of advertising. Therefore,participation as a network lawyer is prohibit-ed if payments are made to the company forreferrals. However, if the payments are for lit-igation support or administrative services pro-vided to the client or to the lawyer to assist inthe rendering of the legal services to the client,and the charge for those services is reasonable

54 WINTER 2012


in light of the service received, the paymentsdo not violate the rule.

Rule 7.3(a) prohibits a lawyer from engag-ing in in-person, telephone, or real-time elec-tronic solicitation (collectively, in-personsolicitation) for professional employmentwhen a significant motive for such conduct isthe lawyer’s pecuniary gain unless the lawyerhas a prior professional relationship with thepotential client (there are other exceptionsnot relevant to this inquiry). A lawyer maynot do through an agent that which he is pro-hibited from doing by the Rules ofProfessional Conduct. Rule 8.4(a). Therefore,if the company engages in in-person solicita-tion of potential clients that do not have aprior professional relationship with a networklawyer or law firm, and the company’s motivefor doing so is to solicit clients for legal serv-ices to be provided by a network lawyer or lawfirm, participation in the network arrange-ment is prohibited.

Written AgreementAlthough this opinion does not require a

lawyer to have a written agreement with thecompany, a written agreement addressing theconditions set forth above is strongly recom-mended. The lawyer may not rely upon awritten agreement alone, however, but mustmonitor the practices of the company on acontinuing basis and discontinue the rela-tionship if the lawyer cannot insure compli-ance with the conditions set forth above.

Inquiry #2:A participating network lawyer enters into

an exclusive arrangement with the companywhereby no other network lawyer will pro-vide legal services to participating clients in adesignated territory or jurisdiction. Thismeans that a prospective client with a legalmatter in this territory or jurisdiction will beautomatically referred to the lawyer with theexclusive arrangement.

May a lawyer enter into such an agree-ment?

Opinion #2:No, this is essentially a for-profit lawyer

referral service, which is prohibited by Rule7.2(d). See also Opinion #1.

Inquiry #3:After the company enters into a network

agreement with a lawyer for a particular terri-tory or jurisdiction, all lawyers who subse-quently apply to become network lawyers for

the same territory or jurisdiction are chargedsubstantially higher fees. This has the effect ofdiscouraging other lawyers from seeking tobecome network lawyers for the same territo-ry or jurisdiction and will potentially create defacto exclusive territories or jurisdictions.

May a lawyer enter an agreement with thecompany under these circumstances?

Opinion #3: No. See Opinion #2.

Inquiry #4: The network agreement specifies that any

information submitted by a client using thecompany’s website shall become the exclusiveproperty of the company.

May a lawyer enter into an agreementwith such a provision?

Opinion #4:No. A lawyer cannot agree that his or her

confidential communications with a clientwill become the property of a third party.Such an agreement will interfere not onlywith the lawyer’s duty to protect confidentialclient communications from unauthorizeddisclosure, but also with other duties includ-ing, but not limited to, the duty of competentrepresentation, the recordkeeping duty fortrust account funds, and the duty to avoidfuture conflicts of interest. See Rules 1.1, 1.6,1.9, and 1.15-3.

Inquiry #5:The network agreement contains a provi-

sion that restricts the lawyer from solicitingany “customer” of the company for the pur-pose of providing services that compete withthe services of the company.

May a lawyer enter into a network agree-ment with such a provision?

Opinion #5:No, unless the agreement specifies that the

lawyer is not agreeing to restrict his or herright to practice law in violation of Rule 5.6.Presumably, the company does not providelegal services because it is prohibited by lawfrom doing so. See Opinion #1 above. Theprovision in the licensing agreement mustspecify the non-legal services provided by thecompany to which the non-compete wouldapply.

Inquiry #6:The network agreement requires the

lawyer to provide the company with his orher client list.

May a lawyer enter into a network agree-ment with such a provision?

Opinion #6:No. This would only be permissible if the

lawyer obtained the informed consent ofevery client whose name will be disclosed tothe company. Rule 1.6(a). To obtaininformed consent, the lawyer must informeach client of the likelihood that the disclo-sure would result in a business solicitationfrom the company.

Inquiry #7:In the past, lack of sufficient oversight of

the ABC employees responsible for preparingaffidavits for use by network firms in foreclo-sure proceedings lead to instances of “robo-signing” in which an ABC employee signed aforeclosure affidavit without conducting areview of the client’s file on the matter or pos-sessing the knowledge to which the employeeattested in the affidavit. Such affidavits wereexecuted in a manner contrary to the notary’sacknowledgement and verification of thedocuments.1 The affidavits were then for-warded to the lawyer for use in the foreclosureproceedings.

What is a network lawyer’s duty relative tothe documents and pleadings provided byABC?

Opinion #7:This inquiry demonstrates the potential

problems that can result from interference inthe autonomy and independent professionaljudgment of a lawyer by a third party. Alawyer should not participate in the networkor a similar service that includes support froma third party if the lawyer’s ability to commu-nicate with the client is so restricted that thelawyer cannot determine whether the docu-ments and information he receives via thethird party are reliable.

If a network lawyer obtains a document,such as an affidavit, from ABC for use in therepresentation of a client and the lawyerknows or reasonably should know that ABChas engaged in preparation of erroneous,false, or seemingly false documents or affi-davits in similar matters in the past, thelawyer may not use the documents until hehas assured himself, through review of theclient’s own files or direct communicationwith the client, that the documents are reli-

able. See Rule 5.4(c). Particularly with regardto sworn statements, a lawyer’s duty of candorrequires the lawyer to avoid offering false evi-dence. See Rule 3.3(a)(3). Nevertheless, if aclient or an agent of the client is not other-wise known to be unreliable or to provideerroneous or false information, a lawyer mayrely upon information provided to her to rep-resent the client.

Endnote1. Such conduct is the subject of the National Mortgage

Settlement. nationalmortgagesettlement.com.

Proposed 2012 Formal Ethics Opinion 11Use of Nonlawyer Field Representativesto Obtain Representation ContractsOctober 25, 2012

Proposed opinion rules that, subject to condi-tions, a law firm may send a nonlawyer fieldrepresentative to meet with a prospective person-al injury client and obtain a representation con-tract without prior consultation by a firmlawyer with the prospective client.

Inquiry #1: ABC law firm employs a large staff of

nonlawyers, including paralegals, assistants,and others. Among the nonlawyer staff areemployees called “field representatives.”When a prospective client contacts ABC, thefirm sends a field representative to theprospective client’s home or other locationchosen by the prospective client. The fieldrepresentative provides information about thefirm in an effort to convince the prospectiveclient to choose firm ABC for representation.If the prospective client agrees, the field rep-resentative provides a representation contractand obtains the client’s signature on the con-tract. The field representation also obtainsinformation from the prospective client con-cerning the representation.

No lawyer with the firm consults with theprospective client before the field representa-tive meets with the person. No lawyer withthe firm reviews the information obtained bythe field representative before the firm agreesto represent the person.

May the firm accept the representation ofa client without a review of the client’s cir-cumstances by a firm lawyer?

Opinion #1:No. A lawyer must use his professional

judgment to determine whether to offer legal

services to a prospective client after consider-ation of the relevant facts and circumstances.A lawyer may not delegate to a nonlawer theresponsibility for establishing a lawyer-clientrelationship. Rule 5.3; Rule 5.5; NCGuidelines for Use of Paralegals in RenderingLegal Services (2010) (nccertifiedparalegal.gov/guidelines.asp).

Inquiry #2:If a lawyer at the firm has reviewed suffi-

cient information from the prospective clientto determine that an offer of representation isappropriate, may a firm employ a field repre-sentative to meet with the prospective clientand obtain a representation contract prior toany consultation between the person and afirm lawyer?

Opinion #2:The Ethics Committee has previously

determined that a lawyer may delegate certaintasks to nonlawyer assistants. See, e.g., RPC70, RPC 216, 99 FEO 6, 2002 FEO 9.Pursuant to RPC 216, when a lawyer dele-gates a task to a nonlawyer, the lawyer has aduty under the Rules of Professional Conductto take reasonable steps to ascertain that thenonlawyer assistant is competent; to providethe nonlawyer assistant with appropriatesupervision and instruction; and to continueto use the lawyer’s own independent profes-sional judgment, competence, and personalknowledge in the representation of the client.See also Rule 1.1, Rule 5.3, Rule 5.5.

In 2002 FEO 9, the Ethics Committeespecifically determined that a nonlawyer mayoversee the execution of real estate closingdocuments and the disbursement of the pro-ceeds even though the lawyer is not physicallypresent at the closing. 2002 FEO 9 statesthat, in any situation where a lawyer delegatesa task to a nonlawyer assistant, the lawyermust determine that delegation is appropriateafter having evaluated the complexity of thetransaction, the degree of difficulty of thetask, the training and ability of the non-lawyer, the client’s sophistication and expecta-tions, and the course of dealing with theclient. The opinion holds that the lawyer isstill responsible for providing competent rep-resentation and adequate supervision of thenonlawyer.

Similarly, under certain circumstances, anonlawyer field representative may overseethe execution of a representation contract.The firm lawyer must consider the factors set

out in 2002 FEO 9 and determine whethersuch delegation is appropriate.

The lawyer must also take precautions toavoid assisting in the unauthorized practice oflaw. See Rule 5.5(d). The lawyer must instructthe field representative to disclose to theprospective client that he is not a lawyer andthat he cannot answer any legal question. Thelawyer must also admonish the field represen-tative not to provide legal advice and to con-tact the lawyer should a legal question arise.Likewise, the lawyer must be available bysome means to consult with and answer anylegal questions the prospective client mayhave.

Proposed 2012 Formal Ethics Opinion 12Agreement for Division of Fees EnteredUpon Lawyer’s Departure from Firm October 25, 2012

Proposed opinion rules that an agreement fora departing lawyer to pay his former firm a per-centage of any legal fee subsequently recoveredfrom the continued representation of a contingentfee client by the departing lawyer does not violateRule 5.6 if the agreement was negotiated by thedeparting lawyer and the firm after the departinglawyer announced his departure from the firmand the specific percentage is a reasonable resolu-tion of the dispute over the division of future fees.

Inquiry:Attorney B, an associate in Attorney A’s

firm, resigned from the firm effectiveFebruary 28, 2005. At the time of his resigna-tion, Attorney B signed an agreement withthe firm. The agreement provided thatAttorney B would take all of the active clientfiles for which the clients had indicated adesire for Attorney B to continue to representthem. The agreement also contained the fol-lowing provision:

With respect to those files in which theclient chooses Attorney B to conclude hisor her active claim, upon recovery madeby Attorney B on each such file, AttorneyB shall forward to Attorney A, at the timeof disbursement, 50% of the attorney’s feecollected on each settlement. This willinclude medical payments fees as well.Attorney B will also pay to Attorney Aupon recovery the total amount of expens-es due to Attorney A in accordance with [acomputer expense printout provided byAttorney A]. Finally, Attorney B will for-ward to Attorney A a copy of the settle-

56 WINTER 2012

ment sheet signed by the client reflectingthe disbursements on each such file. Allsettlements negotiated by Attorney Bthrough February 28, 2005, will be han-dled through Attorney A’s trust account.Client entered into an agreement for rep-

resentation on a personal injury claim withAttorney A’s firm on December 16, 2004,while Attorney B was still with the firm.When Attorney B left the firm in February2005, Client chose to continue to be repre-sented by Attorney B. The case was conclud-ed in May 2010, with a deputy commission-er’s award to Client.

There is currently an “attorney-attorney”fee arbitration between Attorney A’s firm andAttorney B pending before the fee disputecommittee of the local judicial district bar.The distribution of the legal fee from the res-olution of Client’s worker’s compensationcase is in dispute. The judicial district bar’sbylaws relating to the arbitration of such dis-putes provides: “The committee shall neitherhave nor exercise jurisdiction regarding dis-putes…which involve services that may con-stitute a violation of The North CarolinaState Bar Rules of Professional Conduct, asnow in effect or may be hereafter amended.”The presiding arbitrator has requested anopinion from the North Carolina State Baron the following issue: Does the provision ofthe agreement quoted above comply with theRules of Professional Conduct?

Opinion:Rule 5.6(a) prohibits a lawyer from partic-

ipating in offering or making a partnership,shareholders, operating, employment, or sim-ilar type of agreement that restricts the rightof a lawyer to practice after termination of therelationship except an agreement concerningbenefits upon retirement. This prohibitionon restrictive covenants protects the freedomof clients to choose a lawyer and promoteslawyer mobility and professional autonomy.Rule 5.6, cmt. [1].

2008 FEO 8 examined provisions inthree employment agreements to determinewhether the agreements complied with Rule5.6. Although the opinion ruled that all threeagreements violated Rule 5.6, the opinion,nevertheless, encouraged lawyers to enterinto agreements that will help to resolvepotential disputes about the division of fees.While cautioning that “such agreements maynot be so financially onerous or punitive asto deter a withdrawing lawyer from continu-

ing to represent a client if the client choosesto be represented by the lawyer after thelawyer’s departure from the firm,” the opin-ion held that a lawyer may participate in theoffering or making of an agreement thatincludes a provision for dividing legal feesreceived after a lawyer’s departure from afirm.

...provided the formula or procedure fordividing fees is, at the time the agreementis made, reasonably calculated to compen-sate the firm for the resources expended bythe firm on the representation as of thedate of the lawyer’s departure and will notdiscourage a departing lawyer from takinga case and thereby deny the client access tothe lawyer of his choice.Thus, the circumstances and timing of the

execution of an agreement are important tothe analysis of whether the agreement runsafoul of Rule 5.6.

In the current inquiry, the agreement wasnegotiated and entered into after Attorney Bannounced that he was leaving Attorney A’sfirm. The agreement was, apparently, part ofa global settlement of all issues relative toAttorney B’s departure. It was not enteredinto as a condition of continued employ-ment, as were the agreements analyzed in2008 FEO 8. It did not deter Attorney Bfrom leaving the firm or from continuing torepresent clients who chose to follow him tohis new firm. In fact, the agreement specifi-cally contemplated that Attorney B wouldcontinue to represent those clients. In light ofthe various stages of his cases at the time of hisdeparture, a 50% split of the contingent feesto be earned on the cases cannot be viewed as“onerous” or “punitive.” Such a division offees would favor Attorney B in some casesand disfavor him in others.

A division of fees based upon a fixed per-centage that fairly allocates, over the range ofcases, the value of the time and work expend-ed before and after a lawyer leaves a firm is areasonable means of achieving an efficient,equitable resolution of the fee division issuesbetween a departing lawyer and the firm.Provided the lawyers deal fairly and honestlywith each other without intimidation,threats, or misrepresentation, this type ofagreement should be encouraged.

The provision of the agreement address-ing costs advanced is consistent with 2008FEO 8, which provides that the agreement“may require the departing lawyer to protectthe firm’s interest in receiving reimbursement

for costs advanced from any final settlementor judgment received by the client.”

Rule 1.5(e) requires a client’s written con-sent to the division of a fee between lawyerswho are not in the same firm. This rule, how-ever, does not apply to the current situationbecause the fee agreement with the client pre-ceded Attorney B’s departure from the firm.Rule 1.5, cmt. [9].

Proposed 2012 Formal Ethics Opinion 13Duty to Safekeep Client Files UponSuspension, Disbarment,Disappearance, or Death of Firm LawyerOctober 25, 2012

Proposed opinion rules that the partners andmanagerial lawyers remaining in a firm areresponsible for the safekeeping and proper dispo-sition of both the active and closed files of a sus-pended, disbarred, missing, or deceased memberof the firm.

Inquiry #1:The law firm A & B, PA, was formed as a

professional corporation in 1992. Lawyer Aand Lawyer B were the initial shareholders inthe firm. In 1993, Lawyer C joined the firmand became a shareholder. The professionalcorporation’s articles of incorporation wereamended to change the professional corpora-tion’s name to A, B & C, PA.

In 1998, Lawyer C closed a real estatetransaction for a client of the firm. The filewas placed among the firm’s inventory ofclient files.

In 2008, Lawyer A and Lawyer B learnedthat Lawyer C had committed numerousembezzlements from the firm’s trust accountin a cumulative amount exceeding$1,000,000. Lawyer C (hereinafter, “C”) wasousted from the firm and was subsequentlydisbarred. The firm’s articles of incorporationwere amended to change the professional cor-poration’s name back to A & B, PA. When Cwas ousted from the firm, Lawyer A andLawyer B reviewed the files for the clients ofthe firm whose legal services had been provid-ed by C. When their review was completed,Lawyer A and Lawyer B instructed or allowedC to take possession of those client files. Since2008, the client files have been in a storagefacility to which C’s lawyer has the key.

The client whose transaction was closedby C in 1998 is now seeking her file, which isbelieved to be in the storage facility. C is inprison. C’s lawyer cannot access the storage


58 WINTER 2012

facility due to physical infirmity. However,C’s lawyer is willing to give Lawyer A andLawyer B the key to the storage facility and toauthorize them to access and retrieve theclient files. Lawyer A and Lawyer B assert thatthey are not obligated to help the clientobtain her file.

When a lawyer leaves a firm and is subse-quently disbarred, what is the professionalresponsibility of the lawyers remaining withthe firm relative to the safekeeping and prop-er disposition of the files of the clients of thedisbarred lawyer?

Opinion #1:The remaining lawyers in the firm are

responsible for the safekeeping and properdisposition of both the active and closed filesof the disbarred lawyer in their custody.Because of the risk of loss, closed files may notbe relinquished to a disbarred lawyer who isno longer subject to the regulation of theNorth Carolina State Bar and no longerrequired to comply with the Rules ofProfessional Conduct.

Rule 1.15 requires a lawyer to preserveclient property, including information in aclient’s file such as client documents andlawyer work product, from risk of loss due todestruction, degradation, or loss. See alsoRPC 209 (noting the “general fiduciary dutyto safeguard the property of a client”); RPC234 (requiring the storage of a client’s originaldocuments with legal significance in a safeplace or their return to the client); 98 FEO 15(requiring exercise of lawyer’s “due care” whenselecting depository bank for trust account);and 2011 FEO 6 (allowing law firm to use“cloud computing” if reasonable care is takento protect the security of client files).

If a lawyer practices in a law firm withother lawyers, the responsibility to preserve aclient’s property, including the client’s file, isnot solely the responsibility of the lawyer pro-viding the legal services to the client. Rule5.1(a) of the Rules of Professional Conductrequires the partners in a law firm and alllawyers with comparable managerial authori-ty to make “reasonable efforts to ensure thatthe firm…has in effect measures giving rea-sonable assurance that all lawyers in thefirm…conform to the Rules of ProfessionalConduct.”

The professional responsibilities of thepartners and the lawyers with managerialauthority relative to the files of the firm arethe same regardless of whether the lawyer has

departed the firm because of suspension, dis-barment, disappearance, or death.1 Thelawyers are responsible for (1) ensuring thatany open client matter is promptly and prop-erly transitioned to the lawyer of the client’schoice, and (2) retaining possession of andsafekeeping closed client files of the departedlawyer until the requirements for dispositionof closed files set forth in RPC 209 can be ful-filled. See, e.g., RPC 48 (explaining dutiesupon firm dissolution including continuity ofservice to clients and right of clients to coun-sel of their choice).

Inquiry #2:Do Lawyer A and Lawyer B have a duty to

help a former client of the firm obtain the filerelating to the legal services provided to herby C when C was a member of the firm?

Opinion #2:Yes, when the location of a file is known,

the lawyers have a duty to take reasonablemeasures to assist a client to obtain the file.See Opinion #1 and RPC 209.

Endnote1. This opinion does not address the professional respon-

sibilities of the firm lawyers when a lawyer leaves thefirm to practice elsewhere.

Proposed 2012 Formal Ethics Opinion 14Advertising Content on Gift orPromotional ItemsOctober 25, 2012

Proposed opinion rules that the advertisingcontent displayed on certain gift or promotionalitems does not have to include an office address.

Inquiry:Lawyer would like to put her firm name

on a non-state issued license plate to be placedon the front of her automobile. The graphicson the license plate would consist only of thefirm name. No other content would appearon the plate. Is Lawyer required to include anoffice address on the license plate?

Opinion:No. Rule 7.2(c) provides that any adver-

tisement for legal services must include the“name and office address of at least one lawyeror law firm responsible for [the advertise-ment’s] content.” The purpose of the rule is tofacilitate the identification and location of aresponsible lawyer or firm in order to hold that

lawyer or firm accountable for the content ofthe advertisement. However, we conclude thatwhere a gift/promotional item displays onlythe name or logo of the lawyer or law firm,and the items are used/disseminated by thelawyer or law firm in a manner otherwise per-missible under the Rules of ProfessionalConduct, the gift/promotion item does nothave to display an office address.

Examples of such items would includepens, pencils, hats, or coffee mugs bearing thename or logo of a law firm or lawyer. A non-state issued license plate displaying a lawfirm’s name is also exempt from the addressrequirement.

Proposed 2012 Formal Ethics Opinion 15Lawyer as WitnessOctober 25, 2012

Proposed opinion rules that whether a lawyeris a “necessary witness” and thereby disqualifiedfrom acting as a client’s advocate at a trial is anissue left up to the discretion of the tribunal.

Inquiry:Based on allegations by A, Defendant B

was arrested and charged with cruelty to ani-mals. B’s lawyer wrote to A and asked him towithdraw the charges. B’s lawyer advised Athat B had not harmed the animals andadvised A that he could be sued civilly formaliciously instituting charges against B with-out probable cause. Eventually, B’s motion fora directed verdict was granted in the matter.

Lawyer, on behalf of B, filed a maliciousprosecution suit against A. The pleadings con-tained an allegation that Lawyer had contact-ed A, assured A that B had not harmed hisanimals, asked A to withdraw the charges, andadvised A that “persons who maliciously insti-tute charges without probable cause could beheld liable for damages.” The pleading thenalleges that A “maliciously refused to contactthe relevant law enforcement authorities toinform them of the true facts.”

The trial court questions whether Lawyerhad made himself a witness by virtue of hisinclusion of the above-referenced factual alle-gations.

Opinion:Rule 3.7(a) provides that a lawyer shall not

act as advocate at a trial in which “the lawyeris likely to be a necessary witness” unless: (1)



At a conference on August 23, 2012, theNorth Carolina Supreme Court approvedthe following amendments to the rules of theNorth Carolina State Bar (for the completetext see the Spring 2012 and Summer 2012editions of the Journal or visit the State Barwebsite):

Amendments to the Procedures forElection of State Bar Councilors

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

The amendments permit judicial districtbars to adopt procedures for online votingfor State Bar councilors.

Amendments to the Discipline andDisability Rules

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

The amendments make the GrievanceCommittee’s procedure for referring cases tothe Trust Account Supervisory Program con-sistent with the procedures for referrals to anapproved law office management programand the Lawyer Assistance Program.

Amendments to the Procedures forFee Dispute Resolution

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

The amendments clarify that the FeeDispute Resolution Program does not havejurisdiction over fees or expenses establishedby private arbitration.

Amendments to the Administrativeand CLE Suspension Rules

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

The amendments will facilitate the serv-ice of notices to show cause (NSC) and sus-pension orders for failure to fulfill a member-ship or CLE requirement and clarify that awritten response to a NSC must “showcause” rather than merely provide an expla-nation for the failure to fulfill an obligationof membership.

Amendments to the IOLTA Rules27 N.C.A.C. 1D, Section .1300, Rules

Governing the Administration of the Plan forInterest on Lawyers’ Trust Accounts (IOLTA)

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

Amendments to the CLE Rules27 N.C.A.C. 1D, Section .1600,

Regulations Governing the Administration ofthe Continuing Legal Education Program

The amendments authorize the grantingof CLE credit to lawyers who teach classes at

accredited law and paralegal schools and whoteach classes or courses on topics of substan-tive law at accredited graduate schools.

Amendments to the LegalSpecialization Rules

27 N.C.A.C. 1D, Section .1700, ThePlan of Legal Specialization

The amendments specify that the substan-tial involvement and CLE requirements forcertification apply to the calendar years priorto application and clarify the standard forpeer review.

Amendments to the Rules for ParalegalCertification

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

A new rule creates an inactive status forcertified paralegals who are experiencingfinancial hardship, illness or disability, onactive military duty, or following a militaryspouse to another state or country.

Amendments to the Rules ofProfessional Conduct

27 N.C.A.C. 2, Rules of ProfessionalConduct, Rule 1.15, Safekeeping Property

Rule 1.15-2 requires a lawyer maintaininga trust or fiduciary account to file a writtendirective that requires the depository bank orother financial institution to report to the StateBar when an instrument drawn on the accountis presented for payment against insufficientfunds. The amendments clarify that the bankdirective requirement is limited to trust andfiduciary accounts with demand deposit.

Amendments Approved by the Supreme Court

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

Amendments Pending Approval of the Supreme CourtAt its meeting on October 26, 2012, the

council of the North Carolina State Barvoted to adopt the following rule amend-ments for transmission to the NorthCarolina Supreme Court for approval (forthe complete text see the Fall 2012 edition of

the Journal or visit the State Bar website):

Proposed Amendments to the LawyerAssistance Program Rules

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

The proposed amendments eliminateconsensual suspension by court order infavor of consensual transfer to inactive sta-tus by court order. The lawyer may onlyreturn to active status pursuant to a courtorder.

60 WINTER 2012

Proposed Amendments to theProcedures for Reinstatement fromInactive or Suspended AdministrativeStatus

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

The proposed amendments to the rule onreinstatement from inactive and suspendedstatus will cap the CLE requirement for rein-statement of lawyers who have been inactiveor suspended for seven or more years andwho have been practicing in another state orserving in the military. The proposed ruleamendments also clarify that CLE taken inanother state may be used to offset the CLErequirement for reinstatement even if the

CLE was taken more than two years prior tothe petition.

Proposed Amendments to The Plan forLegal Specialization

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

A new section of the Plan for LegalSpecialization will establish the standards fora new specialty in trademark law.

Proposed Amendments to the Rulesfor Certifying Paralegals

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

The proposed rule amendment limits to30 days the time for appeal to the State BarCouncil from an unfavorable decision oncertification or continued certification of ahearing panel of the Board of ParalegalCertification.

Proposed Amendments to theContinuing Paralegal Education Rules

27 N.C.A.C. 1G, Section .0200, RulesGoverning Continuing Paralegal Education

The proposed rule amendments clarifythat law school courses are approved activi-ties for the purpose of satisfying the continu-ing paralegal education requirements.

At its meeting on October 25, 2012, theCouncil voted to publish the following pro-posed rule amendments for comment fromthe members of the bar:

Proposed Amendments to theDiscipline and Disability Rules

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

Extensive amendments to the disabilityrule are proposed. In addition to rearrang-ing the provisions of the existing rule toimprove clarity, the proposed amendmentseliminate ambiguity, add a new provisionallowing the Office of Counsel to initiate adisability proceeding while a disciplinaryproceeding is pending, and explain the pro-cedure to be followed when a hearing panelfinds probable cause to believe the defen-dant in a disciplinary proceeding is dis-abled. Because the proposed amendmentsare extensive, existing Rule .0118 will berevoked and replaced with the proposedrule that appears below. Therefore, bold,underlined print is not used to show thenew provisions of the rule. For the text ofthe existing rule, visit the “Rules” section ofthe State Bar website:

.0118 Disability (a) Transfer by Secretary where Member

Judicially Declared Incompetent - Where amember of the North Carolina State Bar hasbeen judicially declared incapacitated,incompetent, or mentally ill by a North

Carolina court or by a court of any otherjurisdiction, the secretary, upon proper proofof such declaration, will enter an order trans-ferring the member to disability inactive sta-tus effective immediately and for an indefi-nite period until further order of theDisciplinary Hearing Commission. A copyof the order transferring the member to dis-ability inactive status will be served upon themember, the member’s guardian, or thedirector of any institution to which themember is committed.

(b) Transfer to Disability Inactive Statusby Consent – The chairperson of theGrievance Committee may transfer a mem-ber to disability inactive status upon consentof the member and the counsel.

(c) Initiation of Disability Proceeding(1) Disability Proceeding Initiated bythe North Carolina State Bar

(A) Evidence a Member has BecomeDisabled - When the North CarolinaState Bar obtains evidence that a mem-ber has become disabled, the GrievanceCommittee will conduct an inquirywhich substantially complies with theprocedures set forth in Rule .0113 (a)-(h) of this subchapter. The GrievanceCommittee will determine whetherthere is probable cause to believe thatthe member is disabled within themeaning of Rule .0103(19) of this sub-chapter. If the Grievance Committeefinds probable cause, the counsel willfile with the commission a complaint in

the name of the North Carolina StateBar, signed by the chairperson of theGrievance Committee, alleging disabili-ty. The chairperson of the commissionshall appoint a hearing panel to deter-mine whether the member is disabled.

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. Unless oth-erwise noted, proposed additions torules are printed in bold and under-lined, deletions are interlined.

CommentsThe State Bar welcomes your com-

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

(B) Disability Proceeding InitiatedWhile Disciplinary Proceeding isPending - If, during the pendency of adisciplinary proceeding, the counselreceives evidence constituting probablecause to believe the defendant is dis-abled within the meaning of Rule.0103(19) of this subchapter, the chair-person of the Grievance Committeemay authorize the counsel to file amotion seeking a determination thatthe defendant is disabled and seekingthe defendant’s transfer to disabilityinactive status. The hearing panelappointed to hear the disciplinary pro-ceeding will hear the disability proceed-ing. (C) Pleading in the Alternative –When the Grievance Committee hasfound probable cause to believe a mem-ber has committed professional mis-conduct and the Grievance Committeeor the chairperson of the GrievanceCommittee has found probable causeto believe the member is disabled, theState Bar may file a complaint seeking,in the alternative, the imposition ofprofessional discipline for professionalmisconduct or a determination that thedefendant is disabled.

(2) Initiated by Hearing Panel DuringDisciplinary Proceeding - If, during thependency of a disciplinary proceeding, amajority of the members of the hearingpanel find probable cause to believe thatthe defendant is disabled, the panel will,on its own motion, enter an order stayingthe disciplinary proceeding until thequestion of disability can be determined.The hearing panel will instruct theOffice of Counsel of the State Bar to filea complaint alleging disability. The chair-person of the commission will appoint anew hearing panel to hear the disabilityproceeding. If the new panel does notfind the defendant disabled, the discipli-nary proceeding will resume before theoriginal hearing panel. (3) Disability Proceeding whereDefendant Alleges Disability inDisciplinary Proceeding - If, during thecourse of a disciplinary proceeding, thedefendant contends that he or she is dis-abled within the meaning of Rule.0103(19) of this subchapter, the defen-dant will be immediately transferred todisability inactive status pending conclu-

sion of a disability hearing. The discipli-nary proceeding will be stayed pendingconclusion of the disability hearing. Thehearing panel appointed to hear the dis-ciplinary proceeding will hear the disabil-ity proceeding. (d) Disability Hearings(1) Burden of Proof

(A) In any disability proceeding initiat-ed by the State Bar or by the commis-sion, the State Bar bears the burden ofproving the defendant’s disability byclear, cogent, and convincing evidence.(B) In any disability proceeding initiat-ed by the defendant, the defendantbears the burden of proving the defen-dant’s disability by clear, cogent, andconvincing evidence.

(2) Procedure - The disability hearingwill be conducted in the same manner asa disciplinary proceeding under Rule.0114 of this subchapter. The NorthCarolina Rules of Civil Procedure andthe North Carolina Rules of Evidenceapply, unless a different or more specificprocedure is specified in these rules. Thehearing will be open to the public. (3) Medical Examination - The hearingpanel may require the member to under-go psychiatric, physical, or other medicalexamination or testing by qualified med-ical experts selected or approved by thehearing panel.(4) Appointment of Counsel - The hear-ing panel may appoint a lawyer to repre-sent the defendant in a disability pro-ceeding if the hearing panel concludesthat justice so requires. (5) Order

(A) When Disability is Proven - If thehearing panel finds that the defendantis disabled, the panel will enter an ordercontinuing the defendant’s disabilityinactive status or transferring the defen-dant to disability inactive status. Anorder transferring the defendant to dis-ability inactive status is effective when itis entered. A copy of the order shall beserved upon the defendant or thedefendant’s guardian or lawyer ofrecord.(B)When Disability is Not Proven -When the hearing panel finds that ithas not been proven by clear, cogent,and convincing evidence that thedefendant is disabled, the hearing panelshall enter an order so finding. If the

defendant had been transferred to dis-ability inactive status pursuant to para-graph (c)(3) of this rule, the order shallalso terminate the defendant’s disabilityinactive status.

(e) Stay/Resumption of PendingDisciplinary Matters

(1) Stay or Abatement - When a mem-ber is transferred to disability inactive sta-tus, any proceeding then pending beforethe Grievance Committee or the com-mission against the member shall bestayed or abated unless and until themember’s disability inactive status is ter-minated. (2) Preservation of Evidence - When adisciplinary proceeding against a mem-ber has been stayed because the memberhas been transferred to disability inactivestatus, the counsel may continue toinvestigate allegations of misconduct.The counsel may seek orders from thechairperson of the commission, or thechairperson of a hearing panel if one hasbeen appointed, to preserve evidence ofany alleged professional misconduct bythe member, including orders which per-mit the taking of depositions. The chair-person of the commission, or the chair-person of a hearing panel if one has beenappointed, may appoint counsel to repre-sent the member when necessary to pro-tect the interests of the member duringthe preservation of evidence.(3) Termination of Disability InactiveStatus - Upon termination of disabilityinactive status, all disciplinary proceed-ings pending against the member shallresume. The State Bar may immediatelypursue any disciplinary proceedings thatwere pending when the member wastransferred to disability inactive statusand any allegations of professional mis-conduct that came to the State Bar’sattention while the member was in dis-ability inactive status. Any disciplinaryproceeding pending before the commis-sion that had been stayed shall be set forhearing by the chairperson of the com-mission.(f) Fees and Costs - The hearing panel

may direct the member to pay the costs ofthe disability proceeding, including thecost of any medical examination and thefees of any lawyer appointed to representthe member.


62 WINTER 2012

Proposed Amendments to theStandards for the Criminal LawSpecialty

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

The proposed amendments specify thatjury trial experience is a component of thesubstantial involvement standard for certifi-cation in the criminal law specialty.

.2505 Standards for Certification as aSpecialist

(a)….(b) Substantial Involvement - An appli-

cant shall affirm to the board that the appli-

cant has experience through substantialinvolvement in the practice of criminal law.

(1) Substantial involvement shall meanduring the five years immediately preced-ing the application, the applicant devotedan average of at least 500 hours a year tothe practice of criminal law, but not lessthan 400 hours in any one year. “Practice”shall mean substantive legal work, specif-ically including representation in criminaljury trials, done primarily for the purposeof providing legal advice or representa-tion, or a practice equivalent.(2) ….(3) For the specialty of criminal law andthe subspecialty of state criminal law, theboard shall require an applicant to show

substantial involvement by providinginformation that demonstrates the appli-cant’s significant criminal trial experiencesuch as:

(A) representation during the applicant’sentire legal career in criminal trials con-cluded by jury verdict;(B) representation as principal counselof record in federal felony cases or statefelony cases (Class G or higher);(C) court appearances in other substan-tive criminal proceedings in criminalcourts of any jurisdiction; and(D) representation in appeals of deci-sions to the North Carolina Court ofAppeals, the North Carolina SupremeCourt, or any federal appellate court. n

Legal Ethics (cont.)

the information is probably considered“generally known” [emphasis added].The Restatement (Third) of The Law

Governing Lawyers adopts an access approachto the question. If the information is easilyaccessible to the public, it is “generallyknown.” If special knowledge or skills arerequired to obtain the information, or ifacquiring it would be expensive, then it isnot. See Restatement (Third) of The LawGoverning Lawyers § 59(d).

Exsqueeze Me? Rule 1.6 provides that a lawyer may never

reveal information acquired during the pro-

fessional relationship with a client (with thenoted exceptions), and Rule 1.9(c)(2) pro-hibits disclosure of a former client’s informa-tion, regardless of whether the informationhas become generally known. At first blush,this prohibition may seem overly broad andimpractical.

For this reason, there is some support forthe proposition that the rules should specifi-cally state that information in the publicdomain should not be deemed protectedinformation. See Laws. Man. on Prof.Conduct (ABA/BNA) 55:310. For example,the Restatement provides that a lawyer maynot use or disclose confidential client infor-mation and defines confidential client infor-mation as “information relating to the repre-sentation of a client, other than information

that is generally known.” Restatement (Third)of the Law Governing Lawyers §59, 60.Similarly, Massachusetts and Wyoming pro-vide in their respective Rules of ProfessionalConduct that a lawyer “shall not reveal con-fidential information relating to representa-tion of a client” (emphasis added). Mass.Rules of Prof ’l Conduct, R. 1.6(a); Wyo.Rules of Prof ’l Conduct R. 1.6(a).

Take a Chill PillI don’t believe that such a rule amend-

ment is necessary. The Rules of ProfessionalConduct are “rules of reason” and should beapplied with a common sense approach.Rule 0.2, Scope, cmt. [1]. To reveal is tomake something that is secret or hidden pub-licly or generally known. Merriam-WebsterOnline Dictionary, 2012, merriam-webster.com/dictionary/reveal (1 Nov.2012). Rule 1.6 and Rule 1.9 prohibit alawyer from “revealing” information.Common sense would dictate that informa-tion that has been widely disseminated is nolonger capable of being “revealed.” See SCBar Ethics Advisory Comm., Op. 10-4(2004).

In conclusion, lawyers need to familiarizethemselves with the various rules pertainingto the protection of client information aswell as the nuances particular to each rule.Lawyers should then take a conservative, yetcommon sense approach, to the applicationof these rules in their legal practice. n

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

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Kapp Installed as PresidentRaleigh attorney M. Keith Kapp was

sworn in as president of the NorthCarolina State Bar. He was sworn in byChief Justice Sarah Parker of the NorthCarolina Supreme Court at the State Bar’sAnnual Dinner on Thursday, October 25,2012.

Kapp earned an AB degree with honorsfrom UNC and a JD, also with honors,from UNC School of Law.

Kapp is a partner, vice-president, andvice-chair of the Board of Directors at hisfirm, Williams Mullen. He represents busi-nesses ranging from multi-national to pri-vate or family-owned enterprises in con-nection with their commercial litigationand regulatory needs. He advises clients onthe laws of contract, shareholder rights,antitrust, franchise relations, warranty,consumer protection, unfair trade prac-tices, and various regulatory statutes. As amember of the Commercial ArbitrationPanel of the American ArbitrationAssociation, Kapp also provides arbitrationservices.

Kapp has had substantial involvementin local and state bar organizations. Heserved as president of the Wake County BarAssociation and served on the Board ofGovernors of the North Carolina BarAssociation. As a State Bar councilor, Kappchaired the Ethics Committee, FacilitiesCommittee, and Administrative Commit-tee. He has also served on the GrievanceCommittee, Emerging Issues Committee,

Issues Committee,Paperless BankingC o m m i t t e e ,Executive Commit-tee, DisciplinaryReview Commit-tee, and ProgramE v a l u a t i o nCommittee.

Mr. Kapp isactive in numerous

civic organizations including the MoravianMinistries Foundation, the RaleighKiwanis Club, and the Raleigh LittleTheatre.

Baker Elected as President-ElectAhoskie attorney Ronald G. Baker Sr.

was sworn in as president-elect of theNorth Carolina State Bar. He was sworn inby Chief Justice Sarah Parker at the StateBar’s Annual Dinner on Thursday, October25, 2012.

As an undergraduate Baker attended theUniversity of North Carolina as aMorehead Scholar, and he earned his JDwith honors from the University of NorthCarolina School of Law.

Baker practiced with Henson, Donahue& Elrod in Greensboro from 1975-1978,then moved to Ahoskie and has since prac-ticed with what is now Baker, Jones, Daly& Carter, PA.

Baker has substantial involvement in barorganizations. He is a member of the NorthCarolina Bar Association and the AmericanBar Association. He has served on theboard and is past-president of the NorthCarolina Association of Defense Attorneys,and has been a North Carolina representa-tive to the Defense Research Institute. As aState Bar Councilor, Baker has chaired theGrievance Committee and IssuesCommittee. He has also served on theClient Assistance Committee, AuthorizedPractice Committee, Legislative Commit-tee, Administrative Committee, Discipl-inary Advisory Committee, Executive

Committee, Program Evaluation Commit-tee, and the Special Committee to StudyDisciplinary Guidelines, AppointmentsCommittee.

Mr. Baker is active in numerous civicorganizations. He is a past-president andlife member of the Ahoskie Jaycees, is a USJaycees ambassador, is a former HertfordCounty commissioner, and is past-chair ofthe Hertford County Board of Educationand the Hertford County Committee of100.

Gibson Elected as Vice-PresidentCharlotte attorney Ronald L. Gibson

was sworn in as president-elect of theNorth Carolina State Bar. He was sworn inby Chief Justice Sarah Parker at the StateBar’s Annual Dinner on Thursday, October25, 2012.

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 andvice-president of marketing with DukePower Company. He was also a principalwith Scott, Madden & Associates, a man-agement consulting firm. In addition, hehas owned an insurance and financial serv-ices agency. Gibson currently is a partnerwith the law firm 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,Program Evaluation Committee, and IssuesCommittee. n

B A R U P D A T E S

State Bar Swears in New Officers

Kapp Baker Gibson

64 WINTER 2012

Resolution of Appreciation of

James R. Fox

WHEREAS, James R. Fox was elected by his fellow lawyers from the 21st Judicial District in January 2002 to serve as theirrepresentative in this body. Thereafter, he was elected for three successive three-year terms as councilor; and

WHEREAS, in October 2009 Mr. Fox was elected vice-president, and in October 2010 he was elected president-elect. OnOctober 21, 2011, he was sworn in as president of the North Carolina State Bar; and

WHEREAS, during his service to the North Carolina State Bar, Mr. Fox has served on the following committees: Grievance,Authorized Practice, Special Committee on Real Property Closings, Emerging Issues, Executive, Disciplinary Review,Disciplinary Advisory, Special Committee to Study Disciplinary Guidelines, Issues, Statute of Limitations Study, ProgramEvaluation, Program Evaluation LAP/Grievance Subcommittee, Finance & Audit, and Appointments; and

WHEREAS, every individual who is called upon to serve as the president of the North Carolina State Bar must do at leastfour things well. He or she must defend the core values of the legal profession, continue and build upon the undertakings ofhis or her predecessors, explain for the edification of the membership and the benefit of the public how and why the State Baris regulating the profession, and lead the agency in a manner that is consonant with its statutory purposes and the public’s inter-est. Jim Fox has, as set forth below, faithfully and diligently discharged all of these duties, and

WHEREAS, he has defended the profession and its essential precepts honorably and effectively in the legislature, in thecourtroom, and in the bureaucracy. On his watch, legislation that would have compromised professional independence andloyalty to clients was challenged and defeated in the General Assembly, unauthorized practice by means of the internet wassteadfastly resisted in litigation, and the illicit practices of nonlawyers in real estate closings were clearly defined and proscribedin a definitive opinion that found favor with all concerned, including the federal government, and

WHEREAS, Jim Fox has continued the mighty work of those who have previously served, superintending and sustainingthe State Bar’s ongoing programs while earnestly prosecuting the agency’s most ambitious undertaking in several generations,the construction of its new headquarters. Building upon the foundation that was laid, literally, at the beginning of his term,Jim Fox has overseen the raising of an edifice that will well bespeak his stewardship into the 22nd century, and

WHEREAS, Jim Fox has explained the mission and the work of the organized Bar with singular eloquence, elegance, andeconomy through his skillful use of the president’s message in the State Bar Journal. While his predecessors have all been greatcommunicators, none has surpassed Mr. Fox as an exponent and expounder of self-regulation, and

WHEREAS, Jim Fox has led the North Carolina State Bar with a remarkably sure and even hand, bringing to bear in everyinstance the finely-honed talents of a lawyer’s lawyer. Though widely appreciated as a serious man well suited to the dispositionof business of great importance, Jim Fox has never taken himself too seriously. Those who have had the pleasure of workingwith and for him have invariably and inevitably been impressed by his modesty, his sense of perspective and proportion, andhis good humor, qualities that have made him a great man to follow.

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 Jim Fox, and expresses to him its debt forhis 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 James R. Fox.


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, Jules E. Banzet III, addressed the gathering,and each honoree was presented a certificate by the president of the State Bar, James R. Fox, in recognition of his service. After the ceremonieswere 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): Charles M. Hensey, Peter L. Roda, H. Morrison Johnston, Calvin W. Chesson, William G. Pfefferkorn, Richard C. Pattisall,Joe O. Brewer, Samuel H. Poole Second row (left to right): Reginald S. Hamel, James L. Swisher, C. Thomas Biggs, H. Dolph Berry, Gerald L. Bass,Robert M. Burroughs, Warren A. Winthrop, Jacob (Jack) L. Safron, Murray C. Greason Jr. Third row (standing, left to right): Julius E. Banzet III,Richard N. Randleman, Thomas E. Wagg III, David L. Ward Jr., W. Harrell Everett Jr., John D. Warlick, Samuel J. Crow, Robert L. Cecil, GeorgeRoundtree III

Proposed Ethics (cont.)

the testimony relates to an uncontested issue;(2) the testimony relates to the nature andvalue of legal services rendered in the case; or(3) disqualification of the lawyer would worksubstantial hardship on the client.

A lawyer should be disqualified underRule 3.7 only upon a showing of “com-pelling circumstances.” State v. Schmitt, 102P.3d 856, 859 (Wash. Ct. App. 2004).

Disqualification is limited to situationswhere the lawyer’s testimony is “necessary.” Itis generally agreed that when the anticipatedtestimony is relevant, material, and unob-tainable by other means, the lawyer’s testi-mony is “necessary.” See Ann. Model Rulesof Prof ’l. Conduct (6th ed. 2007), p. 361(citing cases).

The issue of whether a lawyer is a “neces-sary witness” and thereby disqualified fromacting as a client’s advocate at a trial is an

issue best left to the discretion of the tribu-nal. Determining whether a lawyer is likelyto be a necessary witness “involves a consid-eration of the nature of the case, withemphasis on the subject of the lawyer’s testi-mony, the weight the testimony might havein resolving disputed issues, and the avail-ability of other witnesses or documentaryevidence which might independently estab-lish the relevant issues.” Fognani v. Young,115 P.3d 1268 (Colo. 2005). n

66 WINTER 2012

B A R U P D A T E S

At its October 25, 2012, meeting, theNorth Carolina State Bar Client SecurityFund Board of Trustees approved payments of$349,284.29 to 17 applicants who sufferedfinancial losses due to the misconduct ofNorth Carolina lawyers.

The new payments authorized were:1. An award of $250 to an applicant who

suffered a loss because of Tonya Ford ofRaleigh. The board found that Ford wasretained to handle a client’s traffic ticket. Fordfailed to appear and provided no valuable legalservice for the fee paid. Ford was disbarred onApril 15, 2011.

2. An award of $15,000 to a former clientof Jennifer Green-Lee of Clayton. The boardfound that Green-Lee was retained to handle aclient’s real estate closing. From the closingproceeds, Green-Lee retained funds to satisfyan IRS lien, but failed to disburse the funds tothe IRS or the client. Due to misappropria-tion, Green-Lee’s trust account balance isinsufficient to pay all of her clients’ obligations.Green-Lee was disbarred on August 19, 2011.The board previously reimbursed seven otherGreen-Lee clients a total of $218,223.43.

3. An award of $4,635 to applicants whosuffered losses because of Willis Harper Jr. ofWhiteville. The board found that Harper wasretained to handle a client’s real estate closing.From the closing proceeds, Harper shouldhave disbursed funds to a law firm and anasset management company, but failed to doso. Due to misappropriation, Harper’s trustaccount balance is insufficient to pay all of hisclients’ obligations. Harper was disbarred onFebruary 26, 2012.

4. An award of $100 to a former client ofWillis Harper. The board found that Harperwas retained to handle a client’s traffic ticket.Harper failed to provide any valuable legalservice for the fee paid.

5. An award of $1,500 to a former client ofW. Rickert Hinnant of Winston-Salem. Theboard found that Hinnant was retained toappeal a civil arbitration award. Hinnant failedto provide any valuable legal services for the feepaid. Hinnant was disbarred on June 15, 2011.The board previously reimbursed three other

Hinnant clients a total of $11,500.6. An award of $6,000 to a former client of

Mark Jenkins of Waynesville. The boardfound that Jenkins was retained to handle acivil dispute over a property boundary. Jenkinsfailed to provide any valuable legal services forthe fee paid. Jenkins was disbarred on March31, 2011, and died on April 5, 2011. Theboard previously reimbursed 11 other Jenkinsclients a total of $35,475.

7. An award of $100,000 to a former clientof Albert Neal of Candler. The board foundthat Neal served as power of attorney andfiduciary for a client. Neal appropriated theclient’s funds for his own personal use.

8. An award of $500 to an applicant whosuffered a loss because of Robert MorganSmith of Goldsboro. The board found thatSmith was retained to represent a client oncriminal charges. Smith failed to provide anyvaluable legal services for the fee paid. Smithwas disbarred on October 14, 2011. Theboard previously reimbursed three otherSmith clients a total of $13,400.

9. An award of $5,000 to a former client ofNicholas Stratas Jr. of Raleigh. The boardfound that Stratas was retained to handle aclient’s personal injury matter. Stratas receivedmed pay for the client and held it in trust to paya possible VA medical lien. There was no VAlien, and Stratas abandoned his practice prior topaying the funds to the client. Stratas’ trustaccount balance was insufficient to cover all ofhis clients’ obligations due to misappropriation.The board previously reimbursed seven otherStratas clients a total of $127,215.78.

10. An award of $10,000 to a former clientof Nicholas Stratas Jr. The board found thatStratas was retained to handle a client’s propertysettlement in a domestic matter and a possiblemedical malpractice claim. Stratas failed to pro-vide any valuable legal service for the fee paid.

11. An award of $20,000 to a former clientof W. Darrell Whitley of Lexington. Theboard found that Whitley was retained tohandle a client’s personal injury matter.Whitley settled the matter without the client’sknowledge or consent, and failed to disburseany of the settlement proceeds to the client.

Due to misappropriation, Whitley’s trustaccount balance is insufficient to pay all of hisclients’ obligations. Whitley died onDecember 6, 2011. The board previouslyreimbursed five other Whitley clients a total of$103,665.29.

12. An award of $18,060 to a former clientof W. Darrell Whitley. The board found thatWhitley was retained to handle a client’s per-sonal injury matter. Whitley settled the matterwithout the client’s authorization or consent.Whitley forged the client’s name on the releaseand misrepresented to the client the amountof the settlement. Due to misappropriation,Whitley’s trust account balance is insufficientto pay all of his clients’ obligations.

13. An award of $53,050 to a former clientof W. Darrell Whitley. The board found thatWhitley was retained to handle a client’s per-sonal injury matter. Whitley settled the matter,but failed to disburse the funds to the clientprior to his death.

14. An award of $16,333.33 to a formerclient of W. Darrell Whitley. The board foundthat Whitley was retained to handle a client’spersonal injury matter. Whitley settled thematter, but failed to disburse the funds to paythe client’s medical liens prior to his death.

15. An award of $90,000 to a former clientof W. Darrell Whitley. The board found thatWhitley was retained to handle a client’swrongful death claim. Whitley settled the mat-ter, but failed to disburse the settlement pro-ceeds prior to his death.

16. An award of $4,355.96 to a formerclient of W. Darrell Whitley. The board foundthat Whitley was retained to handle a client’spersonal injury matter. Whitley settled the mat-ter, but failed to pay the client’s medical liensfrom the settlement proceeds prior to his death.

17. An award of $4,500 to a former clientof Nancy Wooten of Winston-Salem. Theboard found that Wooten was retained to han-dle a client’s custody matter. Wooten failed toprovide any valuable legal service for the feepaid prior to her death. Due to misappropria-tion, Wooten’s trust account balance is insuffi-cient to pay all of her clients’ obligations.Wooten died on April 19, 2012. n

Client Security Fund Reimburses Victims


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 Produces Top Bar Passage

Rate on July Bar Exam—Campbell Lawstands at the top of the list on the NorthCarolina Bar Exam for July 2012. Boasting a94.53% bar passage rate, Campbell LawClass of 2012 graduates outperformed allother North Carolina law schools, leading thestate in both first time bar passage and overallbar passage. Campbell Law’s overall record ofsuccess on the North Carolina Bar Exam hasbeen unsurpassed by any other NorthCarolina law school for the past 26 years.

2012 Alums Attend Swearing-InCeremony—Fifty-eight graduates from theCampbell Law Class of 2012 participated ina swearing-in ceremony at the law school onSeptember 14. The Honorable Paul Gessnerand The Honorable Paul Ridgeway, bothWake County Superior Court judges andCampbell Law graduates, administered theoath of office and led the swearing-in ofCampbell Law alums who recently passed theJuly 2012 North Carolina Bar Examination.

Professor Flanary-Smith Elected to NCSociety of Health Care Attorneys Board ofDirectors—Campbell Law AssistantProfessor Amy Flanary-Smith has been elect-ed to the North Carolina Society of HealthCare Attorneys (NCSHCA) Board ofDirectors. Flanary-Smith was elected to athree-year term during the NCSHCA annualmeeting on September 28. An expert in legaldiscourse and advocacy, Flanary-Smith servesas the director of Campbell Law’s LegalResearch & Writing Program.

Campbell Law Hosts US Senator Burr —United States Senator Richard Burr paid avisit to Campbell Law School on October 10.Senator Burr toured the law school with fieldrepresentative Betty Jo Shepheard, CampbellLaw Interim Dean Keith Faulkner, andCampbell Law Director of Development

Trudi Brown, before holding a discussion andquestion-and-answer session with more than130 law school students, faculty, and staffmembers.

Charlotte School of LawCharlotte School of Law Students

Compete and Contribute in South Africa—Chris Harden and Nicole Trautman, bothmembers of the CSL Moot Court HonorBoard, recently competed in the Kovsie FirstYear Moot Court Competition hosted by theUniversity of the Free State in Bloemfontein,South Africa, winning their first round. Theyalso participated in a community service proj-ect, raising $1,050 for the Kidz Care Trust, anon-profit organization that takes in youngboys from the streets of South Africa andgives them a place to sleep, eat, play, study,and learn fundamental life skills.

Charlotte School of Law Student WinsNCAWA Scholarship—Brandy Hagler isCharlotte School of Law’s 2012-2013 NorthCarolina Association of Women Attorneysscholarship recipient. She is an officer in theWomen in Law group; volunteers for theSusan G. Komen Breast Cancer Foundation,the Daughters of Charity, and the HarahanGuest House for the Elderly; and is a leaderin numerous other areas.

Fearless Leadership: Maintaining EthicsNo Matter How High the Risk—Karen A.Popp visited CSL to discuss the attorney’sduty to maintain the highest ethics in the faceof difficult decision-making. As a former fed-eral prosecutor, she litigated several high-pro-file cases, and served as associate WhiteHouse counsel to President Clinton.

Charlotte School of Law CivicEngagement Activities—The DemocraticNational Convention brought excitingopportunities for our students to explorelegal, political, social, and ethical issues sur-rounding the presidential election. Studentsrepresented arrested protesters through theClinics program. CSL also hosted a numberof events: Dr. Michael Bitzer spoke aboutPredicting the Unpredictable: Looking at the

2012 Elections; and a panel on UniqueChallenges of Representing Public Servantswas held, along with a Civic EngagementForum. A Republican National Conventionwatch party was also held on campus.

Duke Law SchoolFaculty news—Three interdisciplinary

scholars, Matthew D. Adler, Rachel Brewster,and Nita A. Farahany, have joined DukeLaw’s faculty. Adler studies policy analysis,risk regulation, and constitutional theory.Brewster studies international trade, interna-tional relations theory, and global economicintegration. Farahany studies the intersec-tions of criminal law, biosciences, and philos-ophy.

W. H. “Kip” Johnson III, a foundingmember of the Morningstar Law Group inRaleigh, also has joined the faculty as directorof the Start-Up Ventures Clinic.

Professor Scott Silliman, director emeritusof the Duke Center on Law, Ethics, andNational Security, was sworn in onSeptember 12 as an appellate judge on theUnited States Court of Military CommissionReview, after receiving Senate confirmation.

For the fourth consecutive year, SupremeCourt Justice Samuel A. Alito spent a week atDuke Law in September, teaching a seminarto upper-year students titled Current Issues inConstitutional Interpretation.

The Legal Services Corporation held adaylong forum on civil legal aid at DukeUniversity on October 1. At a subsequentreception at Duke Law School, five attorneyswere honored for their volunteer service withLegal Aid of North Carolina (LANC). SeniorLecturing Fellow Charles R. Holton ‘73, apartner with Womble Carlyle Sandridge &Rice in Research Triangle Park and the chairelect of the LANC Board of Directors, wasrecognized as a pro bono leader in the area offair housing for low-income clients in centralNorth Carolina.

Duke’s Master of Laws in Judicial StudiesWelcomes its First Class—Eighteen judgesfrom federal, state, and foreign courts com-

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Law School Briefs

prised the inaugural class of the Duke Masterof Laws in Judicial Studies Program. Theintensive four-week summer session repre-sented the first of two in the LLM programfor judges, the only one of its kind offered bya US law school.

Elon University School of LawNational Recognition for Innovation and

Small Class Sizes—The National Juristranked Elon this summer as one of America’s20 Most Innovative Law Schools. Elon’s pre-ceptor program was the basis for the school’sselection. The program provides studentswith a mentoring relationship with attorneys.Students receive guidance about career plan-ning and the profession from the momentthey enter law school.

In October, The National Jurist rankedElon #1 in the nation for small class sizes forfirst-year students. “Practitioners andemployers tell us that our students display akind of confidence and readiness to enter theworld of work,” said Dean George R.Johnson Jr. “We think a lot of it has to dowith the opportunities that our students havewith these small class sizes. It translates nicelyinto internships and the world of work.”

Fred Lind Receives Leadership in the LawAward—In September, Dean Johnson pre-sented Guilford County Public DefenderFrederick G. Lind with Elon’s 2012Leadership in the Law Award recognizingoutstanding contributions to the professionand to society.

“Fred is the kind of lawyer who by dint ofhis personality and his unimpeachableintegrity inspires public confidence in ourlegal system,” Johnson said. “For showing uswhat true dedication to building and sustain-ing a fair judicial system looks like, for show-ing so much care in mentoring emerginglawyers in our community, for exemplifyingthe determination, consistency, and profes-sionalism that defines great public defenders,and for modeling for us the life of a lawyer-leader, I am honored to present Frederick G.Lind with Elon University School of Law’s2012 Leadership in the Law Award.”

Lind served as assistant public defenderfor 36 years prior to his appointment as pub-lic defender in 2011. He has tried more than325 jury trials.

North Carolina Central UniversitySchool of Law

Phyliss Craig-Taylor Welcomed as Dean

of NCCU Law—Attorney Phyliss Craig-Taylor became dean of the North CarolinaCentral University School of Law in July.Assuming the dean’s office marks a return toNCCU for Craig-Taylor, who served as a lawprofessor from 2000 to 2006. Craig-Taylormost recently served in the positions of direc-tor for teaching excellence, associate dean forfaculty, and associate dean for academics atCharlotte School of Law in Charlotte.

Craig-Taylor has more than 22 years ofexperience in legal education and adminis-tration. She has been an active faculty mem-ber at the University of Tennessee, theUniversity of Florida College of Law, theUniversity of San Francisco School of Law,and the University of Warsaw College of Lawin Poland. She is certified as a Six SigmaGreen Belt in Process Management fromVillanova University (2010).

As an executive-in-residence at InfiLawSystems, Inc. in Naples, FL, Craig-Taylorprovided leadership and oversight to aca-demic affairs and academic outcomes for theCharlotte School of Law, Phoenix School ofLaw, and Florida Coastal School of Law.Through her involvement with the ABA,Craig-Taylor has held several leadership posi-tions in the Section of Litigation, includingserving on council, as a member of the TaskForce for Civil Practice Rules, and as a divi-sion director for the Administrative andSubstantive Law Divisions. She has served onthe NC State Bar Ethics AdvisoryCommittee and the NC Bar AssociationMinorities in the Profession Committee.

A graduate of the University of AlabamaTuscaloosa, where she earned both herundergraduate degree and law degree, shelater served as a partner in the law firm ofEngland & Bivens and as a judicial clerk forthe Alabama Supreme Court. She earned aMaster of Laws degree at ColumbiaUniversity in New York.

University of North Carolina School of Law

CLE Program—The annual Dan K.Moore Program in Ethics was held October26. The continuing legal education programaddressed a variety of ethical issues of interestto corporate lawyers—both in-house counseland attorneys in private practice. The topicwas “Adjusting to the ‘New Normal’: EthicalChallenges for In-House and OutsideCounsel.” Visit law.unc.edu/cle/dankmoore.

Law Alumni Awards—The school pre-

sented three alumni with the DistinguishedAlumni Award at the annual LeadershipAwards Dinner on September 27: James E.Delany ‘73, commissioner of the Big TenConference; DeWitt F. (Mac) McCarley ‘77,partner with Parker Poe Adams & Bernstein;and Vasiliki Alis (Celia) Pistolis ‘82, assistantdirector of advocacy and compliance withLegal Aid of North Carolina, Inc. TheOutstanding Recent Graduate Award waspresented to Wilson L. White ‘06, associatelitigation counsel at Google Inc.

Fisher v. Texas Supreme Court Case—The law school hosted the university-wideConstitution Day celebration September 17with a panel discussion on the US SupremeCourt affirmative action case Fisher v.University of Texas. The panel included DeanJohn Charles “Jack” Boger ‘74; CharlesEdward Daye, Henry Brandis Professor ofLaw and deputy director of the UNC Centerfor Civil Rights; and center attorneys MarkDorosin ‘94 and Elizabeth M. Haddix ‘98.Boger, Dorosin, and Haddix are co-authorsof an amicus brief that UNC filed on thecase on August 9, and Daye is the leadresearcher of the ten year diversity study thatis referenced in the brief.

PreLaw Rankings—UNC School of Lawwas named one of America’s 20 MostInnovative Law Schools, according to TheNational Jurists’ preLaw magazine, releasedAugust 23. UNC was also ranked number 9in National Jurist magazine’s list of thenation’s Best Value Law Schools, publishedin the September 2012 issue.

Wake Forest University School of LawVALOR Earns Public Interest Award

from ABA Law Student Division—TheAmerican Bar Association Law StudentDivision has announced that Wake ForestUniversity School of Law’s VeteranAdvocacy Law Organization is the recipientof the 2012 Judy M. Weightman MemorialPublic Interest Award. “The division com-mends VALOR for its dedication toaddressing the legal needs of veterans seek-ing benefits from the US Department ofVeteran Affairs, providing legal assistance incivilian legal matters, and promoting aware-ness of issues facing veterans and servicemembers,” wrote Tremaine Reese, 2011-12chair of the ABA Law Student Division, ina letter to WFU Law School Dean Blake D.Morant. “The ABA Law Student Divisionappreciates the contributions of your stu-

68 WINTER 2012


dents and school to improve the legal pro-fession.”

Italian, Austrian, and Wake Forest LawStudents Have Opportunity to Study withUS Supreme Court Justice—For 30 years,Wake Forest’s Study Abroad program hasoffered law students iconic sights, stimulat-ing discussions, and lifetime memories. Formany of the students who attended the

2012 summer program, the highlight ofthe program did not lie in the canals ofVenice or along the strasses of Vienna, butin their daily contacts with AssociateSupreme Court Justice Ruth BaderGinsburg. During the week of July 9,Ginsburg visited the law school’s Veniceprogram, where she gave a public lecture,served as a guest lecturer in several classes,

ate dinner with students, and took in thesights with Dean Blake Morant, his wifePaulette, Professors Joel Newman andRalph Peeples, and their wives Jane andFaith. Then Ginsburg hopped a plane tothe law school’s Vienna program, where sherepeated her agenda for the students, facul-ty, International Programs Dean RichardSchneider, and Professor Tanya Marsh. n

January Council MeetingLawyer Assistance Program Board (3-year

terms) – There are three appointments to bemade. Mark W. Merritt, Burley B. MitchellJr., and Fred J. Williams are not eligible forreappointment.

April Council MeetingNC Courts Commission (4-year terms) –

There is one appointment to be made.Thomas R. West is eligible for reappointment.

Disciplinary Hearing Commission (3-year terms) – There are three appointmentsto be made. William M. Claytor and FredM. Morelock are eligible for reappointment,M.H. Hood Ellis is not eligible for reap-pointment.

Grievance Resolution Board (4-yearterms) – The council must make one recom-mendation to the governor for appointment

to this board. Roger Smith Jr. is eligible forreappointment.

July Council MeetingBoard of Legal Specialization (3-year

terms) – There are three appointments to bemade. Laura D. Burton is eligible for reap-pointment, J. Matthew Martin and Dr.David A. Hayes (public member) are not eli-gible for reappointment.

IOLTA Board of Trustees (3-year terms) –There are three appointments to be made.James G. Exum Jr., Charles E. Burgin, andJanice M. Cole are eligible for reappoint-ment.

October Council MeetingClient Security Fund Board of Trustees

(5-year terms) – There is one appointment tobe made. M. Ann Reed is not eligible for

reappointment.Board of Law Examiners (3-year terms) –

There are five appointments to be made.Kimberly A. Herrick, Randel E. Phillips,Reid L. Phillips, Elizabeth C. Bunting, andBeth R. Fleishman are eligible for reappoint-ment.

Board of Continuing Legal Education (3-year terms) – There are three appointmentsto be made. James A. Davis, Amy H. Hunt,and Judge Margaret P. Eagles are eligible forreappointment.

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. Lisa Duncan (paralegal), BelindaThomas (paralegal), and G. Gray Wilson areeligible for reappointment. n

2013 Appointments to Boards and Commissions

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

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

Awards will be presented in recipients’ dis-

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

Seeking Distinguished Service Award Nominations

70 WINTER 2012

Board of Legal SpecializationSubmitted by Alice Neece Mine, ExecutiveDirector

2012 started on a high note for the special-ization program with the celebration of the25th anniversary of the first class of certifiedspecialists. In 1987, the Board of LegalSpecialization certified 92 specialists in thebrand new specialty areas of real property,bankruptcy, and estate planning and probatelaw. Of those 92 inaugural specialists, 59 havemaintained their certification for 25 years.This is an incredible achievement requiringthe specialist to demonstrate, every five yearsduring the recertification process, that he orshe has remained substantially involved inpractice of the specialty, has taken an extraor-dinary number of CLE courses in the special-ty, and continues to have the approbation ofhis or her peers. In honor of their achieve-ment, these specialists were recognized in aninterview article in the Journal and at theannual specialization luncheon where theywere awarded 25 year anniversary pins.

Last November the board certified 55 newspecialists in ten specialty areas, including 16lawyers who were certified as the first class ofappellate practice specialists. There are cur-rently 826 board certified specialists in the tenspecialty areas of appellate practice, bankrupt-cy law, criminal law, elder law, estate planningand probate law, family law, immigration law,real property law, social security disability law,and workers’ compensation law.

In the spring we received just shy of arecord number of applications from lawyersseeking certification—98 applications. Thisincludes eight applications for the new juve-nile delinquency law subspecialty. Juveniledefense lawyers often receive little compensa-tion or recognition for their dedication to theyoung clients who so desperately rely upontheir skilled advocacy and good counsel.Providing these lawyers with an opportunityto demonstrate their knowledge and skill willnot only bring personal satisfaction, but willalso help to enhance their status in the bar atlarge.

Eric Zogry, North Carolina juveniledefender, chaired the specialty committee

appointed to write the standards for the newcriminal law subspecialty in juvenile delin-quency. His committee spent countless hoursworking with psychometrician Dr. TerryAckerman, associate dean of the University ofNorth Carolina at Greensboro, to develop thespecialty examination. The first part of theexam will test the applicants’ knowledge ofgeneral criminal law. Juvenile delinquency lawwill be the focus of the second part of theexam. The board is grateful to Mr. Zogry andthe members of his committee for their excep-tional dedication to writing an exemplaryexam.

Changes in the administration of the spe-cialization exams this year are a sign of thegrowth and the success of the specializationprogram. For the past 24 years all of theexams have been offered on one date. Withthe addition of four new specialties or subspe-cialties over the past six years, offering 14 dif-ferent exams on the same date is no longeradministratively possible. The staff of the spe-cilization program describes its effort to proc-tor the exams last year as not unlike those ofthe proverbial one-armed paper hanger. Thisyear the specialization exams will be offeredon different dates at the McKimmon Center,State Bar offices, and in Charlotte accordingto specialty. The board hopes that by offeringthe exams in this way we can improve effi-ciency in both the administration and thegrading of the exams.

The proposed standards for a new specialtyin trademark law considered by the council atits October meeting are another sign of thecontinuing growth of the specialization pro-gram. This proposed specialty was requestedand supported by the Intellectual PropertySection of the Bar Association, and will helpto identify trademark law as a unique practicearea. After adoption by the council, the stan-dards must be approved by the SupremeCourt. We look forward to offering this newspecialty for the first time in 2013.

At the annual luncheon honoring 25 yearand newly certified specialists on April 26 inRaleigh, the board’s three special recognitionawards named in honor of past chairs of theboard were presented by Board Chair Jeri

Whitfield. The Howard L. Gum Excellence inCommittee Service Award was given toElizabeth Scherer from Raleigh, a board certi-fied specialist in appellate practice, for thedevotion of her time and exemplary organiza-tion skills to the writing of the first appellatepractice exam as a member of the appellatepractice specialty committee. The James E.Cross Leadership Award was presented toJustice Robert H. Edmunds from Raleigh forhis active leadership role in the field of appel-late practice. The Sara H. Davis ExcellenceAward was presented to Nancy S. Ferguson, acertified real property specialist fromGreensboro, for excellence in her daily work asa lawyer and for serving as a model for otherreal property lawyers.

We were saddened this year by the tragicdeath in a bicycle accident of a former publicmember of the board, Steve Jordan, whoserved on the board from 2003 to 2011.Although not a lawyer, Steve was a goodfriend to and advocate for the specializationprogram. Since his death we have learned thatservice to others was central to Steve’s charac-ter. We are grateful that the specialization pro-gram was one of the many programs that ben-efited from his selfless volunteer service.

Unfortunately, the term of public boardmember Carl W. Davis Jr. ended this year.While serving as board member from 2006 to2012, Carl used his experience from his careerin public television to bring a fresh andinsightful perspective to the board’s delibera-tions. Carl made invaluable contributions tothe specialization program and he will bemissed.

Although we will miss Carl, we are excep-tionally pleased with the new board memberappointed by the council in July. Publicmember Delores S. Todd from Raleigh bringsa wealth of experience and wisdom to theboard from her former work as an AtlanticCoast Conference assistant commissioneramong many other achievements. Ms. Toddhit the ground running at her first boardmeeting in September. I extend the board’sappreciation to the Council for this excellentappointment.

In closing, on behalf of the board I am

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Annual Reports of State Bar Boards

pleased to report that the specialization pro-gram is prospering and continues to fulfill itstwo key objectives: assisting the public byidentifying qualified practitioners who areproficient in specialty areas and improvingthe competency of the bar. With your sup-port, the board will continue to establish spe-cialties in areas appropriate for certificationand to apply reasonable, objective standardsfor certification that protect the interests ofthe public.

Board of Continuing Legal EducationSubmitted by Marcia Armstrong, Board Member

Despite tough economic times, lawyerscontinue to meet and exceed their mandatoryCLE requirements. By mid-March 2012 theCLE department processed and filed over23,500 annual report forms for the 2011compliance year. I am pleased to report that99% of the active members of the NorthCarolina State Bar complied with the manda-tory CLE requirements for 2011. The reportforms show that North Carolina lawyers tooka total of 341,013 hours of CLE in 2011, or13 CLE hours on average per lawyer. This isone hour above the mandated 12 CLE hoursper year.

The board continues to operate on asound financial footing, supporting theadministration of the CLE program from rev-enue from the attendee and non-compliancefees that it collects. The funds collected by theCLE program also help financially to supportthree programs that are fundamental to theadministration of justice and the promotionof the professional conduct of lawyers inNorth Carolina. In 2011 the board used itssurplus to contribute $257,655 to the opera-tion of the Lawyers Assistance Program(LAP). Another contribution to LAP will bemade at the end of 2012. To date in 2012 theboard has also collected and distributed$124,492 to support the work of the EqualAccess to Justice Commission and $242,608to support the work of the Chief Justice’sCommission on Professionalism.

The board supports the 12 hour profes-sionalism requirement for lawyers licensed onor after January 1, 2011, and wants this pro-gram—which is often a new lawyer’s firstinteraction with the North Carolina StateBar—to be the best it can be. The board isinvestigating, with the providers of the pro-gram, ways to improve both its content andformat. The requirement is intended to helpnew lawyers start the practice of law with a

solid understanding of their professional andethical obligations. However, mandatoryevaluations from the attendees reveal a luke-warm reception for the program. In thespring, the board met with the key CLEproviders to get their feedback on the costs toboth attend and to produce the program, thecontent and organization of the program, andthe format for the program including the useof alternative delivery systems such as videoreplays. No changes to the program are cur-rently proposed with one exception—theboard is transitioning to a new name to avoidthe acronym that has plagued the “NewAdmittee Professionalism Program.”Unfortunately, the acronym has encouragedyoung lawyers to compare the program totheir secured transactions course in lawschool—the NAPP. The new name for theprogram is Professionalism for NewAdmittees—PNA.

The chair of the board, Heather C. Bakerof Cullowhee, and the vice-chair, Michael K.Pratt of Brevard, end their terms on the boardthis year. Heather and Mike joined the boardin 2006, and they have provided invaluableservice to the CLE program for six years. Theboard greatly appreciates their service. Theywill be missed.

The board will continue to strive toimprove the program of mandatory continu-ing legal education for North Carolinalawyers. We welcome any recommendationsor suggestions that councilors may have inthis regard. On behalf of the other membersof the board, I would like to thank you for theopportunity to contribute to the protectionof the public by advancing the competency ofNorth Carolina lawyers.

Board of Paralegal CertificationSubmitted by G. Gray Wilson, Board Member

The Board of Paralegal Certificationaccepted the first application for certificationon July 1, 2005. Since that date, over 6,170applications have been received by the boardand I am proud to report that there are cur-rently 4,297 North Carolina State Bar certi-fied paralegals. During the past 12 months,the board has:

• administered the exam to 398 applicantsfor certification,

• certified 286 paralegals by exam, and• recertified 3,630 paralegals.These figures demonstrate the success of

the program, but also reveal that 30% ofapplicants did not become or are no longer

certified. Some of the applicants were deniedcertification because they did not meet thecertification requirements, some did not passthe certification exam, but many paralegalswho were certified have allowed their certifi-cations to lapse.

This year the board explored and soughtto address the reasons why paralegals are let-ting their certifications lapse. We found thatthe expense of taking the required continuingparalegal education (CPE) hours is one of thekey reasons. A certified paralegal must earnsix hours of CPE credit, including one hourof ethics, every 12 months to maintain his orher certification. Fulfilling these requirementscan be difficult for a paralegal who is unem-ployed or who is not reimbursed by anemployer for the costs of CPE courses.

In response to this problem, the boardmade grants to two paralegal organizations tobe used to provide low-cost or free CPEcourses to all paralegals in North Carolina. Agrant of $10,000 was made to the ParalegalDivision of the North Carolina BarAssociation (NCBA) to fund a new series ofmonthly one-hour webcasts that are free tomembers of the Paralegal Division and only$25 for non-members. The first webcast waspresented by the NCBA on July 10, 2012,and it exceeded attendance expectations with239 attendees. The response was so enthusi-astic, in fact, that the Paralegal Division mayextend the webcast series to 18 monthsinstead of the initial 12-month term.

The board also made a grant of $5,000 tothe North Carolina Paralegal Association(NCPA) to be used towards providing freeCPE programs to paralegals during alunchtime series via webcast. An additional$5,000 has been set aside for the NCPA forfurther free and reduced-price CPE.

Another reason that certifications are laps-ing is the inability of paralegals to pay thecosts or attend CPE courses or to pay theannual renewal fee during a medical or finan-cial crisis. The rule establishing an inactivestatus for certified paralegals was approved bythe Supreme Court this summer and is nowin full effect. Under this rule, paralegals whocannot fulfill the requirements of recertifica-tion based on financial hardship, illness, dis-ability, or active military duty for the parale-gal or his/her spouse, can petition to beplaced on inactive status. The inactive statuswill last for one year and can be renewed forup to five years. The board anticipates thatthe rule will enable qualified paralegals to


72 WINTER 2012

return to fully certified status when theirhardship situation ends.

The paralegal certification program con-tinues to support programs that assist NorthCarolina paralegals and lawyers to deliverlegal services to clients. This year the boardagreed to fund and to staff the newInterpreter Reimbursement Program of theState Bar. The board’s grant of $5,000 willprovide funds to reimburse lawyers for theout-of-pocket expenses associated with hiringa licensed interpreter for a deaf client.

Eight years have passed since the firstBoard of Paralegal Certification was appoint-ed in October 2004. Four paralegals wereappointed to work with four lawyers and aparalegal educator to design and administerthe first state bar paralegal certification pro-gram in the country. It has been an unequiv-ocal success. Today is a turning point for theprogram because it is the last day of servicefor the last three members of that foundingboard: Tammy Moldovan, John M. Harris,and Renny W. Deese.

Paralegal board member TammyMoldovan played a key role in the formationof the grassroots organization called theAlliance for Paralegal Professional Standards(APPS) in 2001. APPS initiated the effort toadvance the paralegal profession by pursuingthe formalized regulation of paralegals. Sheserved as a paralegal member of the State Bar’sLegislative Study Committee on ParalegalRegulation from 2003-2004. Tammy’s beliefin the importance of certification for parale-gals helped to shepherd the program fromidea to reality. Her straightforward mannerand enthusiasm for the certification programwill be missed.

John M. Harris, a partner with the HarrisLaw Firm in Morehead City, served as thechair of the appeals panel since 2008 and asthe vice-chair of the board since 2011.During his time on the board, John helped tocreate the procedures for administering thecertification program, and brought a compas-sionate approach to the many difficult deci-sions that the appeals panel and the boardhad to make relative to the certification orcontinuing certification of some applicants.We will miss John’s good humor, steady hand,and dedication to the certification program.

Renny W. Deese, former councilor and apartner with the Fayetteville firm of Lewis,Deese & Nance, originally served on theState Bar’s Legislative Study Committee onParalegal Regulation from 2003-2004. He

served as the vice-chair of the board from2004 to 2007, and has served as chair of theboard since 2008. For ten years he has con-tributed his belief in the value of certifica-tion for paralegals, his pragmatism, and hisefficient and fair leadership to the oversightof the paralegal certification program.Renny’s forthright, positive approach andallegiance to the certification program willbe missed.

The dedication and enthusiasm of all ofthe founding board members fostered thegrowth of this program from its conceptionthrough its infancy to the mature program itis today—an integral and important programof the North Carolina State Bar.

Client Security FundSubmitted by M. Ann Reed, Chair

Pursuant to the Rules of Administrationand Governance of the Client Security Fundof The North Carolina State Bar (the“Fund”), the Board of Trustees submits thisannual report covering the period October 1,2011, through September 30, 2012.

The Fund was established by order of theSupreme Court dated October 10, 1984, andcommenced operations January 1, 1985. Asstated by the Supreme Court, the purpose ofthe Fund is “...to reimburse, in whole or inpart in appropriate cases and subject to theprovisions and limitations of the SupremeCourt and [the] Rules, clients who have suf-fered financial loss as a result of dishonestconduct of lawyers engaged in the privatepractice of law in North Carolina...”

Claims ProceduresThe Fund reimburses clients of North

Carolina attorneys where there was wrongfultaking of the clients’ money or property in thenature of embezzlement or conversion, whichmoney or property was entrusted to the attor-ney by the client by reason of anattorney/client relationship or a fiduciary rela-tionship customary in the practice of law.Applicants are required to show that they haveexhausted all viable means to collect thoselosses from sources other than the Fund as acondition to reimbursement by the Fund.Specific provisions in the Rules declare thatcertain types of losses are non-reimbursable.

All reimbursements are a matter of gracein the sole discretion of the board and not amatter of right. Reimbursement may notexceed $100,000 to any one applicant basedon the dishonest conduct of an attorney.

The Board of TrusteesThe board is composed of five trustees

appointed by the council of the State Bar. Atrustee may serve only one full five-year term.Four of the trustees must be attorneys admit-ted to practice law in North Carolina and onemust be a person who is not a licensed attor-ney. Current members of the board are:

M. Ann Reed, chair, a former president ofthe North Carolina State Bar, retired seniordeputy in the Administrative Division of theAttorney General’s Office.

Michael Schenck, the public member ofthe board, is a former CFO of Penick Villagein Southern Pines, NC, and is retired and liv-ing in Asheboro, NC.

William O. King, a former president ofthe North Carolina State Bar, is a partnerwith the firm of Moore & Van Allen, PLLCin Durham.

LeAnn Nease Brown is an attorney withthe firm of Brown & Bunch, PLLC inChapel Hill.

Charles M. Davis, a former president ofthe North Carolina State Bar, is an attorneymediator in Louisburg.

Subrogation RecoveriesIt is standard procedure to send a demand

letter to each attorney or former attorneywhose misconduct results in any payment,making demand that the attorney eitherreimburse the Fund in full or confess judg-ment and agree to a reasonable paymentschedule. If the attorney fails or refuses to doeither, suit is filed seeking double damagespursuant to N.C.G.S. §84-13 unless theinvestigative file clearly establishes that itwould be useless to do so.

In cases in which the defrauded client hasalready obtained a judgment against theattorney, the Fund requires that the judg-ment be assigned to it prior to any reim-bursement. In North Carolina criminalcases involving embezzlement of clientfunds by attorneys, our counsel, workingwith the district attorney, is sometimes ableto have restitution ordered as part of thecriminal judgment.

Another method of recovering amountsthe Fund pays to clients of a dishonest attor-ney is by being subrogated to the rights ofclients whose funds have been “frozen” in theattorney’s trust account during the State Bar’sdisciplinary investigation. When the courtdisburses the funds from the trust account,the Fund gets a pro-rata share.

During the year covered by this report, theFund recovered $125,378.64 as a result ofthese efforts. Hopefully our efforts to recoverunder our subrogation rights will continue toshow positive results.

Claims DecidedDuring the period October 1, 2011 -

September 30, 2012, the board decided 89claims, compared to 76 claims decided theprevious reporting year. For various reasonsunder its rules, the board denied 39 of the 89claims in their entirety. Of the 50 remainingclaims, some were paid in part and some infull. Reimbursements authorized and paidtotaled $597,300.72. The most commonbasis for denying a claim in its entirety is thatthe claim is a “fee dispute” or “performancedispute.” That is, there is no allegation or evi-dence that the attorney embezzled or misap-propriated any money or property of theclient. Rather, the client feels that the attor-ney did not earn all or some part of the feepaid or mishandled or neglected the client’slegal matter. However meritorious the client’scontentions may be, the Fund’s rules do notauthorize reimbursement under those cir-cumstances.

Funding The 1984 order of the Supreme Court

that created the Fund contained provisionsfor an assessment of $50 to provide initialfunding for the program. In subsequent years,upon being advised of the financial conditionof the Fund, the Court in certain yearswaived the assessment and in other years setthe assessment in varying amounts to providefor the anticipated needs of the Fund.

In 2006 the Supreme Court approved a$25 assessment per active lawyer that willcontinue from year-to-year until circum-stances require a modification. There is noneed for a change in the assessment for calen-dar year 2013.

Financial StatementsA copy of the audited financial statement

of the Fund as of September 30, 2010 haspreviously been furnished to each member ofthe council.

ConclusionThe Board of Trustees wishes to convey to

the council our sincere appreciation to thestaff personnel who have assisted us so effec-tively and generously during the past year.

Without the continuous support of thesepeople, our tasks would be much more diffi-cult. We also express our appreciation to theBar of North Carolina for their continuedsupport of the Client Security Fund and theirefforts in reducing the incidents of defalca-tion on the part of a few members of our pro-fession.

Lawyer Assistance ProgramSubmitted by Mark Merritt, Chair

Operations and ClientsIt continues to be busy and productive for

the North Carolina Lawyer AssistanceProgram (“LAP”). In its 33rd year of opera-tion, NC LAP fielded over 600 telephonecalls from impaired attorneys, judges, law stu-dents, family members, managing partners,and colleagues. Of these calls, 143 resulted innewly opened files in 2012, bringing the totalnumber of current open cases to 631.

In 2012 the LAP conducted an extensiveaudit of all files, an audit which is on-goingand is a labor-intensive process, and beganclosing files for clients who had successfullycompleted the program, converted to volun-teer status, or who had no meaningful activityfor more than two years. By closing inactivefiles, greater program resources can be dedi-cated to currently active cases, leading togreater efficiency. The LAP closed 314 files in2012.

Because the rate of new files being openedfar outpaces the rate at which a file is or canbe closed, our annual case load has increasedby an average of 100 cases a year.

A graph representing referral sources tothe LAP can be found above.

The following sources each represent 1%

or less of all referrals (“other combined”): Physician Local Bar Grievance Non-Lawyer DHC DA Bar Examiner EAP Investigators/SCA Another LAPLaw School Therapist Unknown Other

IssuesHere is the list of issues that the LAP

assists lawyers with (and has begun trackingin detail with the goal of providing meaning-ful statistics next year):Addiction (Drugs)Al-Anon (Family Member w/ Alcoholism)AlcoholismAnger ManagementAnxiety DisorderAttention Deficit Disorder (ADD/ADHD)Axis II/Confirmed (Personality Disorders)Axis II/TendenciesBipolarBipolar TendenciesBurn Out/StressCareer CounselingCodependencyCognitive Impairment/Related to AgingCognitive Impairment/Unrelated to AgingCompassion FatigueDepressionFood AddictionGambling AddictionGrief and LossObsessive Compulsive Disorder (OCD)Physical Impairment or DisabilitySchizophreniaSecondary TraumaSex AddictionSuicidal Ideation and/or Prior Attempt


74 WINTER 2012

Trauma: PTSD (Child Abuse, Rape, orOther)Trauma: PTSD from CombatTraumatic Brain InjuryWorkaholism

Education and OutreachThe best intervention always begins with

education. In addition to our four quarterlyarticles appearing in the State Bar Journal, theLAP continues to provide presentations at lawschools, ethics CLE workshops, and local andspecialty bar association meetings. The LAPcompleted 61 CLE programs this year.

Volunteer DevelopmentWe currently have 234 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. Staff and volunteer efforts have prevent-ed or limited possible harm to the public innumerous instances.

Training• The 32nd Annual PALS Meeting and

Workshop was held November 4-6, 2011, atthe Crowne Plaza Resort, Asheville, NorthCarolina. Chief Justice Sarah Parker was in

attendance. • FRIENDS 13th Annual Conference was

held at Pine Needles Lodge & ConferenceCenter, Southern Pines, North Carolina, onFebruary 25, 2012. This conference was inconjunction with BarCares and the NC BarAssociation Quality of Life Committee.

• The 33rd Annual PALS Conference andWorkshop will be held November 2-4, 2012,at the Holiday Inn Resort, Wrightsville Beach,North Carolina.

• ABA Annual CoLAP Conference washeld in Grand Rapids, Michigan October 8-11, 2012.

Local Volunteer MeetingsThe LAP continues the development of

local 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 own recov-eries. Details on meeting locations are avail-able on the LAP website, nclap.org.

StaffDon Carroll retired as LAP emeritus direc-

tor at the end of 2011. Cathy Killian, based inCharlotte, was hired as the western clinicalcoordinator effective September 13, 2012.There were no other changes in the LAP staff:Robynn Moraites, executive director; EdWard, assistant director; Towanda Garner,

Piedmont clinical coordinator; Joan Renken,Raleigh office coordinator; and Buffy Holt,Charlotte office coordinator.

LAP BoardMark W. Merritt, chairFred J. Williams, vice-chairJoseph JordanKathy KlotzbergerNena Lekwauwua, MD David W. LongMargaret J. McCrearyBurley B. Mitchell Jr.Bert Nunley

LAP Board Meetings Scheduled For2013

LAP Board meetings are usually scheduledfor lunchtime on Wednesday of the week theBar Council meets except in October, whenthe LAP Board meets at the Annual LAPMeeting and Conference held the first week-end in November. The 2012-2013 scheduleis:

January 22-25, 2013 – Raleigh MarriottCity Center, Raleigh

April 16-19, 2013 – Raleigh Marriott CityCenter, Raleigh

July16-19, 2013 – Chetola Resort,Blowing Rock

November 1-3, 2013 – Crown PlazaResort, Asheville n

In Memoriam

Brandon James CrouseMooresville

David Watson DanielWilson

Robert Burns DruarCheektowaga, NY

Larry Lee Eubanks Sr.Bermuda Run

William H. GammonRaleigh

David M. GanlyRedlands, CA

Weston Poole HatfieldWinston-Salem

Joseph Allie Hayes IIICharlotte

Charles Franklin Lambeth Jr.Thomasville

Thomas Michael LassiterStatesville

William Bulgin McGuire Jr.Denver

Joseph Martin Parker Jr.Winston-Salem

John Rainey Parker Jr.Clinton

Jimmy Dean ReevesWest Jefferson

Charles G. Rose IIIAlbertville, AL

William Dale TalbertCary

Jeffrey Paul TrentCharlotte

Walter Wayne VatcherJacksonville

Archibald Colin WalkerWinston-Salem

Richard Beverly Raney WebbEdenton

Randi Beth WeissWinston-Salem

Lon Hugh West Jr.Statesville

Rosbon D. B. WhedbeeWinston-Salem

Clawson Lee Williams Jr.West End

William Rudolph WindersDurham

I talk to claims attorneys every

day. It’s a cooperative effort.

History. Service. Education.

JERRY PARNELL

DEFENSE COUNSEL, POYNER SPRUILL LLP

LIABILITY INSURANCE COMPANY OF NORTH CAROLINA

LAWYERS MUTUAL

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The North Carolina State BarPO Box 25908Raleigh, NC 27611

Winter 2012

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journal 17,4_Layout 1 - The North Carolina State Bar

Documents

Transcript of journal 17,4_Layout 1 - The North Carolina State Bar